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EFF Press Release Archives

Press Releases: March 2005

March 30, 2005

MGM v. Grokster Raises Questions About Innovation and Litigation

Washington, DC - The Electronic Frontier Foundation (EFF) was heartened to hear the Justices of the United States Supreme Court engage in a lively debate Tuesday about whether technology manufacturers should be held liable for the infringing activities of consumers. At stake is nothing less than the future of innovation in the United States. If vendors are held responsible for what people do with their products, even tech giants like Intel say they'd have to fire engineers and hire lawyers.

MGM and nearly a dozen other entertainment companies argued that peer-to-peer software manufacturers Grokster and StreamCast had built their businesses by distributing "infringing machines." But counsel for the entertainment industry, Donald B. Verrilli Jr. of the law firm Jenner & Block, scarcely finished his opening statements before the Justices interrupted with pointed questions about how his arguments would impact technological innovation. Justice Antonin Scalia asked how the industry would protect nascent technologies from "out-of-the-box lawsuits," and Justice Stephen Breyer pushed him to explain why MGM's argument wouldn't also apply to the iPod, Xerox machines, and even Gutenberg's printing press.

Richard G. Taranto of the law firm Farr & Taranto, who represented respondents Grokster, Ltd., and StreamCast Networks, Inc., replied that it was crucial for the Court to reaffirm its 21-year-old Betamax ruling, which held that companies should not be barred from selling products that may be used for copyright infringement if there is a potential for significant legal uses. Taranto also pointed out some of the many noninfringing uses for peer-to-peer software, including genomics research, archiving works in the public domain, and distributing new media whose creators use open copyright or Creative Commons licenses.

"The Justices asked all the right questions," said EFF Senior Staff Attorney Fred von Lohmann, lead attorney for StreamCast. "They were clearly worried about how this ruling would affect the future of technological invention. As Justice David Souter said, we shouldn't hang a sword of Damocles over the heads of America's innovators."

The Court will likely issue a decision in late June or early July.

More about MGM v. Grokster.

Contact:

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

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March 25, 2005

Residents of 56 Nations and Members of Hundreds of NGOs Sign Petition to Open Meetings on Intellectual Property and the Developing World

Geneva - When the World Intellectual Property Organization (WIPO) earlier this month shut out many public interest groups from two April meetings about the impact of patent, copyright and related regimes on the developing world, many civil society groups greeted the news with concern.

Most of the groups barred from the meetings, which are to focus on whether WIPO should adopt a "Development Agenda," are public interest organizations with special expertise on issues of economic development. Without the input of these groups, the meetings can do little to further WIPO's understanding of how patents, copyright, and related rights affect developing nations.

Seeking a more balanced discussion of the Development Agenda, two Brazilian activists, Pedro de Paranagua Moniz and Pedro AD Rezende, as well as the Electronic Frontier Foundation's European Affairs Coordinator, Cory Doctorow, took action: they produced an open letter to WIPO on this issue and solicited comments on the Internet.

As a result, this week over 800 individuals and groups, including EFF, signed an open letter to WIPO urging it to allow more groups to participate in these historic meetings. Residents of 56 different nations signed on, along with members of non-government organizations (NGOs) ranging from a Brazilian AIDS health group to Yale University. The letter, called the "WIPO Manifesto for Transparency, Participation, Balance and Access," asks that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers and calls on WIPO to provide assistance in creating a global regime that facilitates open access to knowledge.

"WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage," said Doctorow. "This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members."

The open letter was delivered to Dr. Kamil Idris, Director General of WIPO, on March 23, 2005, with more than 800 signatories, and it is still open for signature.

Contacts:

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

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

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March 23, 2005

EFF Joins Fight to Promote Technology Access for Charitable Groups

Note: The Electronic Frontier Foundation is recirculating this press release on behalf of NIA for your information.

Washington, DC - The Nonprofit Innovation Alliance (NIA) today announced that four of the nation's most prominent nonprofits - United Way of America, the American Diabetes Association, Network for Good and Electronic Frontier Foundation - have joined the growing movement against business method patents to help promote ongoing access by America's nonprofit organizations to innovative technology.

"As nonprofits recognize the threat posed by business method patent abuse, there is growing support for collective action to protect technology access for America's charities," said Shabbir Safdar, Acting Secretary of the Nonprofit Innovation Alliance. "The fact that the United Way of America, American Diabetes Association, Network for Good and Electronic Frontier Foundation have pledged their support for the NIA sends a strong message: business method patents are bad for the nonprofit sector and should be eliminated."

