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April 7, 2011

Legal Attack on Online Video Site Could Throttle Innovation with Fears of Litigation

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to reject attempts to thwart federal copyright law and saddle online communities with new litigation fears in the appeal of Viacom v. YouTube.

In an amicus brief filed Thursday, EFF argues that the infringement claims made by Viacom and the other plaintiffs threaten to undermine the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA) -- safe harbors that have fostered free speech and innovation around the globe. Without the clear legal structure of the DMCA process, companies that host user-generated expression could be hit with potentially massive damage awards, which would encourage over-blocking of content or even the shutdown of services altogether.

"If the DMCA safe harbors are undermined in the way Viacom and the other content companies would like, the free flow of information will be seriously threatened," said EFF Senior Staff Attorney Abigail Phillips. "Communications platforms like YouTube have enabled political and other speech to flourish online. We've all seen the critical role digital communications have been playing in protests across the Middle East. The safe harbors make posting of user-generated content like this possible."

At issue in this case is copyright infringement on YouTube before the online video service voluntarily implemented content filtering technologies in May of 2008. The district court correctly found that YouTube was shielded by the DMCA safe harbors, and Viacom and others appealed the ruling to the 2nd U.S. Circuit Court of Appeals.

"All the online services you use every day -- Facebook, Twitter, Amazon, eBay -- depend on the DMCA safe harbors in order to allow user-generated content on their sites," said EFF Intellectual Property Director Corynne McSherry. "That's why Congress designed the safe harbors -- to allow innovators to manage legal risk and develop new services without fear of devastating litigation, while offering copyright owners an expedited process for taking down infringing content. Viacom's arguments here misinterpret the law, with potentially disastrous results."

Also joining EFF's brief are the International Federation of Library Associations and Institutions, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Center for Democracy and Technology.

For the full amicus brief:
https://www.eff.org/files/filenode/viacom_v_youtube/ViacomvGoogleAmicus.pdf

For more on this case:
http://www.eff.org/cases/viacom-v-youtube

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Abigail Phillips
Senior Staff Attorney
Electronic Frontier Foundation
abigail@eff.org

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April 5, 2011

Takedown Targets Petition to Cancel Bogus 'Urban Homesteading' Trademarks

San Francisco - Activists in the urban homesteading movement petitioned today to cancel the registration of bogus trademarks for the terms "urban homesteading" and "urban homestead" -- trademarks that have been used to threaten other urban homesteaders and remove online content and discussion.

The Electronic Frontier Foundation (EFF) has teamed up with the law firm of Winston & Strawn to represent Kelly Coyne and Erik Knutzen, authors of The Urban Homestead: Your Guide to Self-sufficient Living in the Heart of the City, as well as their publisher, Process Media. The book, published in 2008, was the culmination of years of participation in the global urban homesteading movement, which supports sustainable living techniques in urban areas. Urban homesteading includes growing food, raising livestock, and producing simple food products.

Despite the fact that "urban homesteading" and "urban homestead" have been used as generic descriptions for decades, a group called the Dervaes Institute managed to register the terms as trademarks with the U.S. Patent and Trademark Office (USPTO) for "educational services" like blogging. Dervaes has used the trademark registrations to claim broad ownership rights and threaten urban homesteaders who use the term online.

"Dervaes got Facebook to take down pages that talk about urban homesteading and help publicize our book, and Facebook won't put those pages back up because of the bogus trademarks," said Ms. Coyne. "This doesn't just hurt our business and our book sales, it hurts the whole urban homesteading community -- a group of people who are dedicated to sharing information about sustainable living."

The Dervaes Institute has submitted similar complaints to Facebook and other online services causing a variety of online content to be taken down, including the Facebook page of a Denver farmer's market.

"For years, the bedrock of the urban homesteading community is the sharing of information -- spreading the word about how to become self-sustaining in food and energy production," said EFF Intellectual Property Director Corynne McSherry. "The Dervaes Institute is trying to shut down this thriving community with its outrageous trademark complaints. The USPTO should cancel the trademark, so urban homesteaders can get back to work free of threats."

"The efforts to control all use of these generic and descriptive terms is a classic example of trademark bullying," said Winston & Strawn Partner Jennifer Golinveaux. "We're glad to help push back against these unreasonable demands."

For the full petition to cancel:
https://www.eff.org/files/filenode/urbanhomestead/petitiontocancel_001.pdf

Contacts:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Jennifer A. Golinveaux
Partner
Winston & Strawn LLP
JGolinveaux@winston.com

April 4, 2011

Law Enforcement Shouldn't Have Free Rein to Rummage Through Data

San Francisco - The Electronic Frontier Foundation (EFF) urged the Oregon Supreme Court to block warrantless searches of arrestees' cell phones Friday, arguing in an amicus brief that granting law enforcement free rein to search data on the devices violates basic privacy protections guaranteed by the Constitution.

Other state supreme courts have considered the issue, but they have split in their rulings.

In this case, a criminal suspect was arrested and placed in a holding cell. Forty minutes after the arrest, without a warrant, an investigator fished through the suspect's cell phone looking for evidence related to his alleged crime. Law enforcement officials claim they didn't need a warrant because the search was "incident to arrest" -- an exception to the warrant requirement intended to allow officers to perform a search for weapons or to prevent evidence from being destroyed in exigent circumstances.

"This is an empty excuse from the police -- the suspect was in custody and unable to destroy evidence on his cell phone," said EFF Senior Staff Attorney Marcia Hofmann. "The Fourth Amendment protects us from unreasonable intrusions by the police and ensures that a neutral magistrate decides when the police can search private information. There was no need for the police to sidestep the warrant process here. If courts give police the freedom to rummage through the cell phones of anyone they arrest, then the constitutional protection of the warrant process is meaningless."

The average cell phone now includes much more than your calling history. It holds address books, calendars, and emails -- along with websites you've visited, pictures of your family and friends, and often things like lists of questions to ask your doctor or your accountant. This makes questions of privacy in cell phone data critically important.

"Of course, criminal suspects could have information on their cell phones that might be of interest to police. When investigators have enough information to get a warrant, they should be able to search them," said Hofmann. "But judges should not allow a narrow exception to the warrant requirement to swallow the basic rule meant to protect everyone's privacy rights."

EFF's local counsel in this case is J. Ashlee Albies of Creighton & Rose, PC. Mr. Nix is represented by Bronson James, of JDL Attorneys, LLP. Petitioner's briefing is available at http://www.jdlattorneys.com.

For EFF's full amicus brief:
https://www.eff.org/files/filenode/oregon_v_nix/nix_amicus_final.pdf

Contact:

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

March 30, 2011

EFF Backs Bill to Protect Californians' Reading Habits

Sacramento, CA - California Senator Leland Yee has introduced the Reader Privacy Act of 2011 (SB 602), with backing from the California Affiliates of the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). The law would bring a much-needed upgrade to match Californians' reading habits. Under SB 602 the government and other third parties would need a warrant or court order for access to sensitive reading records. This would establish protections for book records—both e-books and in physical bookstores—in line with long-established protections for library records and other expressive material. The bill mirrors the privacy and free speech safeguards in the California constitution and other areas of California law.

As Californians increasingly rely on online services to browse, read, and buy books, it is essential that state law keep pace and safeguard readers in the digital age. Digital books now outsell paperbacks on Amazon.com and over 18 million e-readers are expected to be sold in 2012. Many bookstores already collect information about readers and their purchases. Digital book services can collect even more detailed information: which books are browsed, how long each page is viewed, and digital notes made in the margins. Current law doesn't anticipate this new digital reality. Without strong privacy protections, reading records can be increasingly targeted by government surveillance as well as in legal proceedings like divorce cases and custody battles.

"Current law is completely inadequate when it comes to protecting one's privacy for book purchases, especially considering the increasing popularity of online shopping and electronic books," said Yee. "Individuals should be free to buy books without fear of government intrusion and witch hunts. If law enforcement has reason to suspect wrongdoing, they can obtain a warrant for such information."

"California should be a leader in ensuring that upgraded technology does not mean downgraded privacy," said Valerie Small Navarro, Legislative Advocate with the ACLU's California Affiliates. "We should be able to read about anything from politics, to religion to health without worrying that the government might be looking over our shoulder."

"In the recent Google Books decision, the court noted the importance of the privacy concerns with digital books," said Cindy Cohn, Legal Director at the Electronic Frontier Foundation. "This law will ensure that the enhanced reader tracking that is possible through digital books and book services doesn't create a honeypot for government investigators and other lawyers seeking to snoop on what we search for, browse and read in digital bookstores and libraries."

The United States has a long and proud history of legal protection for reading privacy, and the California Constitution has especially strong privacy and free speech protections. Courts have long recognized that reader privacy must be protected to avoid a chilling effect on freedom of expression, as well as to maintain consumer trust. Sensitive reader information can and does come under fire. During the McCarthy hearings, Americans were questioned about whether they had read Marx or Lenin. In the years following September 11, the FBI sought patron information from more than 200 libraries. Just this past year, Amazon was asked by the North Carolina government to turn over 50 million purchase records including books, videos, and other expressive material. The Reader Privacy Act updates state law to safeguard the free exchange of ideas and open discourse by ensuring that government and third parties cannot access Californians' reading records without proper justification.

Contacts:

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

Rebecca Farmer
Media Relations Director
ACLU of Northern California
rfarmer@aclunc.org

Adam Keigwin
Senator Yee's Office
adam.keigwin@sen.ca.gov

Related Issues:
March 25, 2011

Secret Demands for Information Endanger Privacy Rights

Alexandria, VA - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) today appealed a ruling that the government can collect the private records of three Twitter users as part of its investigation related to WikiLeaks. The ruling further held that the users cannot learn which other Internet companies were ordered to turn over information about them to the government. EFF and the ACLU are challenging the ruling on behalf of Birgitta Jonsdottir, an Icelandic parliamentarian who is appealing jointly with fellow Twitter users Jacob Appelbaum and Rop Gonggrijp.

The secret government demands for information about the subscribers' communications came to light only because Twitter took steps to ensure its customers were notified and had the opportunity to respond. The ACLU and EFF have also asked the court to make public any similar orders to any other companies.

"Except in very rare circumstances, the government should not be permitted to obtain information about individuals' private Internet communications in secret. This is not one of those circumstances," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "If the ruling is allowed to stand, our client might never know how many other companies have been ordered to turn over information about her, and she may never be able to challenge the invasive requests."

"Services like Twitter have information that can be used to track us and link our communications across multiple services including Facebook and Gmail," said EFF Legal Director Cindy Cohn. "The Magistrate's ruling that users have no ability to protect that information from the U.S. government is especially troubling."

The ruling was issued by U.S. Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. It is being appealed to a U.S. District Judge in the Eastern District of Virginia.

Attorneys for Jonsdottir are Fine and Benjamin Siracusa Hillman of the ACLU, Rebecca Glenberg of the ACLU of Virginia, and Cindy Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF. The motions were joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Appelbaum and Gonggrijp, respectively, as well as local counsel in Virginia.

For the full brief:
https://www.eff.org/files/Objections.pdf

For more on this case:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

Related Issues:
March 16, 2011

Adult Film Company Uses 'Reverse Class Action' Lawsuit to Ensnare More Defendants

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in a "reverse class action" lawsuit accusing thousands of people of illegally downloading pornography, and urged the court to dismiss the case. In a friend of the court brief filed Tuesday, EFF argued that the plaintiff's "class action" strategy is an improper attempt to sidestep the rights of the defendants.

EFF has been involved in a number of copyright troll cases where content owners and lawyers team up to try to obtain the identities of thousands of anonymous alleged file sharers at once in order to extract settlements from them. In response, judges across the country have been cracking down on such abusive strategies. Thousands of unnamed "John Does" targeted in lawsuits filed in California, Washington D.C., Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. These rulings may have a significant impact on this misguided business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense.

In this case, OpenMind Solutions v. Does, the plaintiff has taken a new approach: calling its complaint a "class action" lawsuit against the alleged infringers. Normally a class action is used by a group of plaintiffs with similar complaints of a single defendant -- not a single plaintiff targeting thousand of defendants with no attorney in place to defend the rights of the accused. OpenMind then asked the court for permission to issue subpoenas seeking identifying information for the Does, which was granted without the opportunity for anyone to speak on the unknown defendants' behalf.

"There is a short window here, before the defendants' identities are disclosed, in which the court can ensure that these individuals are treated fairly and justly," said EFF Senior Staff Attorney Matt Zimmerman. "The class action process was never intended to be used this way. We're asking the court to call a halt to the gamesmanship from OpenMind Solutions."

"When adult film companies file predatory lawsuits, there is the added embarrassment associated with pornography, which can convince people to quickly pay what's demanded of them even if they have legitimate defenses," said EFF Intellectual Property Director Corynne McSherry. "We hope the court takes immediate steps to restore fairness to this process."

