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EFF Press Release Archives

Press Releases: January 2012

January 30, 2012

Defendants Told They Must Reveal Their Identities Before Fighting to Protect Anonymity

San Francisco - The Electronic Frontier Foundation (EFF) has asked a federal judge in Washington, D.C., to protect the identities of individuals sued in a mass copyright lawsuit involving pornographic materials.

In this case, adult film company Hard Drive Productions sued 1495 unnamed Internet users, claiming they illegally downloaded copyrighted pornographic material. Some of these defendants moved to quash subpoenas aimed at revealing their identity. Many filed those motions under seal, to protect their anonymity until the motions are decided.

Last month, a judge issued a "Catch-22" order, requiring these individuals to reveal their identities before their motions – which were made to protect their identities – could proceed. In a friend of the court brief filed Monday, EFF argues that this requirement could induce defendants to settle their lawsuits in order to avoid the embarrassment, humiliation, or expense, instead of getting to the merits of the case.

"These subpoenas need to be considered in the context in which this case was brought," said EFF Staff Attorney Mitch Stoltz. "The plaintiffs here hope to take advantage of the stigma associated with pornography – as well as the threat of an expensive court battle – to induce people to settle no matter what their defenses might be. If defendants can't fight the exposure of their identities without exposing their identities, then the plaintiffs have already won."

The case is one of a growing number of mass copyright lawsuits that do not appear to be filed with any intention of litigating them. Instead, once identities of suspected infringers are obtained from ISPs, the plaintiffs send settlement letters offering to make the lawsuit go away for a few thousand dollars. A ruling on whether a film company may obtain identities of anonymous Internet users may be the last chance for defendants to be heard by the court.

EFF's brief explains both the speech implications of the ruling and the importance of the court rules that protect defendants, given the numerous ways these mass lawsuits violate due process.

"All that the plaintiffs need here to pursue their settlement shake-down scheme is the identity of the anonymous defendants," said EFF Intellectual Property Director Corynne McSherry. "These defendants have a First Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start. We're asking for these motions to quash to go forward without requiring them to be unsealed, and we're also asking the court to throw this case out given the basic due process flaws."

For the full amicus brief:
https://www.eff.org/document/amicus-brief-hard-drive-productions-v-does-1-1495

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

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

January 25, 2012

EFF Launches Petition Campaign for Expanded DMCA Exemptions

San Francisco - The Electronic Frontier Foundation (EFF) is asking the public to join the campaign to keep and widen exemptions EFF obtained in 2010 to the Digital Millennium Copyright Act (DMCA) to help remove a cloud of legal uncertainty hanging over folks who modify electronic gadgets and make remix videos.

"The DMCA is supposed to block copyright infringement, but it's been misused to threaten tinkerers and users who just want to make their devices more secure and more functional," said EFF Senior Staff Attorney Marcia Hofmann. "The U.S. Copyright Office should hear from concerned Americans who want to run software of their choice on the gadgets of their choice."

"The Internet has helped foster extraordinary and powerful new forms of commentary that rely, in part, on the ordinary activity of borrowing clips of news and popular culture," said EFF IP Director Corynne McSherry. "This is part of our everyday political debate and should be protected by copyright law, not discouraged."

The exemptions EFF won for smartphones and remix videos in 2010 will expire if they are not renewed. So in December, EFF filed comments urging the Copyright Office to not only renew the exemptions, but expand them. Specifically, EFF asked that the office protect the "jailbreaking" of smartphones, electronic tablets, and video game systems – freeing them to run operating systems and applications from any source. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or Internet video services to create new, remixed works.

Now, the Copyright Office is asking for public comment on the proposed exemptions and EFF is seeking the public's help. In EFF's Jailbreaking Is Not a Crime campaign, you can sign a letter written by author and hacker bunnie Huang, advocating for expanded jailbreaking exemptions to protect security researchers and other tinkerers and innovators. In the Rip. Mix. Make. Campaign, you can join video artist, educator, and author Kirby Ferguson in calling for wider exemptions for breaking video encryption for creative purposes.

Both campaigns are part of the official comment period of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management and "other technical protection measures" used to protect copyrighted works. In passing the DMCA, Congress allowed the Copyright Office to create certain kinds of exemptions to help mitigate the harms the law causes to legitimate, non-infringing use of copyrighted materials.

