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EFFector - Volume 20, Issue 9 - Action Alert - Support the FAIR USE Act!


EFFector - Volume 20, Issue 9 - Action Alert - Support the FAIR USE Act!

EFFector Vol. 20, No. 9  February 28, 2007

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 415th Issue of EFFector:
  • Action Alert - Support the FAIR USE Act!
  • EFF Lawsuit Seeks Release of Secret Court Orders on Electronic Surveillance
  • Fight Over Google's 'Sponsored Links' Threatens Internet Free Speech
  • European Anti-Consumer Directive Delayed
  • Progress on WIPO Development Agenda
  • Fair Use Has a Posse - Now With Insurance!
  • RIAA to Parents: Pop-Ups + Viruses = Piracy!
  • Colleges Struggle to Cope With Flood of Copyright Complaints
  • LA Times: Start Blanket Licensing, Stop Blanket Lawsuits
  • miniLinks (12): Supreme Court Debates Patentability of Software
  • Administrivia

For more information on EFF activities & alerts:

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

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* Action Alert - Support the FAIR USE Act!

A critical copyright reform bill has just been introduced 
in the House, and we need your help to push it through. 
Reps. Rick Boucher and John Doolittle's FAIR Use Act would 
remove some of the entertainment industry's most draconian 
anti-innovation weapons and chip away at the Digital 
Millennium Copyright Act's (DMCA) broad restrictions on 
fair use. Take action now and tell Congress to help restore 
balance in copyright now:

Technology companies play a game of Russian roulette 
whenever they create products with both infringing and non-
infringing uses. Current "secondary liability" standards 
don't provide enough certainty, and if innovators guess 
wrong, they can be hit with statutory damages as high as 
$30,000 per work infringed. When it comes to mass-market 
products like the iPod or TiVo, damages could run into the 
trillions of dollars -- more than enough to bankrupt anyone 
from the smallest start-ups to the biggest companies. 
Unlike in other areas, the private assets of corporate 
officers, directors and investors are not shielded from 
liability in copyright cases.

The FAIR USE Act would limit the availability of statutory 
damages for secondary liability and allow innovators to 
make more reasonable business decisions about manageable 
levels of legal risk. Meanwhile, copyright owners could 
still get injunctions and actual damages for harm suffered, 
putting them in no worse a position than civil litigants in 
most other areas.

The bill would also codify the Supreme Court's "Betamax 
doctrine" as it pertains to hardware devices, making clear 
that manufacturers cannot be held liable based on the 
design of technologies with substantial non-infringing 

Finally, the bill would loosen the grip of the DMCA, which 
restricts circumvention of digital rights management (DRM) 
restrictions even for lawful uses. The FAIR Use Act adds 12 
exemptions, including the ability to circumvent for classic 
fair use purposes like news reporting, research, 
commentary, and criticism.

Broader DMCA and copyright reform remains absolutely 
necessary, but, if passed, this bill would be a big step in 
the right direction. Take action to support it now:

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* EFF Lawsuit Seeks Release of Secret Court Orders on 
Electronic Surveillance

Justice Department Withholds Records About Purported 
Changes to Program

Washington, D.C. - The Electronic Frontier Foundation (EFF) 
filed suit against the Department of Justice, demanding 
records about secret new court orders that supposedly 
authorize the government's highly controversial electronic 
surveillance program that intercepts and analyzes millions 
of Americans' communications.

When press reports forced the White House to acknowledge 
the program in December of 2005, the administration claimed 
that the massive program could be conducted without 
warrants or judicial authorization of any kind. However, in 
January of this year, Attorney General Alberto Gonzales 
announced that the Foreign Intelligence Surveillance Court 
(FISC) had authorized collection of some communications and 
that the surveillance program would now operate under its 
approval. EFF's suit comes after the Department of Justice 
failed to respond to a Freedom of Information Act (FOIA) 
request for records concerning the purported changes in the 

"While national security and law enforcement demand a 
limited amount of secrecy, Americans have the right to know 
the government's basic guidelines for this kind of invasive 
electronic surveillance of their personal communications," 
said EFF Senior Counsel David Sobel. "The burden is on the 
Justice Department to justify its failure to disclose the 
information we've requested."

EFF's suit demands the immediate release of the FISC orders 
regarding the surveillance program and any FISC rules and 
guidelines associated with such orders.

This FOIA action is separate from EFF's lawsuit against 
AT&T for illegally collaborating with the government's 
surveillance program. That suit, Hepting v. AT&T, is 
proceeding in U.S. District Court in San Francisco despite 
the government's ongoing attempts to have the case 

For the FOIA complaint filed against the Justice 

For more on EFF's FOIA Litigation for Accountable 
Government Project:

For this release:

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* Fight Over Google's 'Sponsored Links' Threatens Internet 
Free Speech

EFF Asks Judge to Uphold Key Trademark Ruling

San Francisco - The Electronic Frontier Foundation (EFF) 
asked the U.S. 2nd Circuit Court of Appeals last week to 
uphold an important ruling allowing anyone to purchase 
Google's "sponsored links" tied to trademarks, arguing that 
the practice is legal under trademark law and provides a 
vital means for online speakers to connect with audiences 
on the Internet.