Charles Lee Mudd Jr. and Mark Petrolis of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:

https://www.eff.org/files/filenode/openmind_v_does/openmind-amicus-filed.pdf

For more on copyright trolls:

https://www.eff.org/issues/copyright-trolls

Contacts:

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation
   corynne@eff.org

Matt Zimmerman
   Senior Staff Attorney
   Electronic Frontier Foundation
   mattz@eff.org

Related Issues:
March 11, 2011

ACLU And EFF Plan To Appeal Ruling In Case Challenging Government Attempt To Obtain Private Data in WikiLeaks Investigation

Alexandria, VA - A federal magistrate judge in Virginia ruled today that the government can collect the private records of three Twitter users as part of its investigation related to WikiLeaks, and that those users and the public can be prevented from seeing some of the documents that the government submitted to the court to justify obtaining their records. The court denied the government's request to conduct last month's hearing about the records in secret, however, and the court made public all of the documents related to the users' legal challenge. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union plan to appeal the decision on behalf of their client Birgitta Jonsdottir, an Icelandic parliamentarian.

The secret government demands for information about the subscribers' communications came to light only because Twitter took steps to ensure their customers were notified and had the opportunity to respond. The ACLU and EFF also asked the court to make public any similar orders to any other companies.

"This ruling gives the government the ability to secretly amass private information related to individuals' Internet communications. Except in extraordinary circumstances, the government should not be able to obtain this information in secret. That's not how our system works," said Aden Fine, staff attorney with the ACLU Speech, Privacy, and Technology Project. "If this ruling stands, our client may be prevented from challenging the government's requests to other companies because she might never know if and how many other companies have been ordered to turn over information about her."

"With so much of our digital private information being held by third parties – whether in the cloud or on social networking sites like Twitter – the government can track your every move and statement without you ever having a chance to protect yourself," said EFF Legal Director Cindy Cohn. "We're disappointed that the court did not recognize that people using digital tools deserve basic privacy and that the government should be required to meet a high standard before it demands private information about you from the online services you use, be they Twitter, Facebook, Gmail or Skype."

EFF and the ACLU plan to appeal the ruling on behalf of their client.

For today's ruling:

https://www.eff.org/files/filenode/dorders_twitter/MemOpinion.pdf

For more on this case:

https://www.eff.org/cases/government-demands-twitter-records

Contacts:

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

Rachel Myers
   Media Relations
   American Civil Liberties Union
   media@aclu.org

Related Issues:
March 2, 2011

EFF Asks Justices to Focus on Privacy in Prescription History Data Mining Battle

Washington, D.C. - The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court Tuesday to focus on the privacy issues at stake in a battle over the sale and data mining of medical records, urging justices to reverse a ruling that could jeopardize patient privacy.

At issue is Vermont's Prescription Confidentially Law, which bans pharmacies from selling or using patients' prescription records for marketing purposes without the doctor's express consent. Companies that collect and sell these records challenged the law in court, arguing that they use "de-identified" information and that the law infringed their corporate free speech rights. The 2nd U.S. Circuit Court of Appeals ruled in favor of the companies. In an amicus brief filed Tuesday, EFF argued that the appeals court wrongly ignored patient privacy in its decision.

"There are serious questions about the efficacy of such 'de-identification.' We're concerned that the data-mining will expose patients' prescription histories, which leads to discovery of their underlying medical conditions," said EFF Senior Staff Attorney Lee Tien. "Requiring consent before using this extremely sensitive data is a reasonable protection, and claiming this information is 'public' and not really private goes against common sense. The First Amendment does not require the sacrifice of our privacy to promote data exchanges that benefit only commercial interests."

For the full amicus brief:
https://www.eff.org/files/filenode/sorrell_v_IMS/ims3111.pdf

Contact:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Issues:
February 8, 2011

Hearing Set for February 15 in Alexandria, Virginia

Alexandria, VA - A federal court in Alexandria, Virginia today unsealed motions filed by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and others concerning government attempts to obtain Twitter account records about three individuals in connection with its WikiLeaks investigation. The documents were originally filed under seal late last month.

One of the newly-available motions is a request to unseal the still-secret court records of the government's attempts to collect private records from Twitter, Inc., as well as other companies who may have received demands for information from the government. The second motion seeks to overturn the December 14 court order requiring Twitter to provide information about its users. The third motion was subsequently filed to unseal the original two motions, A hearing on the first two motions is set for 10:30 a.m. on February 15 at the U.S. District Court in Alexandria, Virginia.

The ACLU and EFF represent Birgitta Jonsdottir, an Icelandic parliamentarian and one of the Twitter users whose records were sought by the government. The motion was joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Jacob Appelbaum and Rop Gonggrijp, respectively, as well as local counsel in Virginia. The government had also requested information concerning Appelbaum and Gonggrijp's Twitter accounts.

"We are troubled that the original court order requiring Twitter to turn over its users' private records was filed under seal.," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Except in truly extraordinary circumstances, Internet users should receive notice and an opportunity to go to court to defend their constitutional rights before their privacy is compromised. That's what is happening now, and we are hopeful that the court will unseal the rest of the sealed materials."

"Twitter is a publication and communication service, so the information sought by the government relates to what these individuals said and where they were when they said it," said EFF Legal Director Cindy Cohn. "This raises serious First and Fourth Amendment concerns. It is especially troubling since the request seeks information about all statements made by these people, regardless of whether their speech relates to WikiLeaks."

Attorneys for Jonsdottir are Fine and Benjamin Siracusa-Hillman of the ACLU, Rebecca Glenberg of the ACLU of Virginia and Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF.

For more details on attending next week's hearing contact press@eff.org or media@aclu.org.

For the newly unsealed documents:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

Related Issues:
February 2, 2011

Current Standards to Invalidate Patents Impede Software Innovators

San Francisco - The Electronic Frontier Foundation (EFF), joined by Public Knowledge and the Apache Software Foundation, urged the U.S. Supreme Court Tuesday to make it easier to invalidate bad patents -- a decision that would benefit software innovators both large and small.

In an amicus brief filed in Microsoft v. i4i, EFF argues that the existing high standard of proof for invalidating a patent in federal court unfairly gives the owners of bad patents the upper hand. Currently, when a defendant is accused of infringing a patent, the Federal Circuit wants to see "clear and convincing" evidence that that patent is illegitimate and the case against it unfounded. This is in contrast to the standard of proof for most civil cases, which is a "preponderance of the evidence" -- or a showing that more likely than not the allegations are true. In software cases, "clear and convincing" evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder.

"With the complex technical issues at play in software patent infringement suits, plaintiffs often argue that the original source code is a necessary part of 'clear and convincing' evidence," said EFF Fellow Michael Barclay. "But the law should not require this standard of proof. Instead, software innovators are put at an unfair disadvantage, and bad patents are upheld in court."

Microsoft v. i4i began when i4i sued Microsoft for patent infringement, claiming that its patent covered a Microsoft Word feature that allowed for editing documents with XML. Microsoft argued that i4i's patent was invalid because similar features were included in another product sold more than a year before the patent application was filed. But the Federal Circuit applied the "clear and convincing" standard and rejected Microsoft's argument.

"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."

Microsoft v. i4i will be argued in April, and a decision is expected by June.

For the full amicus brief:
https://www.eff.org/files/filenode/microsoft_v_i4i/234530_Brief_Final.pdf

Contacts:

Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org

Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org

Related Issues:
February 1, 2011

Another Victory in Battle Against Flawed Copyright Lawsuits

Dallas, TX - An adult video company has dropped its flawed lawsuit accusing hundreds of Internet users of illegally downloading pornography. The Electronic Frontier Foundation (EFF) and Public Citizen (PC) are counsel for the anonymous defendants at the request of the court.

Late last week, Mick Haig Productions dismissed its case against 670 "John Does," claiming they had infringed the company's copyrighted materials on a file-sharing service. The notice of dismissal came after EFF and Public Citizen argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "When adult film companies launch these cases, there is the added pressure of embarrassment associated with pornography, which can convince those ensnared in the suits to quickly pay what's demanded of them, whether or not they have legitimate defenses. That's why it's so important to make sure the process is fair."

Mick Haig Productions dropped the case just 48 hours after EFF and PC demanded that it withdraw subpoenas Mick Haig's lawyer apparently issued while the question of whether the court should allow the subpoenas at all was still under consideration by the court.

"This dismissal is wonderful news for the 670 anonymous defendants in this case, but troubling questions remain about the behavior of Mick Haig Productions," said EFF Senior Staff Attorney Matt Zimmerman. "Given the extremely invasive power of subpoenas, plaintiffs have a duty to ensure that subpoenas are not misused. EFF is committed to ensuring that litigants are held accountable for taking shortcuts around the due process rights of their opponents, especially in cases such as this one where the very act of obtaining someone's identity could be improperly leveraged into pressure to settle a claim."

This is the latest victory in EFF's battle against copyright trolls. Lawyers around the country are discovering that mass copyright litigation is not such a lucrative business model if you have to pursue your cases fairly. In December and early January, federal judges in West Virginia and California recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyright works. As a practical matter, this means that copyright owners in those cases must file separate lawsuits against each alleged infringer and must have a reasonable basis for believing that they are filing in the right court. Given the additional expense of filing and litigating these cases fairly -- expenses the plaintiffs were likely hoping to avoid by ignoring the court rules and due process requirements -- these cases may not go much further.

"There is often a gap between when cases are filed and when judges have the opportunity to look at them closely," said EFF Legal Director Cindy Cohn. "But that time appears to have arrived. Judges around the country are waking up to the dangers of mass copyright litigation and taking action to make sure the process is fair for the thousands of people who have been targeted in these suits."

For the full notice of dismissal:
https://www.eff.org/files/filenode/uscg/mickhaignotice.pdf

For more on the subpoenas:
https://www.eff.org/files/filenode/uscg/stoneletter.pdf

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

January 17, 2011

Film Companies Are Abusing the Law to Pressure Defendants to Settle

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in predatory lawsuits involving alleged illegal downloading of pornography. In an amicus brief filed Friday, EFF argued that the adult film companies were abusing the law in order to coerce settlement payments despite serious problems with the underlying claims.

Friday's brief is the latest of EFF's efforts to stop copyright trolls -- content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Tactics include improperly lumping defendants together in one case and filing it in a court far away from most of the accused people's homes and Internet connections. When adult film companies file these predatory lawsuits, there is the added pressure of embarrassment associated with pornography. All of these factors can convince those ensnared in the suits to quickly pay what's demanded of them instead of arguing the merits of their case in court.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "We're asking the court to protect the rights of each and every defendant, instead of allowing these copyright trolls to game the system."

Just last month, a judge in West Virginia blocked an attempt to unmask accused pornography file-sharers in seven predatory lawsuits. Closely following the reasoning from an EFF amicus brief, the judge ordered the plaintiffs to file against each defendant individually. Also in December, a judge in the District of Columbia dismissed hundreds of individuals named in the U.S. Copyright Group troll campaign because of lack of personal jurisdiction. EFF had filed an amicus brief in that case as well.

"As judges start to force copyright trolls to play by rules, this kind of mass litigation will no longer be a good business model. That helps protect the rights of Internet users everywhere," said McSherry.

Charles Lee Mudd Jr. of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:
https://www.eff.org/files/filenode/uscg/effamicus11411.pdf

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
January 4, 2011

Unreasonable Jury Award in Sony v. Tenenbaum Suit Raises Constitutional Questions

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Monday to affirm downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs. EFF was represented by the Stanford Fair Use Project and the Samuelson Law, Technology & Public Policy Clinic in filing the amicus brief.

A federal judge reduced the jury award to $67,500 last July, citing constitutional concerns and basic fairness. The record companies appealed the judge's decision to the 1st U.S. Circuit Court of Appeals. In Monday's brief, EFF argues that the judge was right to try to ensure that damages in infringement cases bear a reasonable relationship to actual harm.

"The Supreme Court has ruled that courts should review statutory damage awards to ensure they are not grossly excessive," said EFF Intellectual Property Director Corynne McSherry. "But unfortunately, courts have often failed to do so. This is an opportunity for the appeals court to clarify copyright law for creators and guarantee they have their due process rights."

Right now, it is difficult to predict copyright damages. Any creator who relies on an untested theory of fair use or other copyright exemption could be forced to pay up to $150,000 per work if she loses in court. This threat chills start-up companies and online artists as well as libraries and digital archives that may need to enter uncharted areas of copyright law in order to innovate.

"The fundamental purpose of copyright law is to encourage innovation, creativity, and the dissemination of information," said McSherry. "But the fear of crushing liability chills vital experimentation and creativity. Due process review can help bring damage awards back in line with copyright's purpose."

For the full amicus brief:
https://www.eff.org/files/filenode/inresonybmgetal/EFFamicustenenbaum.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation

Related Issues:
January 4, 2011

Big Victory for Consumers' First Sale Rights

San Francisco - The U.S. Court of Appeals for the 9th Circuit has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores and rejecting UMG's attempt to claim that a sticker on a CD created a license agreement forbidding resale.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and the law firm Durie Tangri LLP, was sued by UMG for offering promo CDs for auction on eBay. At issue was whether the labels on the CDs, some of which stated that they were "promotional use only, not for sale," trumped Augusto's right to resell the CDs that he bought. Copyright's "first sale" doctrine prevents a copyright owner from restricting further sales or uses of a work once title has passed.

