EFFector Vol. 20, No. 14 April 11, 2007 firstname.lastname@example.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 420th Issue of EFFector:
- Don't Let Europe Turn Its Citizens into Copycriminals!
- EMI Begins Licensing DRM-Free Music Downloads
- Taking Away Your Personal Use Rights, One Anti-Innovation Lawsuit at a Time
- Help Bust a Bogus VoIP Patent
- Court Clarifies Service Providers' Immunity From State IP Claims
- A Bad Idea From Utah: A Ban on Comparative Advertising
- PTO File Sharing Report Falls Short on Consumer Protection
- Myth v. Fact: Is MySpace Safe for Kids?
- Watch Mark Cuban Debate EFF's Fred von Lohmann About YouTube and the Future of Copyright
- miniLinks (10): Students Accuse Anti-Plagiarism Site of Copying
For more information on EFF activities & alerts: http://www.eff.org/ Make a donation and become an EFF member today! http://eff.org/support/ Tell a friend about EFF: http://action.eff.org/site/Ecard?ecard_id=1061 effector: n, Computer Sci. A device for producing a desired change. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Don't Let Europe Turn Its Citizens into Copycriminals! Sign EFF's Petition Against IPRED2 at www.copycrime.eu On April 24th, the European Parliament will vote on IPRED2, the Second Intellectual Property Enforcement Directive. With one stroke, they risk turning thousands of innocent EU citizens and businesses into copycriminals. If IPRED2 passes in its current form, "aiding, abetting, or inciting" copyright infringement on a "commercial scale" in the EU will become a crime. The entertainment industry has made it clear that it sees sites like YouTube, P2P software, and even ISPs as "inciting" infringement. With IPRED2, the industry is pressuring governments in Europe to use taxpayers' money to enforce these prohibitive ideas of intellectual property. If IPRED2 were to become law, entertainment companies would even be able assist police in an official role as part of transnational "joint investigation teams." Even though this represents a huge change in how intellectual property will be treated under the law, many terms in IPRED2 are left unclear or undefined -- including "commercial scale" and "incitement." Companies or individuals crossing these fuzzy lines can face permanent bans on doing business, as well as seizure of assets, criminal records, and fines of up to 100,000 euros. EFF Europe, together with other European activist groups, is working hard in Brussels to fix IPRED2. Send a message to the European Parliament, and receive up-to-date information, by visiting the copycrime website and signing our petition now! More info: http://www.copycrime.eu/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EMI Begins Licensing DRM-Free Music Downloads Apple and EMI announced last week that the iTunes Music Store will begin offering DRM-free downloads from EMI's catalog. EFF welcomes this development wholeheartedly. Of course, we've been saying for years that DRM is bad for consumers, innovators, and artists. DRM on music does nothing to slow "Internet piracy" and is single-handedly responsible for all the interoperability problems surrounding digital music today. We're glad that both major labels and service providers are gradually coming to their senses. Unfortunately, the industry is still giving consumers a raw deal. Fans will be charged a 30% premium to avoid DRM ($1.29 instead of 99 cents per track, or 30 cents to upgrade an old download) -- effectively a surcharge to buy back your rights. This high price will push away many fans who would otherwise be willing to pay a subscription fee to license the file sharing they currently do. EFF has been advocating voluntary collective licensing as a better way forward, and, though the major record labels have eschewed this path, perhaps they might change their tune soon. After all, it wasn't long ago that the record labels were aghast at the mere idea of DRM-free music. For this post and related links: http://www.eff.org/deeplinks/archives/005186.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Taking Away Your Personal Use Rights, One Anti-Innovation Lawsuit at a Time A California Superior Court judge recently ruled that Kaleidescape did not violate its contract with the DVD DRM licensing authority by distributing a home media server that rips and plays DVDs. This is an important victory for consumers, but it's also a sad reminder of how your ability to make personal use of digital media is under attack. As the LA Times' Jon Healey nicely explains in a recent blog post, this suit had absolutely nothing to do with stopping "Internet piracy" and everything to do with controlling innovation: http://opinion.latimes.com/bitplayer/2007/03/kaleidescape_es.html In the DVD world, technology creators have to beg permission first from the DVD Copy Control Association, which is essentially controlled by the movie studios. That's why to this day there are still no mass market tools for backing up your DVDs or copying movies to portable devices, for instance. Kaleidescape is a telling exception. To sell its expensive, niche market, thoroughly locked-down media server, it had had to go through years of costly litigation. DVD CCA still claims that the license forbids this technology and may appeal the decision; in other words, Kaleidescape is still having to defend itself in court in order to deliver