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Press Room

November 17, 2004

Washington, DC - A national coalition of voting rights and computer security experts will hold a post-election press conference to provide a preliminary analysis of electronic voting problems and solutions, and their implications for increasing voters' confidence in the legitimacy of elections.

Speakers will be:

- Kim Alexander, California Voter Foundation
- Lillie Coney, National Committee for Voting Integrity/Electronic Privacy Information Center
- David Dill, Ph.D., Verified Voting Foundation
- Will Doherty, Verified Voting Foundation/Election Incident Reporting System
- Chellie Pingree, Common Cause
- Matt Zimmerman, Electronic Frontier Foundation

WHEN: Thursday, November 18, 2004, 10:30 a.m. to 12:00 p.m.

WHERE: Cabinet Room, Beacon Hotel and Corporate Quarters (formerly Governor's House Hotel) 1615 Rhode Island Avenue, N.W., Washington, D.C. (Metro Stop: Dupont Circle or Farragut North)

The Election Verification Project is a coalition of technology, legal and voting rights organizations promoting transparency and accountability in the voting process. The Project advances reforms that reduce computerized voting risks, and fosters public confidence in the integrity and accuracy of the electoral process.

The California Voter Foundation is a nonprofit, nonpartisan organization promoting and applying the responsible use of technology to improve the democratic process. CVF-NEWS is a free, electronic newsletter featuring news and updates about the California Voter Foundation's projects and activities.

Contacts:

Faye Anderson
Election Verification Project
(718) 369-6059 cell

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

Related Issues:
November 17, 2004

Georgia - Electronic Frontier Foundation, Public Citizen, the American Civil Liberties Union, and ACLU Georgia filed an amicus brief yesterday supporting Cox Communication, Inc.'s efforts to protect the rights of its Internet customers. Cox moved to quash a subpoena from several record companies in a case called Arista Records, Inc. v. Does 1-100, which seeks the identities of Cox subscribers. Cox does not provide Internet service in Georgia, where the 100 Does were sued.

The amicus brief notes that it is unfair to force people living outside of Georgia to come to Georgia to defend their rights and also that it is unfair for the record companies to sue 100 people in the same lawsuit simply because it saves the record company money.

"Cox is taking an important step to protect the privacy of its customers," said EFF Staff Attorney Wendy Seltzer. "It's a basic matter of due process that Internet users should not have to seek counsel across the country in order to protect their right to anonymous speech."

EFF, Public Citizen, and the ACLU have joined in several briefs in similar cases arguing that due process must not be given short shrift in the record industry's lawsuit campaign.

The motion picture industry has started filing copycat suits across the country that are similarly flawed.

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 16, 2004

Government Claims Need for Secrecy, Rebuffs Call for Open Access

San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.

EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.

This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.

On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.

"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."

"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
November 12, 2004

EFF White Paper Reports on Collateral Damage to Free Expression in the Fight Against Spam

San Francisco - Today the Electronic Frontier Foundation (EFF) released a white paper (HTML - PDF) describing the effects of anti-spam technologies on free speech. "Noncommercial Email Lists: Collateral Damage in the Fight Against Spam" focuses on how groups running noncommercial email lists are being harmed by anti-spam techniques. The paper grew out of EFF's efforts to help MoveOn.org, human rights groups, parents' groups, and others, deliver email messages in the face of barriers that are aimed at stopping spam but that also stop wanted messages.

"When tools designed to prevent unwanted email also prevent wanted email from being delivered, or when anti-spam tools favor well-funded speakers over others, something fundamental to the health of Internet communication has been broken," write the authors of the paper, EFF Legal Director Cindy Cohn and EFF Policy Analyst Annalee Newitz, in the introduction. The paper goes on to explain how anti-spam technologies, such as blocklists, server-side filtering, bonded sender programs, and email authentication schemes like Sender-ID and DomainKeys, are often misused.

But there are solutions to the problem. In a section on best practices, EFF suggests ways that Internet Service Providers (ISPs) and other organizations handling email delivery can stop spam while preserving free speech. Recommendations include putting spam filtering preferences under the control of end users and making anti-spam mechanisms like blocklists more transparent. Also included are guidelines for email list managers that will reduce the likelihood that their mail will get incorrectly labeled as spam.

"Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," said Newitz. "Overbroad anti-spam measures have a significant impact on noncommercial mailing lists used by parents, political organizers, artists, and others. When anti-spam measures prevent people from participating in such communities, we need to rethink how we use them."

"Noncommercial mailing lists are one of the truly important free speech tools on the Internet, yet increasingly they face unfair, unseen, and unaccountable barriers due to overbroad and reckless anti-spam efforts," added Cohn. "If the government treated free speech this poorly, the First Amendment would be in serious trouble. We should demand better from those in the anti-spam community."

EFF has worked with several groups running noncommercial email lists that have signed on to the paper as a way of showing their support for its findings and recommendations. Now that the paper has been released to the public, EFF is calling on more email list owners and ISPs to sign on and change their practices to ensure that while they take steps to protect against spam, they also protect free speech.

Contacts:

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

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
November 12, 2004

Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive

Earlier this week, the Electronic Frontier Foundation (EFF) filed comments with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.

The Communications Assistance to Law Enforcement Act (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.

In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.

"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."

In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.

"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."

Reply comments are due December 7.

Contact:

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

Related Issues:
November 12, 2004

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that could have a profound effect on the privacy of Internet communications.

The brief argues that the decision in US v. Councilman, soon to be reheard by the full First Circuit, should be overturned. A panel of First Circuit judges previously ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their knowledge or consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent to his customers from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this interception did not violate federal law, stating that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Authored by law professor and online privacy expert Orin Kerr, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), the American Library Association (ALA), the American Civil Liberties Union (ACLU), and the Center for National Security Studies. These groups argue that the earlier Councilman decision disrupts the traditional understanding of Internet surveillance laws and raises significant constitutional questions under the Fourth Amendment.

"The First Circuit's original decision effectively rewrote the field of Internet surveillance law in ways that Congress never intended," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will take place in December.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
November 10, 2004

Funding for Charities Should Not Be Tied to Screening

Washington, DC - The Electronic Frontier Foundation (EFF) today joined the American Civil Liberties Union (ACLU) and a number of other nonprofit organizations in filing for an injunction from the US District Court in Washington, DC, to stop the federal government from requiring the charities to use blacklists in order to receive payroll donations from federal employees. The groups argue that the new requirement, which was implemented without any notice or public comment period, is not authorized by statute and violates the First and Fifth Amendments.

The Combined Federal Campaign (CFC) enables federal employees to contribute easily to their favorite nonprofit organizations through automatic payroll deductions. In 2003 alone, this program brought over $248 million to thousands of charities. Earlier this year, the government for the first time began requiring all organizations participating in the CFC to certify that they have screened every employee and expenditure against a series of blacklists created by the government on the basis of secret information. Charities that refuse to sign the certification cannot participate in the CFC, even if they meet all other requirements.

"The government can't force charities to become its 'anti-terrorism enforcers' simply because federal employees donate to those charities," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "EFF refuses to violate the privacy of its clients and employees by screening them against secretly compiled blacklists. It was wrong during the McCarthy era, and it's wrong now."

EFF participated in the CFC program for two years prior to the blacklist certification requirement but withdrew from the program earlier this year in protest.
Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

November 8, 2004

Judicial Restraint Urged at High Court

Washington, DC - Peer-to-peer (P2P) software companies StreamCast Networks and Grokster Ltd. today filed a joint brief urging the US Supreme Court to leave undisturbed the landmark MGM v. Grokster ruling handed down by the Ninth Circuit Court of Appeals earlier this year.

The case pits the world's largest music and movie studio companies against StreamCast and Grokster, two small start-up companies responsible for the Morpheus and Grokster P2P file-sharing software products. The entertainment companies have been seeking to hold StreamCast and Grokster liable for copyright infringements committed by the users of their software. In April 2003, a federal district court in Los Angeles rejected that claim, reasoning that the Morpheus and Grokster software products had many noninfringing uses, much like photocopiers and VCRs. That ruling was upheld by a unanimous 3-judge panel of the Ninth Circuit Court of Appeals in August 2004. But in October, the entertainment industry asked the Supreme Court to overturn the lower court rulings.

StreamCast and Grokster filed their brief in response today, emphasizing several reasons the Supreme Court should not take this case. They argue that the Ninth Circuit correctly applied the clear rule set out by the Supreme Court 20 years ago in the Sony v. Universal case (also known as the "Sony Betamax" case) that protects technologies with noninfringing uses. The Ninth Circuit ruling is also consistent with other federal rulings in P2P cases, including the 2003 Aimster ruling, since the Aimster defendants had not shown noninfringing uses. Finally, if copyright laws need to be adjusted in light of new P2P technologies, that is a job best left for Congress, rather than the courts.

The Electronic Frontier Foundation (EFF) and Charles Baker of the Houston law firm Porter & Hedges represent StreamCast Networks (Morpheus) in the case, joined by StreamCast's General Counsel, Matthew A. Neco, on the opposition brief, while the San Francisco law firm Keker & Van Nest represents Grokster Ltd.