In an opinion issued today, the appeals court held: "UMG transferred title to the particular copies of its promotional CDs and cannot maintain an infringement action against Augusto for his subsequent sale of those copies." The court noted that UMG did not maintain control of the CDs once it mailed them out, did not require the recipients to agree to the "conditions" it sought to impose with the not-for-sale label, and did not require return of the CDs if the recipient did not consent.

"This ruling frees promotional CDs from the shadow of copyright infringement claims, which is good news for music lovers," said EFF Intellectual Property Director Corynne McSherry. "But it also has broader ramifications. The court flatly rejected the argument that merely slapping a notice on a copyrighted work prevents the work from ever being sold. It eliminates the risk of copyright infringement claims against later recipients -- regardless of whether they paid for the work."

"The Ninth Circuit recognized an important principle: that you can't eliminate consumers' rights just by claiming there's a 'license agreement,'" said Joe Gratz of Durie Tangri, lead counsel for Mr. Augusto. "Once a copyrighted work is freely given, the copyright holder isn't in charge anymore. The copyright owner can't stop you from selling it or lending it to a friend."

For the full opinion in UMG v. Augusto:
https://www.eff.org/files/filenode/umg_v_augusto/UMGvAugusto9thCircuitOpinion.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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December 23, 2010

Amicus Brief Rejects Claim That Google's Forwarding of its Legal Notices to the Online Resource is Copyright Infringement

San Francisco - The Electronic Frontier Foundation (EFF) and other founders and participants in the Chilling Effects Clearinghouse urged an appeals court in an amicus brief filed Tuesday to reject an adult entertainment publisher's attempts to block Google's contributions to the online copyright resource. Durie Tangri LLP represented EFF and its co-amici in preparing and filing the brief.

Chilling Effects, at www.chillingeffects.org, gathers and analyzes legal notices alleging online copyright infringement. More than 12,000 notices are available for public review, education and study, and the data there has been the basis for a number of scholarly papers about copyright law and the Internet.

Google is one of many businesses and organizations that provide the legal notices it receives to Chilling Effects. But as part of a long-running court battle with Google, adult publisher Perfect 10 claims that forwarding its infringement notices to the online resource is a copyright infringement, because Perfect 10 includes its copyrighted adult images on the notifications.

"The use of copyrighted works for scholarship or research, like in Chilling Effects, is clearly a fair use of the material and protected under the law," said EFF Intellectual Property Director Corynne McSherry. "Chilling Effects is an important public resource for educating the public and studying the effects of online copyright law -- so important that Perfect 10 itself has used the data as part of its copyright infringement lawsuits. Google's contributions to this resource don't infringe copyright simply because Perfect 10 chooses to attach samples of its adult photos in its infringement notices."

The lawsuit stretches back to 2005, when Perfect 10 first sued Google claiming that Google's Image Search service violated copyright law by indexing Perfect 10 photos posted on unauthorized websites, as well as a hodgepodge of other claims. In 2007, the Ninth Circuit Court of Appeals rejected virtually all of Perfect 10's claims, but it sent the case back down to the district court to determine whether Perfect 10's legal notices of infringement complied with the Digital Millennium Copyright Act (DMCA). The district court held in Google's favor, finding that Perfect 10's notices were not sufficient under the law, and as part of that ruling the court held that Google's contributions to Chilling Effects are protected by the fair use doctrine. Perfect 10 is appealing that ruling back to the 9th Circuit.

"People scour the Chilling Effects archive in order to write academic papers and research the law, not to look for adult photos," said EFF Legal Director Cindy Cohn. "As the district court recognized, this is another bogus copyright claim from Perfect 10 that could have dangerous ramifications for fair use and the Internet."

For the full amicus brief:
https://www.eff.org/files/filenode/Perfect10_v_Google/2010-12-21P10vGoogle%20amicus.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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December 22, 2010

Broad Coalition Calls on U.S. Government Officials to Protect Free Speech

San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition of advocacy organizations sent an open letter to U.S. lawmakers today, calling on government officials to respect freedom of expression in the debate over the whistle-blower website Wikileaks.

In the wake of Wikileaks' recent publications of U.S. diplomatic cables, some lawmakers have attacked newspapers' rights to report on the information in those documents. Other government officials have cast doubt on Americans' right to download, read, or discuss documents published by Wikileaks and even the news reporting based on those documents. Rash legislation was proposed that could limit the free speech of news reporting organizations well beyond Wikileaks. In the open letter sent Wednesday, 30 groups urged lawmakers to remember and respect constitutional rights as Congress continues to discuss the issues at stake.

"By likening publishers and reporters to spies and cyber-terrorists, some government officials have irresponsibly created an atmosphere of fear and uncertainty leading many to question their rights to publish, read and discuss the Wikileaks cables," said EFF Senior Staff Attorney Marcia Hofmann. "But American law is well settled on these issues: the First Amendment strongly protects publishers' right to distribute truthful political information, and Internet users have a fundamental right to read and debate it."

In a congressional hearing about Wikileaks last week, all seven witnesses to the House Judiciary Committee cautioned against attempts to suppress free speech and criticized the overwhelming secrecy that permeates the U.S. government. The coalition joining the open letter today similarly called for caution against any new laws that could weaken the principles of free expression that are vital to our democracy.

"In a free country, the government cannot and does not have unlimited power to determine what publishers can publish and what the public can read," said EFF Activist Rainey Reitman. "We encourage a robust public debate about Wikileaks and the secret government documents, but lawmakers must protect the rights of all involved."

For the full open letter:
https://www.eff.org/files/filenode/WikiLeaks/wikileaks_open_letter_final.pdf

Join EFF in standing up against Internet censorship:
https://www.eff.org/pages/say-no-to-online-censorship

Contacts:

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rainey Reitman
Activist
Electronic Frontier Foundation
rainey@eff.org

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December 20, 2010

Corynne McSherry Named IP Director; Senior Staff Attorney Abigail Phillips and Staff Attorney Julie Samuels Join Team

San Francisco - The Electronic Frontier Foundation (EFF) is proud to announce its new lineup focusing on intellectual property issues: Intellectual Property Director Corynne McSherry; Senior Staff Attorney Abigail Phillips; and Staff Attorney Julie Samuels. EFF Senior Staff Attorney Kurt Opsahl will also continue his dual role on EFF's Civil Liberties and IP teams.

Intellectual Property Director Corynne McSherry has been a staff attorney at EFF for more than five years, working on high-profile EFF cases including the Sony-BMG rootkit litigation and defending the Yes Men and other activists in a lawsuit filed by the U.S. Chamber of Commerce over a political parody. Corynne's practice focuses on fair use and free speech and includes both litigation and advocacy work, such as spearheading EFF's Takedown Hall of Shame campaign and providing public commentary on online copyright and trademark issues. Corynne is the author of "Who Owns Academic Work?: Battling for Control of Intellectual Property" (Harvard University Press, 2001).

Senior Staff Attorney Abigail Phillips recently joined EFF after more than five years at Yahoo!, where she was Senior Legal Director for copyright and advised product development teams such as Yahoo! Search, Flickr, and Yahoo! Video on a range of cyberlaw issues. At EFF, she focuses on copyright and online content matters and will play a central role in EFF's policy work. Prior to Yahoo!, Abigail practiced in the technology policy and IP litigation groups of Perkins Coie LLP in San Francisco. Her non-law experience includes work as an editor, designer, and programmer in new and traditional media areas, including as the first webmaster for the Berkman Center for Internet and Society.

Staff Attorney Julie Samuels focuses on patents as well as other intellectual property issues. Currently Julie is overseeing EFF's Patent Busting Project and assisting on Lenz v. Universal, EFF's landmark case fighting a bogus claim of copyright infringement against a mother who posted a short YouTube video of her son dancing to a Prince song. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C.

"EFF's IP work has been long respected by both the public and the courts for its a critical role in bringing balance to the law and for ensuring that technology empowers consumers, creators, and citizens," said EFF Legal Director Cindy Cohn. "Corynne, Abigail, Julie, and Kurt are the perfect team to bring EFF's work on behalf of users, activists, and innovators to the next level."

Contact:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

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December 16, 2010

Orders Film Companies to Stop Abusing the Law When Suing Accused File-Sharers

San Francisco - In a big victory in the fight against copyright trolls, a judge in West Virginia has blocked an attempt to unmask accused file sharers in seven predatory lawsuits involving the alleged illegal downloading of pornography. The Electronic Frontier Foundation (EFF), working with Charles J. Kaiser of Phillips, Gardill, Kaiser & Altmeyer, PLLC, filed an amicus brief in the case, arguing that the film companies were abusing the law in an attempt to pressure settlements.

In these cases -- as in many others across the country -- the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"This is the next nail in the coffin of the copyright trolls," said EFF Legal Director Cindy Cohn. "Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model." In the seven West Virginia cases, collectively suing over 5,400 people, Time Warner Cable moved to quash subpoenas seeking the identities of accused filed sharers. EFF"s supporting amicus brief specifically noted the problems with suing hundreds of unconnected individuals in the same lawsuit. The judge's ruling today closely followed EFF's reasoning, ordering the plaintiffs to re-file their actions against each defendant individually.

"These lawsuits have caused massive collateral damage to the individuals targeted, due process, and the legal profession," said EFF Intellectual Property Director Corynne McSherry. "Copyright owners have a right to protect their works, but not at the expense of the due process rights of thousands of Doe defendants."

In a further blow against the plaintiffs' blunderbuss tactics, the court also forbade the plaintiffs from re-filing unless the plaintiffs had a valid reason to believe the Does actually were located in West Virginia, noting that a simple Google search would narrow the field.

"Courts must protect the rights of each and every defendant, and attempts to game the system inevitably puts those rights at risk," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the court saw through that attempt here and hope that others avoid this unwarranted, harmful attack in the future."

The West Virginia order comes on the heels of a ruling by a judge in the District of Columbia earlier this month that dismissed hundreds of individuals from across the country named in the U.S. Copyright Group's troll campaign due to lack of personal jurisdiction in Washington, D.C.

For the judge's full orders:
https://www.eff.org/cases/west-virginia-copyright-troll-lawsuits

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
November 29, 2010

Risk of Embarrassment Pressures Defendants to Settle, Regardless of Merit

San Francisco - The Electronic Frontier Foundation (EFF) has asked judges in Texas and West Virginia to block requests to unmask accused file sharers in several predatory copyright troll lawsuits involving the alleged illegal downloading of pornography.

The cases were filed by two different companies and involve different copyrighted adult material. However, the tactics are the same. In both cases, the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where the IP addresses indicate the defendants live. Consistent with a recent spike in similar "copyright troll" lawsuits, the motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"Suing hundreds or even thousands of people together en masse, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights," said EFF Senior Staff Attorney Matt Zimmerman. "The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified."

In the Texas case, Mick Haig Productions v. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the court in the Northern District of Texas requested us to do so. In a brief filed Wednesday, EFF and Public Citizen opposed discovery into the Does' identities, arguing that almost all of the defendants appear to be outside the court's jurisdiction. Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to individually defend themselves. Moreover, the lawsuit also flouts First Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities.

"There is a real potential for embarrassment, or worse, if a pornographer mistakenly identifies an anonymous individual as having infringed its copyright by downloading one of its movies," said Paul Levy, attorney with Public Citizen Litigation Group. "To ensure justice for the individuals being accused, filmmakers claiming copyright infringement should be required to meet the same standards as defamation plaintiffs and others claiming the right to sue for anonymous speech online."

Also last week, EFF filed an amicus brief in a series of seven similar cases in the district court for the Northern District of West Virginia. In those cases, Time Warner Cable has moved to quash subpoenas seeking the identities of accused filed sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process. EFF's amicus brief -- filed Tuesday in support of Time Warner Cable -- argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to properly exercise personal jurisdiction.

"Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy," said Zimmerman. "It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant."

For the motion to quash filed in Texas:
https://www.eff.org/files/filenode/uscg/opposition-mickhaig.pdf

For the amicus brief filed in West Virginia:
https://www.eff.org/files/filenode/uscg/thirdworldmediavdoesamicus.PDF

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

November 23, 2010

HTTPS Everywhere Updates Web-Surfing Security

San Francisco - The Electronic Frontier Foundation (EFF) has launched a new version of HTTPS Everywhere, a security tool that offers enhanced protection for Firefox browser users against "Firesheep" and other exploits of webpage security flaws.

HTTPS secures web browsing by encrypting both requests from your browser to websites and the resulting pages that are displayed. Without HTTPS, your online reading habits and activities are vulnerable to eavesdropping, and your accounts are vulnerable to hijacking.

Unfortunately, while many sites on the web offer some limited support for HTTPS, it is often difficult to use. Websites may default to using the unencrypted, and therefore vulnerable, HTTP protocol or may fill HTTPS pages with insecure HTTP references. EFF's HTTPS Everywhere tool uses carefully crafted rules to switch sites from HTTP to HTTPS.

This new version of HTTPS Everywhere responds to growing concerns about website vulnerability in the wake of Firesheep, an attack tool that could enable an eavesdropper on a network to take over another user's web accounts -- on social networking sites or webmail systems, for example -- if the browser's connection to the web application either does not use cryptography or does not use it thoroughly enough. Firesheep, which was released in October as a demonstration of a vulnerability that computer security experts have known about for years, sparked a flurry of media attention.

