EFF in the News
Attorneys for Righthaven this week responded to one such challenge, which was posed by attorneys with the electronic privacy and freedom of speech group Electronic Frontier Foundation (EFF) on behalf of former federal prosecutor Thomas DiBiase.
The industry's report card on privacy appears to be a mixed bag. "The industry has failed dismally to self-regulate up until now," Rainey Reitman, an activist with the Electronic Frontier Foundation in San Francisco, told the E-Commerce Times.
"It's theoretically possible that when faced with this report from the FTC, the industry will realize it needs to get its act together and try to come up with a more comprehensive solution," she conceded. "Most privacy advocates are very skeptical of that."
"We have a lot of sympathy for the fears and frustration of the entertainment industries," said Peter Eckersley, a senior technologist for the civil-liberties advocacy group the Electronic Frontier Foundation. "But we think that COICA would have disastrous consequences, both in terms of the way that the Internet functions and damaging potential Internet infrastructure—and also in terms of being a genuine threat to freedom of speech and innovation."
This moves us toward a world where contracts of adhesion strip consumers of a whole host of important rights," says Corynne McSherry, staff attorney at the Electronic Frontier Foundation. "This conflicts with the spirit of [the Supreme Court’s decision in] Bobbs-Merrill. Bobbs-Merrill stands for the principle that there is a limit on copyright. The 9th Circuit panel essentially says Bobbs-Merrill is controlling precedent, but you can get around that with magic words."
As Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation put it:
"The documents that were released this week would not have been stopped by shutting down a website."
When it comes to device fingerprinting, “we have no convenient options for privacy,” said Peter Eckersley, staff scientist at the Electronic Frontier Foundation, a privacy-advocacy group. “All the things we can do are inconvenient to the point of being really impractical.”
In a study this year, Mr. Eckersley found that about 91% of nearly 1 million computer users surveyed could be fingerprinted simply by visiting a website.
Typically, the standard in most civil cases is simply a "preponderance of the evidence" suggesting that the facts are mostly likely true, as EFF fellow Michael Barclay explained in a blog post yesterday.
When it comes to patents, however, a more stringent standard has been used, requiring that the defendant present "clear and convincing" evidence instead.
That more stringent standard "unfairly burdens patent defendants, especially in the free and open source software context," Barclay wrote. It also "undermines the traditional patent bargain between private patent owners and the public and threatens to impede innovation and the dissemination of knowledge."
EFF says that whether the claims by the adult-film companies are true or not, someone accused may feel forced to settle to avoid any questions about their sexual preferences. In addition, EFF also argued that the porn studios are wrong to include thousands of people into a single suit and to sue them in courts far from their homes. This is the same complaint that the group has with the litigation campaign started this year by independent film studios, including Voltage Pictures, makers of the Oscar-winning film, "The Hurt Locker."
The Electronic Frontier Foundation is leaping to the defense of adult video aficionados who have found themselves targeted by what the group says is a concerted effort by copyright trolls to cash in on the natural reluctance of porn watchers to be publicly identified.
Happily, Townsend's account was reinstated this week after intervention from the Electronic Frontier Foundation convinced YouTube and the petitioners to reconsider their positions.