"The Ninth Circuit got it right and applied the Supreme Court's own precedent in the Sony Betamax case," said senior EFF staff attorney, Fred von Lohmann. "There is no reason to revisit the unanimous ruling of the Ninth Circuit and insert judges into the design rooms of technologists across the nation."

The case is Metro-Goldwyn-Mayer v. Grokster, Supreme Court Docket No. 04-480. The Court is expected to decide whether it will take the case before the end of the year.

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
November 4, 2004

Hollywood Joins Music Industry in Misguided Crusade

Today the Motion Picture Association of America (MPAA) announced that the major Hollywood motion picture studios would be filing hundreds of lawsuits against individuals using peer-to-peer (P2P) file-sharing software to access movies online. In so doing, Hollywood follows in the footsteps of the music industry, which has filed more than 6,000 lawsuits against file sharers since September 2003.

In connection with the music industry lawsuits, the Electronic Frontier Foundation (EFF) has intervened in court to defend the privacy and due process rights of the individuals being sued. It is not yet clear whether the MPAA lawsuits will make similar actions necessary.

The MPAA announcement comes on the heels of a recent study by the University of California, Riverside, and San Diego Supercomputer Center that shows that the music industry lawsuits have had no effect on the popularity of file sharing among US users, estimated at over 20 million.

Hollywood cannot credibly claim that file sharing is jeopardizing their profits. According to TIME Magazine's October 11, 2004, edition: "The studios can't exactly argue that file sharing is about to put them out of business. DVD sales, which grew 33 percent last year, and box-office receipts have never been stronger."

"These lawsuits are misguided," said EFF Staff Attorney Wendy Seltzer, who has been involved in the music industry suits. "The music industry experience shows that the lawsuits don't reduce the amount of file sharing. And it's certainly not good PR to sue movie fans for noncommercial sharing when the studios are rolling in record profits."

"In the end, what protects the studios from piracy is what attracts people to buy or rent movies in the first place -- a good product at a good price point," said EFF Legal Director Cindy Cohn. "As long as you can rent a movie on DVD for $2, movie file sharing is not likely to take a major bite out of studio revenues."

Contacts:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
November 4, 2004

EULAs, DMCA Should Not Trump Right to Reverse Engineer

St. Louis, MO - The Electronic Frontier Foundation (EFF) has appealed a District Court decision in St. Louis that held that programmers are not allowed to create free software designed to work with commercial products.

The 8th Circuit Court of Appeals will determine whether three software programmers who created the open source BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA). EFF, co-counsel for the defendants, will argue that programming and distributing BnetD is a fair use and therefore violates neither Blizzard's EULA nor the DMCA's prohibitions.

As it stands, the lower court's decision makes it unlawful in most cases to reverse engineer any commercial software program, thus making it impossible to create new programs that interoperate with older ones. This squeezes consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own. EFF considers this situation unacceptable and will use the appeal to explain why EULAs and the DMCA should not be allowed to trump fair use forms of reverse engineering when undertaken to create new products.

"This is a case of critical importance for the software industry," said EFF Staff Attorney Jason Schultz. "Allowing companies like Blizzard to lock out competition and complementary innovation will destroy future generations of products and services. The Internet itself is simply a collection of complementary software programs, and this ruling threatens the existence of all of them."

Fortunately, two recent courts have already recognized that it's unfair to outlaw competition under the DMCA. EFF hopes that the judges in the 8th Circuit will follow in the path of the Lexmark and Skylink cases, which held that the DMCA cannot be used to limit the aftermarket sales of printer cartridges and garage door openers.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
November 1, 2004

Voters from at least half a dozen states reported that touch-screen voting machines had incorrectly recorded their choices, including for president.

Voters discovered the problems when checking the review screen at the end of the voting process. They found, to their surprise, that the machines indicated that they voted for one candidate when they had voted for another. When voters tried to correct the problem, the machine often made the same error several times. While in most cases the situation was reportedly resolved, many voters remain uneasy about whether the proper vote was ultimately cast. Meanwhile, voting experts are concerned that other voters are experiencing the problem, but failing to notice that the machine is indicating the wrong choice on the "summary" screen.

Election observers with the Electronic Frontier Foundation (EFF) and Verified Voting Foundation (VVF) reported today that the problem, which some voting officials initially attributed to fluke "voter error," is evidently widespread and may even be relatively common with touch-screen machines. Incorrectly recorded votes make up roughly 20 percent of the e-voting problems reported through the Election Incident Reporting System (EIRS), an online database in which volunteers with the Election Protection Coalition, a coalition of non-partisan election observers dedicated to preventing voter disenfranchisement, are recording and tracking voting problems.

For voters, these incidents underscore the need to carefully review ballots during the final portion of the electronic voting process. But they also point to the larger issue: using touch-screen voting systems vulnerable to this kind of error, combined with poll workers and voters unfamiliar with the new systems, substantially increases the chances of voter disenfranchisement.

"We're likely to see these types of problems repeated on Election Day," said EFF Staff Attorney Matt Zimmerman. "As a short-term measure, we strongly encourage voters who use touch-screen voting machines to proof their ballots at the review stage. But while we can try to address obvious, visible problems like these, the problems we really worry about are the ones that the voters and poll watchers can't see. Often the only way you catch these flaws is through audits - yet most of these machines lack even the most basic audit feature: a voter-verified paper trail."

Contacts:

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

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

Related Issues:
October 28, 2004

Legal, Technical Experts Will Report on Problems With E-voting Systems and Answer Questions

The Electronic Frontier Foundation (EFF) and the Verified Voting Foundation (VVF) will host a press tele-conference from 6:00 – 7:00 p.m. EST (3:00 p.m. PST) on November 2 to discuss the performance of e-voting machines on Election Day. Participants will include attorneys and technical experts from both organizations who have been taking calls on the Election Protection Center's 1-866-OUR-VOTE hotline about possible problems in e-voting "hotspots" nationwide. Also included in the press conference will be internationally recognized experts in the fields of computer security and e-voting.

If you would like to attend the conference, email EFF's media coordinator, Annalee Newitz, at annalee@eff.org she will send you details on how to dial in.

In the period leading up to Election Day, and on the day itself, experts from the two organizations will also be available to the media to provide real-time, on-the-ground reports that come in through election incident centers and from voter protection activists observing the polls.

Presenting up-to-the-minute analysis and answering your questions will be:

Ren Bucholz, EFF activism coordinator, in Columbus, OH

Cindy Cohn, EFF legal director, in Washington, DC

David Dill, VVF founder and Stanford computer science professor, in Palo Alto, CA

Will Doherty, VVF executive director, in Washington, DC

Ed Felten, Princeton computer science professor and author of renowned blog Freedom to Tinker, in Princeton, NJ

Joe Hall, EFF e-voting researcher and doctoral candidate at UC Berkeley's School of Information Management and Systems (SIMS), in Berkeley, CA

Bruce Schneier, internationally known computer security expert, author of "Beyond Fear," and founder of Counterpane Internet Security, in Mountain View, CA

Dan Wallach, Rice professor of computer science and co-author of the paper revealing security flaws in Diebold's e-voting machines, in Houston, TX

Matt Zimmerman, EFF e-voting attorney, in Miami, FL

Contact:

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Related Issues:
October 27, 2004

Public Interest Groups Help Protect Anonymity of Accused Infringers

Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.

The Electronic Frontier Foundation (EFF), Public Citizen, the national American Civil Liberties Union (ACLU), and the ACLU's Pennsylvania affiliate participated in the case as friends of the court. The organizations have been heavily involved in protecting the right to anonymous speech and ensuring that people sued for copyright violations are made aware of their rights.

"The constitutional right of individuals to anonymous speech is just as important on the Internet as it was when the Federalist Papers were published," said Chris Hansen, an attorney for the ACLU. "The court has properly found that before someone's identity is disclosed, that person should at least have a right to be heard and to raise certain defenses."

"Judge Rufe has required the recording industry to meet the same standards of proof that are required when other plaintiffs seek to identify anonymous Internet users," said Public Citizen attorney Paul Levy. "We can only hope that judges throughout the country will follow this example."

EFF legal director Cindy Cohn added, "Receiving notice from your ISP that you are being sued by the record companies is a terrifying experience for the grandmas, students, and working mothers who have been caught up in the RIAA's lawsuit crusade. By requiring ISPs to include basic information such as the right to challenge lawsuits and where to go for help, the court took a big step toward helping people understand their options."

Contacts:

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

Paul Alan Levy
Attorney
Public Citizen Litigation Group
plevy@citizen.org

Paul Silva
Media Relations Associate
American Civil Liberties Union
psilva@aclu.org

Related Issues:
October 26, 2004

Big Win in Printer Cartridge Case Suggests Ways to Limit Use of DMCA

In a huge victory for consumers, the Sixth Circuit Court ruled today that printer manufacturer Lexmark cannot use the controversial Digital Millennium Copyright Act (DMCA) to stop its competitors from creating and selling cartridges that interoperate with its printers. The decision lifts an injunction imposed by a lower court on the sale of Static Control Components (SCC) chips that allow any printer cartridge to work with Lexmark printers. Now, any company that wishes to compete with Lexmark in after-market cartridge sales can do so by using SCC chips in its products.