These four organizations have pledged support for the NIA's goals because they believe that nonprofits are best served if technology vendors and service providers help declare the nonprofit industry as a "business method patent-free zone." They are encouraging technology vendors and service providers working with them and other nonprofits to join the NIA. Support for NIA's goals from the Electronic Frontier Foundation (EFF) is especially significant because this group is the leading civil liberties organization working to protect people and organizations whose online rights and freedoms are threatened.

Nonprofit organizations can pledge support for the NIA.

The NIA consists of leading technology and consulting companies that provide products, services and/or consulting to help nonprofits optimize their use of the Internet for fundraising, advocacy, event management and other mission-critical activities. Alliance members agree to cross-license any current and future business method patents on a royalty-free basis for the benefit of their nonprofit customers.

Viewed by many to be a scourge in the for-profit world, business method patents would be even more so for the nonprofit sector. Instead of protecting a real technology invention, these patents typically cover a process of doing business on the Internet. Such patents, prone to abuse, could result in nonprofits spending much more out of every dollar raised on license fees to use the Internet for fundraising, communicating with constituents, advocating for public policies and managing events such as walks, runs and galas. Alternatively, to avoid the impact of royalty payments to business method patent holders or the threat of being sued, nonprofits may choose sub-optimal technology solutions.

Said Michael Schreiber, Executive Vice President for Enterprise Services, United Way Of America, "We're on board with the NIA and against business method patents because adoption of technology by nonprofits is accelerating and organizations are becoming much more sophisticated in how they use these new and powerful tools. There is a growing need to share and make use of technology innovation - not stifle its diffusion throughout the charitable sector."

Network for Good's Chief Executive Officer, Bill Strathmann, explained why Network for Good is supporting the NIA. "The alliance represents something nonprofits believe in and, to a large degree, rely on: collaboration. Like their customers, nonprofit providers must balance their business interests with those of the sector. Nonprofits need choices when it comes to the tools they use to help fulfill their missions. When providers collaborate, nonprofits win."

About Business Method Patents

First validated by the courts in 1998, business method patents are highly controversial because they typically do not cover innovations that solve a particular technology problem. Instead, holders of business method patents are claiming to be the first to engage in a transaction over the Internet in a particular way. Examples of business method patents include Amazon's one-click patent and Priceline's reverse auction patent.

Business method patents are prone to abuse. A patent holder can sue or threaten to sue anyone or an organization that uses a similar business method and seek to collect licensing fees, effectively extracting a "patent tax" for common ways of utilizing the Internet. However, charitable organizations today rely increasingly on the Internet to fundraise, communicate, advocate and manage events over the Internet. Business method patents will require nonprofits to spend much more of every dollar raised on coercive license fees to run their organizations, diverting funds away from the delivery of critical programs and services to constituents. Or groups may simply take the path of least resistance and use sub-optimal technology solutions to avoid the specter of litigation.

As an example, the following is the claimed invention described in a patent application filed with the US Patent and Trademark Office:

"A method for conducting a fundraising campaign by an organization or person over a wide-area network, comprising the steps of: hosting a website including a plurality of linked web pages, the website providing information about the fundraising campaign and soliciting potential donors to make a charitable contribution to the fundraising campaign registering on the website contacting third parties via email messages soliciting charitable donations and providing one or more reports, on the website, including information on the status of the fundraising campaign." (Patent application entitled: "Method and system for an efficient fundraising campaign over a wide area network" application number 764787.)

According to the NIA's Safdar, "This application describes widely used practices for online fundraising, taking dead aim at the nonprofit sector. It is easy to see why a patent covering these types of claims is neither unique, novel, nor in the best interests of nonprofit organizations."

NIA members currently include (listed alphabetically): Beaconfire Consulting, CharityWeb, CitySoft, Convio, GetActive, Mindshare Interactive Campaigns, Itero!, Public Interest Data, Inc., RightClicks and ROI Solutions.

The Nonprofit Innovation Alliance was established in January 2005 to help foster access to innovative technology for charitable groups so they can effectively utilize the Internet for fundraising, advocacy, event management and other mission-critical activities. Members of the alliance include leading companies that provide technology products, services and/or consulting to nonprofits. Admission is open to all interested technology and service providers. Nonprofits can participate by pledging their support for the NIA's goals.

Contact:

Shabbir Safdar
Acting Secretary
Nonprofit Innovation Alliance
ssafdar@mindshare.net

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March 22, 2005

Asks Court to Reaffirm Freedom of the Press

San Jose, CA - Today the Electronic Frontier Foundation (EFF) filed an appeal in a case that has broad implications for the rights of reporters to protect the confidentiality of their sources.

Last week, a California Superior Court judge ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to Apple Computer, Inc. The court rejected EFF's request for an order to protect the identities of sources for the online news sites AppleInsider and PowerPage.

