EFF in the News
The EFF also asserts that bad patents threaten free expression by allowing the patent holder to threaten anyone using the technology for any purpose, whether or not the use causes any harm to the patent holder, is used for non-commercial purposes, or the user had any idea they were even using an infringing technology.
The latest patent infringement claim on the EFF's radar is made by a company called Flightprep against a company called RunwayFinder. The EFF believes the copyright is one that should never have been granted. In their words:
In that case, you have objected to the friend of the court brief filed by Jason Schultz. In that brief, Schultz argued that the case should be dismissed under fair use, and that the Review-Journal encourages readers to share their stories. Why do you object to this brief, other than the arguments outlined in it?
We have given a detailed, well reasoned response to this. I don't have time to go over it again.
How is it different for EFF to be involved or inserting their involvement in these cases, than for Righthaven — who did not own the copyrights at the time of the infringements — to raise them in the first place?
There are remarkable differences between the two. You're talking about the difference between someone taking ownership and someone being in the position of legal counsel. Then you're talking about the difference of being hired as a legal counsel and then coming in as an amicus. Then you're talking about the difference between coordinating legal counsel and being legal counsel. [If discussed in detail], it would be a long and potentially out of context answer that I would give you.
But according to opponents of Righthaven, like the San Francisco-based Electronic Frontier Foundation (EFF), this penalty is an overreach of the law. A nonprofit legal services group aimed at promoting civil liberties online, the EFF is primarily concerned with the rights of bloggers and specifically interested in the fair use of intellectual property on the Internet. They are currently representing clients in two unsettled Righthaven cases, and are contributing to or actively organizing pro bono representation in several others. "In essence these cases are trying to extract settlements regardless of whether somebody has a meritorious defense," says Kurt Opsahl, EFF's senior staff attorney.
Back in April 2008 I wrote about the curious case of UMG vs. Augusto, in which the music Goliath was suing an eBay David for auctioning promotional music CDs he bought up on the cheap from disc jockeys who received them unsolicited and free from UMG.
UMG argued that such resales are prohibited solely because UMG slapped labels on the CDs reading "promotional use only, not for sale."
The eBay guy and the Electronic Frontier Foundation said that's nonsense because UMG had no right to restrict anyone's "first sale" rights on CDs that it had scattered to the wind, so to speak.
Now an appeals court has told UMG the same thing.
This type of mass copyright infringement litigation is being opposed by the digital rights group the Electronic Frontier Foundation of San Francisco, which is also fighting Righthaven over its newspaper lawsuits.
In similar porn downloading cases involving Denton, Texas, attorney Evan Stone, who filed the suit for Serious Bidness, the EFF has said many defendants may settle the lawsuits because they don't want to be publicly identified -- even if they have meritorious defenses.
Defendants are also vulnerable to these "cookie-cutter" litigation tactics because they may have to defend themselves in courts thousands of miles from home, they are afraid of getting hit with steep financial damages and they can't afford attorneys fees, the EFF said in a Dec. 21 report on Righthaven and other "copyright trolls."
Promotional CD owners are free to thin out their collections without fear of reprisal. On Tuesday the U.S. Court of Appeals for the 9th Circuit court held up a lower court's ruling that confirmed the right to sell promotional CDs. The case pitted the world's largest record label against a guy selling CDs on eBay.
The Electronic Frontier Foundation, which along with Durie Tangri LLP represented the defendant, posted the decision on its website.
"This ruling frees promotional CDs from the shadow of copyright infringement claims, which is good news for music lovers," said EFF Intellectual Property Director Corynne McSherry. "But it also has broader ramifications. The court flatly rejected the argument that merely slapping a notice on a copyrighted work prevents the work from ever being sold. It eliminates the risk of copyright infringement claims against later recipients -- regardless of whether they paid for the work."
Without balance, and especially where there is no evidence of actual harm or reprehensibility, excessive statutory damage awards can stifle creativity and innovation that involves even a small risk of copyright liability," says the EFF.
In February 1996, John Perry Barlow of the Electronic Frontier Foundation (and onetime lyricist for the Grateful Dead) published "A Declaration of the Independence of Cyberspace". He wrote:
"We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity."
Supporters say the law will be interpreted to target internet stalkers and harassers, but critics like the Electronic Frontier Foundation worry that the vague language could be used against the mushrooming ranks of satirical online impersonators like The Yes Men, who arguably intend to harm the reputation of their targets by making fun of them.