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EFF Press Release Archives

Press Releases: January 2004

January 26, 2004

Electronic Frontier Foundation Supports Extending Verizon Decision to Protect User Privacy

Saint Louis, Missouri - The Electronic Frontier Foundation (EFF) and 21 other consumer and privacy groups today sided with Charter Communications, Inc., in its struggle to protect customer privacy.

The groups urged a federal court to prevent the Recording Industry Association of America (RIAA) from forcing Internet Service Provider Charter Communications to identify customers the RIAA has accused of offering infringing music on a peer-to-peer system. In December 2003, a federal appeals court in Washington, DC, ruled that the RIAA could not use special, non-judicial subpoenas under the Digital Millennium Copyright Act (DMCA) demanding that Verizon identify unnamed alleged filesharers.

"The RIAA wants to use the Charter case to erase the D.C. court's Verizon decision and set back Internet users' privacy," said EFF Legal Director Cindy Cohn. "The courts should require careful judicial consideration of facts supporting any accusations and hear the other side of the story before violating the privacy of any Internet user."

EFF, along with 21 other groups, including the American Civil Liberties Union, Consumer Federation of America, and the Computer & Communications Industry Association, filed a "friend of the court" brief urging that the same strong protections that apply for anonymous speech in other contexts also apply for claims of copyright infringement.

"Our privacy and free speech rights should not be collateral damage in the RIAA's war against the digital music revolution," added Cohn.

The groups that have signed on to the consumer privacy amicus brief are, in alphabetical order:

* Alliance for Public Technology
* American Association of Law Libraries
* American Civil Liberties Union
* American Civil Liberties Union of Eastern Missouri
* American Legislative Exchange Council
* American Library Association
* Association of Research Libraries
* CSE Freedom Works Foundation
* Computer & Communications Industry Association
* Consumer Action
* Consumer Federation of America
* Digital Future Coalition
* Electronic Frontier Foundation
* Electronic Frontiers Georgia
* National Coalition Against Domestic Violence
* Pacific Research Institute
* Public Knowledge
* PrivacyActivism
* Privacy Rights Clearinghouse
* US Internet Industry Association
* Utility Consumers Action Network
* WiredSafety.org

RIAA v. Charter Communications was filed in St. Louis, Missouri, federal district court. EFF is supporting Charter's appeal to the Eighth Circuit Court of Appeals.
Links:

* EFF and other groups' amicus brief in RIAA v. Charter
* More information on RIAA v Charter

Contact:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
&nsbp; wendy@eff.org
About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

January 26, 2004

The Federal District Court for the Central District of California today released a ruling declaring unconstitutional a provision of the USA PATRIOT Act that made it a crime to advise or assist an organization designated as 'terrorist' by the U.S. government, even when that support is solely intended to promote lawful, non-violent activities. The Court decided that the provision, Section 805 of the USA PATRIOT Act, is unconstitutionally vague and violates the First and Fifth Amendments.

"Under PATRIOT, it would've been illegal to provide humanitarian or political advocacy training to the anti-apartheid African National Congress, which was a designated 'terrorist' organization before apartheid was defeated," said Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "This decision ensures that Americans can exercise their First Amendment right to engage in non-violent political activism without being branded as terrorists-by-association."

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January 24, 2004

1984 COURT RULING LAUNCHED A TECHNOLOGICAL REVOLUTION

The mp3 generation may not remember it, but 20 years ago, Hollywood fell just one vote short of winning a ban on the VCR. This month marks the 20th anniversary of the Supreme Court's 5-4 decision in Universal City Studios v. Sony, the case where two movie studios asked the federal courts to impound all Betamax VCRs as tools of "piracy."

Thankfully, the Supreme Court spurned Hollywood's arguments, best summarized by Motion Picture Association of America chief Jack Valenti's famous quote: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." The court decided that American consumers were not violating copyright laws when they time-shifted television with their VCRs. It also declared that Sony was not violating copyright laws by selling VCRs, even though some people might use them to infringe copyrights. In other words, you don't go after the crow bar makers just because there are burglars out there.

In the 20 years since, we have learned two important lessons. First, new technologies and copyrights are complementary products in the long run. New technologies make copyrights more valuable because they unleash new markets and business models. That's been the rule, without exception, for a century. The VCR ended up making Hollywood rich, with sales of pre-recorded cassettes quickly eclipsing the receipts from box office ticket sales. There's no reason to think that the Internet won't create even more revenue-generating opportunities.

