Press Releases: March 2004
Electronic Frontier Foundation Joins Other Organizations Opposing FCC Action
Washington, D.C. - The Electronic Frontier Foundation (EFF) joined five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices.
"The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition," said EFF Senior Intellectual Property Attorney Fred von Lohmann, "The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling."
The Federal Communications Commission (FCC) ruled on November 4, 2003, that consumer devices capable of receiving broadcast digital television (DTV) signals must implement content control technologies demanded by the entertainment industry to restrict consumer uses of digital television. Left unchallenged, the "broadcast flag" mandate would go into effect by July 1, 2005.
The lawsuit, called ALA v. FCC, was filed in the Court of Appeals in Washington, D.C., and charges that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate.
The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit.
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
The European Parliament today voted to adopt an overbroad Directive on
Intellectual Property Enforcement that gives rightsholders powerful new
enforcement tools to use against intellectual property infringers. EFF
opposed the proposed Directive because it did not distinguish between
unintentional, non-commercial infringement by consumers and for-profit
criminal counterfeiting enterprises. "Under this Directive, a person who
unwittingly infringes copyright - even if it has no effect on the market -
could potentially have her assets seized, bank accounts frozen, and home
invaded," said EFF staff attorney Gwen Hinze.
EFF and a coalition of consumer groups strongly supported a set of
amendments to the proposed Directive tabled by Italian MEP On. Marco
Cappato, which would have limited the Directive's application to
intentional, commercial-scale infringement. Unfortunately, those
amendments were rejected in a 330 -151 member vote with 39 abstentions.
The Directive now moves to the Council of Ministers, which is likely to
endorse it on March 11, 2004. EU Member States will then have 2 years to
implement the new enforcement provisions in their national law.
Here is a brief update on some of the cases in which
Public Citizen, Electronic Frontier Foundation, and the
American Civil Liberties Union and its local affiliates
have filed amicus briefs arguing that persons accused of
file sharing should be accorded minimal due process rights
before subpoenas are authorized to identify them. We have
just received rulings in two of the cases, one which
accepts our argument that the record companies should have
to file separate lawsuits against the individual
filesharers rather than lump them all into a single case
as they have done, and the other which found our arguments
helpful, but premature.
In the case filed in Philadelphia against 203 Doe defendants
whose Internet Service Provider is Comcast (BMG Music v Does
1-203), Judge Clarence Newcomer agreed with at least part of
the legal arguments we raised. He agreed that it was
improper to join all 203 defendants in a single lawsuit, and
ordered the music companies to file separate complaints
against each of the Doe defendants, paying a full filing fee
for each case, for a total of about $30,000, and making
individualized allegations against each defendant. Judge
Newcomer retained the case against Doe #1, one of the three
defendants about whom the music companies had provided
detailed evidence (more than a hundred pages, each listing
many songs made available for download), and authorized the
issuance of a subpoena for that individual's identity only.
Although Judge Newcomer left it to the discretion of each
judge to which the 202 new complaints would be assigned to
decide how to handle discovery, it would seem that in each
case, the plaintiffs will need an affidavit making the
proper showing about that individual defendant. Defendants
will presumably need to decide, in each case, whether they
can allege that filing in Philadelphia is appropriate.
In the case filed in Atlanta against 252 Doe defendants
whose Internet Service Provider is Cox Communications,
(Motown Record Co. v. Does 1-252), Judge Willis Hunt
authorized a subpoena, and required that Cox be allowed a
full twenty five days before compliance with the subpoena,
so that the subscribers could have extra time to object to
identification if they so desired. However, the Court
declined to consider the constitutional issue that amici
raised on the grounds that they were premature and could be
raised by the Defendants (and amici at that time) once the
Defendants have been notified that their identities are
The judges who are hearing Virgin Records v. Does 1-44
(filed in Atlanta seeking to subpoena the identity of
alleged filesharers whose ISP is Earthlink), and BMI
Recordings v. Does 1-199 (filed in Washington, DC against
Doe defendants whose ISP is Verizon), are still considering
the issues presented by the motions and by amici.
court records for all of these cases, including the
complaints and amicus briefs
of all the IP addresses sought by the record industry
Electronic Frontier Foundation
Public Citizen Litigation Group
About Public Citizen:
Public Citizen is a national, nonprofit consumer advocacy
organization that has a history of defending free speech on
the Internet. The organization's website is at
EFF encourages the public to speak out for fair use rights by participating in the week-long campaign led by 321 Studios, makers of the popular DVD backup software recently enjoined by a California district court. "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions," said EFF staff attorney Wendy Seltzer. "To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media." For more on 321 Studios' "Protect Fair Use" campaign, visit their website, ProtectFairUse.org.