"Overreaching copyright law can hurt Americans' free expression and innovation rights. That's what we are fighting in Congress with the Internet blacklist bills like SOPA and PIPA, and it's what we are fighting here," said EFF Staff Attorney Mitch Stoltz. "Please help Kirby defend the right to rip, mix, and make, and join bunnie in telling the Copyright Office that jailbreaking is not a crime."

For Jailbreaking Is Not a Crime:
https://www.jailbreakingisnotacrime.org/

For Rip. Mix. Make.:
https://www.ripmixmake.org/

Contacts:

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

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

Related Issues:
January 23, 2012

EFF Amicus Brief Argued that Government Installation and Use of GPS is a Search

San Francisco - In a unanimous decision, the U.S. Supreme Court has confirmed that Americans have constitutional protections against GPS surveillance by law enforcement, holding in U.S. v. Jones that GPS tracking is a "search" under the Fourth Amendment.

In Jones, FBI agents planted a GPS device on a car and then tracked the position of the vehicle every ten seconds for a full month without court oversight. In its ruling today, the Supreme Court held that those actions violated the Fourth Amendment. The majority opinion did not address whether tracking that did not require the physical attachment of a device to property also constitutes a search. However, the concurring opinions of Justices Alito and Sotomayor show a majority of the judges agreed that such surveillance could violate the Fourth Amendment.

"This is a important ruling for all Americans," said Senior Staff Attorney Marcia Hofmann of the Electronic Frontier Foundation (EFF). "The Supreme Court has unanimously confirmed that the Constitution prevents unbridled police use of new technologies to monitor our movements."

EFF and the Center for Democracy and Technology filed an amicus brief in the case, arguing that GPS tracking is fundamentally different from and more invasive than other surveillance technologies the court has allowed before, and that law enforcement use of GPS without a warrant violates Americans' reasonable expectations of privacy. The amicus brief was joined by Roger L. Easton, considered the father of GPS, and other technologists.

EFF was particularly gratified to see Justice Sotomayor, in concurrence, raising concerns about the failure of the Fourth Amendment caselaw to keep up with the realities of today's digital technologies. She said: "People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

EFF's brief was authored by Andrew Pincus of Mayer Brown LLP and The Yale Law School Supreme Court Clinic. In addition to Roger Easton, the brief was signed by Professor Matt Blaze of the University of Pennsylvania, Professor Andrew J. Blumberg of the University of Texas at Austin, and Professor Norman M. Sadeh of Carnegie Mellon University.

For the full decision from the Supreme Court:
https://www.eff.org/files/filenode/scotusjones.pdf

Contacts:

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

Hanni Fakhoury
   Staff Attorney
   Electronic Frontier Foundation
   hanni@eff.org

January 20, 2012

Appeal Aims to Unseal Secret Orders to Other Internet Companies

Richmond, VA - Fighting to make public government efforts to obtain Internet users' private information without a warrant, today the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) plan to file an appeal in the legal battle over the records of several Twitter users in connection with the government's WikiLeaks investigation.

The ACLU and EFF represent Icelandic parliament member Birgitta Jonsdottir. The appeal, filed jointly with other Twitter users Jacob Appelbaum and Rop Gonggrijp, challenges U.S. District Judge Liam O'Grady's November decision refusing to unseal or publicly list all orders that may have been sent to companies other than Twitter and any related motions and court orders.

"These people want to try to protect their privacy and their First Amendment rights, and the government should not be able to prevent that by hiding court records. Our courts are public. Secret court orders and secret court dockets should not be permitted, except in extraordinary circumstances," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "This case is just one example of the unfortunate recent trend to make our court processes less open and transparent."

In light of the district court’s denial of a stay, Jonsdottir and the other Twitter users involved in the case did not appeal the judge's decision requiring Twitter to turn over their records.

Attorneys for Jonsdottir are Fine of the ACLU, Rebecca Glenberg of the ACLU of Virginia and Cindy Cohn, Lee Tien and Marcia Hofmann 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 Jacob Appelbaum and Rop Gonggrijp, respectively, as well as local counsel in Virginia.