its award-winning, innovative new product. Of course, Kaleidescape isn't the only personal use technology under attack in court. Consider the lawsuits against Cablevision's remote DVR service and XM Radio's Inno portable player, which may become "victim[s] of the engineering police," as Public Knowledge's Art Brodsky puts it in an excellent column here: http://www.tompaine.com/articles/2007/04/02/reclaiming_the_digital_frontier.php Consumers have long used VCRs and audio tape decks to record off TV and radio, but the entertainment industry wants to decide if and how those abilities come into the digital age. Neither the Cablevision DVR nor XM's Inno is about "Internet piracy"; just like in the DVD context, the entertainment industry is simply aiming to force innovators to beg permission first. You can help fight back against this assault on your digital media freedoms -- use our Action Center to support the FAIR USE Act: http://action.eff.org/site/Advocacy?id=271 For this post and related links: http://www.eff.org/deeplinks/archives/005187.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Help Bust a Bogus VoIP Patent EFF's Patent Busting Project fights back against bogus patents by filing requests for reexamination against the worst offenders. We've successfully pushed the Patent and Trademark Office to reexamine patents held by Clear Channel and Test.com. Now we need your help to bust another. A company called Acceris claims patents on processes that implement voice-over-Internet protocol (VoIP) using analog phones as endpoints. Put simply, these patents cover telephone calls over the Internet. Specifically, the claims describe a system that connects two parties where the receiving party does not need to have a computer or an Internet connection, but the call is routed in part through the Internet or any other "public computer network." The calls must also be "full duplex," meaning that both parties can listen and talk at the same time, like in an ordinary phone call. We would like to prove that the method and system described in the patents are not novel. To bust these overly broad claims, we need "prior art" -- any publication, article, patent or other public writing that describes the same or similar ideas being implemented before September 20, 1995. We have identified and listed below several products from the mid-1990s that might fit the above criteria. Information about these as well as any other products would be greatly appreciated: * Net2Phone: According to its website, Net2Phone is a product that enables individuals with computers and Internet connections to place voice calls to anyone with an ordinary telephone. We are looking for documentation about Net2Phone that predates September 20, 1995 or evidence of Net2Phone's existence before September 20, 1995. * Internet Phone by VocalTec: VocalTec's Internet Phone was one of the first commercial software products that enabled audio calls between computers on the Internet. We are looking for documentation about this gateway functionality that predates September 20, 1995 or evidence of such a product's existence before September 20, 1995. Submit prior art tips here: http://www.eff.org/patent/wanted/contribute.php?p=acceris%3Cbr%20/%3E For this post and related links: http://www.eff.org/deeplinks/archives/005188.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Court Clarifies Service Providers' Immunity From State IP Claims Section 230 of the Communications Decency Act of 1996 is an amazingly powerful federal law, protecting interactive computer services by ensuring that the soapbox is not liable for what the speaker has said. Section 230's immunity to state law claims (typically defamation, but including all other lawsuits based on state laws) allows for many of the online services you know and love, including user product reviews, online auction feedback, internet dating services, message boards, classified ads, usenet -- the list goes on and on. But Section 230 does not provide complete protection, exempting "intellectual property" law from its reach. The term "intellectual property" was not defined, leading to the question of whether state laws that are similar to traditional intellectual property are covered. Recently, the Ninth Circuit emphatically answered that question in Perfect 10, Inc. v. CCBill, LLC, "constru[ing] the term 'intellectual property' to mean 'federal intellectual property,'" such as copyrights, patents and federal trademarks. The Ninth Circuit reversed the District Court's ruling on Perfect 10's right of publicity claims, reasoning that: "Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes." This means that Section 230 can protect service providers from claims that the users of their services violated state laws, such as the right of publicity, trade secrets and state trademark laws. This is great news for service providers, and great news for free speech, since it allows service providers to provide the platform upon which others may speak, while leaving the responsibility for the content of the speech where it properly lies -- upon the author. As for the federal intellectual property rights, the Digital Millennium Copyright Act provides a safe harbor for copyright claims. The Ninth Circuit decision clarified a number of factors of the DMCA safe harbor, importantly noting that "[t]he DMCA notification procedures place the burden of policing copyright infringement--identifying the potentially infringing material and adequately documenting infringement--squarely on the owners of the copyright." The Court of Appeals remanded the case back to the District Court to see whether CCBill qualified. This is not going to be the last ruling on the subject. Perfect 10 has filed numerous lawsuits trying to hold everyone from search engines to credit card companies liable for other people's use of Perfect 10's pornographic photographs. For this post and related links: http://www.eff.org/deeplinks/archives/005184.