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EFF Press Release Archives

Press Releases: October 2008

October 27, 2008

Ten-Year Legacy of Harm to Fair Use, Free Speech

San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.

"Unintended Consequences: Ten Years Under the DMCA" focuses on the most notorious aspect of the law: its ban on "circumventing" digital rights management (DRM) and "other technical protection measures." Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. "Unintended Consequences" collects reports of the law's most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.

"Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it's been a decade of costs, with no benefits," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn't like. It's time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws."

For "Unintended Consequences: Ten Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

For more on the DMCA:
http://www.eff.org/issues/dmca

Contact:

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

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October 27, 2008

Search by State or County for Real-Time Voter Reports on Election Day

San Francisco - Reporters, bloggers, and voters across the country can monitor problems at the polls on Election Day on OurVoteLive.org, a project built and hosted by the Electronic Frontier Foundation (EFF) on behalf of Election Protection, the nation's largest nonpartisan voter protection coalition, and its toll-free voter-assistance hotline, 866-OUR-VOTE.

OurVoteLive.org collects and analyzes reports from calls to the 866-OUR-VOTE hotline, which is staffed by hundreds of volunteers across the country. Tested during the presidential primaries, the site is already documenting over a thousand examples per day of voters needing information or reporting problems such as registration and identification issues, difficulties with voting machines, and polling place accessibility issues. Over 200,000 calls are expected to come into the hotline and be documented on OurVoteLive.org through Election Day.

"Improved transparency in all aspects of the electoral process is critical to ensuring accurate results as well as diagnosing systemic problems and helping voters," said EFF Senior Staff Attorney Matt Zimmerman. "OurVoteLive.org is helping the Election Protection Coalition make that possible."

In addition to call incident data, OurVoteLive.org also features maps, nationwide trend information, and an active election issues blog that will highlight important election incidents as they develop.

"OurVoteLive.org will allow us to help more voters more effectively," said Jonah Goldman, director of the National Campaign for Fair Elections at the Lawyers' Committee for Civil Rights Under Law, which leads Election Protection. "We -- along with election officials and the media -- will be able track trends and identify problem areas quickly so that we can remove any barriers that voters face as they cast their ballots."

Election Protection has more than 100 partners at the national, state and local level and is providing live voter protection services now through Election Day across all 50 states. On November 4, Election Protection will mobilize tens of thousands of volunteers, including 10,000 legal volunteers to monitor polling places, educate voters, facilitate a dialogue with local and state officials, provide legal support to poll monitors, and answer the 1-866-OUR-VOTE voter services hotline -- a monumental undertaking designed to ensure smooth voting in November.

On Election Day, reporters who have questions about OurVoteLive.org or particular incidents reported on the site should contact Nell McGarity via email at press@ourvotelive.com.

Contact:

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

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October 20, 2008

Public Interest Coalition Outlines Steps to Protect Online Political Speech

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups called on four television networks today to stop stifling vibrant political debate on the Internet with overreaching copyright claims and proposed two measures to help YouTube protect online political speech in the final days before America's presidential election.

In an open letter sent to CBS, the Christian Broadcasting Network (CBN), Fox, and NBC, the coalition asked the broadcasters to stop sending takedown requests based on copyright in short clips of news footage used in election-related videos. Last week, the McCain-Palin campaign contacted YouTube after CBS, CBN, and Fox targeted the campaign's videos for removal from YouTube. The Obama-Biden campaign has had at least one of its videos removed from YouTube in response to a similar copyright demand from NBC.

"The videos at issue include clips of news footage that last only a few seconds, used as part of constitutionally-protected political speech. This is not piracy, but fair use, no different from what Saturday Night Live and The Daily Show do every night," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century."

The networks' use of copyright law to remove the videos is especially disappointing as CBS, NBC-Universal, and Fox have all officially endorsed "User-Generated Content Principles" (www.ugcprinciples.com) aimed at accommodating legitimate fair use of their material.

In a separate open letter written to YouTube, the coalition suggests two measures to protect all video contributors from unfounded takedown demands. First, all "counter-notices" sent by YouTube users protesting copyright takedown demands should be immediately reviewed by YouTube staff, and the video immediately restored if it is a clear case of fair use. Second, once a user has already provided a valid counter-notice, then YouTube should also review any further takedown notice issued to any video posted to the account.

"In clear cases of fair use, YouTube should stand firmly behind the interests of its user community," said von Lohmann. "YouTube has nothing to fear by hosting videos that do not infringe anyone's copyright."

In addition to EFF, the coalition includes the American Civil Liberties Union (ACLU); the ACLU of Northern California; the Citizen Media Law Project at Harvard's Berkman Center; Anthony Falzone, the executive director of Stanford's Fair Use Project; the Center for Social Media, School of Communication, American University; the Program for Information Justice & Intellectual Property, American University Law School; and Public Knowledge.

For the full letter to the television networks:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+networks.pdf

For the full letter to YouTube:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+YouTube.pdf

For more on user-generated content and political speech:
http://www.eff.org/deeplinks/2008/08/election-approaches-do-your-part-protect-political

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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

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October 17, 2008

Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims

San Francisco - The Electronic Frontier Foundation (EFF) Thursday challenged the constitutionality of a law aimed at granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program.

In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) violates the federal government's separation of powers as established in the Constitution and robs innocent telecom customers of their rights without due process of law. Signed into law earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.