For the full brief:
https://www.eff.org/files/filenode/PublicBrief.pdf

For more on this case:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

Josh Bell
   ACLU
   media@aclu.org

Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation
   press@eff.org

January 18, 2012

EFF Urges Judge to Block Facebook's Dangerous Claims

San Francisco - The Electronic Frontier Foundation (EFF) urged a district court judge Tuesday to block Facebook's attempts to criminalize an add-on service that helped users aggregate all of their social networking data in one place.

Power Ventures created a web-based tool to let users view information from different social networking accounts in the same browser window, enabling them to get a complete picture of what's happening across various platforms. Facebook has been trying to kill the service for several years and is currently claiming that criminal computer intrusion laws were violated when Facebook's users logged into their Facebook accounts automatically using Power's aggregation tool. In an amicus brief filed Tuesday, EFF argues that Facebook's claims are wrong legally and dangerous as a matter of policy.

"Facebook wants to prevent users from choosing follow-on innovation that it doesn't like, so it's asking the court to broaden computer crime laws in ways that would let it manufacture and cherry-pick lawsuits against users and competitors," said EFF Senior Staff Attorney Marcia Hofmann. "Facebook's position would create legal uncertainty for tech start-ups everywhere, stifling innovation and competition. No one would want to challenge a behemoth like Facebook with the specter of criminal charges looming over interoperability."

The court has already recognized the danger of criminalizing violations of a website's terms of use. But now Facebook makes an even broader claim: that the mere design of a tool can violate both the Computer Fraud and Abuse Act (CFAA) and California computer crime law if it might be used to circumvent a technical block later. Facebook also demands a staggering $18 million in damages because Power gave Facebook users an option to use Facebook's "event" feature to invite friends to try Power's service. Facebook claims that feature -- by Facebook's own design -- violates the CAN-SPAM Act.

"Under its CAN-SPAM theory, Facebook -- or any other designer of a 'captive' email system -- could design a system that fails to meet CAN-SPAM and then claim that any commercial event notification is a violation of federal law," said EFF Legal Director Cindy Cohn. "This is an outrageous and dangerous misuse of the law, especially in this age of social networks and internal messaging systems. We're asking the court to reject it."

For the full amicus brief:
https://www.eff.org/files/filenode/Facebook_PV_Amicus_Brief.pdf

Contacts:

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

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

January 13, 2012

Copyright Troll's Infringement Cases Have No Legal Standing

San Francisco - The Electronic Frontier Foundation (EFF) filed two briefs in the 9th U.S. Circuit Court of Appeals today in its ongoing battle to end copyright troll Righthaven LLC's litigation campaign.

Since its founding in January 2010, Righthaven has brought hundreds of copyright infringement lawsuits, even though it does not create, produce or distribute any content. Instead, Righthaven claimed it was assigned the copyrights from Stephens Media, publisher of the Las Vegas Review-Journal and other newspapers. In the course of its work fighting the Righthaven cases, EFF unearthed a document showing the copyright assignment was a sham, and that Righthaven never owned the copyrights it sued over. As a result, many of Righthaven's bogus cases have been dismissed in district court.

While many defendants paid settlements, Righthaven has never won a single case on the merits and has been ordered to pay over $200,000 for defendants' attorneys fees and $5,000 in sanctions. Righthaven's domain name, righthaven.com, was auctioned to help pay these judgments, and founder and CEO, Las Vegas attorney Steven A. Gibson, is currently being investigated by the Nevada State Bar. However, Righthaven is now looking to the Ninth Circuit to salvage its dangerous business model.

"These cases should never have been filed in the first place. They are based on a sham copyright assignment, run roughshod over fair use, and have abused the legal system by forcing bloggers and web sites to pay cost of defense settlements," said EFF Senior Staff Attorney Kurt Opsahl. "It's obvious Righthaven's litigation scheme has failed, and we urge the appeals court to deny Righthaven's last ditch effort to resuscitate its business model."

The first brief filed today is in Righthaven v. DiBiase. EFF, along with the law firm of Wilson Sonsini Goodrich & Rosati and attorney Chad Bowers, represent Thomas DiBiase, a former prosecutor who was sued for a post on his blog that provides resources for homicide prosecutors in difficult-to-solve murder cases. The case was dismissed in June, and in its motion filed today, EFF urges the court to uphold that dismissal.

