Press Releases: November 2011
Site Will Document Copyright Enforcement's Effects on Freedom of Expression Worldwide
San Francisco - The Electronic Frontier Foundation (EFF), in collaboration with over a dozen civil society organizations worldwide, today launched Global Chokepoints at www.globalchokepoints.org to document how copyright enforcement is being used to censor online free expression in countries around the world.
Global Chokepoints, funded in part through a grant by the Open Society Foundation, is an online resource created to document and monitor proposals from around the world to turn Internet intermediaries into copyright police. These proposals harm Internet users' rights of privacy, due process and freedom of expression, as well as endanger the future of the free and open Internet. Global Chokepoints is designed to provide empirical information to digital activists and policymakers and to help coordinate international opposition to attempts to cut off free expression through misguided copyright laws and transnational agreements, like the Anti Counterfeiting Trade Agreement (ACTA).
Global Chokepoints will document the escalating global efforts to turn Internet intermediaries into chokepoints for online free expression. Internet intermediaries all over the world—from Internet Service Providers (ISPs) to community-driven sites like Twitter and YouTube to online payment processors—are increasingly facing demands by IP rightsholders and governments to remove, filter, or block allegedly infringing or illegal content, as well as to collect and disclose their users' personal data.
At the same time, it's unclear whether and under what circumstances Internet intermediaries have liability for content posted by their users. Hotly contested court cases in Europe, Australia, and elsewhere are considering how copyright law fits with obligations to protect Internet users' rights of privacy, due process, and freedom of expression.
Global Chokepoints analyzes global trends in four types of copyright censorship: 1) three-strikes policies and laws that require Internet intermediaries to terminate their users' Internet access on repeat allegations of copyright infringement; 2) requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material; 3) ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement; and 4) efforts to force intermediaries to disclose the identities of their customers to rightsholders upon allegations of copyright infringement. The site includes links to digital rights organizations, consumer groups, law school clinics, and technology industry groups that are opposing the spread of overbroad copyright policing efforts, as well as national advocacy campaigns to protect the free and open Internet and citizens' fundamental rights.
"IP rightsholders are attempting to choke-off online free expression through overbroad laws, litigation, and coercive agreements that require Internet intermediaries to filter, block and disconnect their customers," said EFF International Intellectual Property Director Gwen Hinze. "As both the UN Special Rapporteur on Freedom of Opinion and Expression and the European Court of Justice have recently recognized, these initiatives harm Internet users' rights of privacy, due process and freedom of expression, and endanger the future of the free and open Internet."
Global Chokepoints is launching with in-depth analysis of ten regions: Chile, Columbia, the European Union, France, Ireland, New Zealand, Spain, South Korea, the United Kingdom and the United States of America. The website will expand to include additional regions and countries in the coming months and will be updated as new copyright proposals and agreements are introduced.
"Laws around the world are forcing service providers like ISPs to act as judges for what's valid speech on the Internet, using copyright as an excuse to cut off speech and infringe on the privacy rights of users," EFF Activism Director Rainey Reitman said. "For example, in the United States, the Stop Online Piracy Act (SOPA) could undermine long-standing legal protections for intermediaries and could potentially 'blacklist' many popular websites–like Etsy, Flickr, and Vimeo. The Global Chokepoints project will help concerned citizens fight dangerous legislation around the world."
For the Global Chokepoints website:
Electronic Frontier Foundation
Newspaper Publisher Caves at Last, Agrees Excerpts of Articles Do Not Infringe Copyright
San Francisco - In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC.
The case began when the online political forum Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers -- was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper's website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.
The Court dismissed Righthaven's infringement case because it did not own the article, but Democratic Underground's counterclaim against Stephens Media continued. After initially attempting to defend the bogus assertion of copyright infringement, Stephens Media has now conceded it was incorrect.
"I knew the lawsuit was wrong from the start, and any self-respecting news publisher should have, too," said Democratic Underground founder David Allen. "I'm glad that they have finally admitted it."
"This concession comes after more than a year of needless litigation," said EFF Senior Staff Attorney Kurt Opsahl. "Stephens Media never should have authorized Righthaven to file this suit in the first place, and should never have wasted our client's and the court's time with its attempts to keep Righthaven's frivolous claim alive for the last year."
The original lawsuit against Democratic Underground was dismissed earlier this year, when Judge Hunt found that Righthaven did not have the legal authorization to bring a copyright lawsuit because it had never owned the copyright in the first place. Righthaven claimed that Stephens Media had transferred copyright to Righthaven before it filed the suit, but a document unearthed in this litigation -- the Strategic Alliance Agreement between Righthaven and Stephens Media -- showed that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the newspaper's case at its own expense in exchange for a cut of the recovery. In addition to dismissing Righthaven's claim, Judge Hunt sanctioned Righthaven with fines and obligations to report to other judges its actual relationship with Stevens Media.