Google's "sponsored links" feature allows customers to buy 
advertisements attached to certain search terms. When a 
Google user types those terms into the search engine, the 
sponsored links appear along with the search results. 
However, a company named Rescuecom filed a lawsuit against 
Google over the program, claiming that selling sponsored 
links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court last week, 
EFF argues that the sponsored links are not an infringing 
use, and in fact promote a vibrant public sphere by helping 
online speakers reach a broader audience. An example cited 
in the brief is that of "The Coalition of Immokalee 
Farmworkers," a group critical of McDonald's business 
practices. The coalition bought sponsored links attached to 
searches for "McDonald's" in order to stimulate debate and 
mobilize support.

"The Internet has brought together speakers of many kinds -
- some competing with trademark owners, others criticizing 
them, still others simply referring to them while 
discussing other subjects or products," said EFF Staff 
Attorney Corynne McSherry. "Services like Google's 
'sponsored links' help people with something to say reach 
those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law 
regulates virtually any use of search keywords that are 
also trademarks. This would give trademark holders a legal 
sword to wield against critics and competitors, as well as 
the intermediaries upon which those critics and competitors 
rely to spread their message. But courts have historically 
taken care to ensure that trademark restrictions do not 
allow markholders to interfere with Constitutionally-
protected free speech.

"On the Internet, trademarks aren't just identifiers. They 
are essential navigation tools and vehicles of expression," 
said EFF Staff Attorney Jason Schultz. "Quashing this 
speech goes against both the law and the public interest."

A judge dismissed Rescuecom's case against Google last 
year, but the company is appealing the decision.

For the full brief filed in Rescuecom v. Google:

For this release:

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* European Anti-Consumer Directive Delayed

Call it the Universal Law of Bad Laws: the more problematic 
a proposed piece of legislation is, the keener its 
advocates are to rush it through. When that happens, it's 
often those in the system who call for delay that saves us 
all from its unintended consequences.

Praise, then, is due then for Nicola Zingaretti, the 
Italian Member of European Parliament (MEP) responsible for 
guiding the dangerous Second Intellectual Property 
Enforcement Directive (IPRED2) through the European 
Parliament. Along with criminalizing all forms of 
intellectual property infringement, the proposed directive 
would impose criminal sanctions for those who aid, abet, 
and incite these intellectual property infringements. 
Zingaretti called last week for another delay in a key vote 
by the EU's Committee on Legal Affairs (JURI), originally 
scheduled for yesterday.

Learn more about this directive and what's next:

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* Progress on WIPO Development Agenda

The WIPO Development Agenda offers the possibility of 
creating global intellectual property laws that balance 
rights holders' interests with the human rights of the 
world's citizens for access to medicine and knowledge. This 
last week of meetings at WIPO has brought a series of 
welcome surprises on this front. When the proceedings 
started on Monday, we had a Chairman who was new to both 
WIPO and the Development Agenda. The Member States faced a 
battery of 40 proposals that had to be reconciled into a 
unified document. To everyone's surprise, that happened by 
week's end. That WIPO was able to produce such a document 
is amazing. That the document is a powerful affirmation of 
many key parts of the original Development Agenda proposal 
is nothing short of astounding. 

Learn more about last week's meeting:

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* Fair Use Has a Posse - Now With Insurance!

Fantastic news from Stanford Law School's Fair Use Project: 
documentarians who follow the Center for Social Media's 
Documentary Filmmakers' Statement of Best Practices in Fair 
Use can now get "errors and omissions" insurance from 
Media/Professional Insurance. The key was cementing a 
promise of pro bono or reduced fee representation to 
documentaries that follow the Best Practices guidelines:

"Working with Media/Professional, and Michael Donaldson, 
the Fair Use Project has now found a way to insure films 
that follow the Best Practices guidelines. For films that 
are certified to have followed the Best Practices 
guidelines, Media/Professional will provide a special 
(read: much lower cost) policy; Stanford's Fair Use Project 
will provide pro bono legal services to the film. If we 
can't provide pro bono services, then Michael Donaldson's 
firm will provide referrals to a number of media lawyers 
who will provide representation at a reduced rate. Either 
way, filmmakers will be able to rely upon 'fair use' in the 
making of their film. The Fair Use Project and Donaldson 
will defend the filmmakers if their use is challenged. 
Media/Professional will cover liability if the defense is 
not successful."

Generally, the biggest hurdle facing creators who rely on 
fair use is that they can't get insurance for their 
projects. And without insurance, almost no major TV network 
or film distributor will put your project on the air or 
into distribution. That's why this is such big news -- if 
this catches on, we can all expect to see much more of the 
fair use to which we are all entitled.

For this post and related links:

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* RIAA to Parents: Pop-Ups + Viruses = Piracy!