Second, if you want a vibrant technology sector, you let the innovators invent without forcing them to beg permission from media moguls first. Sony didn't ask permission to build the Betamax, and that's what made the VCR possible. In fact, the Supreme Court's rule set the stage for most of the amazing technologies we take for granted today. After all, would Hollywood have allowed the personal computer, if it had been asked? Would the recording industry have permitted hard drives? What about the book publishing industry and the scanner? And we know how these industries feel about the Internet. Fortunately, the rule in America is that innovators are beholden only to their customers and the marketplace, not to Disney or the Recording Industry Association of America.

Unfortunately, the entertainment industries are trying to get the courts and Congress to forget these lessons. In cases involving peer-to-peer file sharing software, their lawyers hope that amid all the shouting about "piracy" they can persuade judges to make future innovators answer to movie moguls instead of the American consumer. Meanwhile, in Washington, they urge legislators and bureaucrats to put innovators under the thumb of government regulation.

In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation. The legacy of that decision has been technology that benefits us all. Let's hope that Congress and the courts have learned that lesson, even if the movie moguls haven't.

January 23, 2004

Hollywood Promises Not to Sue Consumer Plaintiffs

A federal court today ruled to end a case brought by five ReplayTV digital video recorder (DVR) owners after 28 entertainment companies promised not to sue them for copyright infringement for using the "commercial advance" or "send show" features of their DVRs.

"Skipping commercials is not illegal and neither is sending television shows from your home to your office, as one of our clients does," said EFF Staff Attorney Gwen Hinze. "We're pleased that we were able to protect our clients against unjustifiable copyright claims for exercising their fair use rights."

"This may be first time that the entertainment companies have backed down from a claim of copyright liability," added Cindy Cohn, EFF's Legal Director. "Consumers deserve the full benefits of the digital revolution and specious copyright claims should not stand in their way."

EFF brought the case on behalf of the five plaintiffs in June of 2002 after the entertainment companies sued the creators of ReplayTV arguing that the device infringes their copyrights because it allows consumers to skip commercials and send recorded programs from one device to another. Responding to the lawsuit and to claims by a top industry executive that people who skip commercials are "thieves," EFF asked the court for a declaratory ruling that using the DVR to skip commercials and send shows between devices is fair use.

EFF had asked the court to give affirmative relief to all owners of ReplayTV DVRs with the "commercial advance" and "send show" features. The court declined to do so on the grounds that the entertainment companies promised not to sue here and had indicated no intention to sue any of the other owners. The court did, however, leave open the possibility of relief in the event that the entertainment companies change their position and seek to sue owners of ReplayTV DVRs.

Assisting EFF in this litigation were Ira P. Rothken of San Rafael and Richard R. Wiebe of San Francisco.

Contact:

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

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

January 22, 2004

In a surprising retreat today, the consortium of entertainment and technology companies known as DVD CCA has attempted to summarily dismiss a lawsuit against Andrew Bunner, a republisher of a computer program that was created to allow movie lovers to play their DVDs on computers that run the Linux operating system. The program is called DeCSS. DVDCCA effectively gave up a multi-year effort to have the republication of the program declared a violation of trade secret laws.

"DeCSS has been available on hundreds if not thousands of websites for 4 years, now" said Cindy Cohn, EFF's Legal Director. "We're pleased that the DVD CCA has finally stopped attempting to deny the obvious: DeCSS is not a secret."

The case reached the California Supreme Court last year and was the subject of ruling that held that computer programs could be preliminarily restrained from publication only in very narrow circumstances. Mr. Bunner was one of hundreds of people sued, including some T-shirt manufacturers.

EFF's Case Archive: DVD-CCA v. Bunner

Related Issues:
January 21, 2004

"While it's an improvement that the record indsutry now has to play by the same rules as everyone else who goes into court, they are still heading in the wrong direction" noted Cindy Cohn, EFF's Legal Director. "There is a better way. The recording industry should be giving America's millions of filesharers the same deal that radio stations have had for decades: pay a fair fee, play whatever you want on whatever software works best for you."

Continuing its crusade against its own customers, the record industry today announced that it would begin filing "John Doe" lawsuits against more than 500 individuals accused of illegal filesharing. This should mean an increase in the privacy protections for individuals, since we expect that the judges overseeing these Doe suits will apply procedural protections similar to those developed in other Doe suits. The targets should get notice of the demand for their identities and an opportunity to be heard in challenging the demand. At the same time record labels will have to prove that they did a "reasonable investigation" before filing suit. The labels can no longer use a subpoena rubber-stamped by a court clerk, which is what the D.C. Circuit outlawed in late December.

Related Issues:
January 21, 2004

Seeks Identities of More Than 500 Sharing Files Online

San Francisco - Continuing a crusade against its own
customers, the recording industry today announced lawsuits
against more than five hundred individuals accused of
illegal filesharing.