This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead holding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

In its request for an appeal, EFF argues that the First Amendment cannot be so easily waived. Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them. Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders. There is no evidence that Apple has done such an exhaustive search.

"The California courts have a long history of supporting and protecting the freedom of the press," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists."

"The Superior Court’s ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter’s privilege may be overcome, and ignored the Stored Communications Act altogether," said Kevin Bankston, EFF staff attorney and Bruce J. Ennis Fellow. "There are strong protections for email privacy under federal law, especially when that mail is held by an ISP. Every email service provider should be concerned about correcting this dangerous precedent."

The case is the result of Apple suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid."

Contacts:

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

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

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March 17, 2005

Organization Launches Two-Week Celebration of Betamax-Protected Devices

San Francisco, CA - The Electronic Frontier Foundation (EFF) yesterday kicked off a new campaign to celebrate the technological diversity protected by the Supreme Court's 1984 "Betamax ruling," which found that vendors cannot be held liable for contributory copyright infringement if their products are capable of significant noninfringing (legal) uses. EFF will post information about a copying technology with substantial legal uses every weekday leading up to the March 29th Supreme Court hearing in MGM v. Grokster. Noninfringing products include everything from the VCR and email to blogs and silly putty.

If the Supreme Court overturns the Ninth Circuit ruling in the Grokster case, the Betamax shield could be destroyed or modified in ways that threaten innovation. Vendors could be held liable for the infringing activities of their customers, and many companies could be sued out of existence. EFF is co-counsel for StreamCast Networks, one of the defendants in the Grokster case.

With its celebration of the technologies protected under the Betamax shield, EFF hopes to call the public's attention to the strong link between innovation and legal protections for inventors and entrepreneurs.

Contacts:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Ren Bucholz
Activism Coordinator
Electronic Frontier Foundation
ren@eff.org

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March 11, 2005

EFF Asking California Appellate Court to Intervene

Santa Clara - Today Santa Clara County Superior Court Judge James Kleinberg ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to attorneys from Apple Computer, Inc. The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials.

The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing the journalist, and will be asking the California Appellate Court to intervene.

"We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a 'last resort' in civil discovery," said EFF Staff Attorney Kurt Opsahl. "Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret."

"This is a broad-brush ruling that threatens journalists of all stripes," said EFF Legal Director Cindy Cohn.

This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information, but these have not yet been issued and were not ruled on today.

Ruling [PDF] case summary [PDF] more about Apple v. Does.

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

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

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March 7, 2005

Experts on Development Won't Be Heard at Crucial Meetings

Geneva - Last week, the World Intellectual Property Organization (WIPO) announced that it will shut out most public interest organizations at two important meetings devoted to intellectual property and development. As a result, WIPO delegates from 182 nations will discuss these issues without hearing from many of the world's best-qualified experts.

Scheduled for next month, two WIPO "Development Agenda" meetings will focus on the impact of copyright, patent, and other intellectual property rights regimes on the developing world. Without the public interest organizations, the discussions will be heavily weighted toward major motion picture studios, broadcasters, pharmaceutical giants, and other powerful interests that want to expand copyright and patent law.

"This is an embarrassment for WIPO," explained EFF European Affairs Coordinator Cory Doctorow. "Settling the debate by locking one side out of the building isn't the way the UN is supposed to work. We love the Development Agenda -- it's supposed to be a new direction for WIPO. A one-sided discussion isn't a new direction, though. It's just more of the same."

These meetings are a response to the proposal put forward by Brazil and Argentina in the wake of the Geneva Declaration on the future of WIPO, which was signed by hundreds of individuals and public interest non-governmental organizations (NGOs), including the Electronic Frontier Foundation (EFF).

Most public interest groups have only recently begun participating in WIPO and are not yet permanently accredited by the organization, since the accreditation process takes a year and they have always been able to participate as "ad hoc" observers in the past. On March 2, however, the International Bureau Secretariat advised EFF that only those NGOs that are currently accredited as "permanent" observers at WIPO will be allowed to attend these meetings. As a result, the bulk of civil society will be barred from attending.

"The Secretariat's exclusion of ad hoc observer NGOs raises fundamental questions about WIPO's commitment to a full and thorough discussion of the important issues in the Development Agenda proposal," said EFF International Affairs Director Gwen Hinze.

EFF is accredited as a WIPO permanent observer and will be attending the meetings. The group will be reporting on the proceedings and will attempt to represent the viewpoints of some of the other public interest groups that are being excluded from the process.