Also today EFF filed an amicus brief in Righthaven v. Center for Intercultural Organizing. This case was dismissed in April, with the judge ruling that the non-profit organization's use of the news article was a non-infringing fair use. Righthaven appealed, seeking to rewrite fair use law to vastly expand the scope of infringement. In today's brief, EFF is joined by the Digital Media Law Project of Harvard University, Public Knowledge, and 11 professors in urging the appeals court to reject Righthaven's erroneous view of the law.

"When a small non-profit in Oregon posted a short, factual news article on its blog, it caused no harm to Righthaven or the to Las Vegas Review-Journal," said Opsahl. "It was a classic fair use, not a cause for a federal lawsuit."

The professors who joined the brief are: Patricia Aufderheide of the American University School of Communication; Annemarie Bridy of the University of Idaho College of Law; Thomas G. Field, Jr., of the University of New Hampshire School of Law; Eric Goldman of the Santa Clara University School of Law; William T. Gallagher of Golden Gate University School of Law; Greg Lastowka of Rutgers School of Law-Camden; Michael L. Rustad of Suffolk University Law School; Matthew Sag of Loyola University of Chicago School of Law; Jason Schultz of the University of California's Boalt Hall School of Law; Rebecca Tushnet of Georgetown University Law Center; and Jane K. Winn of the University of Washington School of Law.

Google also filed an amicus brief opposing Righthaven's fair use analysis in the CIO Case and urged the Ninth Circuit to affirm the District Court.

For the full brief in Righthaven v. DiBiase:
https://www.eff.org/document/righthaven-v-dibiase-ninth-circuit-brief

For the full brief in Righthaven v. CIO:
https://www.eff.org/files/filenode/RH_CIO_EFF_AMICI_BRIEF.pdf

For Google's amicus brief:
https://www.eff.org/files/filenode/googerighthavencioamicus.pdf

Contact:

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

January 12, 2012

EFF Urges Court to Grant New Trial for Blogger

San Francisco - The Electronic Frontier Foundation (EFF) urged an Oregon district court in a friend-of-the-court brief filed Wednesday to overturn a multi-million dollar defamation verdict against a blogger that could chill free speech.

In December, a jury found Montana blogger Crystal Cox liable for defaming Oregon lawyer David Padrick in a highly critical blog post and awarded him $2.5 million in damages. In the brief filed Tuesday, EFF supported several arguments raised by Cox in her motion for a new trial, arguing that the court applied the wrong First Amendment defamation standard and that the jury's award was excessive and unsupported by the evidence. Under the First Amendment, EFF argued, all speakers are entitled to the same defamation standard, regardless of their media status. Moreover, as most of the plaintiff's "reputational harm" came as the result of protected speech, the jury's $2.5 million verdict was unsupportable.

"The Supreme Court has repeatedly made clear that the mainstream press does not enjoy any special First Amendment privilege beyond that enjoyed by other speakers," said EFF Senior Staff Attorney Matt Zimmerman. "Whether or not Ms. Cox is a journalist, the First Amendment requires that a jury must find evidence that a defamation defendant was at least negligent, and the jury was not instructed to do so here."

EFF also urged the district court to reconsider its unnecessary finding that Cox, as an unaffiliated and self-proclaimed "investigatory blogger," was not engaged in a "medium of communication" protected by the Oregon shield law. The shield law, passed years before the advent of the popular Internet, does not explicitly mention web activities but was intended to broadly cover alternate publication channels and allow those engaged in distributing information to the public to protect their sources.

"The question of whether a blogger is a journalist or part of the 'media' is an important question, frequently hinging on whether a blogger is engaged in journalism, not on what medium she uses," added Zimmerman. "Such a question was irrelevant here, however, because the primary question here was whether the statements were defamatory, not the identity of her 'source.' The court's finding only serves to muddy the waters about the rights of online journalists and should be withdrawn."

EFF was assisted in this case by Rick Mc Leod of Klarquist Sparkman, LLP.

