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EFF Press Release Archives

Press Releases: February 2011

February 8, 2011

Hearing Set for February 15 in Alexandria, Virginia

Alexandria, VA - A federal court in Alexandria, Virginia today unsealed motions filed by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and others concerning government attempts to obtain Twitter account records about three individuals in connection with its WikiLeaks investigation. The documents were originally filed under seal late last month.

One of the newly-available motions is a request to unseal the still-secret court records of the government's attempts to collect private records from Twitter, Inc., as well as other companies who may have received demands for information from the government. The second motion seeks to overturn the December 14 court order requiring Twitter to provide information about its users. The third motion was subsequently filed to unseal the original two motions, A hearing on the first two motions is set for 10:30 a.m. on February 15 at the U.S. District Court in Alexandria, Virginia.

The ACLU and EFF represent Birgitta Jonsdottir, an Icelandic parliamentarian and one of the Twitter users whose records were sought by the government. The motion was joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Jacob Appelbaum and Rop Gonggrijp, respectively, as well as local counsel in Virginia. The government had also requested information concerning Appelbaum and Gonggrijp's Twitter accounts.

"We are troubled that the original court order requiring Twitter to turn over its users' private records was filed under seal.," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Except in truly extraordinary circumstances, Internet users should receive notice and an opportunity to go to court to defend their constitutional rights before their privacy is compromised. That's what is happening now, and we are hopeful that the court will unseal the rest of the sealed materials."

"Twitter is a publication and communication service, so the information sought by the government relates to what these individuals said and where they were when they said it," said EFF Legal Director Cindy Cohn. "This raises serious First and Fourth Amendment concerns. It is especially troubling since the request seeks information about all statements made by these people, regardless of whether their speech relates to WikiLeaks."

Attorneys for Jonsdottir are Fine and Benjamin Siracusa-Hillman of the ACLU, Rebecca Glenberg of the ACLU of Virginia and Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF.

For more details on attending next week's hearing contact press@eff.org or media@aclu.org.

For the newly unsealed documents:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

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

Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

Related Issues:
February 2, 2011

Current Standards to Invalidate Patents Impede Software Innovators

San Francisco - The Electronic Frontier Foundation (EFF), joined by Public Knowledge and the Apache Software Foundation, urged the U.S. Supreme Court Tuesday to make it easier to invalidate bad patents -- a decision that would benefit software innovators both large and small.

In an amicus brief filed in Microsoft v. i4i, EFF argues that the existing high standard of proof for invalidating a patent in federal court unfairly gives the owners of bad patents the upper hand. Currently, when a defendant is accused of infringing a patent, the Federal Circuit wants to see "clear and convincing" evidence that that patent is illegitimate and the case against it unfounded. This is in contrast to the standard of proof for most civil cases, which is a "preponderance of the evidence" -- or a showing that more likely than not the allegations are true. In software cases, "clear and convincing" evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder.

"With the complex technical issues at play in software patent infringement suits, plaintiffs often argue that the original source code is a necessary part of 'clear and convincing' evidence," said EFF Fellow Michael Barclay. "But the law should not require this standard of proof. Instead, software innovators are put at an unfair disadvantage, and bad patents are upheld in court."

Microsoft v. i4i began when i4i sued Microsoft for patent infringement, claiming that its patent covered a Microsoft Word feature that allowed for editing documents with XML. Microsoft argued that i4i's patent was invalid because similar features were included in another product sold more than a year before the patent application was filed. But the Federal Circuit applied the "clear and convincing" standard and rejected Microsoft's argument.

"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."

Microsoft v. i4i will be argued in April, and a decision is expected by June.

For the full amicus brief:
https://www.eff.org/files/filenode/microsoft_v_i4i/234530_Brief_Final.pdf

Contacts:

Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org

Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org

Related Issues:
February 1, 2011

Another Victory in Battle Against Flawed Copyright Lawsuits

Dallas, TX - An adult video company has dropped its flawed lawsuit accusing hundreds of Internet users of illegally downloading pornography. The Electronic Frontier Foundation (EFF) and Public Citizen (PC) are counsel for the anonymous defendants at the request of the court.

Late last week, Mick Haig Productions dismissed its case against 670 "John Does," claiming they had infringed the company's copyrighted materials on a file-sharing service. The notice of dismissal came after EFF and Public Citizen argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "When adult film companies launch these cases, there is the added pressure of embarrassment associated with pornography, which can convince those ensnared in the suits to quickly pay what's demanded of them, whether or not they have legitimate defenses. That's why it's so important to make sure the process is fair."

Mick Haig Productions dropped the case just 48 hours after EFF and PC demanded that it withdraw subpoenas Mick Haig's lawyer apparently issued while the question of whether the court should allow the subpoenas at all was still under consideration by the court.

"This dismissal is wonderful news for the 670 anonymous defendants in this case, but troubling questions remain about the behavior of Mick Haig Productions," said EFF Senior Staff Attorney Matt Zimmerman. "Given the extremely invasive power of subpoenas, plaintiffs have a duty to ensure that subpoenas are not misused. EFF is committed to ensuring that litigants are held accountable for taking shortcuts around the due process rights of their opponents, especially in cases such as this one where the very act of obtaining someone's identity could be improperly leveraged into pressure to settle a claim."

This is the latest victory in EFF's battle against copyright trolls. Lawyers around the country are discovering that mass copyright litigation is not such a lucrative business model if you have to pursue your cases fairly. In December and early January, federal judges in West Virginia and California recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyright works. As a practical matter, this means that copyright owners in those cases must file separate lawsuits against each alleged infringer and must have a reasonable basis for believing that they are filing in the right court. Given the additional expense of filing and litigating these cases fairly -- expenses the plaintiffs were likely hoping to avoid by ignoring the court rules and due process requirements -- these cases may not go much further.

"There is often a gap between when cases are filed and when judges have the opportunity to look at them closely," said EFF Legal Director Cindy Cohn. "But that time appears to have arrived. Judges around the country are waking up to the dangers of mass copyright litigation and taking action to make sure the process is fair for the thousands of people who have been targeted in these suits."

For the full notice of dismissal:
https://www.eff.org/files/filenode/uscg/mickhaignotice.pdf

For more on the subpoenas:
https://www.eff.org/files/filenode/uscg/stoneletter.pdf

Contacts:

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

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

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

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