"These new enhancements make HTTPS Everywhere much more effective in thwarting an attack from Firesheep or a similar tool," said EFF Senior Staff Technologist Peter Eckersley. "It will go a long way towards protecting your Facebook, Twitter, or Hotmail accounts from Firesheep hacks. And, like previous releases, it shields your Google searches from eavesdroppers and safeguards your payments made through PayPal."

Other sites targeted by Firesheep that now receive protection from HTTPS Everywhere include Bit.ly, Cisco, Dropbox, Evernote, and GitHub. In addition to the HTTPS Everywhere update, EFF also released a guide to help website operators implement HTTPS properly.

"Firesheep works because many websites fail to use HTTPS," said EFF Technology Director Chris Palmer. "Our hope is to make it easier for web applications to do the right thing by their users and keep us all safer from identity theft, security threats, viruses, and other bad things that can happen through insecure HTTP. Taking a little bit of care to protect your users is a reasonable thing for web application providers to do and is a good thing for users to demand."

The first beta of HTTPS Everywhere was released last June. Since then, the tool has been downloaded more than half a million times.

To download HTTPS Everywhere for Firefox:
https://www.eff.org/https-everywhere

For more on implementing HTTPS in websites:
https://www.eff.org/pages/how-deploy-https-correctly

Contacts:

Peter Eckersley
Senior Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Chris Palmer
Technology Director
Electronic Frontier Foundation
chris@eff.org

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November 16, 2010

EFF, Public Knowledge, and Other Groups Urge Court to Protect Innovation in EMI v. MP3Tunes

New York - In a legal battle over Internet music storage that could impact innovation and free expression on the Internet, the Electronic Frontier Foundation (EFF), Public Knowledge, and other public interest groups asked a federal judge in an amicus brief Tuesday to protect the "safe harbor" rules for online content in EMI v. MP3Tunes.

MP3Tunes offers a locker service where users can sync their personal digital music and video up to "the cloud" to access from any web browser or many mobile and home entertainment devices. Recording giant EMI claims that MP3Tunes should be held responsible for infringing content stored in the lockers of some of its users. MP3Tunes contends that it is immune from liability because it does not engage in, encourage or benefit from copyright infringement and it quickly removes material identified in a copyright holder's complaint against its users, as required by the "safe harbor" provisions in the Digital Millennium Copyright Act (DMCA). In the amicus brief filed Tuesday, EFF and its co-amici argue that EMI is trying to rewrite the "safe harbor" provisions and hold service providers liable for the actions of their users.

"The DMCA safe harbors were designed to encourage the growth of new Internet innovations and expression by helping service providers manage their legal exposure, and they've been an extraordinary success," said EFF Senior Staff Attorney Corynne McSherry. "Without the safe harbor provisions, companies like YouTube, Facebook, and many others could have been shut down before they got off the ground. That's not what Congress intended."

The Consumer Electronics Association and the Home Recording Rights Coalition also joined the amicus brief. Local counsel Edward Hernstadt, of Hernstadt Atlas LLP, assisted with the filing.

For the full amicus brief:
https://www.eff.org/files/filenode/emi_v_mp3tunes/07civ9931WHP-AmicusBrief.pdf

Contacts:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

November 1, 2010

Bogus Copyright Claim Used to Threaten Information Resource for 'No Body' Murder Cases

Las Vegas - A criminal justice blog that provides resources for difficult-to-prosecute murder cases is fighting bogus infringement claims from copyright troll Righthaven LLC and asked a Las Vegas judge Friday to dismiss Righthaven's baseless attempt to seize his domain name.

"Righthaven's efforts to restrict what information is available to help police, prosecutors, and grieving families catch murderers is not only unlawful and an affront to the First Amendment, it's just shameful," said Thomas DiBiase, the former prosecutor and web publisher who was wrongly targeted in this case.

The Electronic Frontier Foundation (EFF), Colleen Bal and Bart Volkmer from the law firm of Wilson Sonsini Goodrich & Rosati, and attorney Chad Bowers are representing DiBiase, an attorney who consults with law enforcement across the country on "no body" cases -- where the victim is missing and presumed dead, but no body has been found. DiBiase runs a website at www.nobodycases.com to gather information on these complex investigations in order to help other prosecutors as well as family and friends of "no body" murder victims.

Righthaven has brought over 150 lawsuits in Nevada federal court claiming copyright infringement, even though it does not create, produce or distribute any content. Instead, Righthaven creates lawsuits by scouring the Internet for content from Las Vegas Review-Journal stories posted on blogs and online forums, acquiring the copyright to those particular stories from Stephens Media LLC (the Review-Journal's publisher), and then suing the posters for infringement. DiBiase was sued by Righthaven for copyright infringement of a Review-Journal news story about a "no body" case, with Righthaven demanding control of the No Body Murder Cases website as well as $75,000 in damages. In court documents filed today, EFF argues that DiBiase's use of the Review-Journal piece was a fair use of the material and protected under the law.

"The No Body Murder Case site is a non-commercial, informational forum aimed squarely at the public interest: seeing justice done in terrible crimes," said EFF Senior Staff Attorney Kurt Opsahl. "Righthaven's misguided legal campaign works against free and open discussion on the Internet and could wrongly hobble important online information archives like the one Mr. DiBiase has created."

"Righthaven is throwing around baseless threats in an attempt to seize an important resource and try to extract a windfall profit," said EFF Senior Staff Attorney Corynne McSherry. "We're asking the judge to put a stop to this heavy-handed copyright troll and let Mr. DiBiase get back to his important work."

For the full answer and counterclaim:
https://www.eff.org/files/filenode/righthaven_v_dib/DiBiase-Answer-Counterclaim.pdf

For the motion to dismiss:
https://www.eff.org/files/filenode/righthaven_v_dib/DiBiase-MotionDismiss.pdf

For more on this case:
https://www.eff.org/cases/righthaven-v-dibiase

Contacts:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

October 28, 2010

White House Pushes for New Powers, Yet Feds Won't Release Data to Justify Changes

San Francisco - The Electronic Frontier Foundation (EFF) filed suit against three agencies of the Department of Justice (DOJ) today, demanding records about problems or limitations that hamper electronic surveillance and potentially justify or undermine the Administration's new calls for expanded surveillance powers.

The issue has been in the headlines for more than a month, kicked off by a New York Times report that the government was seeking to require "back doors" in all communications systems -- from email and webmail to Skype, Facebook and even Xboxes -- to ease its ability to spy on Americans. The head of the FBI publicly claimed that these "back doors" are needed because advances in technology are eroding agents' ability to intercept information. EFF filed a Freedom of Information Act (FOIA) request with the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), and the DOJ Criminal Division to see if that claim is backed up by specific incidents where these agencies encountered obstacles in conducting electronic surveillance.

"The sweeping changes the government is proposing, to require 'back doors' into all private communications technologies, would have enormous privacy and security ramifications for American Internet users," said EFF Staff Attorney Jennifer Lynch. "Any meaningful debate must be based on the information we're seeking in the FOIA requests, so the government's failure to comply in a timely manner is troubling."

EFF also requested records on communications that DOJ agencies had with technology companies, trade organizations and Congress about potential expansion of surveillance laws. The FBI has already agreed that the records should be disclosed quickly due to the urgency to inform the public about this issue. However, neither it nor the other DOJ agencies released documents within the time limit set by Congress to respond to a FOIA request, forcing today's lawsuit.

"A mandate requiring an easy-to-open 'back door' to electronic communications is an idea that was proposed and rejected over fifteen years ago because it would be ineffective, cause security vulnerabilities, and hurt American business -- on top of the damage it would do to Americans' privacy and free speech rights," said EFF Legal Director Cindy Cohn. "Any attempt to require the same mandate today should start with a concrete and realistic evaluation of how often the government investigations are stymied by the lack of a 'back door.' Anything less than that is asking the public to blindly rubber stamp a flawed plan at a very high cost to Americans and American business."

For the full complaint:
https://www.eff.org/files/filenode/surveillancereco/calea_foia_complaint-FINAL.pdf

For more on expanding surveillance law:
https://www.eff.org/deeplinks/2010/10/eight-epic-failures-regulating-cryptography

Contact:

Jennifer Lynch
Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org

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October 19, 2010

EFF to Honor Steven Aftergood, James Boyle, Pamela Jones and Groklaw, and Hari Krishna Prasad Vemuru at San Francisco Ceremony

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce four winners of its 2010 Pioneer Awards: transparency activist Steven Aftergood; public domain scholar James Boyle; legal blogger Pamela Jones and the website Groklaw; and e-voting researcher Hari Krishna Prasad Vemuru, who was recently released on bail after being imprisoned for his security work in India.

The award ceremony will be held at 7:30 p.m., November 8, at the 111 Minna Gallery in San Francisco. Author, blogger, and digital rights activist Cory Doctorow will host. A VIP event with Cory and the Pioneer winners -- as well as EFF founders, board members, and other luminaries -- will begin at 6:30 p.m.

Steven Aftergood directs the Federation of American Scientists (FAS) Project on Government Secrecy, which works to reduce the scope of official secrecy and to promote public access to government information. He writes and edits Secrecy News, an email newsletter and blog that reports on new developments in secrecy and disclosure policy. Secrecy News also provides direct public access to various official records that have been suppressed, withdrawn, or that are simply hard to find. In 1997, Mr. Aftergood was the plaintiff in a Freedom of Information Act lawsuit against the Central Intelligence Agency that successfully led to the declassification and publication of the total intelligence budget for the first time in 50 years.

James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Professor Boyle is recognized for his exceptional scholarship on the "second enclosure movement" -- the worldwide expansion of intellectual property rights -- and its threat to the rich public domain of cultural and scientific materials that the Internet might otherwise make available. An original board member of Creative Commons and co-founder of Science Commons, Professor Boyle has worked for over 20 years as both an academic and institution builder to celebrate and protect the values of cultural and scientific openness.

When Pamela Jones created Groklaw in 2003, she envisioned a new kind of participatory journalism and distributed discovery -- a place where programmers and engineers could educate lawyers on technology relevant to legal cases of significance to the Free and Open Source community, and where technologists could learn about how the legal system works. Groklaw quickly became an essential resource for understanding such important legal debates as the SCO-Linux lawsuits, the European Union antitrust case against Microsoft, and whether software should qualify for patent protection.

Hari Krishna Prasad Vemuru is a security researcher in India who recently revealed security flaws in India's paperless electronic voting machines. He has endured jail time, repeated interrogations, and ongoing political harassment to protect an anonymous source that enabled him to conduct the first independent security review of India's electronic voting system. Prasad spent a year trying to convince election officials to complete such a review, but they insisted that the government-made machines were "perfect" and "tamperproof." Instead of blindly accepting the government's claims, Prasad's international team discovered serious flaws that could alter national election results. Months of hot debate have produced a growing consensus that India's electronic voting machines should be scrapped, and Prasad hopes to help his country build a transparent and verifiable voting system.

"These winners have all worked tirelessly to give critical insight and context to the tough questions that arise in our evolving digital world," said EFF Executive Director Shari Steele. "We need strong advocates, educators, and researchers like these to protect our digital rights, and we're proud to honor these four Pioneer Award winners for their important contributions."

Tickets to the Pioneer Awards ceremony are $35 if purchased in advance or $40 at the door. Tickets are available online at http://www.eff.org/pioneerfundraiser. Sponsors of the 2010 Pioneer Awards ceremony include the Computer Electronics Association (CEA), JibJab, and Junk Email Filter.

Awarded every year since 1992, EFF's Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. Past honorees include World Wide Web inventor Tim Berners-Lee, security expert Bruce Schneier, and the Mozilla Foundation and its chairman Mitchell Baker, among many others.

Pioneer Award candidates are nominated by the public. The winners were chosen by a panel of judges including Kim Alexander (president and founder, California Voter Foundation), Jim Buckmaster (CEO, craigslist), Cory Doctorow (award-winning author and activist), Mitch Kapor (Kapor Capital; co-founder and former chairman EFF), Drazen Pantic (co-director, Location One), Barbara Simons (computer scientist, IBM Research [retired] and former president ACM), and James Tyre (co-founder, The Censorware Project and EFF policy fellow).

For more information about the Pioneer Awards:
https://www.eff.org/awards/pioneer

Contact:

Katina Bishop
Development Director
Electronic Frontier Foundation
katina@eff.org

October 18, 2010

EFF Asks Judge to Dismiss Two Defendants from Mass Movie-Downloading Suits

Washington, D.C. - The Electronic Frontier Foundation (EFF) has asked a judge in Washington, D.C., to dismiss copyright infringement claims against two defendants wrongfully ensnared in mass movie-downloading lawsuits.

In an amicus brief filed Friday, EFF argues that the copyright troll behind the suits -- a law firm calling itself the "U.S. Copyright Group" (USCG) -- is flouting court rules and engaging in unfounded speculation in order to pressure people into paying premature settlements. The American Civil Liberties Union (ACLU), the ACLU of the Nation's Capital, and Public Citizen Litigation Group joined EFF in the amicus brief.