For the full amicus brief:
https://www.eff.org/files/filenode/coxamicus.pdf

Contacts:

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

January 12, 2012

Frivolous Case Threatens Essential Tool for Engineers Around the World

San Francisco - The Electronic Frontier Foundation (EFF) has demanded the withdrawal of a bogus copyright infringement lawsuit against the operators of a database of time zone information relied on by software engineers across the globe.

Last September, an astrology software company called Astrolabe filed the suit against Arthur David Olson and Paul Eggert, the researchers who coordinated the database's development for decades. Astrolabe claimed that its copyrights were infringed, because the database relies in part on information in an atlas in which Astrolabe claims to own copyright. Notified of the threat, Olsen took the database offline, leaving users and developers without a critical tool to determine local time for time-stamping emails and other files.

EFF signed on to defend both researchers against this absurd lawsuit. It's a fundamental principle of copyright law that facts are not copyrightable, and Astrolabe should have known that was all the researchers took from the atlas. Today, EFF has asked for Astrolabe to officially withdraw the lawsuit or face a motion for sanctions.

"The law requires litigants to conduct a reasonable inquiry into the facts and the law before filing a lawsuit like this," said EFF Staff Attorney Mitch Stoltz. "It's clear Astrolabe never did that basic research. The result was a frivolous lawsuit that left computer users all over the world without an important resource that keeps computers working accurately and efficiently."

The database is now back online. But this case underscores how bogus copyright infringement claims can interfere with the underpinning of technological tools we rely on every day.

"Developers depend on this tool to help your computer run correctly no matter what time zone you are in," said EFF Intellectual Property Director Corynne McSherry. "This essential public resource was put at risk by a ridiculous lawsuit that should never have been filed. We're calling on Astrolabe to do the right thing and withdraw its complaint."

The law firm of Fish & Richardson is assisting EFF in this case.

For the full letter to Astrolabe:
https://www.eff.org/files/LTTMolloy.pdf

For more on this case:
https://www.eff.org/cases/astrolabe-v-olson

Contacts:

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

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation
   mitch@eff.org

January 10, 2012

Government Withholds Information on Drone Flight Authorizations

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the U.S. Department of Transportation (DOT), demanding data on certifications and authorizations the agency has issued for the operation of unmanned aircraft, also known as drones.

Drones are designed to carry surveillance equipment – including video cameras, infrared cameras and heat sensors, and radar – that can allow for sophisticated and almost constant surveillance. They can also carry weapons. Traditionally, drones have been used almost exclusively by military and security organizations. However, the U.S. Customs and Border Protection uses drones inside the United States to patrol the U.S. borders, and state and local law enforcement are increasingly using unmanned aircraft for investigations into things like cattle rustling, drug dealing, and the search for missing persons.

Any drone flying over 400 feet needs a certification or authorization from the Federal Aviation Administration, part of the DOT. But there is currently no information available to the public about who specifically has obtained these authorizations or for what purposes. EFF filed a Freedom of Information Act request in April of 2011 for records of unmanned aircraft activities, but the DOT so far has failed to provide the information.

"Drones give the government and other unmanned aircraft operators a powerful new surveillance tool to gather extensive and intrusive data on Americans' movements and activities," said EFF Staff Attorney Jennifer Lynch. "As the government begins to make policy decisions about the use of these aircraft, the public needs to know more about how and why these drones are being used to surveil United States citizens."

Dozens of companies and research organizations are working to develop even more sophisticated drones, so their use is poised for a dramatic expansion in the coming years. Meanwhile, news reports indicate that the FAA is studying ways to integrate more drones into the national airspace because of increased demand from federal, state, and local governments. EFF's lawsuit asks for immediate response to our FOIA request, including the release of data on any certificates and authorizations issued for unmanned aircraft flights, expired authorizations, and any applications that have been denied.

"The use of drones in American airspace could dramatically increase the physical tracking of citizens – tracking that can reveal deeply personal details about our private lives," said Lynch. "We're asking the DOT to follow the law and respond to our FOIA request so we can learn more about who is flying the drones and why."

For the full complaint:
https://www.eff.org/files/filenode/EFFDroneComplaint.pdf

For more on this case:
https://www.eff.org/deeplinks/2012/01/drones-are-watching-you

Contact:

Jennifer Lynch
   Staff Attorney
   Electronic Frontier Foundation
   jlynch@eff.org

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