In the ruling, the judges state firmly, "We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[.]"

The case, Lexmark v. Static Control Components, demonstrates one of the absurdities of the anti-circumvention clause of the DMCA. Congress intended the DMCA to thwart mass copyright infringement on the Internet, but some companies have been invoking the law to gain control over after-market competition. In this instance, Lexmark programmed its printers to require a digital "handshake" with cartridges, so that only authorized (read Lexmark) cartridges could be used. When SCC started selling chips that allowed other companies to refill used cartridges and make them interoperable with Lexmark printers, Lexmark claimed they were engaging in unlawful reverse engineering and sued under the DMCA.

EFF filed a friend-of-the-court brief in the case, arguing that SCC should be able to examine its competitor's technology in order to manufacture printer toner cartridges compatible with Lexmark printers without facing a copyright lawsuit.

"Reverse engineering drives competition and innovation in the technology sector," said EFF Staff Attorney Wendy Seltzer. "We're happy the court recognized it as an important practice that shouldn't be regulated by the DMCA."

This decision suggests that courts are losing patience with frivolous reverse-engineering suits filed under the DCMA that seem designed to crush competition rather than protect copyright. In a similar case, Chamberlain v. Skylink, a federal appeals court in Washington, DC, upheld a lower court ruling that allowed the marketing of "universal" remote controls for garage door openers.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
October 26, 2004

San Francisco - The Electronic Frontier Foundation today launched a campaign to inform California voters of their right to vote on a paper ballot in the upcoming election. The website and animation for Paper or Plastic 2004 are available at:

http://PaperOrPlastic2004.org

Ten California counties – including Orange, Alameda, and Riverside - will use electronic voting machines on November 2nd, but these systems don't provide a voter-verified audit trail and they cannot be used in a meaningful recount. That's why Secretary of State Kevin Shelley ordered each of these counties to give voters a choice: on election day, voters can choose to forego an electronic ballot and instead vote on paper. However, election officials in at least three counties are instructing poll workers to keep this "paper or plastic" choice secret.

"Thousands of Californians fought for the option to cast ballots that can be verified, audited, and recounted, but these officials are trying to keep the public in the dark," said EFF Staff Attorney Matt Zimmerman. "Election officials in Alameda, Orange, and Santa Clara Counties are violating the spirit of Secretary Shelley's order by instructing poll workers to not tell voters about their rights or failing to instruct poll workers about the paper ballot option at all."

These instructions have been given to poll workers in Orange, Alameda, and Riverside Counties. Napa, San Bernardino, Merced, Plumas, Shasta, Tehama, and Riverside Counties also use e-voting machines, but it is not clear whether their poll workers have been given similar instructions. The animation and website will also be released in Spanish, Chinese, and Tagalog later this week.

Paper or Plastic 2004:
http://www.PaperOrPlastic2004.org

Contact:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
+1 415 436-9333 x127

Related Issues:
October 25, 2004

Motion Demands Information About the Seizure of Indymedia's Servers


Texas - Electronic Frontier Foundation (EFF) attorneys have filed a motion to unseal a secret US federal court order that led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists. The motion seeks to discover which agencies and governments are responsible for the seizure in order to hold them accountable. In their motion, EFF attorneys argue that "the public and the press have a clear and compelling interest in discovering under what authority the government was able unilaterally to prevent Internet publishers from exercising their First Amendment rights." They argue further that secret court orders circumvent due process, undermine confidence in the judicial system, and deny an avenue for redress.

"When a secret order results in the unconstitutional silencing of media, the public has a right to know what happened," said Kurt Opsahl, EFF Staff Attorney. "Freedom of the press is an essential part of the First Amendment, and our government must show it had a compelling state interest to order such an extreme intrusion to the rights of the publisher and the public."

Citing a gag order, Rackspace has not revealed the contents of the seizure order, the requesting agency, or even confirmed the identity of the court that issued it. Apparently requested by an unidentified foreign government, the secret order was served to San Antonio-based Rackspace Managed Hosting, which hosts IndyMedia's servers. The seizure took offline more than 20 IMC websites and more than 10 streaming radio feeds. So far, government agencies in the US, including the Federal Bureau of Investigation, the Departments of State and Justice, and the US Attorney's Office in San Antonio, have refused to take responsibility for the incident. Prosecutors in Switzerland and Italy have admitted pursuing investigations related to Indymedia articles but denied requesting the seizure.

"Silencing Indymedia with a secret order is no different than censoring any other news website, whether it's USA Today or your local paper," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "If the government is allowed to ignore the Constitution in this case, then every news publisher should be wondering, 'Will I be silenced next?'"

EFF's motion to unseal was filed in the federal court in the Western District of Texas, where EFF believes the secret court order originated.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
October 25, 2004

EFF, Verified Voting Lead Teams of Experts, Hold Press Conference on Election Day

Nationwide - The Electronic Frontier Foundation (EFF) has been asked by the nationwide non-partisan Election Protection Coalition (EPC) to lead a team of technology lawyers who can serve as experts on Nov. 2 if troubles come up in e-voting "hotspots" around the country. Stationed in cities across the nation, these experts will be available to answer questions when people call the Election Protection Hotline at 1-866-OUR-VOTE with issues related to e-voting.

Also on Nov. 2, more than 1,300 technologist volunteers with the Verified Voting Foundation (VVF) TechWatch program will work with Election Protection hotline volunteers to chronicle and respond rapidly to election problems, providing detailed, accurate information for follow-on litigation and policymaking. Their activities will include poll watching, responding in cooperation with field attorneys, and recording any problems they find in the Election Incident Reporting System.

The two organizations will host a press tele-conference at 6:00 PM EST (3:00 PM PST) on Nov. 2 to discuss the performance of e-voting machines on Election Day. If you would like to attend the conference, email EFF's media coordinator, Annalee Newitz, at annalee@eff.org and she will send you details on how to dial in within a few days.

In the week leading up to Election Day, and on the day itself, experts from the two organizations will be available to the media to provide real-time, on-the-ground reports that come in through election incident centers and from voter protection activists observing the polls.

Electronic Frontier Foundation Contacts:

Cindy Cohn
Legal Director
cindy@eff.org
office: 415.436.9333 x108 / cell: 415-307-2148
[in Washington, DC, Oct. 31-Nov. 4]

Matt Zimmerman
Staff Attorney
mattz@eff.org
office: 415.436.9333 x127 / cell: 415.948.5600
[in Miami, Florida, Oct. 31-Nov. 4]

Ren Bucholz
Activism Coordinator
ren@eff.org
office: 415.436.9333 x121 / cell: 415.254.9945
[in Columbus, Ohio, Oct. 31-Nov. 4]

Verified Voting Foundation Contacts:

Will Doherty
Executive Director
press@verifiedvoting.org
office: 415.695.0543 / cell: 415.425.3936
[in Washington, DC, Oct 31 – Nov 3]

Pamela Smith
Nationwide Coordinator
pam@verifiedvoting.org
cell: 760.613.0172
[in New York City, Nov. 1-3]

Related Issues:
October 22, 2004

San Francisco - The Electronic Frontier Foundation is redistributing a press release from Verified Voting Foundation announcing the release of several key resources for voters in e-voting "hotspots."

Voters Guides include step-by-step instructions for voting on the most commonly used electronic voting machines. There are also maps detailing what voting equipment is being used at polling places nationwide.

The Election Incident Reporting System (EIRS) allows voters, media, and others to keep abreast of election incidents nationwide that are being reported to the nonpartisan Election Protection network hotline at 1-866-OUR VOTE.

EFF is working with Verified Voting to lead a team of technology attorneys who will be available to respond to problems with electronic voting machines nationwide as part of the National Election Protection Coalition.

Here is the press release:

Verified Voting Foundation Media Advisory

For Immediate Release: Friday, October 22, 2004

Contact:

Will Doherty
Executive Director
Verified Voting Foundation
press@verifiedvoting.org
+1 415 695-0543 (office), +1 415 425-3936 (cell)

Pamela Smith
Nationwide Coordinator
Verified Voting Foundation
pam@verifiedvoting.org
+1 760-613-0172 (cell)

Election Resources for Voters Concerned About E-voting Problems

Verified Voting Foundation Publishes Technology Maps, Guides

San Francisco - Gearing up for early voting and Election Day, the Verified Voting Foundation (VVF) today published guides to assist voters in casting votes successfully when they face new voting technologies at the polls.

Available in print and online versions, VVF's "Voters' Guide to Electronic Voting" provides voters with easy-to-read information about the voting machines used in their local polling places and pointers about how to prevent voting technology problems and vote successfully.

"We've pulled together in one convenient place a bunch of information that was theoretically available to voters, but really hard to come by," said VVF Executive Director Will Doherty.