USCG has filed these suits against approximately 16,000 defendants so far in Washington, D.C., alleging that they participated in unauthorized downloading of films including "Far Cry" and "The Hurt Locker." Two of the defendants have submitted evidence that they do not live in Washington, D.C., and since neither of the plaintiffs is located there either, the court ordered the plaintiffs to explain why D.C. is the proper place to sue those individuals. EFF and its co-amici filed Friday's brief to urge the court to dismiss those defendants and put a stop to USCG's legal gamesmanship.

"Imagine being accused of something and threatened with a huge court judgment, but in order to defend yourself you had to hire a lawyer thousands of miles away," said EFF Legal Director Cindy Cohn. "Wouldn't you be tempted to pay a smaller settlement to make it go away, even if you were innocent? That's what we think USCG is counting on. And that's why we have rules about where people can be sued, and how -- rules that USCG has ignored here."

Attempting to show why the case is properly in D.C., USCG engaged in speculation with no factual support, arguing that even though the defendants live in other places, they may have been visiting Washington, D.C., when the alleged downloading occurred -- and somehow managed to use their home IP addresses while engaging in illegal downloading during their trips. USCG also speculated that even if the defendants were at home, it was possible that they downloaded the movies from or uploaded the movies to someone who was in Washington, D.C. USCG presented no evidence that either of these unlikely scenarios actually occurred.

"USCG was ordered to show that these defendants were in the court's jurisdiction," said EFF Senior Staff Attorney Corynne McSherry. "Instead of facts, it offered wildly improbable scenarios and asked the court to delay dismissing anyone until it researched and identified all 6,230 people it sued in the two lawsuits at issue. Meanwhile, USCG continues to sue more targets and pressure more people into premature settlements, even where the case may have been brought in the wrong place. We're asking the judge to dismiss these individuals immediately and to force USCG to follow the rules for the thousands of other people sued as well."

For the full amicus brief:
https://www.eff.org/files/filenode/uscg_does/AchteNeunteWestBayResponse101510.pdf

For more on USCG and copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
September 28, 2010

Bogus Copyright Claims Used to Threaten Democratic Underground

Las Vegas - The online political discussion forum Democratic Underground is fighting back against a lawsuit filed by copyright troll Righthaven LLC, arguing in court documents filed Monday that the short excerpt of a news article at issue in the suit is a clear case of fair use.

Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Winston & Strawn LLP, and attorney Chad Bowers -- was sued by Righthaven on August 10 for a five-sentence excerpt of a Las Vegas Review-Journal news story that a user posted on the forum, with a link back to the Review-Journal website. Righthaven has brought over 130 lawsuits in Nevada federal court claiming copyright infringement, even though they do not create, produce or distribute any content. Instead, they create lawsuits by scouring the Internet for content from Review-Journal stories posted on blogs and online forums, acquiring the copyright to that particular story from Stephens Media LLC (the Review-Journal's publisher), and then suing the poster for infringement.

As part of its lawsuit business model, Righthaven claims damages of up to $150,000 under the Copyright Act's statutory damages provisions and uses that threat to attempt to push defendants into a quick settlement. In the answer and counterclaim filed Monday, Democratic Underground asked the court to affirm that the excerpt of the article does not infringe copyright and is a fair use of the material, with no damages due to Righthaven.

"Democratic Underground is the largest independent discussion forum for liberals on the Internet. Thousands of people discuss and debate political issues on our site every day, particularly now during election season. Online discussion often requires quoting from news sources -- a legal fair use of the material," said Democratic Underground founder David Allen. "By targeting short excerpts of news articles with their sham copyright claims, Righthaven is chilling free and open discussion on the Internet."

Righthaven has claimed that its activities are intended to have a deterrent effect on the reposting of news stories online. But instead of allowing websites to remove or amend the content in question, Righthaven goes straight to court, seeking to profit by gaining sums far greater than any actual harm the newspapers may have suffered. Righthaven has already sued numerous noncommercial bloggers, such as Allegra Wong; political advocacy groups, such as Citizens for Responsibility and Ethics in Washington, Inc.; and political parties and candidates, such as the Democratic Party of Nevada and Sharron Angle.

"Despite what Righthaven claims, it's hard to interpret these lawsuits as anything else besides a way to bully Internet users into paying unnecessary settlements," said EFF Senior Staff Attorney Kurt Opsahl. "At the same time, Righthaven is trying to discourage the practice of quoting and linking that is both essential to the interconnected Internet and helps drive significant traffic to newspapers online."

For the full answer and counterclaim:
http://www.eff.org/files/filenode/righthaven_v_dem/AnswerandCounterclaim.pdf

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
September 17, 2010

EFF and PFF Urge Supreme Court to Protect Rights of Game Creators and Users

Washington, D.C. - The Electronic Frontier Foundation (EFF) and The Progress & Freedom Foundation (PFF) urged the United States Supreme Court Friday to protect the free speech rights of videogame creators and users, asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames.

At issue is a California law that bans the sale or rental of "violent" videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled that it is unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court

In the amicus brief filed today, EFF and PFF explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech.

"Videogames are fully protected speech, and both the 'violence' and 'interactivity' feared by California's law are expressive aspects of books, plays, and movies -- not just videogames," said EFF Senior Staff Attorney Lee Tien. "The government can't regulate speech content, even to protect children, if there are reasonably effective private rating systems and parental control tools that don't interfere with our First Amendment rights."

Every state law concerning violent videogames that has been challenged has failed First Amendment scrutiny in the lower courts. Additionally, the Federal Trade Commission has said that the industry's official labeling system is widely recognized and used by parents and is well-enforced in the marketplace.

"This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well," said PFF President Adam Thierer. "We've had 15 years of fairly solid Supreme Court case law on new media issues. It would be unfortunate if they reversed that tide here."

For the full amicus brief:
http://www.eff.org/files/filenode/schwarzenegger_v/EFFPFFamicus.pdf

For more on this case:
http://www.eff.org/cases/schwarzenegger-v-ema

For more on video games and digital rights:
http://www.eff.org/issues/video-games

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Issues:
September 15, 2010

Asks Appeals Court to Block Dangerous Expansion of Federal Statute

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Tuesday to dismiss charges that would turn any employee use of company computers in violation of corporate policy into a federal crime.

In U.S. v. Nosal, an ex-employee is being prosecuted on the claim that he induced current company employees to use their legitimate credentials to access the company's proprietary database and provide him with information, in violation of corporate computer-use policy. The government claims that the violation of this private policy constitutes a violation of the Computer Fraud and Abuse Act (CFAA). Following a decision issued just last year by the U.S. Court of Appeals for the 9th Circuit, the District Court ruled against the government, holding that violations of corporate policy are not equivalent to violations of federal computer crime law. The government appealed to the 9th Circuit.

In an amicus brief filed in the case on Tuesday, EFF argues that turning mere violations of company policies into computer crimes could potentially create a massive expansion of the CFAA, turning millions of law-abiding workers into criminals.

"Companies' policies often prohibit personal use of company computers. The government's argument here would potentially turn employees into criminals if they check the baseball scores or update their Facebook statuses at an office where such a policy is in place," said EFF Senior Staff Attorney Marcia Hofmann. "Company policies aren't written with the care and precision that we require in a criminal statute. Instead, they are often vague, arbitrary, confusing and contradictory. It's not fair or reasonable to turn any violation of company policy into a crime."

The extension of the CFAA into company policies is only one of the places where EFF has been combating overbroad use of the statute to criminalize what are essentially breaches of contract. Over the last several months, EFF has filed amicus briefs in two other cases where the government attempted to use computer crime laws to turn a violation of a website's terms of service into a criminally punishable act.

"A district court has already made the correct decision here, and ruled that these indictments are contrary to law," said Hofmann. "We're urging the appeals court to affirm that important decision, and reject this dangerous expansion of the CFAA."

For the full amicus brief:
http://www.eff.org/files/filenode/us_v_nosal/NosalAmicusFinal091410.pdf

Contact:

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Related Issues:
September 14, 2010

Open Letter from ACLU-NC and EFF Calls for Answers About Controversial RFID Program

San Francisco - The ACLU of Northern California (ACLU-NC) and the Electronic Frontier Foundation (EFF) are calling for answers to critical privacy and safety questions that loom over a controversial federal program to track preschoolers with radio frequency identification (RFID) chips at George Miller III Head Start program in Richmond, California.

In an open letter to the U.S. Department of Health and Human Services and the Contra Costa County Employment and Human Services Department, ACLU-NC and EFF are asking officials to disclose what technical and security measures are used by the system to safeguard the privacy and safety of preschoolers, as well as what data is collected, how long it is retained, and who has access to the information. The letter also calls on officials to publicly address why and how the government decided to track Head Start students, and if the government plans to expand such tracking.

"This program allows for far more invasive surveillance than is required for attendance and other record-keeping for a Head Start program," said EFF Senior Staff Attorney Lee Tien. "We want to know how and when privacy and security issues were considered in the development of this program, and how many other schools will be pressured to implement this system."

ACLU-NC and EFF are calling on officials to ensure that there is a process in place to protect the privacy and safety of schoolchildren, to make sure parents are fully informed about the privacy and safety risks of RFID technology, and to provide for an opt-out program for concerned parents.

Concerns about RFID privacy and safety in California schools came up just five years ago, when an elementary school in Sutter, California attempted a similar program. The plans were scuttled when parents realized the risk to their children. In response, California lawmakers in 2007 overwhelmingly passed a bill requiring that any RFID program in schools include education campaigns for parents and be completely voluntary. While Governor Arnold Schwarzenegger did not sign the bill into law, it's clear that there is widespread concern about this technology.

"Public schools should not be chipping students now and asking questions about privacy and safety later," said Nicole Ozer, Technology and Civil Liberties Policy Director at the ACLU of Northern California. "Parents should not have to pay for Head Start with the privacy and safety of their preschoolers. It's time for some answers about why federal stimulus funds are paying for expensive, intrusive, and potentially insecure school tracking programs."

The RFID program was launched this school year at the school with funds from the federal American Recovery and Reinvestment Act (ARRA).

For the full open letter:
http://www.eff.org/files/filenode/rfid/RFIDletter_full.pdf

For more on RFID:
http://www.eff.org/issues/rfid
http://www.aclunc.org/issues/technology/don't_chip_our_rights_away.shtml

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Nicole Ozer
Technology and Civil Liberties Policy Director
ACLU of Northern California
nozer@aclunc.org

Related Issues:
September 8, 2010

Conference Set for September 14-17 in Vilnius, Lithuania

Vilnius, Lithuania - Experts from the Electronic Frontier Foundation (EFF) will address security, openness, privacy, and other issues at the United Nations' Internet Governance Forum (IGF), set for September 14-17 in Vilnius, Lithuania.

This is the fifth meeting of the IGF, which was established to discuss public policy issues related to Internet governance on a global scale. Approximately 1,500 government policymakers, technologists, politicians, and others will attend.

EFF experts will participate in nine workshops in Vilnius, including "The Future of Privacy," with EFF Senior Staff Attorney Kevin Bankston and EFF International Rights Director Katitza Rodriguez, who is also a member of the Multistakeholder Advisory Group that helped plan the meeting. Also on the agenda is "Governance of Social Media," with EFF Senior Staff Attorney Kurt Opsahl and "Why We Need an Open Web," with EFF International Affairs Director Eddan Katz.

For a complete schedule of EFF's participation in IGF see http://www.eff.org/calendar/2010/09/14/eff-united-nations-internet-governance-forum.

WHAT:
United Nations' Internet Governance Forum

WHEN:
September 14-17

WHERE: Lithuanian Exhibition Centre LITEXPO Laisves pr. 5 LT-04215 Vilnius, Lithuania

For more on the IGF:
http://www.intgovforum.org/cms/
http://www.igf2010.lt

Contact:

Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org

September 2, 2010

Case Could Discourage Websites from Responding to Help Requests

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups and law professors have asked a California appeals court to protect craigslist from a lawsuit that could spur websites to be less helpful in responding to complaints about user behavior.

In Scott P. v. craigslist, Inc., the plaintiff complained about a series of craigslist ads he said were written by impersonators. While craigslist removed the ads within minutes of his phone calls, the plaintiff sued, contending that craigslist broke a promise to "take care of it" when the impersonators posted additional ads. In cases like these, federal law -- specifically Section 230 of the Communications Decency Act -- shields Internet forums like craigslist from liability. Section 230 was designed to encourage parties to pursue action against those who created the questionable content instead of the platform that hosted it. But the California Superior Court has ruled that this case can continue because of the plaintiff's allegations that craigslist said it would help.

Craigslist filed a writ petition with the Court of Appeal for the State of California Wednesday, arguing that the trial court should have dismissed the case because of Section 230's protections for forum hosts. In an amicus letter filed today in support of craigslist, EFF argues that the lower court reasoning could create a hole in Section 230, discouraging forum owners from helping users.

"Section 230 was a deliberate effort by Congress to encourage service providers to find innovative ways to self-regulate," said EFF Senior Staff Attorney Kurt Opsahl. "Yet craigslist is facing the prospect of extended litigation because it tried to do just that. Allowing this litigation to continue could result in websites being less helpful to users with complaints."

