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EFF Press Release Archives

Press Releases: September 2004

September 30, 2004

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

San Jose - In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

"This decision is a victory for free speech and for transparency in discussions of electronic voting technology," said Wendy Seltzer, an EFF staff attorney who worked on the case. "Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement."

OPG Executive Director Will Doherty said, "This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices."

In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright . . . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest."

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
jennifer@granick.com

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September 30, 2004

Contract and Copyright Trump Fair Use and Competition in BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision that held that programmers are not allowed to create free software designed to work with commercial products. At issue in the case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD is an open source program that lets gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered Battle.net purely to make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to choose where and when they want to use the products they buy. This ruling gives Blizzard the ability to force you to use their servers whether you want to or not. Copyright law was meant to promote competition and creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling that creating alternative platforms for legitimately purchased content can be outlawed.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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September 29, 2004

New York - The American Civil Liberties Union won a tremendous victory for Internet privacy today in the case of ACLU & Doe v. Ashcroft, challenging the constitutionality of "National Security Letters" (NSLs) under the USA PATRIOT Act. The letters, issued directly by the Department of Justice without any court oversight, can be used to demand sensitive financial and communications information about citizens even if they are not suspected of any crime. When Internet Service Providers (ISPs) receive such demands they are forbidden from revealing their existence to anyone.

A federal court issued a decision [PDF 3.0M] in the case finding that the statute authorizing NSLs is unconstitutional and barring the DOJ from issuing further NSLs. US District Court Judge Victor Marrero also found the gag provision an unconstitutional prior restraint on protected speech.

EFF wrote an amicus brief in the case, joined by several ISPs and privacy organizations. The case will likely to be appealed to the 2nd Circuit Court of Appeals in New York.

"Today's ruling is an important victory for the Bill of Rights, and a critical step toward reining in the unconstitutional reach of the Patriot Act," said Kurt Opsahl, EFF staff attorney. "The Court recognized that judicial oversight and the freedom to discuss our government's activities both online and offline are fundamental safeguards to civil liberties, and should not be thrown aside."

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

[Note: the headline for this breaking news item was changed to reflect the fact that this decision struck down as unconstitutional the power to issue NSLs under the Electronic Communications Privacy Act (ECPA) as amended by PATRIOT, but did not specifically address any PATRIOT provision.]

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September 27, 2004

Florida - The Eleventh Circuit Court of Appeals today overturned a lower court's ruling in a case that challenges the legality of Florida's paperless electronic voting machines. The federal suit, brought by Florida Congressman Robert Wexler, argues that the use of the machines violates the United States Constitutional guarantees of equal protection and due process. The Court of Appeals ruled that the existence of a related lawsuit in Florida state court does not prevent the federal district court from hearing the challenge. The decision returns the case to the district court for further proceedings.

"This important challenge will now be decided on the merits," said EFF attorney Matt Zimmerman, who also noted the difficult task ahead of the district court. "Floridians will go to the polls in only thirty-six days, but a great deal of good can be done to improve voting procedures in that time. In the short term and in the long term, we hope that the court requires a voter verified paper ballot for all Floridians."

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

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September 27, 2004

San Francisco, CA - Last week, House Republicans circulated draft legislation that contains provisions from the never-introduced "Domestic Security Enhancement Act of 2003," otherwise known as "PATRIOT II." The draft legislation is meant to implement intelligence reforms recommended by the 9/11 Commission Final Report. But its reach goes far beyond those recommendations -- including adding provisions that would allow federal agents to use secret foreign intelligence warrants and wiretap orders against suspects unconnected to any terrorist group or foreign nation.

"The 9/11 Commission's recommendations should not be used as a Trojan horse to introduce broad new police powers," says Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Trying to slip controversial 'PATRIOT II' provisions into the intelligence reform bill needlessly politicizes what has so far been a bipartisan effort to improve the performance of our nation's intelligence-gathering agencies."

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

September 22, 2004

Washington, DC - The federal government on Tuesday announced plans to order all airlines to turn over the personal records of every air passenger who traveled domestically in June 2004, for use in testing the Transportation Security Administration's latest passenger-profiling scheme, "Secure Flight." The TSA's previous plans for a profiling system called CAPPS II were scuttled over concerns about its cost, effectiveness, and impact on civil liberties. Unfortunately, the new program poses many of the same problems.