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * A Bad Idea From Utah: A Ban on Comparative Advertising The Utah legislature has quietly passed a dangerous law allowing trademark owners to prevent their marks from being used as keywords to generate comparative ads. If this law takes effect, a company like Chevrolet couldn't purchase "sponsored link" space on the Google results page when a user types "Toyota" as part of a search query -- at least if the latter term is registered in Utah as an "electronic registration mark." As Martin Schwimmer notes, Utah's own general counsel warned the legislature that the law was likely to be found unconstitutional given the burden it would put on interstate commerce. To comply with the law, a search engine that received a search request would have to determine whether a user was located within Utah and, if so, check the search terms against Utah's registry of trademarks to prevent the unlawful triggering of advertising. The cost to search engines would be staggeringly high: "Literally millions of search requests from locations worldwide each day would be subject to verification of location." Aside from its constitutional flaws, the law is just bad public policy. It undermines the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services. Trademarks are just shorthand terms that designate the origin of a product. Comparative advertising uses those shorthand terms to provide more information about the trademarked product and competitive products. That's why comparative trademark use is clearly protected under federal trademark law. If it weren't, Pepsi wouldn't be able to tell consumers that more people think Pepsi tastes better than Coke, and Apple wouldn't be able to make fun of Microsoft on national television every night. The good news is that, given the constitutional problems, the law is likely to be challenged in court. But it's too bad the Utah legislature didn't heed its own counsel's advice and save Utah taxpayers the cost of defending this anti-consumer legislation. For this post and related links: http://www.eff.org/deeplinks/archives/005185.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * PTO File Sharing Report Falls Short on Consumer Protection In a little-noticed report entitled "Filesharing Programs and 'Technological Features to Induce Users to Share,'" the U.S. Patent and Trademark Office (PTO) has decided to attack several leading P2P software applications for making user interface decisions that allegedly "dupe" users into sharing files unintentionally. In hyperbole that is all too familiar in Washington, D.C., these days, the authors claim that P2P therefore contributes to terrorism, child pornography, identity theft, and (of course) copyright infringement. Its authors include Tom Sydnor, who while an aide to Sen. Orrin Hatch was widely credited with the Senator's infamous "blow up their computers" solution to P2P file-sharing, and Lee Hollaar, a professor who was a motive force behind the ill-fated INDUCE Act. So it's fair to say these gentlemen have an anti-P2P agenda and a rather one-sided view of copyright law. But the real problem with the report is that the invective, innuendo, and misguided legal analysis obscures interesting and worthwhile empirical research about the interface decisions made by various P2P vendors at various times. There is, at the heart of the report, quite a bit that makes sense. Read on for more: http://www.eff.org/deeplinks/archives/005180.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Myth v. Fact: Is MySpace Safe for Kids? Does the increased use of social networking sites by children lead to increased risk? Concern about online predators and pornography has led some politicians and law enforcement officials to call for unreasonable restrictions on public access to these sites. But is the perception of increased risk accurate? How much of the public discussion of these trends is myth, and how much is fact? Two recent studies suggest that many fears are overblown. The Crimes Against Children Research Center at the University of New Hampshire recently released a study that found that unwanted online solicitations are down from 19% in 1999 to 13% today -- a decline that is taking place despite the rising popularity of social networking sites. Of the unwanted solicitations that were received, a significant number (43%) came from other minors, not from adults. A separate study of MySpace by Dr. Larry D. Rosen at Cal State found that only 7% of those teens interviewed were ever approached by anyone on MySpace with a sexual intent. Nearly all of them simply ignored the person and blocked him from their page. But in the face of this tempered analysis, legislators are still pushing for