"We're doing what we can to let the public know about the problems with and alternatives to paperless e-voting," commented VVF Nationwide Coordinator Pamela Smith.

Voters and voter protection organizations may request free printed copies of the "Voters' Guide."

The Electronic Frontier Foundation, Global Exchange Fair Election Project, and America's Families United Voter Protection Project assisted in preparing profiles of the most commonly used e-voting machines.

A companion volume to the "Voters' Guide," called the "Poll Monitors' & Poll Workers' Guide to Electronic Voting," will provide more detailed information specifically for poll monitors, poll workers, election officials, and other interested persons who are assisting voters.

VVF also has prepared the Verifier, a web-based tool that provides drill-down maps permitting voters to find the voting technology used where they vote, as well as contact information for election officials, absentee, and early voting availability, and much more. Some of this information, previously only available commercially, came courtesy of Electionline.org, while the rest resulted from the efforts of dozens of volunteers. VVF welcomes input on missing and incorrect information and will soon offer a free download capability for all the public data contained in the maps.

All these resources complement the Election Incident Reporting System (EIRS), a web-based incident tracking tool prepared by VVF and the Computer Professionals for Social Responsibility (CPSR). Members of organizations in the 60+-member Election Protection Coalition are entering calls received by the toll-free Election Protection Hotline at 1-866-OUR-VOTE (1 866-687-8683). Trained attorneys and technologists respond rapidly to resolve incident reports and make sure voters can vote and have their votes counted as intended.

Voters' Guide to Electronic Voting

Poll Monitors' & Poll Workers' Guide to Electronic Voting (coming soon)

Voting Technology Map

Election Officials Contact Information Map

Election Incident Reporting System Incident Map

Election Incident Reporting System Overview

TechWatch technologists provide tech support for voter protection

Electronic Frontier Foundation E-voting Activism page

Global Exchange Fair Election Project

America's Families United Voter Protection Program

Election Protection Coalition member organizations

Related Issues:
October 18, 2004

Santa Clara County, CA - Pollworkers in Santa Clara County are being trained not to offer voters a chance to use paper ballots instead of electronic voting machines, the Electronic Frontier Foundation (EFF) has learned. California Secretary of State Kevin Shelley mandated in May that all polling places offer a paper ballot option, which would allow people concerned about e-voting machine reliability a chance to vote on paper ballots at the polls. But pollworkers in Santa Clara County are being instructed not to tell voters that this option is available. Instead, they will make paper ballots available only if voters specifically request them.

Ed Cherlin, a pollworker being trained in Santa Clara County, said he was very disturbed to learn that he was not supposed to mention the paper option. "I object to the government telling me that I can't tell people about their rights," he said. Representatives of the voting commissions in Orange County and Riverside confirm that they also will not be informing voters about the paper option at the polls. There are ten counties in California using paperless e-voting machines known as DREs. It is not clear at this time whether all ten are adopting similar policies.

"When poll workers don't inform people about their options at the voting booth, they go against the spirit of the Secretary of State's mandate," said EFF Staff Attorney Matt Zimmerman. "More importantly, they undermine people's trust in the voting process."

Contact:

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

Related Issues:
October 15, 2004

False Accusation of Infringement Results in Hefty Payment of Legal Fees, Damages

California - The Electronic Frontier Foundation (EFF) capped its historic victory in a copyright abuse case against electronic voting machine manufacturer Diebold today. The corporation agreed to pay $125,000 in damages and fees. The settlement, a win for free speech advocates, comes after a California district court found that Diebold had knowingly misrepresented that online commentators, including Indymedia and two Swarthmore college students, had infringed the company's copyrights.

"It makes me happy that students in this situation in the future won't have to worry about big corporations breathing down their necks," said Nelson Pavlosky, one of the students.

Diebold is the first company to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occurred. The section also stipulates that anyone who issues such frivolous threats must pay damages, including costs and attorneys' fees, to those harmed by the misrepresentations.

EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting. Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. OPG refused to remove them in the name of free speech.

"The risk of substantial damages and fees should make companies pause before sending unfounded copyright threats," said EFF Staff Attorney Wendy Seltzer. "Plus ISPs can fight back against these false claims without taking a financial hit." "As a nonprofit ISP it's great to have legal recourse when a company threatens us or our clients with frivolous lawsuits," added OPG Executive Director Will Doherty.

EFF is a member-supported nonprofit which represented OPG and the Swarthmore students pro bono. Thanks to the settlement, Diebold will pay the costs of the case.

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
jennifer@granick.com

Related Issues:
October 13, 2004

San Francisco, CA - Rackspace Managed Hosting, the San Antonio-based company that manages two Indymedia servers seized by the US government last Thursday, said yesterday that the servers have been returned and are now available to go back online. Immediate access to the servers, which host Indymedia's Internet radio station and more than 20 Indymedia websites, will be delayed so that the Electronic Frontier Foundation (EFF) can ensure that the servers are secure and take steps to preserve evidence for future legal action.

Now that the servers have been returned, the question still remains: who took them, and under what authority? Citing a gag order, Rackspace would not comment on what had happened both in the original seizure of the servers or their return. All that is known at this point is that the subpoena that resulted in the seizure was issued at the request of a foreign government, most likely with the assistance of the United States Attorney's Office in San Antonio. Although initial reports suggested that the FBI had taken the servers, the FBI has now denied any involvement.

The seizure, which silenced numerous political news websites for several days, is clearly a violation of the First Amendment. "Secret orders silencing US media should be beyond the realm of possibility in a country that believes in freedom of speech," said EFF staff attorney Kurt Opsahl. "EFF was founded with the Steve Jackson Games case fourteen years ago, and at that time we established that seizing entire servers because of a claim about some pieces of information on them is blatantly illegal and improper. It appears the government forgot this basic rule, and we will need to remind them."

EFF will take legal action to find out what really happened to Indymedia's servers and ensure that Internet media are protected from egregious First Amendment violations like this in the future.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

Related Issues:
October 12, 2004

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

San Francisco, CA -- The Electronic Frontier Foundation (EFF) is representing a coalition of independent Internet journalists whose websites were shut down on Thursday, October 7, when their servers were seized by the FBI. The two servers, which were located in the United Kingdom and managed by San Antonio-based Rackspace Managed Hosting, hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists.

The seizure was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Citing a gag order, Rackspace has provided no further details. An FBI spokesperson has confirmed that the subpoena was issued at the request of Italian and Swiss authorities. Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia's illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government's illegal seizure. "If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers, it will go to bat for Indymedia--one of its biggest customers--and demand that the FBI return the seized Internet servers," said Kurt Opsahl, EFF staff attorney. "Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story." A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU's challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

"The FBI can't pull the plug on more than 20 news websites -- our modern printing presses -- based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times, and it can't shut down Indymedia."

The Indymedia seizure bears a striking resemblance to EFF's very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher's business, was found to be an illegal violation of the publisher's rights.


Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

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

For inquiries about Indymedia:

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend
devin@essglaw.com

October 12, 2004

Washington, DC - Today, the Supreme Court denied a request by the Recording Industry Association of America (RIAA) to hear its appeal of a lower court decision that Internet service providers (ISPs) do not have to hand over the names of people suspected of copyright infringement.

The case grows out of an incident in which the RIAA used a controversial subpoena provision under the 1998 Digital Millennium Copyright Act (DMCA) to demand that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used KaZaA peer-to-peer software to share copyrighted music online. Verizon refused to divulge the subscriber's identity, claiming that the provision didn't cover alleged copyright-infringing material that resides on an individual's computer, only material that resides on an ISP's server.

After the District Court rejected Verizon's interpretation of the DMCA subpoena provision, Verizon appealed. The Electronic Frontier Foundation (EFF) led a coalition of public interest groups and ISPs who filed friend-of-the court briefs in support of Verizon, arguing that RIAA's subpoenas failed to respect the privacy and First Amendment rights of Internet users. The DC Circuit Court found the subpoenas were not authorized by the DMCA. It granted Verizon's request to quash a second subpoena it had received in the meantime, and said that the ISP would not have to hand over information requested in the first.

But the RIAA didn't give up. First, it requested a rehearing in the DC Circuit court, but was denied. And finally, it appealed to the Supreme Court.

"The Supreme Court's refusal to take the case leaves the DC Circuit's well-reasoned opinion as law: The DMCA doesn't give the RIAA a blank fishing license to issue subpoenas and invade Internet users' privacy," said EFF Staff Attorney Wendy Seltzer.

Contacts:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Related Issues:
October 8, 2004

United Kingdom - Acting under a court order, Texas-based web hosting company Rackspace Managed Hosting handed over two UK-based servers containing Indymedia websites to government agents yesterday morning. Indymedia is a collective of online journalists who maintain a network of independent news websites. The order was apparently issued by a US District Court and served by the FBI, on behalf of a foreign government. Rackspace has refused to comment on what information had been requested or why the servers were confiscated, citing the court order.

The Electronic Frontier Foundation (EFF) is currently assisting Indymedia investigate possible responses to the seizure of its information. More than 20 Indymedia-related websites, along with Indymedia's online radio, were hosted on the servers, which were dedicated machines provided by Rackspace.