If a parent sees pop-up ads and viruses on her computer, 
she can be sued for copyright infringement by the RIAA.

At least that's what the RIAA is arguing in a recent court 
filing in the Capitol v. Foster case, in which a federal 
judge made the RIAA cough up attorney's fees to a mother, 
Debra Foster, who had been sued because her daughter was 
file sharing. The RIAA lawyers had dawdled in dismissing 
their complaint against Foster, even after her child 
admitted to being the file-sharer in the house. (The RIAA 
went ahead and got a default judgment against the child.)

This new filing marks the first time the RIAA has explained 
its claim that parents are liable for the infringements 
committed by their children (a theory that has never been 
accepted by any court, to the best of our knowledge). The 
argument is pretty remarkable, built on a house of cards 
including the notion that "everyone knows" pop-up ads and 
viruses signify piracy!

Read more about the RIAA's bogus arguments:

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* Colleges Struggle to Cope With Flood of Copyright 

The major record labels are sending thousands more 
copyright nastygrams to colleges regarding student file 
sharing this year. Of course, file sharing continues 
unabated, and these P2P-related notices will simply push 
fans to use other readily-accessible technologies that the 
RIAA can't easily monitor -- copying music through iTunes 
over the campus LAN, swapping hard drives and USB flash 
drives, burning recordable DVDs, and forming ad hoc 
wireless networks.

So the RIAA's strategy still won't stop file sharing, but 
it certainly will cause collateral damage to academic 
freedom, free speech, and privacy. In a recently released 
report, the Brennan Center lays out what that cost looks 
like today based on interviews with representatives from 25 
service providers including 10 from universities. 
Universities are already being forced to waste substantial 
resources on doing the RIAA's dirty work. Flooded with 
machine-generated complaints, schools are unable to 
evaluate the merits of particular complaints. While lacking 
procedural safeguards to make sure students wrongly accused 
of infringement are not penalized, many schools have 
adopted stricter penalties than the law requires. Schools 
have also adopted network monitoring and filtering tools 
that interfere with legitimate expression.

The increase in P2P-related notices stands only to make 
matters worse. The RIAA's Cary Sherman states that the 
increase in the notices is "something we feel we have to 
do," but blanket licensing provides a clear alternative to 
blanket lawsuits. 

Read the Brennan Center's report:

Take action now to help stop the lawsuit campaign:

For this post and related links:

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* LA Times: Start Blanket Licensing, Stop Blanket Lawsuits

The major record labels have stayed the course for the last 
five years with predictable results -- they've stuck by 
DRM, ratcheted up their file sharing lawsuit campaign, and 
let revenues continue to slide. Last week, the LA Times 
suggested some reasons to think the labels may finally be 
coming around to a sensible solution that EFF has long 
advocated -- blanket licenses for music fans to share as 
much music as they like for a flat monthly fee.

Unfortunately, the record labels haven't done a complete 
180 from their backward-thinking ways. But, as the LA Times 
puts it, "You have to wonder how low [major label revenues] 
have to go before blanket licenses look like a better 
approach than blanket lawsuits."
Read the editorial:,0,5551102.story?coll=la-opinion-center

For this post and related links:

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* miniLinks
The week's noteworthy news, compressed.

~ Supreme Court Debates Patentability of Software
Justices look skeptically at the details of software's 

~ Toward an Ethical Patent System
European citizens unite against over-broad patents....

~ Bad Patents Are Bad for Business
... as does the European business community to go with it.

~ Canada Turns Away Americans for Past Misdemeanors
Thanks to DHS data mining, Canada turned away a visitor who 
shop-lifted during a fraternity prank 20 years ago and 
others with minor criminal records.

~ Has the Media Center Moved to Silicon Valley?
On the day of the Oscars, Tom Forenski thinks that films 
have lost their magic, and Net technology has seized it.

~ Whit Diffie Warns Of Overbroad Privacy Laws
"I am, on balance, more pleased with the fact that I can 
learn lots of information about people in minutes by using 
the Web than I am concerned about the fact that people can 
learn lots of information about me that way. And I would 
not like to see laws that restrict people's ability to go 
investigate things. "

~ Protect Your Users' Data With a Privacy Wall
How one company works to protect its users' financial 

~ SF Chronicle: Reverse Real ID
"Congress must take a hard look at whether it makes sense 
to proceed with an expansive law that would be more 
appropriately called the National ID Act."

~ North Korea and the Internet 
North Korea's strange, inward-looking national intranet.

~ Did WIPO's Director-General Lie About his age?
Confidential report suggests that he was 28 when he first 
took the job, not 37, and has repeatedly given the wrong 
age on official documents for 24 years.

~ The "Crime" of Blogging in Egypt
Abdelkareem Nabil Soliman is sentenced to four years for 
free speech.

~ Recording Industry Targets Colleges
Administrators get caught in the crossfire: "[The 
complaint] is asking us to pursue an investigation and as 
the service provider we don't see that as our role", says 
Purdue spokesman.

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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, Activist	

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