Additionally troublesome is the specter of further lawsuits, which could convince other Internet innovators not to host user content at all.

"Congress created Section 230 to allow for online interactivity without a flood of lawsuits. But this case could undermine the immunity that the law created," said Opsahl. "If litigation can survive merely because a plaintiff asserts that the site made a vague promise, sites may decide that allowing comments or user generated content is not worth the legal exposure. Then we'll lose the vibrant online environment that Section 230 helped create in the first place."

Joining EFF in the letter to court were the Center for Democracy and Technology, the Citizen Media Law Project, and law professors Eric Goldman, David S. Levine, David G. Post, and Jason Schultz. Separately, a group of Internet companies, including Yahoo!, Amazon, Facebook, Twitter, Google and Linkedin filed another amicus brief in support of craigslist.

For the full amicus letter:
http://www.eff.org/files/filenode/craigslist_v_sup/EFFletter9210.pdf

For more on this case:
http://www.eff.org/cases/craigslist-v-superior-court-california

Contact:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Related Issues:
August 10, 2010

Over-Collection of Personal Data Invades Employees' Privacy

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged the United States Supreme Court Monday to uphold an appeals court decision that blocks invasive and unnecessary background checks at the National Aeronautics and Space Administration (NASA), arguing that the over-collection of personal data puts employees' privacy at risk.

The case was originally filed by federal contract employees working at CalTech's Jet Propulsion Lab, which houses NASA's robotic spacecraft laboratory. The workers were low-risk, by NASA's own admission, and did not work on classified projects. Yet the government instituted sweeping background checks, including a requirement to list three references who were then questioned about the employees' general behavior. NASA said it needed the information to assess "suitability" for government employment, and would check factors like "carnal knowledge," "homosexuality," "cohabitation," and "illegitimate children."

"Many of these CalTech employees have worked at the JPL for decades, but now NASA is asking their references open-ended questions in search of derogatory information," said EFF Senior Staff Attorney Lee Tien. "This technique is sadly familiar -- in the McCarthy era, federal employees had to disclose personal facts via personnel forms as part of loyalty programs -- and has no place in the United States today."

The U.S. Court of Appeals for the 9th Circuit ruled in favor of the employees, enjoining NASA from collecting any more personal data, but the government appealed. In an amicus brief filed Monday, EFF argues that the Supreme Court should uphold the 9th Circuit's decision in order to protect workers' constitutional rights.

"These background checks capture all sorts of sensitive personal information that's totally unnecessary for low-level employees who don't work on national security matters," said EFF Civil Liberties Director Jennifer Granick. "Meanwhile, there are gaping loopholes in the legal safeguards in place to protect this very sensitive information. As technology makes it easier to collect and aggregate vast amounts of data, we must be particularly cautious to prevent government misuse."

For the full amicus brief:
http://www.eff.org/files/filenode/nasa_v_nelson/nasavnelsonamicus.pdf

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
August 6, 2010

EFF Asks Appeals Court to Block Attempt to Turn Misdemeanors into Felonies

San Francisco - The Electronic Frontier Foundation (EFF) and the National Association of Criminal Defense Lawyers asked a federal appeals court Thursday to block the government's attempt to wrongly expand federal computer crime law, turning misdemeanor charges into felonies.

In an amicus brief filed in U.S. v. Cioni, EFF argues that federal prosecutors abused computer crime law when they brought felony charges against Elaine Cioni for accessing others' email. Under the Computer Fraud and Abuse Act (CFAA), a first-time unauthorized access offense is a typically a misdemeanor. But in Cioni's trial, the government pushed for felony convictions, claiming that the CFAA violations were in furtherance of violations of the Stored Communications Act (SCA). However, the acts that they claimed violated the SCA were identical to acts that violated the CFAA.

"The government has piggybacked computer crime violations to punish misdemeanor conduct as two felonies," said EFF Senior Staff Attorney Marcia Hofmann. "This misreading of the law would let the government charge anyone who accesses someone else's email with a felony. That was not Congress's intent when it created these statutes."

The CFAA is increasingly recognized as an overbroad statute that could be used to improperly criminalize a wide variety of online activities. Last month, for example, EFF filed an amicus brief in U.S. v. Lowson, arguing against a government attempt to use the CFAA to turn a violation of the terms of service on Ticketmaster's website into a criminal act.

"We're asking the appeals court to reject this attempt to broaden the CFAA and reduce the charges against Ms. Cioni back to misdemeanors," said EFF Civil Liberties Director Jennifer Granick. "Congress decided that certain computer crimes should be punished as misdemeanors. Courts shouldn't let any prosecutor make an offense more severe than Congress intended."

For the full amicus brief:
http://www.eff.org/files/filenode/us_v_cioni/cioni_aug5_final.pdf

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

August 6, 2010

EFF-ACLU Arguments Against Always-On Surveillance Win The Day

Washington, D.C. - The U.S. Court of Appeals for the District of Columbia Circuit today firmly rejected government claims that federal agents have an unfettered right to install Global Positioning System (GPS) location-tracking devices on anyone's car without a search warrant.

In United States v. Maynard, FBI agents planted a GPS device on a car while it was on private property and then used it to track the position of the automobile every ten seconds for a full month, all without securing a search warrant. In an amicus brief filed in the case, EFF and the ACLU of the Nation's Capital argued that unsupervised use of such tactics would open the door for police to abuse their power and continuously track anyone's physical location for any reason, without ever having to go to a judge to prove the surveillance is justified.

The court agreed that such round-the-clock surveillance required a search warrant based on probable cause. The court expressly rejected the government's argument that such extended, 24-hours-per-day surveillance without warrants was constitutional based on previous rulings about limited, point-to-point surveillance of public activities using radio-based tracking beepers. Recognizing that the Supreme Court had never considered location tracking of such length and scope, the court noted: "When it comes to privacy...the whole may be more revealing than its parts."

The court continued: "It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."

"The court correctly recognized the important differences between limited surveillance of public activities possible through visual surveillance or traditional 'bumper beepers,' and the sort of extended, invasive, pervasive, always-on tracking that GPS devices allow," said EFF Civil Liberties Director Jennifer Granick. "This same logic applies in cases of cell phone tracking, and we hope that this decision will be followed by courts that are currently grappling with the question of whether the government must obtain a warrant before using your cell phone as a tracking device."

"GPS tracking enables the police to know when you visit your doctor, your lawyer, your church, or your lover," said Arthur Spitzer, Legal Director of the ACLU-NCA. "And if many people are tracked, GPS data will show when and where they cross paths. Judicial supervision of this powerful technology is essential if we are to preserve individual liberty. Today's decision helps brings the Fourth Amendment into the 21st Century."

Attorneys Daniel Prywes and Kip Wainscott of Bryan Cave LLP also volunteered their services to assist in preparing the EFF-ACLU brief.

For the full opinion:
http://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf

For more information on the case, formerly known as U.S. v. Jones:
http://www.eff.org/cases/us-v-jones

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

August 4, 2010

Website Resources Explain Rights and Options for Those Caught in Movie-Downloading Shakedown

San Francisco - The Electronic Frontier Foundation (EFF) today published "U.S. Copyright Group v. the People," a comprehensive collection of resources designed to assist the thousands of individuals accused of online copyright infringement by a Washington, D.C., law firm calling itself the U.S. Copyright Group (USCG).

Earlier this year, the USCG filed "John Doe" lawsuits on behalf of seven filmmakers implicating well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person.

EFF's new webpage at http://www.eff.org/uscg has important information for subpoena targets, including explanations of the claims made by USCG, discussions of possible responses, and resources to help people find legal counsel and assistance.

"The people targeted in these mass lawsuits need good information about this situation and their options," said EFF Senior Staff Attorney Corynne McSherry. "USCG vs. the People provides answers to the many of the questions faced by anyone who learns their identity is being sought in connection with USCG's campaign or receives an intimidating letter from USCG. It also includes a list of attorneys who are interested in assisting."

"EFF has been concerned about USCG's lawsuit campaign since it first came to light this past spring," said EFF Legal Director Cindy Cohn. "USCG has ignored or sidestepped basic legal protections granted to all defendants. We believe it is misusing the lopsided nature of copyright law, which was written largely to target commercial infringers, to shake out settlements from ordinary people with few resources to defend themselves."

In June, EFF along with the ACLU and Public Citizen filed amicus briefs in these cases, arguing that USCG must comply with key legal rules that help protect individual rights. EFF and its co-amici explained that USCG had improperly joined together thousands of defendants, had sued those defendants in the wrong court, and had failed to meet the relevant First Amendment tests for requiring ISPs to identify anonymous customers. In response, a judge hearing some of the cases ordered that better notice be given to those who were targeted that outlined their rights and explained the legal process. The notice includes a link to some of the resources on EFF's website.

For USCG v. The People:
http://www.eff.org/uscg

For the court-ordered notice:
http://www.eff.org/files/filenode/uscg/40-2%20Exhibit%201.pdf

Contacts:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Related Issues:
July 26, 2010

Rulemaking Fixes Critical DMCA Wrongs

San Francisco - The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities.

"By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," said Jennifer Granick, EFF's Civil Liberties Director. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach."

The exemptions were granted as part of a statutorily prescribed rulemaking process, conducted every three years to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions take unprecedented new strides towards protecting more consumers and artists from its extensive reach.

The first of EFF's three successful requests clarifies the legality of cell phone "jailbreaking" — software modifications that liberate iPhones and other handsets to run applications from sources other than those approved by the phone maker. More than a million iPhone owners are said to have "jailbroken" their handsets in order to change wireless providers or use applications obtained from sources other than Apple's own iTunes "App Store," and many more have expressed a desire to do so. But the threat of DMCA liability had previously endangered these customers and alternate applications stores.

In its reasoning in favor of EFF's jailbreaking exemption, the Copyright Office rejected Apple's claim that copyright law prevents people from installing unapproved programs on iPhones: "When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."

"Copyright law has long held that making programs interoperable is fair use," confirmed Corynne McSherry, EFF's Senior Staff Attorney. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."

EFF also won a groundbreaking new protection for video remix artists currently thriving on Internet sites like YouTube. The new rule holds that amateur creators do not violate the DMCA when they use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose. Hollywood has historically taken the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.

"Noncommercial videos are a powerful art form online, and many use short clips from popular movies. Finally the creative people that make those videos won't have to worry that they are breaking the law in the process, even though their works are clearly fair uses. That benefits everyone — from the artists themselves to those of us who enjoy watching the amazing works they create," added McSherry.

On EFF's request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones.

"The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights," said Granick. "The Copyright Office agrees with EFF that the DMCA shouldn't be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers. The DMCA also shouldn't be used to interfere with recyclers who want to extend the useful life of a handset."

Along with the exemptions that EFF championed, several other DMCA exemptions were expanded, granted or narrowed including one for documentary filmmakers and college-level educators, as well as some for security researchers.

For the full rulemaking order:
https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf

For more on the DMCA rulemaking:
http://www.eff.org/issues/dmca-rulemaking

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
July 26, 2010

EFF Urges Appeals Court to Protect Free Expression and Innovation in UMG v. Veoh

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nonprofit groups have asked a federal appeals court to protect the "safe harbor" rules for online video service providers that encourage free expression and innovation on the Internet.

In an amicus brief filed Friday in UMG v. Veoh, EFF told the U.S. Court of Appeals for the 9th Circuit that Universal Music Group's (UMG's) effort to hold online video service Veoh responsible for infringing content uploaded by a minority of its users would thwart federal law and Congress's intent to stimulate electronic commerce and free speech.

"By creating a clear path for innovators like Veoh to limit their liability for the copyright violations of their users, the statutory safe harbors helped foster the innovation environment that has made YouTube, Flickr, eBay, Blogger, and myriad other hosting-based services possible," said EFF Senior Staff Attorney Corynne McSherry. "UMG is trying to turn back the clock and reinstate a climate of legal uncertainty that would harm new online businesses and the free expression they foster."

The safe harbors are part of the Digital Millennium Copyright Act (DMCA) and give sites immunity from monetary damages if they observe the DMCA's "notice and takedown" procedures for potentially infringing content and comply with other legal requirements. In a lawsuit first filed in 2007, UMG argued that the safe harbors don't apply to any service that "displays" or "distributes" copyrighted material, rather than simply "storing" it. Last year, a federal district court rejected that argument. UMG appealed.

"The safe harbors have proven to be a huge success in encouraging the growth of innovative platforms for free expression, hosting vibrant amateur creativity," said McSherry. "But under UMG's vision for the Internet, we'd get something a lot more like television, where nothing is seen until it's approved by an army of lawyers. That's why we're asking the appeals court to affirm the lower court's ruling."

Joining EFF in the amicus brief are the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, the Center for Democracy and Technology, the Computer and Communications Industry Association, the Internet Archive, NetCoalition, and Public Knowledge.

For the full amicus brief:
http://www.eff.org/files/filenode/umg_v_veoh/UMGvVeohAmicusBrief072310.pdf

For more on this case:
http://www.eff.org/cases/umg-v-veoh

Contacts:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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July 14, 2010

Privacy and Anonymity at Risk in New York Conspiracy Suit

New York - The Electronic Frontier Foundation (EFF) this week served a motion to quash dragnet subpoenas that put privacy and anonymity at risk for the operators of dozens of Internet blogs and potentially hundreds of commenters.