"This seizure has grave implications for free speech and privacy. The Constitution does not permit the government unilaterally to cut off the speech of an independent media outlet, especially without providing a reason or even allowing Indymedia the information necessary to contest the seizure," said EFF Staff Attorney Kurt Opsahl.

Rackspace contends that a court order prevents them from providing a copy of the subpoena, confirming which court issued the order, or the government agency who served the subpoena.

Contacts:

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

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend
devin@essglaw.com
Mobile (206)498-9440

October 8, 2004

Washington, DC - A group of 25 entertainment companies filed a petition for certiorari with the Supreme Court today, asking the Court to rewrite copyright law principles that establish when high-tech companies can be held liable for the copyright infringements of their customers.

The petition asks the Supreme Court to overturn the recent Ninth Circuit Court of Appeals decision in MGM v. Grokster, where the court ruled that Grokster and StreamCast Networks were not liable for the infringements committed by people using their software to share copyrighted works. The Electronic Frontier Foundation (EFF) is counsel for StreamCast in the case.

"The entertainment industry petition is a frontal attack on the Betamax doctrine and threatens innovators of every stripe," said EFF Senior Staff Attorney Fred von Lohmann, who argued the MGM v. Grokster case before the Ninth Circuit. The Betamax doctrine takes its name from a landmark 1984 Supreme Court case involving the Sony Betamax VCR. Often described as the Magna Carta of the technology industry, the Betamax doctrine makes it clear that innovators need not fear ruinous litigation from the entertainment industry so long as their inventions are "merely capable of substantial noninfringing uses."

In today's petition, the entertainment industry urges the Court to reverse that established rule and impose on innovators a "legal duty either to have designed their services differently to prevent infringing uses, or to take reasonable steps going forward to do so." Under such a rule, Sony's Betamax VCR would never have seen the light of day, since Sony could have designed it differently or could have modified it after Disney and Universal Studios complained.

The entertainment industry's petition was filed just one day after Senator Orrin Hatch (R-Utah) announced that the Senate was not ready to adopt his Inducing Infringement of Copyrights Act, S. 2560 (formerly known as the INDUCE Act). He suggested that Congress would return to the issue next year. "The entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for their rewrite of copyright law," said von Lohmann. "But it's Congress that writes the Copyright Act, not the courts. The Supreme Court will not be eager to end-run Congress on this complex legislative issue."

Added EFF Staff Attorney Jason Schultz, "The RIAA and MPAA refuse to accept the reality that consumers and technology companies have rights too. They are hell-bent on writing their own laws, one way or another."

EFF will file a response brief with the Supreme Court on behalf of StreamCast in mid-November. It will be several months before the Supreme Court determines whether to hear the case.

Contacts:


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
October 5, 2004

Boston, MA - The First Circuit Court of Appeals decided today to rehear argument in a case that could have a profound effect on email privacy. Last month, the Electronic Frontier Foundation (EFF) submitted a friend-of-the-court brief in the case, US v. Councilman, urging such a rehearing.

In the earlier decision, a panel of First Circuit judges ruled that an email service provider did not violate criminal provisions of the Wiretap Act by monitoring the content of users' incoming messages without their consent. However, the Wiretap Act is the same law that requires the government to get a wiretap order before intercepting emails, and the panel decision could be read to eliminate this requirement. As the panel itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

The brief requesting a rehearing, authored by law professors Orin Kerr and Peter Swire and cosigned by a number of civil liberties organizations, argued that the original panel decision in the Councilman case should be reheard by the entire First Circuit Court of Appeals.

"The First Circuit clearly understands the need to quickly reconsider the court's earlier ruling, which raised significant constitutional questions and threatened to disrupt the traditional understanding of wiretap law," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Upon rehearing the case, the full First Circuit should recognize that the original decision rewrote the field of Internet surveillance law in ways that Congress never intended."

The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will occur in December.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
October 5, 2004

Lawsuit Questions FCC's Authority to Mandate Copy Protection on All Hardware That Receives Digital TV Signals

Washington, DC - When the Federal Communications Commission's (FCC) broadcast flag mandate goes into effect next year, it will be unlawful to sell devices that can tune in digital television without imposing copy protection on the signal. Many groups have argued that the mandate will hobble people's ability to make fair use of their media. And late yesterday, nine public interest organizations -- including the Electronic Frontier Foundation (EFF), Public Knowledge (PK), and the American Library Association (ALA) -- told the US Appeals Court, DC Circuit, that the FCC exceeded its authority by imposing the broadcast flag regime.

The "flag" is a small amount of data included in a digital TV signal that gives instructions on how the programming may be used by devices that directly receive the signal. This has the potential to severely limit the lawful distribution, use, and backup of digital programs.

"This is a crucial case that will determine how much control the government and Hollywood will have over current and future digital media devices consumers love now and will in the future," said Gigi B. Sohn, president of Public Knowledge and co-counsel for the groups.

EFF staff attorney Wendy Seltzer said, "Right now, you can put an HDTV tuner card into a PC and build a digital video recorder that lets you watch digital television as you choose. We shouldn't have to trade that freedom for government-designed TVs."

The brief argues that the FCC has no authority to regulate digital TV sets and other digital devices unless specifically instructed to do so by Congress. While the FCC does have jurisdiction over TV transmissions, transmissions are not at issue here. The broadcast flag limits the way digital material can be used after the broadcast has already been received. "Bowing to a group of copyright holders led by the MPAA, the FCC promulgated a rule drafted by those corporate interests that will dictate design aspects of a vast array of consumer electronics - televisions, DVD recorders, TiVos, digital VCRs, iPods, and cell phones - for years to come," the brief reads.

ALA legislative counsel Miriam M. Nisbet said, "Two years ago Congress passed a law allowing for use of copyrighted works for distance education. Yet now the FCC through the broadcast flag would prevent schools from using an entire category of those works -- high definition television programs -- in distance education."

Filing the brief along with EFF, PK, and the ALA were the Association of Research Libraries, American Association of Law Libraries, Medical Library Association, Special Libraries Association, Consumer Federation of America, and Consumers Union.

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

October 4, 2004

Geneva - The United Nation's (UN) World Intellectual Property Organization (WIPO) has adopted a "development agenda" that acknowledges the need for balance in worldwide policy on trademark, copyright, and patents. In the past, WIPO has been roundly resistant to attempts to balance the interests of copyright holders, who make up the majority of WIPO participants, and the public, which had never been represented at the meetings. Previous efforts to get WIPO to hold one-day information sessions on alternatives to copyright -- such as the public-domain human genome database, the GPL software license that underpins GNU/Linux, and the Creative Commons project's millions of "some rights reserved" books, movies, songs, and images -- have been firmly rebuffed, with major WIPO nations applying enormous pressure to see to it that the issue was never brought to the table.

Now, in the wake of the "Geneva Declaration" -- a document calling on WIPO to work in the interest of all of its stakeholders, including the public -- WIPO's General Assembly has adopted a "development agenda," a kind of lens of public-interest considerations through which the treaty-body will view all future activities.

The effort to get WIPO to officially acknowledge its stated mission of promoting creativity and "technology transfer" to the developing world was led by the Consumer Project on Technology (CPTech), with drafting assistance and support from Electronic Frontier Foundation (EFF) and several other like-minded organizations. CPTech and EFF are part of a burgeoning movement among non-governmental organizations (NGOs) that have started to attend and document the WIPO meetings, exposing the negotiations to the public eye.

CPTech's director, James Love, remarked: "For years, WIPO has pushed to expand the scope and level of intellectual property rights and told developing countries that this would help their development. Today WIPO supported an entirely different approach, which emphasized open source software, public domain goods like the human genome, patent exceptions for access to medicine, the control of anticompetitive practices, and other measures that have been ignored by WIPO for years. It represents a change in culture and a change in direction for WIPO. Many in the WIPO Secretariat opposed this, and few thought it would prevail, but today we are moving forward, on a different footing and in a positive direction, and WIPO will never be the same."

Said Cory Doctorow, EFF's European Affairs Coordinator, "The growing presence of non-governmental pressure organizations like CPTech and EFF at WIPO's meetings has begun to take its toll. The ridiculous IP-at-any-cost position of WIPO has been laid bare and revealed for a sham. Now the organization is taking its first baby-steps towards balance. In the coming months and years, the nonprofit presence at WIPO will broaden and deepen -- we won't let them fool us any longer."

Contact:

Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

Related Issues:
October 4, 2004

Riverside, California - A superior court in a Riverside County, California ruled last week that the local registrar of voters does not have to hand over backup data from e-voting machines to verify the results of a recount.

Linda Soubirous, a Republican board of supervisors candidate, requested the data after she was granted the right to a recount in a close race which she lost. The county registrar refused to give her access to a wide range of audit and backup data from from the Sequoia touchscreen e-voting machines used in the election. Soubirous challenged the registrar in court, arguing that without this data the recount simply amounted to a reprint of the same potentially erroneous information. Judge James S. Hawkins ruled the county was able to decide for itself what data was relevant for recount purposes.

