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EFFector - Volume 20, Issue 16 - Action Alert - Submit Comments to DHS and Help Stop the National ID Nightmare!


EFFector - Volume 20, Issue 16 - Action Alert - Submit Comments to DHS and Help Stop the National ID Nightmare!

EFFector Vol. 20, No. 16  April 24, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 421th Issue of EFFector:

  • Action Alert - Submit Comments to DHS and Help Stop the National ID Nightmare!
  • Viacom Admits Error - Takes Steps to Protect Fair Use on YouTube
  • Consumers, Librarians, and Innovators Tell EU 'We're Not Criminals'
  • UK Government Supports Vital Amendments From EFF Europe & Co.
  • EFF Challenges Bogus Patent Threatening Consumer Awareness Products
  • Patent Reform Bill Introduced in Congress
  • Sen. Specter: Telcos' Role in NSA Spying Program Must Be Exposed
  • Sony's Latest DRM Backfire
  • Consumer Groups to Utah AG: Don't Waste Taxpayer Money on Unconstitutional, Anti-Consumer Keyword Law
  • EFF at Maker Faire, May 19-20
  • miniLinks (12): French E-Voting Is a "Catastrophe"
  • Administrivia

For more information on EFF activities & alerts:

Make a donation and become an EFF member today!

Tell a friend about EFF:

effector: n, Computer Sci. A device for producing a desired 

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* Action Alert - Submit Comments to DHS and Help Stop the 
National ID Nightmare!

The rebellion against the REAL ID Act keeps growing -- last 
week, Montana became the fifth state to push back against 
the federal government's national ID mandate. The 
Department of Homeland Security (DHS) is currently taking 
comment on its draft regulations for implementing REAL ID, 
and the May 8 comment deadline is fast approaching. Don't 
miss out on this critical opportunity to make a difference 
and protect your privacy -- submit your comments now:
The REAL ID Act makes states standardize drivers licenses 
and create a vast national database linking all of the ID 
records together. Once in place, uses of the IDs and 
database will inevitably expand to facilitate a wide range 
of tracking and surveillance activities. Worse still, 
states and individual taxpayers will bear the estimated 23 
billion dollar burden of implementing the law, and that 
figure is probably low given that the necessary 
verification systems don't exist yet.

Thankfully, the tide is turning against REAL ID in a big 
way -- along with opposition building in the states, 
Congress is considering a repeal.

By voicing your concerns to DHS now, you can help stop this 
privacy-invasive, burdensome policy:

DHS will also be holding a "town hall" meeting in 
Sacramento, CA at UC Davis' Freeborn Hall from 10 AM to 2 
PM on Tuesday, May 1, 2007. If you cannot attend in person, 
you can still watch the webcast and participate in the 
meeting by sending comments via this site (which is not 
live yet):

More information about the town hall meeting:

Learn more about REAL ID:

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* Viacom Admits Error - Takes Steps to Protect Fair Use on 
YouTube, Brave New Films Dismiss Lawsuit Over Colbert 

Viacom Endorses Excerpting Video for "Creative, Newsworthy 
or Transformative Use"

San Francisco - Responding to Viacom's willingness to take 
steps to protect the free speech rights of those who post 
videos to YouTube and similar video sharing sites, the 
Electronic Frontier Foundation (EFF) and Stanford Law 
School's Fair Use Project (FUP) yesterday dismissed a 
lawsuit filed on behalf of Civic Action and 
Brave New Films (BNF).

The lawsuit was filed in federal court last month, after a 
parody of "The Colbert Report" was removed from YouTube 
following a meritless copyright complaint by Viacom. The 
humorous video, called "Stop the Falsiness," was created by 
MoveOn and BNF using clips from the Comedy Central 
television series. It was a tongue-in-cheek commentary on 
Colbert's portrayal of the right-wing media and parodied 
MoveOn's own reputation for earnest political activism.

Viacom initially denied sending the Digital Millennium 
Copyright Act (DMCA) takedown notice that resulted in the 
removal of the video from YouTube, while saying it had no 
objection to "Stop the Falsiness." However, Viacom later 
conceded it was the source of the demand and admitted error 
in taking action against the parody.

In the course of discussions with EFF and FUP, Viacom 
described the steps it endorses for protecting fair use and 
free expression as it targets copyright infringement on 
Internet video sites. This includes: manual review of every 
video that is a potential DMCA takedown target, training 
reviewers to avoid issuing takedown requests for fair use, 
and publicly stating that it does not challenge use of 
Viacom materials that are "creative, newsworthy or 
transformative" and are "a limited excerpt for non 
commercial purposes."