Secure Flight will require airlines to forward passenger records to the government, which will then check them for a match with secret terrorist watch lists. The watch lists currently in use have already been shown to be inaccurate: in a recent example, Senator Ted Kennedy was repeatedly misidentified as a suspected terrorist. Moreover, the records now being demanded from the airlines will be used to test another controversial component of CAPPS II, which TSA is considering building into Secure Flight -- using vast commercial databases of personal information to verify passengers' identities.

"TSA needs to offer solid proof that Secure Flight will protect people and their personal information," said Lee Tien, EFF Senior Staff Attorney. "Plus, we still don't have a good explanation of TSA's role in the scandals over JetBlue, Northwest, and other airlines that secretly handed passenger information over to the government. Without openness and accountability, passenger-screening systems are a civil liberties nightmare."

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

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September 22, 2004

San Francisco, CA - Today the Electronic Frontier Foundation released the results of research conducted jointly with the Verified Voting Foundation and American Families United into the strengths and weaknesses of the most popular models of e-voting machines. Organized into one-page quick reference guides, this research gives users critical information about widely deployed machines such as the Diebold Accuvote TS and the ESS iVotronic. In the guides, EFF takes users through a step-by-step process for using each model properly, and lists problems people have had with the machines in past elections. The voting machine quick reference guides represent one of the nation's first Consumer Reports-style analyses of several different types of e-voting machines.

"It's extremely important that people vote, despite any concerns that they have about new voting machines," said EFF Staff Attorney Matt Zimmerman. "The more people know about the voting machines they'll be using, the better prepared they'll be on election day." It's estimated that one-third of the country will be using e-voting machines in the upcoming Presidential Election.

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

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September 20, 2004

Consumer and Public Interest Groups Seek to Narrow and Invalidate Ambiguous Patents that Harm Society

Washington, DC - Consumers Union, the publisher of Consumer Reports magazine, and two public interest organizations, the Electronic Frontier Foundation (EFF) and Public Knowledge, filed a friend-of-the-court brief today with the US Court of Appeals for the Federal Circuit in Washington, DC, arguing that ambiguous patent claims should be invalidated and that claim terms should be interpreted as narrowly as possible by the courts to protect the public. Currently, courts uphold patent claims unless they are deemed too ambiguous, and the courts interpret vague claim terms as broadly as possible. These rules often result in improper patents of uncertain scope and lead to overzealous threat letters and lawsuits brought by patentees that chill innovation and deter beneficial competition.

"Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields," said Jason Schultz, EFF staff attorney and organizer of EFF's Patent Busting Project. "We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself."

"Placing clear limits on patents will provide much-needed protection for the public domain and create a fertile environment for technological growth," said Gigi Sohn, President of Public Knowledge.

In a recent example, Acacia Research sent more than 4,000 patent demand letters to universities and colleges across the nation, claiming its vaguely worded patents cover all known methods of streaming pre-recorded educational lectures over the Internet. Were the appeals court to rule that such vague patent claims are invalid or must be interpreted narrowly, the threatened universities and colleges could defend or dismiss these lawsuits with far greater ease.

The brief was filed for Consumers Union, EFF, and Public Knowledge by students and faculty of the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, American University, in a case called Phillips v. AWH Corporation, following a request from the appeals court for industry and public opinions on several issues of current patent law. The IP Clinic's Assistant Director and Counsel of Record on the brief, Joshua Sarnoff, said that "this may be the most important patent case ever decided. Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."

Contacts:

Joshua Sarnoff
Assistant Director
Glushko-Samuelson Intellectual Property Law Clinic
jsarnoff@wcl.american.edu

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

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September 16, 2004

Washington, DC - In a blow to the privacy of air travelers, the Department of Transportation has dismissed a complaint against Northwest Airlines. The complaint alleged that Northwest airlines, by giving three months' worth of passenger data to NASA for research into passenger profiling without the knowledge or consent of its customers, violated its own privacy policy and committed an unfair and deceptive trade practice.

The Transportation Department found that Northwest's privacy policy "did not unambiguously preclude it from sharing data with the federal government," despite the fact that the policy clearly states that Northwest does not sell passenger data to third parties, and that passengers are "in complete control" of their travel planning, including "the use of information [they] provide to Northwest Airlines." The Department added insult to injury by stating that even if the privacy policy clearly promised that Northwest would not share data with the government, that promise would not overcome the "moral imperative" that Northwest had to help improve airline security, especially considering that privacy is "not an absolute personal and fundamental right, particularly in the context of air travel."