"It was an unfortunate decision," said Electronic Frontier Foundation staff attorney Matt Zimmerman. "It means that the public isn't allowed to see even the most limited amount of voting machine data that would be useful for monitoring election integrity. The track record on many of these machines is bad enough. But now local election officials can demand that voters trust them and their voting machine vendors without offering any proof that this trust is warranted."

Soubirous' lawyers, the firm of Strumwasser & Woocher, plan to appeal.

Contact:

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

September 30, 2004

Contract and Copyright Trump Fair Use and Competition in BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision that held that programmers are not allowed to create free software designed to work with commercial products. At issue in the case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD is an open source program that lets gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered Battle.net purely to make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to choose where and when they want to use the products they buy. This ruling gives Blizzard the ability to force you to use their servers whether you want to or not. Copyright law was meant to promote competition and creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling that creating alternative platforms for legitimately purchased content can be outlawed.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
September 30, 2004

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

San Jose - In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

"This decision is a victory for free speech and for transparency in discussions of electronic voting technology," said Wendy Seltzer, an EFF staff attorney who worked on the case. "Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement."

OPG Executive Director Will Doherty said, "This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices."

In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright . . . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest."

Contacts:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
jennifer@granick.com

Related Issues:
September 29, 2004

New York - The American Civil Liberties Union won a tremendous victory for Internet privacy today in the case of ACLU & Doe v. Ashcroft, challenging the constitutionality of "National Security Letters" (NSLs) under the USA PATRIOT Act. The letters, issued directly by the Department of Justice without any court oversight, can be used to demand sensitive financial and communications information about citizens even if they are not suspected of any crime. When Internet Service Providers (ISPs) receive such demands they are forbidden from revealing their existence to anyone.

A federal court issued a decision [PDF 3.0M] in the case finding that the statute authorizing NSLs is unconstitutional and barring the DOJ from issuing further NSLs. US District Court Judge Victor Marrero also found the gag provision an unconstitutional prior restraint on protected speech.

EFF wrote an amicus brief in the case, joined by several ISPs and privacy organizations. The case will likely to be appealed to the 2nd Circuit Court of Appeals in New York.

"Today's ruling is an important victory for the Bill of Rights, and a critical step toward reining in the unconstitutional reach of the Patriot Act," said Kurt Opsahl, EFF staff attorney. "The Court recognized that judicial oversight and the freedom to discuss our government's activities both online and offline are fundamental safeguards to civil liberties, and should not be thrown aside."

Contact:

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

[Note: the headline for this breaking news item was changed to reflect the fact that this decision struck down as unconstitutional the power to issue NSLs under the Electronic Communications Privacy Act (ECPA) as amended by PATRIOT, but did not specifically address any PATRIOT provision.]

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September 27, 2004

San Francisco, CA - Last week, House Republicans circulated draft legislation that contains provisions from the never-introduced "Domestic Security Enhancement Act of 2003," otherwise known as "PATRIOT II." The draft legislation is meant to implement intelligence reforms recommended by the 9/11 Commission Final Report. But its reach goes far beyond those recommendations -- including adding provisions that would allow federal agents to use secret foreign intelligence warrants and wiretap orders against suspects unconnected to any terrorist group or foreign nation.

"The 9/11 Commission's recommendations should not be used as a Trojan horse to introduce broad new police powers," says Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Trying to slip controversial 'PATRIOT II' provisions into the intelligence reform bill needlessly politicizes what has so far been a bipartisan effort to improve the performance of our nation's intelligence-gathering agencies."

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

September 27, 2004

Florida - The Eleventh Circuit Court of Appeals today overturned a lower court's ruling in a case that challenges the legality of Florida's paperless electronic voting machines. The federal suit, brought by Florida Congressman Robert Wexler, argues that the use of the machines violates the United States Constitutional guarantees of equal protection and due process. The Court of Appeals ruled that the existence of a related lawsuit in Florida state court does not prevent the federal district court from hearing the challenge. The decision returns the case to the district court for further proceedings.

"This important challenge will now be decided on the merits," said EFF attorney Matt Zimmerman, who also noted the difficult task ahead of the district court. "Floridians will go to the polls in only thirty-six days, but a great deal of good can be done to improve voting procedures in that time. In the short term and in the long term, we hope that the court requires a voter verified paper ballot for all Floridians."

Contact:

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

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September 22, 2004

San Francisco, CA - Today the Electronic Frontier Foundation released the results of research conducted jointly with the Verified Voting Foundation and American Families United into the strengths and weaknesses of the most popular models of e-voting machines. Organized into one-page quick reference guides, this research gives users critical information about widely deployed machines such as the Diebold Accuvote TS and the ESS iVotronic. In the guides, EFF takes users through a step-by-step process for using each model properly, and lists problems people have had with the machines in past elections. The voting machine quick reference guides represent one of the nation's first Consumer Reports-style analyses of several different types of e-voting machines.

"It's extremely important that people vote, despite any concerns that they have about new voting machines," said EFF Staff Attorney Matt Zimmerman. "The more people know about the voting machines they'll be using, the better prepared they'll be on election day." It's estimated that one-third of the country will be using e-voting machines in the upcoming Presidential Election.

Contact:

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

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September 22, 2004

Washington, DC - The federal government on Tuesday announced plans to order all airlines to turn over the personal records of every air passenger who traveled domestically in June 2004, for use in testing the Transportation Security Administration's latest passenger-profiling scheme, "Secure Flight." The TSA's previous plans for a profiling system called CAPPS II were scuttled over concerns about its cost, effectiveness, and impact on civil liberties. Unfortunately, the new program poses many of the same problems.

Secure Flight will require airlines to forward passenger records to the government, which will then check them for a match with secret terrorist watch lists. The watch lists currently in use have already been shown to be inaccurate: in a recent example, Senator Ted Kennedy was repeatedly misidentified as a suspected terrorist. Moreover, the records now being demanded from the airlines will be used to test another controversial component of CAPPS II, which TSA is considering building into Secure Flight -- using vast commercial databases of personal information to verify passengers' identities.

"TSA needs to offer solid proof that Secure Flight will protect people and their personal information," said Lee Tien, EFF Senior Staff Attorney. "Plus, we still don't have a good explanation of TSA's role in the scandals over JetBlue, Northwest, and other airlines that secretly handed passenger information over to the government. Without openness and accountability, passenger-screening systems are a civil liberties nightmare."

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

Related Issues:
September 20, 2004

Consumer and Public Interest Groups Seek to Narrow and Invalidate Ambiguous Patents that Harm Society

Washington, DC - Consumers Union, the publisher of Consumer Reports magazine, and two public interest organizations, the Electronic Frontier Foundation (EFF) and Public Knowledge, filed a friend-of-the-court brief today with the US Court of Appeals for the Federal Circuit in Washington, DC, arguing that ambiguous patent claims should be invalidated and that claim terms should be interpreted as narrowly as possible by the courts to protect the public. Currently, courts uphold patent claims unless they are deemed too ambiguous, and the courts interpret vague claim terms as broadly as possible. These rules often result in improper patents of uncertain scope and lead to overzealous threat letters and lawsuits brought by patentees that chill innovation and deter beneficial competition.

"Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields," said Jason Schultz, EFF staff attorney and organizer of EFF's Patent Busting Project. "We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself."

"Placing clear limits on patents will provide much-needed protection for the public domain and create a fertile environment for technological growth," said Gigi Sohn, President of Public Knowledge.

In a recent example, Acacia Research sent more than 4,000 patent demand letters to universities and colleges across the nation, claiming its vaguely worded patents cover all known methods of streaming pre-recorded educational lectures over the Internet. Were the appeals court to rule that such vague patent claims are invalid or must be interpreted narrowly, the threatened universities and colleges could defend or dismiss these lawsuits with far greater ease.

The brief was filed for Consumers Union, EFF, and Public Knowledge by students and faculty of the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, American University, in a case called Phillips v. AWH Corporation, following a request from the appeals court for industry and public opinions on several issues of current patent law. The IP Clinic's Assistant Director and Counsel of Record on the brief, Joshua Sarnoff, said that "this may be the most important patent case ever decided. Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society."

Contacts:

Joshua Sarnoff
Assistant Director
Glushko-Samuelson Intellectual Property Law Clinic
jsarnoff@wcl.american.edu

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Related Issues:
September 16, 2004

Washington, DC - In a blow to the privacy of air travelers, the Department of Transportation has dismissed a complaint against Northwest Airlines. The complaint alleged that Northwest airlines, by giving three months' worth of passenger data to NASA for research into passenger profiling without the knowledge or consent of its customers, violated its own privacy policy and committed an unfair and deceptive trade practice.

The Transportation Department found that Northwest's privacy policy "did not unambiguously preclude it from sharing data with the federal government," despite the fact that the policy clearly states that Northwest does not sell passenger data to third parties, and that passengers are "in complete control" of their travel planning, including "the use of information [they] provide to Northwest Airlines." The Department added insult to injury by stating that even if the privacy policy clearly promised that Northwest would not share data with the government, that promise would not overcome the "moral imperative" that Northwest had to help improve airline security, especially considering that privacy is "not an absolute personal and fundamental right, particularly in the context of air travel."

