EFF established that computer code is speech and shielded the developers of privacy-protecting software from government censorship.
In 1995, researcher Dan Bernstein planned to distribute an encryption program he had written that could help prevent strangers from snooping on online communications, discovering passwords, and stealing credit card numbers. But draconian federal laws restricted the publication of his program, treating privacy protection as a potential threat to national security. EFF successfully sued the government on behalf of Bernstein, and a federal court affirmed, for the first time, that software code deserves First Amendment protection.
EFF defended the right of innovators to build new technologies without begging Hollywood's permission first.
Hollywood has hoped to control innovation by overturning the "Betamax doctrine" - the bedrock principle that the developer of a technology with substantial legal uses cannot be held liable for users' copyright violations. In the Grokster case, 28 of the world's largest entertainment companies sued the distributors of peer-to-peer (P2P) file-sharing software. EFF defended one of the software companies all the way to the U.S. Supreme Court, which refused to overturn the Betamax doctrine or to force technology companies to redesign multipurpose technologies. Meanwhile, EFF helped block the INDUCE Act, a bill that would have severely undermined the Betamax doctrine.
EFF set one of the first precedents protecting computer communications from unwarranted government invasion.
In 1990, the Secret Service seized the computers of a small company out of Austin, Texas, called Steve Jackson Games. The computers included the company's electronic bulletin board system, a precursor the Internet for exchanging private email. This case was the first to establish that it is illegal for law enforcement to access and read private electronic mail without a warrant.
EFF extended free speech protections online, successfully challenging the constitutionality of Internet censorship laws.
In 1996, EFF and a coalition of public interest groups sued to block the Communications Decency Act, which criminalized publishing certain content online that the government clearly could not prohibit offline. Unanimously, the U.S. Supreme Court struck down the law and established that online speech deserves the full protection of the First Amendment. Congress still didn't learn its lesson, subsequently passing the slightly narrower but still gravely dangerous Children Online Protection Act. Again, EFF fought back, and the Supreme Court has twice upheld injunctions against the law.
EFF held Sony BMG accountable for infecting its customers' computers with software that created grave security vulnerabilities and let the company spy on listening behavior.
Sony BMG included the dangerous software on millions of music CDs as part of a misguided attempt to restrict consumer usage. After pushing Sony BMG to take the CDs off the market, EFF filed and subsequently settled a class-action lawsuit that forced Sony to repair the damage already done. EFF also successfully pressured Sunncomm, the creators of one of the harmful technologies, to fix the security flaws.
The government had argued that it did not need to show probably cause that a crime was being committed. Consistent with EFF's brief, a federal magistrate judge in New York rejected the government's arguments, calling them "unsupported," "misleading," "contrived," and a "Hail Mary." Since there, several judges have made similar rulings.
Opening the (Garage) Door to Free Competition
Fighting the abuse of copyright law to stifle competition, EFF helped Skylink score an important victory in the Federal Circuit that puts much-needed limits on the controversial "anti-circumvention" provision of the Digital Millennium Copyright Act (DMCA). Chamberlain, the manufacturer of garage doors, invoked the provision to stop Skylink from selling a "universal" remote control that works with Chamberlain garage doors. The court rejected Chamberlain's claims, noting that if it adopted the company's interpretation of the DMCA, it would threaten many legitimate uses of software within electronic and computer products – something the law aims to protect.
EFF helped defend a printer cartridge company against a competitor's overreaching copyright claims under the Digital Millennium Copyright Act (DMCA). Lexmark brought a DMCA lawsuit against Static Controls in an effort to eliminate the market for remanufactured or refilled Lexmark toner cartridges, which would have forced owners of Lexmark laser printers to buy more expensive cartridges from Lexmark. The Sixth Circuit Court of Appeals ultimately rejected that effort, concluding that Lexmark's "protection measure" was aimed at protecting the company from legitimate competition, rather than "piracy."
The DMCA Is Not a Global Statute
The FBI arrested Russian programmer Dmitry Sklyarov while he was attending a security conference in Las Vegas to discuss the Advanced eBook Processor, a program to decrypt Adobe eBook files. This made Sklyarov the first person to be criminally charged under the Digital Millennium Copyright Act (DMCA). Adobe initially pressed the case, but, after meeting with EFF, called for all charges against Sklyarov to be dropped. There is no DMCA in Russia, and a jury eventually acquitted Sklyarov's company, ElcomSoft, of willful violation.
EFF protected innovation and fair use by defending "intermediate" copying. Major motion picture studies filed a copyright infringement suit against two companies that made and distributed copies of movies with sexual and violent content removed. To make those copies, the companies first made an initial, "intermediate" copy of the entire movie, which the MPAA alleged were also infringing. Because such copies are crucial to the process of creating new works, EFF filed an amicus brief arguing that those copies were legal if the final copies were as well. The MPAA then backed off and withdrew its "intermediate copying" argument in front of the judge.