Furthermore, in reaction to the MoveOn/BNF suit, Viacom 
moved the ball forward for Internet users' rights. In order 
to address any similarly erroneous takedown notices in the 
future, Viacom has agreed to set up a website and email 
"hotline," promising a review of any complaint within one 
business day and a reinstatement if the takedown request 
was in error.

In light of these disclosures and commitments -- designed 
to protect the fair use and free speech rights of Internet 
users who rely on video sharing sites like YouTube -- 
MoveOn and BNF have dismissed their claims against Viacom.

"If copyright owners are going to be sending hundreds of 
thousands of DMCA takedown notices, they also have a 
responsibility to protect the legitimate free speech rights 
of the citizen creators who rely on platforms like 
YouTube," said EFF Senior Intellectual Property Attorney 
Fred von Lohmann. "By choosing to respect newsworthy and 
transformative uses of their materials -- and establishing 
a simple process that lets improperly targeted users get 
their material back up quickly -- Viacom has taken 
important steps toward meeting that responsibility. We hope 
other media companies will follow Viacom's lead."

"This new endorsement of Internet users' rights is a 
victory for the little guy," said Eli Pariser, Executive 
Director of Civic Action. "Online sites like 
YouTube have revolutionized political expression and can 
give the little guy an audience of millions for a political 
point of view. A corporate powerhouse like Viacom must not 
be allowed to erase political content or muzzle political 

"Following these practices will not curb all DMCA copyright 
abuse," said EFF Staff Attorney Corynne McSherry. "But they 
are several much-needed steps in the right direction. If a 
major content owner like Viacom can recognize this, other 
content owners should be able to do the same."

For Viacom's letters outlining its policies:

For this release:

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* Consumers, Librarians, and Innovators Tell EU 'We're Not 

Coalition Submits Fixes to European Parliament to Prevent 
Vague New Copyright Crimes

Brussels - The Electronic Frontier Foundation's European 
Office last week announced a broad coalition aimed at 
fixing a poorly drafted intellectual property enforcement 
proposal that could make criminals of thousands of people 
in the European Union.

The Second Intellectual Property Rights Enforcement 
Directive (IPRED2) -- set for vote in the European 
Parliament this week -- makes "aiding, abetting, or 
inciting" intellectual property infringement on a 
"commercial scale" a criminal offence. However, IPRED2 
defines criminal offences so vaguely that creators of 
legitimate websites, Internet service providers, and even 
librarians could be investigated by the police and face 
criminal records as well as fines of hundreds of thousands 
of euros.

The coalition battling against IPRED2 includes the 
Brussels-based European Consumers Organisation (BEUC), the 
European Bureau of Library, Information and Documentation 
Associations (EBLIDA), the Free Software Foundation Europe 
(FSFE), and the Foundation for a Free Information 
Infrastructure (FFII). The group sent an open letter to the 
European Parliament, urging members to support amendments 
that would protect consumers, innovators, and researchers.

"Criminal law needs to be clear to be fair. IPRED2 as it is 
currently drafted is neither," said Erik Josefsson, 
European Affairs Coordinator for EFF. "These amendments 
clarify that criminal sanctions should be saved for true 
trademark counterfeiters."

IPRED2 also proposes allowing entertainment company 
representatives to join police in investigating businesses 
that they claim infringe -- or even "incite" infringement -
- of their intellectual property.

"Such secondary liability is a major threat for software 
developers and Internet service providers," said Ante 
Wessels of FFII.

"The current draft of IPRED2 creates legal uncertainty and 
confusion, which will act as a barrier for libraries and 
archives in their efforts to digitize and bring digital 
information to end users," said Andrew Cranfield, Director 

The next vote on IPRED2 is scheduled for April 25 in 
Strasbourg, France.

For the open letter to the European Parliament:

For more on IPRED2:

To take action and tell your MEP to support these 

For more on EFF Europe:

For this release:

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* UK Government Supports Vital Amendments From EFF Europe & 

Last week, Members of European Parliament (MEPs) Eva 
Lichtenberger and David Hammerstein Mintz submitted 
amendments to IPRED2 based on our coalition's suggestions.

We're pleased to note that the UK government gave its 
support to perhaps the best of our recommendations: to 
throw the directive out entirely. The UK government also 
came out in support of our amendments to limit IPRED2's 
reach, to define "commercial scale" and "intentional 
infringement" more precisely, and to remove rights holders' 
abilities to take part in investigations of their own 
commercial rivals in "joint investigation teams."

If you're a resident of the EU, tell your MEP to support 
our coalition's amendments now!