Righthaven has filed hundreds of copyright cases based on its sham copyright ownership claims. Despite several attempts by Righthaven and Stephens Media to re-write their Strategic Alliance Agreement, half a dozen judges have ruled against the scheme to turn copyright litigation into a business.
"This is a hard fought and important victory for free speech rights on the Internet," said Laurence Pulgram, the partner who led the team at Fenwick & West, LLP in San Francisco. "Unless we respond to such efforts to intimidate, we'll end up with an Internet that is far less fertile for the cultivation and discussion of the important issues that affect us all."
Democratic Underground's motion for summary judgment:
Stephens Media's consent to the motion:
Senior Staff Attorney
Electronic Frontier Foundation
Chair, Copyright Litigation Group
Fenwick & West LLP
Court Protects Web Site Operators From Acting in 'Noxious' Oversight Role
San Francisco - The Illinois Court of Appeals today overturned a lower court ruling that had ordered the disclosure of the identity of an anonymous online critic of a political candidate, ruling that the First Amendment prevented such "fishing expeditions" undertaken by "those easily offended by online commentary."
The Electronic Frontier Foundation (EFF) and the Media Freedom and Information Access Clinic (MFIA) at Yale Law School filed a friend-of-the-court brief in the case. While defamatory or other actionable speech may allow for the unmasking of an online speaker, EFF and MFIA argued that the First Amendment requires a heightened standard for unmasking anonymous speakers in order to protect robust debate -- political or otherwise.
"We are pleased that the Court of Appeals overturned the trial court's troubling decision," said EFF Senior Staff Attorney Matt Zimmerman. "The First Amendment provides robust protection for controversial and critical speech. This case demonstrates that critics of political figures and others with power may find themselves on the receiving end of retaliatory legal threats. Today's opinion shows that Illinois courts will defend speakers engaged in lawful speech from improper efforts to 'out' them."
The anonymous critic in this case commented on a story on the website of a suburban Chicago newspaper called the Daily Herald, and engaged in a heated debate with other commenters – including the son of the village trustee candidate in Buffalo Grove, Illinois, who was discussed in the article. The candidate, Lisa Stone, who eventually won her race, asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Last year, a lower court granted Stone's pre-lawsuit request for her critic's identity, incorrectly holding that a narrow disclosure to Stone would adequately protect the speaker's First Amendment rights.
The Court today reversed that lower court's opinion, articulating the First Amendment interests at stake: "While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court's order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their 'tormenters' would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals. Putting publishers and website hosts in the position of being a 'cyber-nanny' is a noxious concept that offends our country's long history of protecting anonymous speech."
"Politicians cannot pry into someone's life just because they've been publicly criticized," said Margot Kaminski, co-founder of MFIA and Executive Director of Yale's Information Society Project. "Because of the enormous potential of abuse, the First Amendment requires showing that there's a legitimate case before using the courts to unmask anonymous speakers. We're pleased the Illinois Court of Appeals protected free speech rights in this case and recognized the potential chilling effect of such fishing expeditions on citizens who choose to post anonymously."
For the full order from the court:
Senior Staff Attorney
Electronic Frontier Foundation
Ruling Allows U.S. Government Warrantless Access to Users' Data
San Francisco - A district court judge in Virginia ruled against online privacy today, allowing U.S federal investigators to collect private records of three Twitter users as part of its investigation related to Wikileaks. The judge also blocked the users' attempt to discover whether other Internet companies have been ordered to turn their data over to the government.
The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) represent Icelandic parliamentarian Birgitta Jonsdottir in this case. Jonsdottir has appealed an earlier ruling with fellow Twitter users Jacob Appelbaum and Rop Gonggrijp.
"With this decision, the court is telling all users of online tools hosted in the U.S. that the U.S. government will have secret access to their data," said Jonsdottir. "People around the world will take note, and since they can easily move their data to companies who host it in locations that better protect their privacy than the U.S. does, I expect that many will do so. I am very disappointed in today's ruling because it is a huge backward step for the United States' legacy of freedom of expression and the right to privacy."
In this case, Jonsdottir and others only found out about the government requests for information because Twitter took steps to notify them of the court order. EFF is urging other companies to follow Twitter's lead, stand with their customers, and promise to inform users when their data is sought by the government, as part of our Who Has Your Back? campaign.
"When you use the Internet, you entrust your online conversations, thoughts, experiences, locations, photos, and more to dozens of companies who host or transfer your data," said EFF Legal Director Cindy Cohn. "In light of that technological reality, we are gravely worried by the court's conclusion that records about you that are collected by Internet services like Twitter, Facebook, Skype and Google are fair game for warrantless searches by the government."
Attorneys for Jonsdottir are Aden Fine of the ACLU, Rebecca Glenberg of the ACLU of Virginia, and Cindy Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF. The motions were joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Appelbaum and Gonggrijp, respectively, as well as local counsel in Virginia. Jonsdottir, Appelbaum, and Gonggrijp are still reviewing the order and considering possible next steps.
For the judge's full order:
For Who Has Your Back?:
Media Relations Director
Electronic Frontier Foundation