The subpoenas stem from a state lawsuit filed by New York residents Miriam and Michael Hersh alleging a conspiracy to interfere with their business interests. Issued to Google and Yahoo, the subpoenas demand the identities of users of ten email accounts, operators of 30 blogs and a website that had featured discussions of the plaintiffs among other matters, and the identities of everyone who had ever commented on those sites.

"The First Amendment protects individuals' right to speak anonymously and forces litigants to justify any attempts to unmask anonymous critics," said EFF Senior Staff Attorney Matt Zimmerman. "Litigants cannot forcibly identify entire communities of online speakers -- which include many speakers who no one would claim did anything wrong -- simply because the litigants are curious."

In the motion served on Monday, EFF urged the Supreme Court for Kings County, New York, to quash the subpoenas for failing to satisfy the requirements imposed by the First Amendment, as well as the requirements imposed by New York state law and the federal Stored Communications Act.

"Overbroad subpoenas targeting anonymous speakers without cause naturally creates a chilling effect that may discourage others from exercising their constitutional rights to participate in conversations that take place online," said Zimmerman. "We are asking the court to enforce these reasonable safeguards so that the rights of innocent speakers do not become collateral damage in a dispute between others."

Ron Lazebnik and the Samuelson-Glushko Intellectual Property & Information Law Clinic at Fordham University School of Law assisted EFF in the serving of this motion.

For the full motion to quash:
http://www.eff.org/files/filenode/hersh_v_cohen/UOJ-motiontoquashmemo.pdf

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

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July 2, 2010

Flawed Prosecution Would Give Websites Extraordinary Power to Dictate Online Behavior

Newark, New Jersey - The Electronic Frontier Foundation (EFF) and a coalition of academics and public policy groups are urging a federal judge to dismiss a criminal indictment that could give websites extraordinary power to dictate what behavior becomes a computer crime.

The four defendants in this case are the operators of Wiseguys Tickets, Inc., a ticket-reselling service. In its indictment, the government claims the four purchased tickets from Ticketmaster by automated means, violating Ticketmaster's terms of service and therefore the Computer Fraud and Abuse Act (CFAA). In an amicus brief filed today, EFF argues that this prosecution expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service that websites decide to impose on users.

"Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges," said EFF Civil Liberties Director Jennifer Granick. "That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails."

The government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets. However, Ticketmaster itself has a financial interest in the ticket-reselling business and stands to benefit substantially from putting competitors out of business.

"The CFAA is aimed at blocking trespass and theft, not quashing innovation. Yet under the government's theory, websites could put the power of criminal law behind their own terms of service to create severe obstacles for their competitors," said EFF Senior Staff Attorney Marcia Hofmann. "The government has overstepped here, and we're asking the judge to dismiss this indictment."

EFF's amicus brief was also signed by the Center for Democracy and Technology (CDT), the Association of Criminal Defense Attorneys of New Jersey, and law professors Gabriel "Jack" Chin, Eric Goldman, Michael Risch, Ted Sampsell-Jones, and Robert Weisberg.

For the full amicus brief:
http://www.eff.org/files/filenode/us_v_lowson/LowsonAmicusBriefFinal.pdf

For more on this case:
http://www.eff.org/deeplinks/2010/07/cfaa-prosecution-wiseguys-not-so-smart

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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June 28, 2010

Predatory Suits Improperly Lump Thousands of Defendants Together

Washington, D.C. - On Wednesday, June 30, at 2:15 p.m., a federal court in Washington, D.C., will hear oral argument from the Electronic Frontier Foundation (EFF) about dividing up the mass copyright infringement lawsuits that improperly and unfairly target thousands of BitTorrent users.

A Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG) has filed "John Doe" lawsuits on behalf of seven filmmakers that implicate well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." EFF and co-amici Public Citizen and the American Civil Liberties Union (ACLU) Foundation contend that these suits improperly lump thousands of defendants together, a shortcut that deprives the defendants of fair access to individual justice. In court on Wednesday, EFF Senior Staff Attorney Corynne McSherry will argue that USCG has not offered enough evidence of a relationship between the defendants to justify suing them together.

The stakes are high for anyone identified in USCG's slipshod cases. USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person. Earlier this month, EFF, the ACLU, and Public Citizen filed an amicus brief in three of these cases, outlining how the lawsuits flout the legal safeguards that protect individuals' rights.

WHAT:
Achte-Neunte v. Does
West Bay One v. Does

WHEN:
Wednesday, June 30
2:15 p.m.

WHERE:
United States District Court for the District of Columbia, Courtroom 2
333 Constitution Avenue, N.W.
Washington, D.C. 20001

For more on these cases:
http://www.eff.org/cases/achte-neunte-v-does

Contact:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Related Issues:
June 22, 2010

EFF Urges Appeals Court to Tackle Critical First Amendment Questions

San Francisco - The Electronic Frontier Foundation (EFF), the Citizen Media Law Project (CMLP), and Public Citizen Monday urged the U.S. Court of Appeals for the Second Circuit to consider the critical First Amendment questions at issue in a case asserting "hot news misappropriation" -- a doctrine that a federal court used to put time limit restrictions on the reporting of facts.

The defendant in the case, TheFlyOnTheWall.com, had gathered stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers and reported them on its website. The firms sued TheFlyOnTheWall.com, claiming that the information was "hot news" and the website was free-riding on the firms' work in creating the recommendations. A federal court agreed with the investment banks and ordered TheFlyOnTheWall.com to delay reporting of the information for two hours after the reports are released.

"Surprisingly, no court has carefully explored the tension between the so-called 'hot news misappropriation' doctrine and freedom of speech and freedom of the press," said EFF Senior Staff Attorney Corynne McSherry. "We're asking the appeals court to recognize the elephant in the room and analyze the 'hot news' doctrine in light of the strong First Amendment protections developed by the Supreme Court to encourage the expression of truthful statements on matters of public concern."

Applying heightened First Amendment scrutiny is especially important now, as the Internet is increasingly allowing Americans to publicly gather, share, and comment on the news of the day. Misuse of the "hot news" doctrine could stifle this extraordinary growth of free expression.

"It's not hard to see how new and vital forms of social media could get caught in a 'hot news' dragnet," said McSherry. "The court must ensure that this doctrine is not used to quash online commentary and information-sharing."

For the full amicus brief:
http://www.eff.org/files/filenode/barclays_v_fly/FlyBriefFinal.pdf

Contact:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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June 16, 2010

EFF and Other Privacy Groups Outline Six Steps for True User Control

San Francisco - The Electronic Frontier Foundation (EFF), the ACLU of Northern California, and a coalition of privacy groups are urging Facebook to give users true control over their personal data by taking six critical steps to protect members' information.

In an open letter sent to CEO Mark Zuckerberg today, the coalition asks Facebook to close its "app gap" and allow users to decide which applications can access their personal data. The group also asks Facebook to make "instant personalization" an opt-in service and use an HTTPS connection for all interactions by default, among other steps.

"Facebook continues to push its users into more and more public sharing -- sharing that it's not at all clear members want or fully understand," said EFF Senior Staff Attorney Kevin Bankston. "We're calling on Facebook and Mark Zuckerberg to respect their members and give them the information and the tools they need for true control."

Facebook has faced a firestorm of criticism since April, when it made sweeping revisions to its privacy policy. Among the changes were the launch of the controversial "instant personalization" service, as well as forcing users to chose between making wide swaths of previously private data public or deleting the information. Facebook made some important privacy improvements in May, but key aspects of user control were not covered by the changes.

"Social network service providers are in a unique position -- hosting communications, conversations, and connections with loved ones, family, and friends," said EFF Senior Staff Attorney Kurt Opsahl. "This is extremely sensitive information, and social networking services must ensure that users have ongoing privacy and control."

In the wake of the public outcry against Facebook's privacy revisions, EFF issued a Bill of Privacy Rights for social network users, advocating that all social network users have the right to make informed decisions about their level of privacy, to exercise control over their data, and to leave a network. Social network users' rights are also under discussion this week at the Computers, Freedom, and Privacy Conference in San Jose.

In addition to EFF and the ACLU of Northern California, other groups signing today's open letter include the Center for Democracy and Technology, the Center for Digital Democracy, Consumer Action, Consumer Watchdog, Privacy Lives, and the Privacy Rights Clearinghouse.

For the full open letter:
http://www.eff.org/files/filenode/social_networks/OpenLettertoFacebook.pdf

For EFF's Bill of Privacy Rights for Social Network Users:
http://www.eff.org/deeplinks/2010/05/bill-privacy-rights-social-network-users

For more on social networking and privacy:
http://www.eff.org/issues/social-networks

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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June 3, 2010

Predatory Copyright Infringement Cases Violate Rights of Thousands

Washington, D.C. - The Electronic Frontier Foundation (EFF) asked judges in Washington, D.C., Wednesday to quash subpoenas issued in predatory lawsuits aimed at movie downloaders, arguing in friend-of-the court briefs that the cases, which together target several thousand BitTorrent users, flout legal safeguards for protecting individuals' rights. Public Citizen and the American Civil Liberties Union (ACLU) Foundation joined EFF on the briefs filed Wednesday.

The lawsuits are the brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG). USCG investigators have identified IP addresses they allege are associated with the unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." To date, USCG has filed seven "John Doe" lawsuits in D.C., implicating well over 14,000 individuals, and has issued subpoenas to ISPs seeking the names and addresses of the subscribers associated with those IP addresses. Several ISPs have complied, but Time Warner Cable moved to quash the three subpoenas it received, arguing that USCG is abusing the discovery process.

In briefs filed in support of the cable giant, EFF says the John Doe defendants are being deprived of a fair chance to defend themselves by the strategies adopted by the USCG.

"By requiring those sued to defend these cases in D.C., regardless of where they live, and by having thousands of defendants lumped into a single case, the USCG has stacked the deck against the defendants," said EFF Senior Staff Attorney Corynne McSherry. "In addition, the First Amendment mandates that each defendant be given notice and opportunity to quash a subpoena and that the plaintiff offer sufficient evidence of infringement about each defendant individually."

"If USCG wants to sue thousands of people, it needs to give each defendant a fair chance to fight the accusations," added EFF Civil Liberties Director Jennifer Granick. "Instead, USCG is taking shortcuts that will result in innocent people getting tangled up in the dragnet."

USCG's strategy appears to be to threaten a judgment of $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for about $2,500 per person. USCG unapologetically explains this strategy on its website: "As a practical matter each individual infringer lacks the assets, net worth and earning capacity to make civil prosecution practical...until the SaveCinema.org efforts of the US Copyright Group." USCG has also said it plans to target thousands more individuals for legal action in the coming months.

"We've long been concerned that some attorneys would attempt to create a business by cutting corners in mass copyright lawsuits against fans, shaking settlements out of people who aren't in a position to raise legitimate defenses and becoming a category of 'copyright trolls' to rival those seen in patent law," said EFF Legal Director Cindy Cohn. "We're asking the court to step in now and force USCG to follow the rules that apply in all other cases."

For the full amicus brief:
http://www.eff.org/files/filenode/uscg_does/Achte-Neunte%20Final%20Brief.pdf

For more on this case:
http://www.eff.org/cases/achte-neunte-v-does

Contact:

Corynne McSherry
IP Director
Electronic Frontier Foundation
corynne@eff.org

June 2, 2010

Appeals Court to Consider 'First Sale' Doctrine for eBay Seller

Seattle - On Monday, June 7, at 9 a.m., a federal appeals court in Seattle will hear oral argument in a case where the Electronic Frontier Foundation (EFF) is fighting to uphold an eBay seller's "first sale" right to resell promotional CDs that he buys from secondhand stores.

Troy Augusto was sued by Universal Music Group (UMG) three years ago for 26 auction listings for promo CDs. At issue was whether the "promotional use only, not for sale" labels on those CDs trump Augusto's right to resell materials that he owns -- a right guaranteed by copyright law's "first sale" doctrine.

In 2008, the district court handed the victory to Mr. Augusto, but UMG has appealed that ruling. At Monday's hearing at the U.S. Court of Appeals for the 9th Circuit in Seattle, EFF cooperating counsel Joseph C. Gratz of the San Francisco law firm Durie Tangri LLP will argue the case, urging the court to uphold the "first sale" principle against self-serving "not for resale" labels on compact discs.

Also on the court's calendar on Monday are two other important first sale cases. In Vernor v. Autodesk, the panel will consider whether an eBay seller has the right to resell software purchased second-hand. In MDY v. Blizzard, at issue is whether World of Warcraft players own the software they purchase to play the game, and whether that entitles them to use the software in ways the creator does not approve of.

WHAT:
Oral argument in UMG v. Augusto

WHEN:
Monday, June 7
9 a.m.