Contacts:

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

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

March 4, 2005

Rights of Online Journalists Hang in the Balance

San Jose - A Santa Clara County Superior Court judge today said that he would take under consideration a motion brought by the Electronic Frontier Foundation (EFF) that asked the court to protect three online journalists from having to reveal the identities of their confidential sources to attorneys from Apple Computer, Inc. The judge promised a written decision soon.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

EFF lawyers, along with co-counsel Thomas Moore III and Richard Wiebe, argued this morning that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment.

The court was interested in the question of whether online reporters are legitimate journalists, but for most of the hearing, the judge assumed that they were journalists and examined whether the reporter's shield should apply in this case. Under the First Amendment, the reporter's privilege is qualified -- it does not protect reporters under all circumstances. But subpoenas to journalists are always a last resort. The hearing examined whether Apple had overcome this qualified privilege to demonstrate that its need for the information was greater than the need to protect the confidentiality of these journalists' sources.

"We don't believe Apple has exhausted all methods of getting this information," said EFF Staff Attorney and Bruce J. Ennis Fellow Kevin Bankston. "Apple hasn't subpoenaed any of its employees the way it subpoenaed our clients' ISP. Nor has it deposed any of its employees in the case."

Added EFF Staff Attorney Kurt Opsahl, "We're pleased that the court is taking the time to consider how important it is to protect these journalists' sources if we want to maintain the free flow of information that is vital to a democratic society and a free press."

If the motion is denied, EFF will ask the California Court of Appeals to intervene.

Contacts:

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

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

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March 2, 2005

San Jose, CA - This Friday, the Electronic Frontier Foundation (EFF) will face attorneys for Apple Computer in a hearing to determine whether three independent online journalists will be given the same legal protections as journalists who work for traditional media publications.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

In the first case of its kind, EFF will argue that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. The hearing will take place Friday, March 4, at 10:00 a.m. at the Santa Clara County Superior Court, 191 North First Street, San Jose. Press are welcome to attend.

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

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

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March 1, 2005

Legislation Would Ban Tracking Devices in Public ID Documents

NOTE: This is a press release from the ACLU of Northern California. EFF is recirculating it for your information.

San Francisco, CA - The ACLU, the Electronic Frontier Foundation, and the Privacy Rights Clearinghouse support legislation introduced by Senator Joe Simitian that would prohibit identity documents issued by the state, including driver's licenses and library cards, from containing a contactless integrated circuit or other device that can broadcast personal information or enable that information to be scanned remotely.

"This is all about individual privacy, personal safety and financial security," said Senator Joe Simitian. "SB 682 ensures that state and local government will be part of the solution, not part of the problem."

The legislation was introduced days after a company in Sutter, California withdrew its pilot program from an elementary school amidst parents outcry who did not want their children tagged like "inventory." The school district introduced the mandatory use of Radio Frequency Identification tags (RFIDs) to track the students' movements. The students were required to wear the ID badges that included the device along with the student's name, photo, grade, school name, class year and the four-digit school ID number.

Jeffrey and Michele Tatro, parents of a Sutter elementary student who had to wear the mandatory RFID said: "We fully support this legislation that will protect families throughout California from having to go through what we did – seeing our children tagged like inventory or cattle."

"In light of what happened in Sutter, California, we think it is especially important that this bill be passed to protect the privacy and security of all Californians," said Nicole Ozer, Technology and Civil Liberties Policy Director of the ACLU of Northern California. "No person should ever be forced to carry an RFID tag. It violates fundamental rights to privacy, it is demeaning, and it threatens our physical and economic security."

The Identity Information Protection Act of 2005 (SB 682), would prohibit any identity document created by the state, county, or municipal government, from containing a contactless integrated circuit or other device that can broadcast an individual's name, address, telephone number, date of birth, race, religion, ethnicity, nationality, photograph, fingerprint, social security number and any other unique personal identifier or number.

"The signals broadcast by this type of badge can be picked up by anyone with the technology to read it, which allows a child's identity and location to be pinpointed with ease. This does not increase security, it lessens it," said Pam Noles, a policy associate for the ACLU of Southern California. "In Sutter, these badges compromised the safety of the elementary school students and parents weren't even given the option to consent to their use."

Lee Tien of the Electronic Frontier Foundation added: "Radio Frequency Identification (RFID) tags are a very dangerous technology for privacy, especially when used in ID cards. It allows unauthorized people to access personal information. This bill represents a good first step in managing this problem."

"Senator Simitian's bill provides vital protection for all Californians. Individuals who are required to carry government issued IDs should not be put in a situation where that document enables them to be monitored and tracked," said Beth Givens, founder and executive director of the Privacy Rights Clearinghouse.

Learn more about RFIDs.

Contacts:

Stella Richardson
Media Relations Director
ACLU of Northern California
srichardson@aclunc.org

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

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