"In addition to revealing that the Transportation Department has little regard for the privacy of the citizens it is supposed to serve, this case clearly demonstrates the failure of privacy policies to actually protect anyone's privacy," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Unfortunately, privacy policies aren't promises but public relations tools, intentionally worded to create as few binding commitments as possible. The American public should demand that companies that collect their personal information develop more explicitly protective policies, and make them an enforceable part of the contract with the customer."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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September 13, 2004

San Francisco, CA - The Ninth Circuit Court of Appeals has rejected the government's attempt to bar the press and the public from a trial where plaintiff John Gilmore is challenging the constitutionality of requiring airline passengers to show ID.

Last week, the government tried to sidetrack Gilmore's appeal to the Ninth Circuit by asking to have the case heard in secret and with motions filed "under seal," arguing that disclosing the security directive could be "detrimental to the security of transportation."

"This case is about the unconstitutionality of secret law as well as about forcing people to show ID," said EFF Senior Staff Attorney Lee Tien. "We're glad the court didn't buy into this administration's obsession with secrecy."

When Gilmore's case was dismissed by US District Judge Susan Illston in 2002, the government refused to show the challenged regulations to the district court -- or admit that the regulations even existed.

EFF friend-of-the-court brief in the case.

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

September 13, 2004

Electronic Frontier Foundation Supports BBC's "Creative Archive"

London, UK -- The Electronic Frontier Foundation (EFF) provided written testimony on Saturday to the UK government committee evaluating the charter renewal for the British Broadcasting Corporation (BBC). The testimony supports the BBC's request to build the "Creative Archive," a groundbreaking project that would make the entire archive of BBC material available online.

The Creative Archive is among the most ambitious "open content" projects ever undertaken. When it is realized, the BBC's rich archive of material, going back to the earliest days of radio and television, will be placed online under a "Creative Commons" license that allows the British citizens who paid for the material through the TV tax to distribute and creatively reuse it.

"The BBC's public service mission created a media production culture for Britain. Today, that culture stands to explode into a 'Creative Nation' where ordinary Britons can reap new benefits from previously fallow resources. The BBC's Creative Archive is the purest and most exciting exercise of its remit to date, and it should be enshrined in its new charter," said Cory Doctorow, European Affairs Coordinator at EFF. "The building of the Creative Archive is a watershed moment in the history of the BBC and of the world. It has the power to strengthen cultural identity for the coming generation of Britons, to benefit UK cultural institutions, artists, and commercial broadcasters, and to lift the whole world to a new heights of creativity, freedom, and cooperation."

EFF testimony:
http://www.eff.org/IP/BBC_CMSC_testimony.php

Contact:
Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

September 10, 2004

Today, the Copyright Office provided the Senate Judiciary Committee with recommended language meant to replace Senator Orrin Hatch's "Induce Act," S. 2560.

The proposed language targets companies who make "public dissemination" technologies, where those companies make money from, or attract users with, copyright infringement. The proposal is a break with the doctrine established by the Supreme Court in its famous "Betamax" ruling, which says that technology companies cannot be held liable for copyright infringement by their customers, so long as the technology in question is capable of substantial noninfringing uses. In its ruling in MGM v. Grokster, the Ninth Circuit Court of Appeals recently reaffirmed that the Betamax doctrine applies to peer-to-peer (P2P) file-sharing software. EFF represents one of the prevailing defendants in that case.

"The Copyright Office proposal undermines the Betamax doctrine for a wide array of communications technologies, while doing nothing to slow P2P companies based offshore," said Fred von Lohmann, senior intellectual property attorney at EFF. "So American innovators pay the price, while P2P file-sharing continues unhindered."

The Copyright Office proposal came in response to a request from the Senate Judiciary committee. The committee has also received proposals from a variety of technology industry groups and is expected to continue deliberating in the weeks ahead.

Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

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September 10, 2004

Law "Blacked Out" More than a Million Legitimate Websites

The Federal District Court in Philadelphia ruled today that a state law requiring Internet Service Providers (ISPs) to block access to websites that allegedly host child pornography violates the First Amendment. In order to comply with the law, ISPs had been forced to over-block websites that shared domain names or IP numbers with those identified by the state Attorney General as containing child porn.