For this post and related links:

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* EFF Challenges Bogus Patent Threatening Consumer 
Awareness Products

Illegitimate Patent Inhibits Innovation in Market for 
Mobile Information Access

San Francisco - The Electronic Frontier Foundation (EFF) 
took aim today at a bogus patent threatening innovative 
technologies that enhance consumer awareness, requesting a 
reexamination by the United States Patent and Trademark 
Office (PTO).

NeoMedia Technologies, Inc., claims to own rights to all 
systems that provide information over computer networks 
using database-like lookup procedures that rely on scanned 
inputs, such as a barcode. NeoMedia has used these claims 
not only to threaten and sue innovators in the mobile 
information space, but also to intimidate projects focused 
on increasing awareness among consumers about the social 
and environmental impact of the products they buy. For 
example, the Consumer Information Lab at the College of 
Natural Resources at the University of California at 
Berkeley uses such technology to examine how health, 
environmental, and social information affects consumers' 
shopping behavior and decision-making. Were NeoMedia to 
control the patent rights to this technology, such projects 
could be severely limited and potentially shut down.

"NeoMedia should not be allowed to use this bogus patent to 
inhibit consumer awareness, education, or research into the 
impact of information on consumer choice," said EFF Staff 
Attorney Jason Schultz. "This is the opposite of 
'progress,' something the patent laws are supposed to 

EFF's reexamination request shows that the functionality 
covered by NeoMedia's bad patent was repeatedly included as 
part of prior patent applications from other companies -- 
demonstrating that the idea of forming a network connection 
from scanned items was well-known before NeoMedia made its 
claim. EFF, in conjunction with Paul Grewal and James Czaja 
of Day Casebeer Madrid & Batchelder, ask the PTO to revoke 
the patent based on this and other evidence.

"Our patent system is supposed to protect innovation, not 
block it. Everyone loses if the Patent Office allows these 
kinds of abuses to continue," said Grewal, a partner at the 
Day Casebeer firm.

The challenge to the NeoMedia patent is part of EFF's 
Patent Busting Project, which combats the chilling effects 
bad patents have on public and consumer interests. So far, 
the project has helped kill a bogus patent covering a 
system and method of creating digital recordings of live 
performances. The PTO has also granted another EFF 
reexamination request for an illegitimate patent for online 

For the full NeoMedia patent reexamination request:

For more on EFF's Patent Busting Project:

For more on Day Casebeer Madrid & Batchelder:

For more information on the Consumer Information Lab at UC 
Berkeley's College of Natural Resources:

For this release:

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* Patent Reform Bill Introduced in Congress

Public Knowledge has posted a great summary of the new 
Patent Reform Act of 2007, introduced in both the House and 
Senate this week:

The bill is going to be one of the key intellectual 
property issues in Congress this year, and, though this 
bill doesn't fix all current problems with the patent 
system, it is a good step in the right direction. Among 
other things, the bill would reduce certain excessive 
patent infringement damages, allow third parties to file 
patent defeating documents before patents are issued, and 
create a new system for challenging bad patents.

Stay tuned for more news and analysis regarding this bill, 
and learn more about our Patent Busting Project here:

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* Sen. Specter: Telcos' Role in NSA Spying Program Must Be 

As we noted last week, the Bush Administration is pushing a 
dangerous new spying bill. Among other things, the bill 
could threaten cases like EFF's against AT&T by giving 
blanket immunity to companies for illegally assisting the 
NSA spying program.

We're glad to hear that Senators are already pushing back 
against this proposal. As the NY Times reports:

    "[Senator Arlen] Specter said he opposed the proposed 
immunity for telecommunications companies because the White 
House had never provided Congress with enough information 
about the role of the companies in the program.

    "'That provision is a pig in the poke,' Mr. Specter 
said. 'There has never been a statement from the 
administration as to what these companies have done. That's 
been an intolerable situation.'"

The rest of Congress should heed those words. It would be 
highly irresponsible of Congress to legislate in the dark, 
before the past and present abuse of surveillance powers 
has been thoroughly investigated.

Visit and take action to demand 
investigations into the NSA spying program now:

For this post and related links:

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* Sony's Latest DRM Backfire

Sony, one of the companies that brought you the Sony-BMG 
"rootkit" copy protection system for CDs, has once again 
used DRM to inflict inconvenience on its legitimate 

New Sony DVD releases like "Stranger Than Fiction" and 
"Casino Royale" come with copy protection technologies that 
makes the movies unplayable on some DVD players -- including 
reportedly at least one Sony machine!

Along with the DRM locks typically used on DVDs, Sony is 
using a system called ARccOS that is supposed to make 
copying more difficult by hiding corrupted data on the 
disc. But while plenty of DVD copying software is 
sophisticated enough to bypass the corrupt data, many 
players are not.