"The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," said EFF Senior Staff Attorney Kevin Bankston. "In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."

In the public version of his certification to the court, Attorney General Mukasey asserted that the government had no "content-dragnet" program that searched for keywords in the body of communications. However, the government did not deny the dragnet acquisition of the content of communications. In support of its opposition, EFF provided the court with a summary of thousands of pages of documents demonstrating the broad dragnet surveillance of millions of innocent Americans' communications. Eight volumes of exhibits accompanied the detailed summary, including eyewitness accounts and testimony under oath.

"We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law," said EFF Senior Staff Attorney Kurt Opsahl. "Intelligence agencies, telecoms, and the Administration want to sweep this case under the rug, but the Constitution won't permit it."

EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.

The constitutional challenge is set to be heard on December 2.

For the full brief:
http://www.eff.org/files/filenode/att/immunityoppocorrected.pdf

For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf

For more on the NSA spying:
http://www.eff.org/issues/nsa-spying

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

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

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October 8, 2008

Illegitimate Patent Threatens New Innovations in Music Distribution

San Francisco - The Electronic Frontier Foundation (EFF) is challenging a bogus patent on Internet music files that could stifle new innovations in online music distribution.

Seer Systems was awarded this illegitimate patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. But in a reexamination request filed with the United States Patent and Trademark Office (USPTO) today, EFF and the law firm Day Casebeer Madrid & Batchelder show that descriptions of this technology were published a number of times before Seer Systems made its claim—including one in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.

"Mr. Jungleib extensively publicized techniques for music distribution in his book, and he did not seek a patent until after the methods entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "Patenting technology that has already been publicly disclosed and widely adopted opens the door to lawsuits against legitimate innovators who are creating new products in good faith."

In fact, Seer Systems has already sued Beatnik, Inc., a company creating music software for mobile devices. Beatnik and Seer later entered into a settlement, which means Beatnik may well have paid money for a license to an invalid patent. Enforcement of the illegitimate Seer patent also threatens to compromise at least two public media standards, MPEG4 and XMF.

"The United States patent system is meant to encourage, not stifle, innovation," said Paul Grewal of Day Casebeer. "We are confident that the Patent Office will take a close look at these meritless claims by Seer Systems."

Day Casebeer attorneys Renee DuBord Brown and Andy Chan were also instrumental in researching and drafting the reexamination request. Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided assistance by drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274.

The challenge to the Seer patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far, the project has killed one patent covering a system and method for creating digital recordings of live performances. Four more reexaminations are underway by the USPTO due to EFF requests.

For the full reexamination request:
http://w2.eff.org/patent/wanted/seer/seer-request-reexamination.pdf

For more on the Patent Busting Project:
http://www.eff.org/patent/

Contacts:

Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

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October 1, 2008

EFF Releases Comprehensive Report on Five Years of File-Sharing Litigation

San Francisco - Five years after the Recording Industry of America (RIAA) began its massive litigation campaign against music fans suspected of sharing copyrighted music files over the Internet, the campaign has failed to get artists paid or reduce peer-to-peer (P2P) file sharing. Meanwhile, the legal foundation of the campaign is being questioned by several federal courts.

Since September of 2003, the recording industry has leveled legal threats against close to 30,000 American music fans. In a report released today, "RIAA v. The People: Five Years Later," the Electronic Frontier Foundation (EFF) presents a comprehensive overview of the RIAA's litigation campaign and concludes that it is hurting music fans and artists alike, without making a dent in unauthorized file-sharing. The report notes increasing skepticism by courts, academics and state watchdog groups about the RIAA's investigation tactics and legal theories. For example, judges have repeatedly rejected the RIAA's "making available" theory, the notion that merely having a music file in a "shared" folder on a computer constitutes copyright infringement, even if no one ever copies the file. Just last week, a federal judge ordered a new trial for Jammie Thomas, found liable for more than $220,000 because the jury had been instructed erroneously that liability could be premised on this "making available" theory.

"If the RIAA wants to keep suing hundreds of people each month and collecting these huge settlements, it can't take shortcuts," said EFF Staff Attorney Corynne McSherry. "It's not enough to say the law 'could have been' broken and demand thousands of dollars to make the accusation go away. The recording industry must prove its case and show that infringement actually occurred."

EFF's report collects evidence that suggests that the lawsuit campaign has not reduced file sharing. Downloading from P2P networks continues unabated, while some people simply choose to share files in ways that are harder to monitor, like burning and exchanging CDs among friends. EFF continues to call on the RIAA to help artists get paid for their creative work by embracing a voluntary collective licensing program, which would collect a reasonable, regular payment from music fans in exchange for the right to share music freely.

"More than 30,000 Americans have been targeted for legal action by the recording industry without putting a single penny into the pockets of any artists," said EFF Senior Staff Attorney Fred von Lohmann. "At the same time, everyone agrees that P2P file-sharing is more popular than ever. The RIAA's litigation campaign arbitrarily punishes tens of thousands of people for what tens of millions are doing. It's futile and unfair. It is high time that the recording industry let fans pay them a reasonable fee for the P2P file sharing that we all know has become a fact of Internet life."

For the full report "RIAA v. The People: Five Years Later":
http://www.eff.org/wp/riaa-v-people-years-later

For EFF's "A Better Way Forward" paper, discussing voluntary collective licensing alternatives:
http://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing

For more on the litigation campaign:
http://www.eff.org/riaa-v-people

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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

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