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EFF Press Release Archives

Press Releases: December 2010

December 23, 2010

Amicus Brief Rejects Claim That Google's Forwarding of its Legal Notices to the Online Resource is Copyright Infringement

San Francisco - The Electronic Frontier Foundation (EFF) and other founders and participants in the Chilling Effects Clearinghouse urged an appeals court in an amicus brief filed Tuesday to reject an adult entertainment publisher's attempts to block Google's contributions to the online copyright resource. Durie Tangri LLP represented EFF and its co-amici in preparing and filing the brief.

Chilling Effects, at www.chillingeffects.org, gathers and analyzes legal notices alleging online copyright infringement. More than 12,000 notices are available for public review, education and study, and the data there has been the basis for a number of scholarly papers about copyright law and the Internet.

Google is one of many businesses and organizations that provide the legal notices it receives to Chilling Effects. But as part of a long-running court battle with Google, adult publisher Perfect 10 claims that forwarding its infringement notices to the online resource is a copyright infringement, because Perfect 10 includes its copyrighted adult images on the notifications.

"The use of copyrighted works for scholarship or research, like in Chilling Effects, is clearly a fair use of the material and protected under the law," said EFF Intellectual Property Director Corynne McSherry. "Chilling Effects is an important public resource for educating the public and studying the effects of online copyright law -- so important that Perfect 10 itself has used the data as part of its copyright infringement lawsuits. Google's contributions to this resource don't infringe copyright simply because Perfect 10 chooses to attach samples of its adult photos in its infringement notices."

The lawsuit stretches back to 2005, when Perfect 10 first sued Google claiming that Google's Image Search service violated copyright law by indexing Perfect 10 photos posted on unauthorized websites, as well as a hodgepodge of other claims. In 2007, the Ninth Circuit Court of Appeals rejected virtually all of Perfect 10's claims, but it sent the case back down to the district court to determine whether Perfect 10's legal notices of infringement complied with the Digital Millennium Copyright Act (DMCA). The district court held in Google's favor, finding that Perfect 10's notices were not sufficient under the law, and as part of that ruling the court held that Google's contributions to Chilling Effects are protected by the fair use doctrine. Perfect 10 is appealing that ruling back to the 9th Circuit.

"People scour the Chilling Effects archive in order to write academic papers and research the law, not to look for adult photos," said EFF Legal Director Cindy Cohn. "As the district court recognized, this is another bogus copyright claim from Perfect 10 that could have dangerous ramifications for fair use and the Internet."

For the full amicus brief:
https://www.eff.org/files/filenode/Perfect10_v_Google/2010-12-21P10vGoogle%20amicus.pdf

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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December 22, 2010

Broad Coalition Calls on U.S. Government Officials to Protect Free Speech

San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition of advocacy organizations sent an open letter to U.S. lawmakers today, calling on government officials to respect freedom of expression in the debate over the whistle-blower website Wikileaks.

In the wake of Wikileaks' recent publications of U.S. diplomatic cables, some lawmakers have attacked newspapers' rights to report on the information in those documents. Other government officials have cast doubt on Americans' right to download, read, or discuss documents published by Wikileaks and even the news reporting based on those documents. Rash legislation was proposed that could limit the free speech of news reporting organizations well beyond Wikileaks. In the open letter sent Wednesday, 30 groups urged lawmakers to remember and respect constitutional rights as Congress continues to discuss the issues at stake.

"By likening publishers and reporters to spies and cyber-terrorists, some government officials have irresponsibly created an atmosphere of fear and uncertainty leading many to question their rights to publish, read and discuss the Wikileaks cables," said EFF Senior Staff Attorney Marcia Hofmann. "But American law is well settled on these issues: the First Amendment strongly protects publishers' right to distribute truthful political information, and Internet users have a fundamental right to read and debate it."

In a congressional hearing about Wikileaks last week, all seven witnesses to the House Judiciary Committee cautioned against attempts to suppress free speech and criticized the overwhelming secrecy that permeates the U.S. government. The coalition joining the open letter today similarly called for caution against any new laws that could weaken the principles of free expression that are vital to our democracy.

"In a free country, the government cannot and does not have unlimited power to determine what publishers can publish and what the public can read," said EFF Activist Rainey Reitman. "We encourage a robust public debate about Wikileaks and the secret government documents, but lawmakers must protect the rights of all involved."