WHERE:
William K. Nakamura Courthouse, 7th floor
1010 Fifth Avenue
Seattle, WA 98104

For more on UMG v. Augusto:
http://www.eff.org/cases/umg-v-augusto

Contact:

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
May 19, 2010

Describing Company's Pay Packages as 'Legalized Highway Robbery' Held Not Defamatory

San Francisco - A federal judge in San Francisco has quashed a baseless subpoena aimed at outing an anonymous online critic of Pennsylvania corporation USA Technologies after the Electronic Frontier Foundation (EFF) successfully argued that the First Amendment shields the identity of anonymous speakers who engage in lawful speech.

"All too frequently, companies turn to the courts in misguided attempts to chill speech and 'out' their critics, believing that those critics lack the resources or will to defend themselves," said EFF Senior Staff Attorney Matt Zimmerman. "The First Amendment ensures that vigorous debates about matters of public concern can continue unabated, a fact that the court correctly recognized."

EFF represents Yahoo! user "Stokklerk," who criticized USA Technologies and its CEO, George Jensen, Jr., on a Yahoo! message board, drawing attention to plummeting stock prices, high compensation rates for executives, and a consistent lack of profitability. Other anonymous posters had similar complaints.

In response, USA Technologies filed a lawsuit in the Eastern District of Pennsylvania alleging that the statements violated federal securities regulations, because they were part of a "scheme" for the authors to "enrich themselves through undisclosed manipulative trading tactics." USA Technologies also alleged that the online posts -- which characterized USA Technologies' executive compensation practices as, among other things, "legalized highway robbery" and a "soft Ponzi" -- were defamatory. Pursuant to that lawsuit, USA Technologies issued a subpoena out of the Northern District of California to Yahoo! demanding the critics' identities.

In her ruling, Judge Susan Illston agreed with Stokklerk and quashed the subpoena, recognizing "the Constitutional protection afforded pseudonymous speech over the internet, and the chilling effect that subpoenas would have on lawful commentary and protest." Judge Illston further found that none of the statements at issue were defamatory in context and were instead "protected opinions" under the First Amendment.

"We're gratified that the Court saw it the way we did," said David M. Given of Phillips, Erlewine & Given LLP, which served as co-counsel with EFF in the matter. "The First Amendment principle at stake in this case is paramount to preserving the free interchange of ideas and opinions on the Internet."

For the full ruling:
http://www.eff.org/files/filenode/usatechnologies/USAT-order-051710.pdf

For more on this case:
http://www.eff.org/cases/usa-technologies-v-stokklerk

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Related Issues:
May 17, 2010

EFF Research Shows More Than 8 in 10 Browsers Have Unique, Trackable Signatures

San Francisco - New research by the Electronic Frontier Foundation (EFF) has found that an overwhelming majority of web browsers have unique signatures -- creating identifiable "fingerprints" that could be used to track you as you surf the Internet.

The findings were the result of an experiment EFF conducted with volunteers who visited http://panopticlick.eff.org/. The website anonymously logged the configuration and version information from each participant's operating system, browser, and browser plug-ins -- information that websites routinely access each time you visit -- and compared that information to a database of configurations collected from almost a million other visitors. EFF found that 84% of the configuration combinations were unique and identifiable, creating unique and identifiable browser "fingerprints." Browsers with Adobe Flash or Java plug-ins installed were 94% unique and trackable.

"We took measures to keep participants in our experiment anonymous, but most sites don't do that," said EFF Senior Staff Technologist Peter Eckersley. "In fact, several companies are already selling products that claim to use browser fingerprinting to help websites identify users and their online activities. This experiment is an important reality check, showing just how powerful these tracking mechanisms are."

EFF found that some browsers were less likely to contain unique configurations, including those that block JavaScript, and some browser plug-ins may be able to be configured to limit the information your browser shares with the websites you visit. But overall, it is very difficult to reconfigure your browser to make it less identifiable. The best solution for web users may be to insist that new privacy protections be built into the browsers themselves.

"Browser fingerprinting is a powerful technique, and fingerprints must be considered alongside cookies and IP addresses when we discuss web privacy and user trackability," said Eckersley. "We hope that browser developers will work to reduce these privacy risks in future versions of their code."

EFF's paper on Panopticlick will be formally presented at the Privacy Enhancing Technologies Symposium (PETS 2010) in Berlin in July.

For the full white paper: How Unique is Your Web Browser?:
https://panopticlick.eff.org/browser-uniqueness.pdf

For more details on Pantopticlick:
http://www.eff.org/deeplinks/2010/05/every-browser-unique-results-fom-panopticlick

For more on online behavioral tracking:
http://www.eff.org/issues/online-behavioral-tracking

Contacts:

Peter Eckersley
Senior Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Related Issues:
May 11, 2010

Lawsuit Seeks Information on Three Controversial Surveillance Provisions in Advance of Congressional Debate

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit today against the Department of Justice (DOJ), demanding records on three controversial PATRIOT Act surveillance provisions that expire early next year unless Congress renews them.

EFF is seeking the immediate release of Federal Bureau of Investigation (FBI) reports on the provisions' effectiveness, lawfulness, and potential misuse in a lawsuit filed under the Freedom of Information Act (FOIA). These controversial PATRIOT provisions give the FBI expanded powers to seize electronic records and property and to wiretap phone conversations, and are set to expire in February of 2011. Congress will likely begin debate on potentially reauthorizing the provisions before the end of the year.

"The PATRIOT Act provisions have faced criticism from both Congress and the general public for the lack of privacy safeguards for ordinary Americans who might mistakenly be caught in overbroad FBI surveillance," said EFF Senior Counsel David Sobel. "The records we are seeking here -- how well the law works, and how it may have been misused -- should be an integral part of the decisions made on how to reform the law."

EFF filed its FOIA request with the DOJ in September of 2009, when initial discussions about reauthorization were beginning in Congress. The FBI initially approved EFF's request for expedited processing, but has not yet disclosed any records. EFF filed its lawsuit today in order to ensure the information is released in time to inform the upcoming congressional debate.

"If the FBI continues to withhold these records, Americans won't have the information they need to make important decisions about reforming the PATRIOT Act," said Sobel. "The DOJ needs to follow the law and release its reports to the public."

For the full complaint:
http://www.eff.org/files/filenode/patriot_records/complaint_patriotrecords.pdf

Contact:

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
May 4, 2010

Facebook Tries to Make Violations of Terms of Use Into Criminal Violations

San Francisco - The Electronic Frontier Foundation (EFF) is urging a federal judge to dismiss Facebook's claims that criminal law is violated when its users opt for an add-on service that helps them aggregate their information from a variety of social networking sites.

Power Ventures makes a web-based tool that users can set up to log into their multiple social networking accounts and aggregate messages, friend lists, and other data so they can see all the information in one place. In a lawsuit against Power Ventures, Facebook claims that Power's tool violates criminal law because Facebook's terms of service ban users from accessing their information through "automatic means." By using Power's tool, Facebook argues that its users are accessing Facebook "without permission" under the California penal code. EFF argues in an amicus brief filed Monday that users have the right to choose how they access their data, and turning any violation of terms of use into a criminal law violation would leave millions of Facebook users unwittingly vulnerable to prosecution.

"California's computer crime law is aimed at penalizing computer trespassers," said EFF Civil Liberties Director Jennifer Granick. "Users who choose to give their usernames and passwords to aggregators like Power Ventures are not trespassing. Under Facebook's theory, millions of Californians who disregard or don't read terms of service on the websites they visit could face criminal liability. Also, any Internet company could use this argument as a hammer to prevent its users from easily leaving the service as well as to shut down innovators and competitors."

Even the simple use of the automatic login feature of most browsers would constitute a violation under Facebook's theory, since those services are "automatic means" for logging in. But the risk for users is even broader. If any violation of terms of use is criminal, users who shave a few years off their age in their profile, claim to be single when they are married, or change jobs or addresses without updating Facebook right away would also have violated the criminal law.

"The information you put into social networking sites is yours, and you should be able to access it, export it, and aggregate it as you please," said EFF Legal Director Cindy Cohn. "If Facebook's legal argument is upheld, it will hobble companies that enable consumer choice, as well a create a massive expansion in the scope of California criminal law."

For the full amicus brief:
http://www.eff.org/files/filenode/facebook_v_power/poweramicus.pdf

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

April 14, 2010

Joins With Google and Others to Argue for Fourth Amendment Protection of Email

Denver - The Electronic Frontier Foundation (EFF) along with Google and numerous other public interest organizations and Internet industry associations joined with Yahoo! in asking a federal court Tuesday to block a government attempt to access the contents of a Yahoo! email account without a search warrant based on probable cause.

The Department of Justice is seeking the emails as part of a case that is under seal, and the account holder has apparently not been notified of the request. Government investigators maintain that because the Yahoo! email has been accessed by the user, it is no longer in "electronic storage" under the Stored Communications Act (SCA) and therefore does not require a warrant, even though that same legal theory has been flatly rejected by the one Circuit Court to address it.

Yahoo! is challenging the government request before a federal magistrate judge in Denver, arguing that the SCA and Fourth Amendment require the government to get a search warrant before compelling Yahoo! to disclose the email. In an amicus brief filed in support of Yahoo! Tuesday, EFF says that the company is simply following the law and protecting the constitutional privacy rights of its customers.

"The government is trying to evade federal privacy law and the Constitution," said EFF Senior Staff Attorney Kevin Bankston. "The Fourth Amendment protects these stored emails, just like it does our private papers. We all have a reasonable expectation of privacy in the contents of our email accounts, and the government should have to make a showing of probable cause to a judge before it rifles through our private communications."

This email privacy case comes on the heels of the announcement of a broad coalition of technology companies, think tanks, academics, and privacy groups -- including EFF -- that is calling for amendments to clarify and strengthen federal privacy law to preserve traditional privacy rights in the face of rapidly changing technology. The Digital Due Process coalition's recommendations would, among other things, clarify that the government must get a warrant before obtaining stored email messages, regardless of whether they are opened or unopened and regardless of their age.

"Americans trust Internet service providers and other technology companies to collect and store large amounts of personal information -- more and more every day -- and it's time that Congress clarified and strengthened the law to better protect that data," said EFF Civil Liberties Director Jennifer Granick. "Just as your postal letters and packages are private even though the carrier could open them, so your email and other information is protected even if it is stored on a third party's server."

Along with Google, other signers to the EFF brief are the Center for Democracy & Technology (CDT), the Center for Financial Privacy and Human Rights (CFPHR), the Competitive Enterprise Institute (CEI), the Computer & Communications Industry Association (CCIA), the Distributed Computing Industry Association (DCIA), NetCoalition, the Progress & Freedom Foundation (PFF) and TRUSTe. Signers were represented by EFF, Professor Paul Ohm of the University of Colorado at Boulder and the Samuelson-Glushko Technology Law & Policy Clinic, and attorney Matthew M. Linton of the firm Kennedy Childs & Fogg, P.C., in Denver.

For the full amicus brief:
http://www.eff.org/files/filenode/inreusaorder18/AmiciBriefYahooEmails.pdf

For more on this case:
http://www.eff.org/cases/re-application-united-states-america-order

For more on Digital Due Process:
http://www.digitaldueprocess.org

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Related Issues:
April 13, 2010

EFF and Other Nonprofit Groups Ask Court to Reject Viacom's Arguments

New York - The Electronic Frontier Foundation (EFF) and other nonprofit groups asked a federal judge Monday to reject expansive copyright claims made in lawsuits pending against YouTube. The amicus brief argues that the plaintiffs in those lawsuits are pushing for legal rulings that would undermine federal law and throttle free speech and innovation on the Internet.

Viacom and a variety of class action plaintiffs are suing YouTube, claiming that the online video service is liable for copyright infringements committed by its users. YouTube has responded by arguing that its activities are shielded by the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA), which give legal protections to online service providers that host content on behalf of users.

Despite the DMCA, the plaintiffs have claimed that YouTube should be held responsible for infringements that occurred before May 2008, when the site voluntarily implemented content filtering technologies. In effect, the plaintiffs have urged the court to make content filtering mandatory for all online service providers that host content on behalf of users. In the amicus brief filed Monday, EFF -- joined by the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center For Democracy and Technology, Computer and Communications Industry Association, Home Recording Rights Coalition, Internet Archive, NetCoalition, and Public Knowledge -- argues that Viacom's theory would rewrite federal law and thwart Congress' goal of reducing the legal uncertainties facing companies trying to innovate on the Internet.

"This case is not just about YouTube," said EFF Senior Staff Attorney Fred von Lohmann. "Nearly every online service that fosters free expression and commerce online -- like the Internet Archive, Blogger, Facebook, eBay, Amazon, Flickr, and Scribd -- depends on the very same DMCA safe harbors that YouTube is relying on here. Viacom is trying to undo the law that Congress designed to provide a modicum of legal certainty for those who build these innovative online services."

The cases against YouTube are pending in federal court in the Southern District of New York. Additional briefs will be filed by the parties on April 30 and June 4. A hearing and decision will follow.

For the full amicus brief:
http://www.eff.org/files/filenode/viacom_v_youtube/YouTubeAmicusBriefFINAL.pdf

For more on this case:
http://www.eff.org/cases/viacom-v-youtube

Contact:

Fred von Lohmann
Senior Staff Attorney
Electronic Frontier Foundation
fred@eff.org

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