The Recording Industry Association of America (RIAA)
announced it would seek the identity of "John Does" known by
the addresses of the computers they use to access the
Internet. The RIAA will have to seek permission from judges
before they can issue subpoenas to ISPs seeking the
identities of the John Does. The process offers more due
process and privacy protections than the automatic
subpoenas the D.C. Circuit court rejected in the RIAA v.
Verizon case.

"While it's an improvement that the record industry now has
to play by the same rules as everyone else who goes into
court, they are still heading in the wrong direction," noted
EFF Legal Director Cindy Cohn. "The recording industry
should be giving America's millions of filesharers the same
deal that radio stations have had for decades: pay a fair
fee, play whatever you want on whatever software works best
for you."

The record labels will have to prove that they have evidence
in support of their claims and do a "reasonable
investigation" before filing suit, rather than obtaining a
subpoena rubber-stamped by a court clerk, which is what the
D.C. Circuit court outlawed in late December.

Links:

Contact:

Cindy Cohn
   Legal Director
   Electronic Frontier Foundation

   href="mailto:cindy@eff.org">cindy@eff.org

Fred von Lohmann
   Senior Intellectual Property Attorney
   Electronic Frontier Foundation
 &nbsp href="mailto:fred@eff.org">fred@eff.org

January 8, 2004

Consumers Defend Use of Digital Video Recorders

A group of ReplayTV owners will ask a court on Monday to allow all owners of ReplayTV digital video recorders to join an ongoing lawsuit to protect consumers' rights to skip over television commercials and send recorded programs from one digital device to another.

Date: Monday, January 12, 2004
Time: 3:00 p.m.
Judge: Hon. Florence-Marie Cooper
Court: District Court, Central District of California, Courtroom 750
Location: Edward R. Roybal Federal Building and Courthouse, 255 East Temple Street, Los Angeles, California 90012

The case was sparked after a top entertainment industry executive began publicly to claim that people who don't watch television commercials are "thieves" and 28 entertainment companies subsequently launched a lawsuit against the makers of ReplayTV arguing that using the digital video recorder to skip commercials and send programs is against the law.

Five ReplayTV owners, represented by the Electronic Frontier Foundation (EFF), Richard Wiebe, and Ira Rothken of the Rothken Law Firm in San Rafael, decided to fight back. In June of 2002, they filed a lawsuit asking the court to declare that these uses are legal.

The makers of ReplayTV have since been driven into bankruptcy, and the entertainment companies are now attempting "buy out" the five individual ReplayTV owners by offering them, and only them, a "covenant not to sue," while failing to grant protection to the estimated 5,000 other owners of ReplayTV digital video recorders that have the commercial skipping and "send show" features. The companies have also asked the court to dismiss the case.

In the face of these challenges the plaintiffs are charging ahead, asking the court to include all ReplayTV owners in the case, and to determine, once and for all, whether they can legitimately use all of the device's features.

The proposed consumer class action representatives are Craig Newmark, the founder of craigslist.org, Glenn Fleishman, Phil Wright and Thomas White.

Contact:

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

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

January 5, 2004

EFF has filed comments in response to Intel's draft policy on privacy and owner choice and control issues in Intel's "trusted computing" LaGrande Technology initiative. "We described how this technology exposes the public to new risks, including undetectable spyware that couldn't exist today," said EFF Staff Technologist Seth Schoen. "What's more, Intel says its own privacy policy for LaGrande has no teeth: it's simply a recommendation that nobody is required to follow."

January 5, 2004

The Norwegian authorities have decided not to appeal the aquittal of Jon Johansen to the Norwegian Supreme Court. Johansen was prosecuted for his role in the creation of DeCSS software that decrypts DVDs so that they can be played on computers running the Linux operating system. "The prosecution of Johansen for 'breaking into' DVDs that he already owned was wrong from the beginning," noted EFF Legal Director Cindy Cohn. "We hope this decision will serve as a model for protecting consumer rights elsewhere."

January 4, 2004

The Pew Internet and American Life Project today issued a report suggesting that use of peer-to-peer networks for downloading music has fallen in the wake of the recording industry's lawsuit campaign.

"While the RIAA's crusade may have discouraged some downloaders, today's Pew study shows that 1 in every 7 American Internet users continues to use software like Kazaa," noted EFF senior staff attorney Fred von Lohmann. "Every day that the record labels continue to subpoena and sue, they are losing customers and alienating music fans of all ages. It's hard to see a future in that plan."

"The music industry should give us a chance to pay a reasonable fee and make file sharing legal," said EFF staff attorney Jason Schultz. "After all, that's the same deal that radio stations have had for decades -- pay a blanket fee and play whatever you like on whatever equipment you like."

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