For the full open letter:
https://www.eff.org/files/filenode/WikiLeaks/wikileaks_open_letter_final.pdf

Join EFF in standing up against Internet censorship:
https://www.eff.org/pages/say-no-to-online-censorship

Contacts:

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Rainey Reitman
Activist
Electronic Frontier Foundation
rainey@eff.org

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December 20, 2010

Corynne McSherry Named IP Director; Senior Staff Attorney Abigail Phillips and Staff Attorney Julie Samuels Join Team

San Francisco - The Electronic Frontier Foundation (EFF) is proud to announce its new lineup focusing on intellectual property issues: Intellectual Property Director Corynne McSherry; Senior Staff Attorney Abigail Phillips; and Staff Attorney Julie Samuels. EFF Senior Staff Attorney Kurt Opsahl will also continue his dual role on EFF's Civil Liberties and IP teams.

Intellectual Property Director Corynne McSherry has been a staff attorney at EFF for more than five years, working on high-profile EFF cases including the Sony-BMG rootkit litigation and defending the Yes Men and other activists in a lawsuit filed by the U.S. Chamber of Commerce over a political parody. Corynne's practice focuses on fair use and free speech and includes both litigation and advocacy work, such as spearheading EFF's Takedown Hall of Shame campaign and providing public commentary on online copyright and trademark issues. Corynne is the author of "Who Owns Academic Work?: Battling for Control of Intellectual Property" (Harvard University Press, 2001).

Senior Staff Attorney Abigail Phillips recently joined EFF after more than five years at Yahoo!, where she was Senior Legal Director for copyright and advised product development teams such as Yahoo! Search, Flickr, and Yahoo! Video on a range of cyberlaw issues. At EFF, she focuses on copyright and online content matters and will play a central role in EFF's policy work. Prior to Yahoo!, Abigail practiced in the technology policy and IP litigation groups of Perkins Coie LLP in San Francisco. Her non-law experience includes work as an editor, designer, and programmer in new and traditional media areas, including as the first webmaster for the Berkman Center for Internet and Society.

Staff Attorney Julie Samuels focuses on patents as well as other intellectual property issues. Currently Julie is overseeing EFF's Patent Busting Project and assisting on Lenz v. Universal, EFF's landmark case fighting a bogus claim of copyright infringement against a mother who posted a short YouTube video of her son dancing to a Prince song. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C.

"EFF's IP work has been long respected by both the public and the courts for its a critical role in bringing balance to the law and for ensuring that technology empowers consumers, creators, and citizens," said EFF Legal Director Cindy Cohn. "Corynne, Abigail, Julie, and Kurt are the perfect team to bring EFF's work on behalf of users, activists, and innovators to the next level."

Contact:

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

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December 16, 2010

Orders Film Companies to Stop Abusing the Law When Suing Accused File-Sharers

San Francisco - In a big victory in the fight against copyright trolls, a judge in West Virginia has blocked an attempt to unmask accused file sharers in seven predatory lawsuits involving the alleged illegal downloading of pornography. The Electronic Frontier Foundation (EFF), working with Charles J. Kaiser of Phillips, Gardill, Kaiser & Altmeyer, PLLC, filed an amicus brief in the case, arguing that the film companies were abusing the law in an attempt to pressure settlements.

In these cases -- as in many others across the country -- the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"This is the next nail in the coffin of the copyright trolls," said EFF Legal Director Cindy Cohn. "Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model." In the seven West Virginia cases, collectively suing over 5,400 people, Time Warner Cable moved to quash subpoenas seeking the identities of accused filed sharers. EFF"s supporting amicus brief specifically noted the problems with suing hundreds of unconnected individuals in the same lawsuit. The judge's ruling today closely followed EFF's reasoning, ordering the plaintiffs to re-file their actions against each defendant individually.

"These lawsuits have caused massive collateral damage to the individuals targeted, due process, and the legal profession," said EFF Intellectual Property Director Corynne McSherry. "Copyright owners have a right to protect their works, but not at the expense of the due process rights of thousands of Doe defendants."

In a further blow against the plaintiffs' blunderbuss tactics, the court also forbade the plaintiffs from re-filing unless the plaintiffs had a valid reason to believe the Does actually were located in West Virginia, noting that a simple Google search would narrow the field.

"Courts must protect the rights of each and every defendant, and attempts to game the system inevitably puts those rights at risk," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the court saw through that attempt here and hope that others avoid this unwarranted, harmful attack in the future."

The West Virginia order comes on the heels of a ruling by a judge in the District of Columbia earlier this month that dismissed hundreds of individuals from across the country named in the U.S. Copyright Group's troll campaign due to lack of personal jurisdiction in Washington, D.C.

For the judge's full orders:
https://www.eff.org/cases/west-virginia-copyright-troll-lawsuits

For more on copyright trolls:
https://www.eff.org/issues/copyright-trolls

Contacts:

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

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation
corynne@eff.org

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