"In addition to revealing that the Transportation Department has little regard for the privacy of the citizens it is supposed to serve, this case clearly demonstrates the failure of privacy policies to actually protect anyone's privacy," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Unfortunately, privacy policies aren't promises but public relations tools, intentionally worded to create as few binding commitments as possible. The American public should demand that companies that collect their personal information develop more explicitly protective policies, and make them an enforceable part of the contract with the customer."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Related Issues:
September 13, 2004

San Francisco, CA - The Ninth Circuit Court of Appeals has rejected the government's attempt to bar the press and the public from a trial where plaintiff John Gilmore is challenging the constitutionality of requiring airline passengers to show ID.

Last week, the government tried to sidetrack Gilmore's appeal to the Ninth Circuit by asking to have the case heard in secret and with motions filed "under seal," arguing that disclosing the security directive could be "detrimental to the security of transportation."

"This case is about the unconstitutionality of secret law as well as about forcing people to show ID," said EFF Senior Staff Attorney Lee Tien. "We're glad the court didn't buy into this administration's obsession with secrecy."

When Gilmore's case was dismissed by US District Judge Susan Illston in 2002, the government refused to show the challenged regulations to the district court -- or admit that the regulations even existed.

EFF friend-of-the-court brief in the case.

Contacts:

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

September 13, 2004

Electronic Frontier Foundation Supports BBC's "Creative Archive"

London, UK -- The Electronic Frontier Foundation (EFF) provided written testimony on Saturday to the UK government committee evaluating the charter renewal for the British Broadcasting Corporation (BBC). The testimony supports the BBC's request to build the "Creative Archive," a groundbreaking project that would make the entire archive of BBC material available online.

The Creative Archive is among the most ambitious "open content" projects ever undertaken. When it is realized, the BBC's rich archive of material, going back to the earliest days of radio and television, will be placed online under a "Creative Commons" license that allows the British citizens who paid for the material through the TV tax to distribute and creatively reuse it.

"The BBC's public service mission created a media production culture for Britain. Today, that culture stands to explode into a 'Creative Nation' where ordinary Britons can reap new benefits from previously fallow resources. The BBC's Creative Archive is the purest and most exciting exercise of its remit to date, and it should be enshrined in its new charter," said Cory Doctorow, European Affairs Coordinator at EFF. "The building of the Creative Archive is a watershed moment in the history of the BBC and of the world. It has the power to strengthen cultural identity for the coming generation of Britons, to benefit UK cultural institutions, artists, and commercial broadcasters, and to lift the whole world to a new heights of creativity, freedom, and cooperation."

EFF testimony:
http://www.eff.org/IP/BBC_CMSC_testimony.php

Contact:
Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation
cory@eff.org

September 10, 2004

Today, the Copyright Office provided the Senate Judiciary Committee with recommended language meant to replace Senator Orrin Hatch's "Induce Act," S. 2560.

The proposed language targets companies who make "public dissemination" technologies, where those companies make money from, or attract users with, copyright infringement. The proposal is a break with the doctrine established by the Supreme Court in its famous "Betamax" ruling, which says that technology companies cannot be held liable for copyright infringement by their customers, so long as the technology in question is capable of substantial noninfringing uses. In its ruling in MGM v. Grokster, the Ninth Circuit Court of Appeals recently reaffirmed that the Betamax doctrine applies to peer-to-peer (P2P) file-sharing software. EFF represents one of the prevailing defendants in that case.

"The Copyright Office proposal undermines the Betamax doctrine for a wide array of communications technologies, while doing nothing to slow P2P companies based offshore," said Fred von Lohmann, senior intellectual property attorney at EFF. "So American innovators pay the price, while P2P file-sharing continues unhindered."

The Copyright Office proposal came in response to a request from the Senate Judiciary committee. The committee has also received proposals from a variety of technology industry groups and is expected to continue deliberating in the weeks ahead.

Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
September 10, 2004

Law "Blacked Out" More than a Million Legitimate Websites

The Federal District Court in Philadelphia ruled today that a state law requiring Internet Service Providers (ISPs) to block access to websites that allegedly host child pornography violates the First Amendment. In order to comply with the law, ISPs had been forced to over-block websites that shared domain names or IP numbers with those identified by the state Attorney General as containing child porn.

"Although no one disputes that child pornography is and should be illegal to distribute, the Pennsylvania law threatened to cut off access to more than a million perfectly legitimate websites, in an ineffectual attempt to block alleged child pornography sites," said EFF Staff Attorney Kurt Opsahl. "The judge's decision correctly recognizes that the First Amendment does not tolerate such a burden on protected expression."

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

Related Issues:
September 8, 2004

The Washington Post reports that the House Judiciary Committee has marked up and reported H.R. 4077, the Piracy Deterrence and Education Act (PDEA). The measure is now ready for a vote by the entire House of Representatives. The Senate has taken no action on any companion bill.

The PDEA would impose criminal penalties on those who share more than 1,000 infringing files on a peer-to-peer network. Recent surveys by Ruckus Network show that the average college student who uses P2P file-sharing software shares 1,100 files. The bill would also have the Department of Justice foot the bill for sending warning notices to 10,000 filesharers.

"Tens of millions of Americans continue to use P2P networks," said Fred von Lohmann, senior intellectual property attorney at EFF. "Turning college kids into criminals is not going to change that reality, any more than the 4,000 lawsuits against file-sharing music fans has. This is a business problem, not an FBI problem."

EFF has proposed a collective licensing solution that offers an alternative to criminalizing the behavior of millions of Americans.

Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
September 3, 2004

Councilman Case Should Be Heard Before Full Court

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Co-authored by Orin Kerr and Peter Swire, law professors specializing in Internet privacy issues, the amicus brief is co-signed by EFF, the Center for Democracy and Technology (CDT), the Electronic Privacy Information Center (EPIC), and the American Library Association (ALA). Amici argue that a rehearing is necessary because the Councilman decision disrupts the traditional understanding of Internet surveillance laws, raising significant constitutional questions under the Fourth Amendment.

"This court decision has repercussions far beyond a single criminal prosecution," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended. If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception by a technicality in the way the messages are transmitted, it follows that the government will also be able to monitor our communications without having to ask a judge for a wiretap order. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."

Links:

Amicus brief in US v. Councilman

Wired: E-Mail Snooping Ruled Permissible

Washington Post: Court Limits Privacy of E-Mail Messages

Contacts:

Kevin Bankston
EFF Attorney, Equal Justice Works/Bruce J. Ennis fellow
bankston@eff.org

Related Issues:
September 1, 2004

Court Rules Copyright Law Cannot Be Used to Stifle Competition for Garage Door Openers

Washington, DC - A federal appeals court in Washington, DC, yesterday upheld a lower court ruling that allows the marketing of "universal" remote controls for garage door openers, an important decision that helps pave the way for competition and lower prices in the after-market and replacement parts arena.

"Competition in after-market and replacement parts, such as remote garage door controls, helps create lower prices and better products," said Kenneth DeGraff, a researcher for Consumers Union. "Allowing one company to control those markets and the prices they charge hurts consumers."

The Digital Millennium Copyright Act (DMCA) was passed in 1998 to stop mass copyright infringement on the Internet, but some companies have gone beyond this purpose and invoked its controversial "anti-circumvention" clause to stave off the competition. The Samuelson Law, Technology & Public Policy Clinic at Boalt Hall School of Law, UC Berkeley, and the Electronic Frontier Foundation (EFF) co-authored the Consumers Union brief to help stand up for consumer rights and the right to create new after-market technologies capable of interoperating with legitimately purchased products.

Jennifer M. Urban, the lead attorney on the case at the Samuelson Clinic, said, "The court recognized that copyright law grants rights to consumers as well as copyright holders and held that the DMCA did not wipe those rights away."

"Chamberlain's lawsuit sought to stifle competition by misusing the DMCA," said Deirdre K. Mulligan, Director of the Samuelson Clinic. "Congress warned of such abuses and we're pleased that the court rejected this view to avoid harming consumers."

"When consumers buy a garage door opener, they have the right to use whatever remote they want with it, even one from another company," said Jason Schultz, EFF Staff Attorney and a co-author of the brief. "In Chamberlain's view, it's their remote or no remote. Thanks to this decision, they've now been shown that the law views it differently."

Skylink won decisions in the lower court and at the International Trade Commission, but Chamberlain appealed, claiming that Skylink's remote control device circumvents access controls to a computer program in its garage door opener. The Samuelson Clinic filed briefs in both forums on behalf of Consumers Union, and a student intern presented Consumers Union's position to the lower court during oral arguments. In its decision, the Court of Appeals rejected Chamberlain's claims, further noting that if the court adopted Chamberlain's interpretation of the DMCA, it would threaten many legitimate uses of software within electronic and computer products -- something the law aims to protect.