"Although no one disputes that child pornography is and should be illegal to distribute, the Pennsylvania law threatened to cut off access to more than a million perfectly legitimate websites, in an ineffectual attempt to block alleged child pornography sites," said EFF Staff Attorney Kurt Opsahl. "The judge's decision correctly recognizes that the First Amendment does not tolerate such a burden on protected expression."

Contact:
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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September 8, 2004

The Washington Post reports that the House Judiciary Committee has marked up and reported H.R. 4077, the Piracy Deterrence and Education Act (PDEA). The measure is now ready for a vote by the entire House of Representatives. The Senate has taken no action on any companion bill.

The PDEA would impose criminal penalties on those who share more than 1,000 infringing files on a peer-to-peer network. Recent surveys by Ruckus Network show that the average college student who uses P2P file-sharing software shares 1,100 files. The bill would also have the Department of Justice foot the bill for sending warning notices to 10,000 filesharers.

"Tens of millions of Americans continue to use P2P networks," said Fred von Lohmann, senior intellectual property attorney at EFF. "Turning college kids into criminals is not going to change that reality, any more than the 4,000 lawsuits against file-sharing music fans has. This is a business problem, not an FBI problem."

EFF has proposed a collective licensing solution that offers an alternative to criminalizing the behavior of millions of Americans.

Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

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September 3, 2004

Councilman Case Should Be Heard Before Full Court

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law professors specializing in Internet privacy issues, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), and the American Library Association (ALA). Amici argue that a rehearing is necessary because the Councilman decision disrupts the traditional understanding of Internet surveillance laws, raising significant constitutional questions under the Fourth Amendment.

"This court decision has repercussions far beyond a single criminal prosecution," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended. If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception by a technicality in the way the messages are transmitted, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

Links:

Amicus brief in US v. Councilman

Wired: E-Mail Snooping Ruled Permissible

Washington Post: Court Limits Privacy of E-Mail Messages

Contacts:

Kevin Bankston
EFF Attorney, Equal Justice Works/Bruce J. Ennis fellow
bankston@eff.org

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September 1, 2004

Court Rules Copyright Law Cannot Be Used to Stifle Competition for Garage Door Openers

Washington, DC - A federal appeals court in Washington, DC, yesterday upheld a lower court ruling that allows the marketing of "universal" remote controls for garage door openers, an important decision that helps pave the way for competition and lower prices in the after-market and replacement parts arena.

"Competition in after-market and replacement parts, such as remote garage door controls, helps create lower prices and better products," said Kenneth DeGraff, a researcher for Consumers Union. "Allowing one company to control those markets and the prices they charge hurts consumers."

The Digital Millennium Copyright Act (DMCA) was passed in 1998 to stop mass copyright infringement on the Internet, but some companies have gone beyond this purpose and invoked its controversial "anti-circumvention" clause to stave off the competition. The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law, UC Berkeley, and the Electronic Frontier Foundation (EFF) co-authored the Consumers Union brief to help stand up for consumer rights and the right to create new after-market technologies capable of interoperating with legitimately purchased products.

Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."

"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."

"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."

Skylink won decisions in the lower court and at the International Trade Commission, but Chamberlain appealed, claiming that Skylink's remote control device circumvents access controls to a computer program in its garage door opener. The Samuelson Clinic filed briefs in both forums on behalf of Consumers Union, and a student intern presented Consumers Union's position to the lower court during oral arguments. In its decision, the Court of Appeals rejected Chamberlain's claims, further noting that if the court adopted Chamberlain's interpretation of the DMCA, it would threaten many legitimate uses of software within electronic and computer products -- something the law aims to protect.

"[Chamberlain's interpretation] would...allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work -- or even selected copies of that copyrighted work," wrote the court. "Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke."

Chamberlain v. Skylink decision (PDF).

Consumers Union brief (PDF).

More information about the case.

Contacts:

Kenneth DeGraff
Consumers Union
degrke@consumer.org

Deirdre Mulligan
Samuelson Law, Technology & Public Policy Clinic
Boalt Hall School of Law, UC Berkeley
dmulligan@law.berkeley.edu

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Jennifer M. Urban
Director, Intellectual Property Clinic
University of Southern California

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