It's bad enough that content providers like Sony use DRM to 
intentionally limit legitimate uses. These sort of 
arbitrary, bizarre compatibility problems make matters even 
worse, and they're becoming more and more common 
consequences of DRM. After initially reacting to complaints 
by telling customers to update the firmware on their 
devices, Sony is now promising to send a replacement DVD to 
any unsatisfied customers.

This is yet another example of the ways in which DRM is not 
only useless against "piracy" (DVD ripping software defeats 
ARccOS), but actually works against the interests of 
content owners. After all, if a movie fan has legitimately 
purchased a DVD, only to find it unplayable on her DVD 
player, she now has yet another reason to go looking to The 
Pirate Bay for a copy that works.

For this post and related links:

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* Consumer Groups to Utah AG: Don't Waste Taxpayer Money on 
Unconstitutional, Anti-Consumer Keyword Law

Now we've heard everything. Utah State Senator Dan Eastman 
-- who quietly ushered a ban on online comparative 
advertising through the state senate -- has taken to 
calling sponsored links to such advertising "identity 
theft." If the comparative advertising law takes effect, a 
company like Chevrolet couldn't purchase "sponsored link" 
space on the Google results page when a user types "Toyota" 
as part of a search query -- at least if the latter term is 
registered in Utah as an "electronic registration mark." 

Does that sound like "identity theft" to you? As Santa 
Clara University School of Law Professor Eric Goldman puts 
it: "Identity theft occurs when someone makes a false 
representation, but this law bans competitive keyword 
advertising that is completely truthful and does not 
confuse anyone." Deceptive advertisers, of course, can 
already be held liable under trademark and consumer 
protection law.

Eastman seems to be hoping that if he insists often enough 
that the bill is "pro-business," Utah citizens will forget 
that it seems primarily designed to impede their access to 
accurate information about goods and services and waste 
taxpayer dollars on defending an anti-consumer law that 
will never pass First Amendment muster. 

But while those flaws don't worry Eastman, they should put 
Utah Attorney General Mark Shurtleff on alert. EFF, along 
with Public Citizen, Public Knowledge and Professor 
Goldman, have sent a public letter to Shurtleff asking him 
to stay implementation of the law due to its harmful 
effects on consumers as well as its numerous constitutional 
problems. It's Shurtleff's job to protect his office's time 
-- and taxpayer money -- from poor legislation like this.

For this post and related links:

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* EFF at Maker Faire, May 19-20

If you're going to O'Reilly's Maker Faire on May 19-20 in 
San Mateo, California, be sure to stop by EFF's booth. Grab 
some schwag and chat with us about all things digital 
rights -- we look forward to seeing you!

For more on the Maker Faire:

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* miniLinks
The week's noteworthy news, compressed.

~ French E-Voting Is a "Catastrophe"
Widespread complaints after the first use of electronic 
voting machines in the country's presidential election.

~ Pandora Chief Mourns Loss of Internet Radio
Copyright royalty board is out-of-touch and has destroyed 
90% of Internet radio without understanding what it is, 
says Joe Kennedy, CEO of

~ Chinese Dissident, Wife Sue Yahoo for Complicity
Foreign tort act suit alleges that Yahoo voluntarily 
allowed Chinese government to track and arrest 57-year-old 
Wang Xiaoning.

~ Google, Wikipedia Sued By Politician Trying to Silence 
Canadian public figure tries to stop a story by pouring 
censorship gasoline on it.

~ No Cookie For You: Government Asked to Halt Google-
Doubleclick Deal
Electronic Privacy Information Center expresses concern 
about the size and reach of the database created by the 

~ RIAA Balks at Judge Hearing EFF's Silver Tongue
RIAA's lawyers are aghast that a judge might consider 
reading an EFF amicus brief in their case.

~ Orphan Works in Europe
Google, the British Library, and others give their views on 
copyrights versus unclaimed works.

~ The .ca in Broadcast Treaty
The Canadian view of WIPO's Broadcast Treaty: "We haven't 
been able to identify a lot of benefit to Canadian 
broadcasters from the treaty."

~ Online Journalists: Protected by Law or Fair Game?
Susan Crawford documents a lively debate at Cardozo on a 
topic close to EFF's heart.

~ Digital Freedom University
Boston Herald writes about college students' work in 
digital rights.

~ Canadian ISP Throttling All Encrypted Traffic?
Please submit your packet in plaintext for better 
surveillance services: thank you.

~ Bloggers' Search for Anonymity
The BBC puts the case for the untraceable voice. 

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)	

Derek Slater, Activism Coordinator	       

Membership & donation queries:

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