"[Chamberlain's interpretation] would...allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work -- or even selected copies of that copyrighted work," wrote the court. "Copyright law itself authorizes the public to make certain uses of copyrighted materials. Consumers who purchase a product containing a copy of embedded software have the inherent legal right to use that copy of the software. What the law authorizes, Chamberlain cannot revoke."

Chamberlain v. Skylink decision (PDF).

Consumers Union brief (PDF).

More information about the case.

Contacts:

Kenneth DeGraff
Consumers Union
degrke@consumer.org

Deirdre Mulligan
Samuelson Law, Technology & Public Policy Clinic
Boalt Hall School of Law, UC Berkeley
dmulligan@law.berkeley.edu

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Jennifer M. Urban
Director, Intellectual Property Clinic
University of Southern California

Related Issues:
August 24, 2004

EFF Believes "This Land Is Your Land" Belongs to You and Me

San Francisco - Music publisher Ludlow Music, Inc., has officially backed down on its threats against web animation studio JibJab Media Inc. over the widely circulated "This Land" animated parody lampooning President Bush and Senator Kerry. JibJab had responded to Ludlow's threats by engaging the Electronic Frontier Foundation (EFF) to file suit on its behalf in San Francisco on July 29, 2004, seeking judicial confirmation that JibJab's work was a protected "fair use" and did not infringe Ludlow's copyrights.

During the course of investigating the case, EFF learned that "This Land is Your Land," the classic Woody Guthrie song, is part of the public domain and has been for several decades.

EFF's investigation revealed that "This Land is Your Land" appears to have been in the public domain since the early 1970s. Woody Guthrie wrote his classic American song in 1940, when the copyright laws granted a copyright term of 28 years, renewable once for an additional 28. According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973. Ludlow believes its copyright -- initially filed in 1956 and renewed in 1984 -- remains valid and disputes EFF's claims.

"We believe that Guthrie's classic tune, 'This Land Is Your Land,' belongs to all of us now, just like Amazing Grace and Beethoven's symphonies" said Fred von Lohmann, senior staff attorney with EFF. "The idea of copyright law is that, after a time, every work comes back into the hands of the public, where it can be reused, recycled, made part of new creativity without having to pay a fee or call in the lawyers. That's a great thing, the real genius of copyright."

JibJab dismissed its suit against Ludlow today. As part of the settlement of the case, JibJab will remain free to continue distributing the "This Land" animation without further interference from Ludlow.

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Related Issues:
August 20, 2004

EFF Protests Anti-Privacy Ruling in Appeal to the Ninth Circuit

California - US citizens may no longer have the right to travel without being searched. So says the District Court for the Northern District of California, which recently dismissed a case that questioned whether it is constitutional for airport security agents to demand identification papers from travelers. But the case, Gilmore v. Ashcroft, isn't going away. On Monday, counsel for plaintiff John Gilmore filed a brief with the Ninth Circuit, demanding that the court reverse this ruling and guarantee travelers the right to travel by air without the government requiring them to show identification papers.

On Thursday the Electronic Frontier Foundation filed a friend-of-the-court brief on behalf of the plaintiff, arguing that compulsory ID checks at airports violate the Fourth Amendment. The law permits passengers to be searched only for weapons and explosives, and does not permit generalized searches as a condition for boarding commercial aircraft. Thus, forcing travelers to produce identification constitutes an illegal search and seizure. The government has failed to show a compelling reason why identity checks are necessary to prevent people from carrying weapons or explosives onto planes, or even any legal authority for demanding that passengers show identity papers.

"We are all concerned with keeping aviation safe and secure, but the Fourth Amendment does not allow screening for dangerous items to expand into a coercive demand for official identity papers," said EFF Staff Attorney Kurt Opsahl.

EFF friend-of-the-court brief [PDF].

Contacts:

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

Related Issues:
August 19, 2004

Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement

California - Today the Ninth Circuit Court of Appeals made a crucial decision (PDF) in support of technology innovators by declaring that distributors of the peer-to-peer software Grokster and Morpheus cannot be held liable for the infringing activities of their users. The Electronic Frontier Foundation argued on behalf of Streamcast, the creator of the Morpheus software, in a case that pitted dozens of entertainment conglomerates against two small software companies.

The Ninth Circuit decision is based in part on the fact that P2P networks have significant non-infringing uses, and that they can help artists earn money. The ruling is similar to the Supreme Court's decision in the 1984 Betamax case, which determined that Sony was not liable for copyright violations by users of the Betamax VCR.

"Today's ruling will ultimately be viewed as a victory for copyright owners. As the court recognized today, the entertainment industry has been fighting new technologies for a century, only to learn again and again that these new technologies create new markets and opportunities," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "There is no reason to think that file sharing will be any different."

The court's decision was unanimous.

"This is a victory for innovators of all stripes," added von Lohmann. "The court's ruling makes it clear that innovators need not beg permission from record labels and Hollywood before they deploy exciting new technologies."

It is likely that the entertainment companies will appeal the Ninth Circuit's decision to the Supreme Court.

Ninth Circuit decision in MGM v. Grokster (PDF).

Contact:

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

August 13, 2004

Agrees to Postpone Closed Voting Examiner Meetings in Face of ACLU Lawsuit

Austin, TX - The Texas Secretary of State today agreed to indefinitely postpone a meeting of the state's voting examiners following the filing of a lawsuit by the ACLU of Texas and a Texas voter. The Electronic Frontier Foundation is serving as co-counsel in the case. The lawsuit challenged the practice of holding closed meetings in violation of the state's Open Meetings Act.

Today, the parties decided to postpone an upcoming voting examiner meeting that had been set for August 18, 2004. As a result of the Secretary of State's decision, the emergency hearing in the case set for Monday, August 16 has been cancelled. Under the agreement, the Secretary of State and voting examiners are required to notify the plaintiffs at least 14 days before any subsequent meeting is held. The underlying lawsuit seeking to open the voting examiner meetings to public scrutiny is not affected and will proceed as planned.

"We are pleased that the voting examiners will not hold their August 18th closed meeting," said Adina Levin of ACLU-Texas. "However, we need to ensure that this will become a permanent solution instead of just a temporary one. We will proceed with this lawsuit until the public is guaranteed that the certification process of voting technology will be an open and transparent one."

Levin noted that it is unclear whether the Secretary of State's decision to postpone the upcoming meeting meant that future meetings would be open to the public. "We hope this is a sign that the Secretary of State is taking the time to ensure that future meetings comply with Open Meetings Act requirements, and not an attempt to find another way to keep Texas election systems meetings closed," said Levin. "We have not received any promise to that effect, and the Secretary of State has made no other indication that that will happen."

You can find more information at Texas Safe Voting.

Contacts:

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

Adina Levin
Director, Cyberliberties Project
ACLU-Texas
alevin@aclutx.org

Related Issues:
August 12, 2004

Organization Grows with Addition of Attorneys, Technical, and Membership Staff

San Francisco, CA - Today the Electronic Frontier Foundation announced the addition of four new staff members. Kurt Opsahl and Matt Zimmerman join the legal team as staff attorneys, while systems administrator Matt Peterson brings expertise to the technical team and membership coordinator Kyle Pedersen will work on EFF membership development.

Kurt Opsahl graduated from the Boalt School of Law at UC Berkeley and comes to EFF from law firm Perkins Coie, where he was an associate. There he represented technology clients on intellectual property, privacy, defamation, and other online liability matters, including working on Kelly v. Arribasoft, MGM v. Grokster and CoStar v. LoopNet. For his work responding to government subpoenas, Opsahl is proud to have been called a "rabid dog" by the Department of Justice. As staff attorney at EFF, he will work on privacy, surveillance and other constitutional issues.

Matt Zimmerman earned his J.D. from Columbia University. Prior to joining EFF, he worked as the Privacy Fellow at the public interest law firm The First Amendment Project, where he specialized in privacy and open government issues previously, he worked at law firm Morrison & Foerster, where he focused on commercial litigation matters, including patent and technology licensing disputes. At EFF, Zimmerman will be the first staff attorney to dedicate himself entirely to electronic voting issues.

Matt Peterson, EFF's systems administrator, comes to the organization from Surf and Sip, a wireless networking company. He is one of the founders of the Bay Area Wireless User Group (BAWUG), and has spent several years working with nonprofit organizations in Asia to set up wireless networks for regions with little or no Internet access.

New membership coordinator Kyle Pedersen comes to EFF from the Urban Justice Center in New York, where he worked as an activist on mental health issues. He has also been active in tenant's rights causes. At EFF, he will be in charge of servicing our existing members and getting individuals excited about our work so they decide to join.

"EFF continues to attract some amazing talent," said EFF Executive Director Shari Steele. "Kurt and Matt are both experienced attorneys who are already up to speed on our issues. And Matt and Kyle are both young and enthusiastic, as well as well-suited to serve in their current roles."

With these new hires, EFF brings its lawyer total up to nine. This is an unprecedented number for the organization. "We have found that our legal expertise is needed on so many fronts," added Steele. "We're ready to continue to make a difference as law develops in the digital world."

Contact:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

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