unreasonable restrictions. The Deleting Online Predators Act (DOPA), which has been re-introduced in the House and Senate, would cut funding to public schools and libraries unless they block access to social networking sites. Meanwhile, some state Attorneys General have been pushing for stricter age verification that will in all likelihood have little or no effect. Adam Thierer, a senior fellow at the Progress and Freedom Foundation, says that attempts to block all social networking sites are likewise unworkable and undesirable, since under the current definition, sites as useful and diverse as Wikipedia, CBSNews, and Flickr would fall into that category. Age verification is another unworkable solution, according to Thierer. As he points out in a recent paper, all the existing methods for verifying age are unreliable and easily circumvented. The danger with age verification solutions is that they may lead parents to a false sense of security. The solution, says Thierer, is not stricter controls, but the same things that have helped defend children in the offline world: education, effective law enforcement, and healthy adult supervision. For this post and related links: http://www.eff.org/deeplinks/archives/005190.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Watch Mark Cuban Debate EFF's Fred von Lohmann About YouTube and the Future of Copyright For those who missed EFF's Pioneer Awards, held at the Emerging Technology Conference (ETech) on March 27th, you can still get in on the fun. Videos of the lively debate between our own Fred von Lohmann and HDNet Chairman Mark Cuban, along with the acceptance speeches of our 2007 Pioneer Winners, are now available here thanks to Divx's Stage6: http://stage6.divx.com/EFF We've also uploaded the videos to YouTube: http://youtube.com/profile?user=EFForg You can find out more about the event here: http://www.eff.org/awards/pioneer EFF would like to thank the generous sponsors of the 16th Annual Pioneer Awards: Gold sponsor: Sling Media (www.slingmedia.com) Silver sponsor: Three Rings (www.threerings.com) Bronze sponsors: Six Apart(www.sixapart.com), JibJab (www.jibjab.com), MOG (www.mog.com), and Stamen Design (www.stamen.com). Many thanks also to the ETech organizers and O'Reilly Media for being wonderful hosts. A giant thanks to Mark Cuban for donating his time and energy. And of course a big thank you to the 2007 Pioneer Awards Judging Panel: Kim Alexander: President and founder, California Voter Foundation Esther Dyson: Internet court jester and blogger, Release 0.9; founding chairman of ICANN; former chairman of EFF Mitch Kapor: Chair, Open Source Applications Foundation; co-founder and former chairman EFF Drazen Pantic: Co-director, Location One Barbara Simons: IBM Research [Retired] and former president ACM James Tyre: Co-founder, The Censorware Project; EFF policy fellow Jimmy Wales: Founder, Wikipedia; co-founder, Wikia; chair emeritus of the Wikimedia Foundation : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Students Accuse Anti-Plagiarism Site of Copying Some high school students sue to stop commercial site from taking their essays and looking over their shoulders. http://www.csmonitor.com/2007/0410/p01s04-legn.html ~ Copyright Utopia? EFF's Fred von Lohmann keynotes at the University of Maryland's conference on alternate IP futures. http://www.umuc.edu/mkting/cip/ ~ YouTube: They're Not Watching You; They're Watching Each Other YouTube's most popular videos are created by its users, not big media. http://www.nytimes.com/2007/04/07/technology/07online.html ~ Guitar Notations Get a Single Provider Publishers finally seeing tablature as an opportunity, instead of just a threat. http://www.nytimes.com/2007/04/02/technology/02ecom.html?ex=1333166400&en=5704391c3cb37117&ei=5090&partner=rssuserland&emc=rss ~ EU Court of Human Rights Protects Private Net Use Your employer can't watch your personal life, just because it can. http://www.heise.de/english/newsticker/news/87867 ~ Vorratsdatenspeicherung! German activists fight the European data retention regime with protests in Frankfurt, April 14. http://www.vorratsdatenspeicherung.de/index.php?option=com_content&task=view&id=92&Itemid=77 ~ Microsoft Sees DRM-Free Music in Zune's Future Oh sure, *now* they do. http://news.com.com/2100-1041_3-6173307.html ~ Consumer Advocates Welcome DRM-Free Music Meanwhile, the pressure recedes from Apple in Europe. http://www.heise.de/english/newsticker/news/87820 ~ Financial Times: A Broadcast Flag for Europe? The FT examines the threat posed by DVB's digital video standards. http://blogs.ft.com/techblog/2007/03/the_electronic_.html ~ RIAA Wins Worst Company In America 2007 Beats Halliburton, Exxon, and U-Haul. http://consumerist.com/consumer/worst-company-in-america/riaa-wins-worst-company-in-america-2007-245235.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Administrivia EFFector is published by: The Electronic Frontier Foundation 454 Shotwell Street San Francisco CA 94110-1914 USA +1 415 436 9333 (voice) +1 415 436 9993 (fax) http://www.eff.org/ Editor: Derek Slater, Activism Coordinator email@example.com Membership & donation queries: firstname.lastname@example.org General EFF, legal, policy, or online resources queries: email@example.com Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. 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