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August 12, 2004

California - In a ruling the Electronic Frontier Foundation hailed as a step forward, the United States District Court for the Northern District of California ruled today that Visa and several other credit card companies would not be held liable for the copyright infringements of its business customers.

The case was brought by Perfect 10, an adult website that accused several credit card companies of copyright infringement because they were providing financial transaction services for sites containing allegedly infringing images. Rather than suing the alleged infringers, Perfect 10 sued their financial service providers for contributory infringement. Judge James Ware dismissed the case, citing the companies' inability to control the content of the sites with which they do business.

"This ruling suggests that courts aren't eager to extend contributory and vicarious copyright infringement to reach people only remotely connected to alleged infringers," said EFF Senior Staff Attorney Fred von Lohmann. "Of course, if Senator Hatch passes his Inducement to Infringe Copyright Act, that throws everything into uncertainty again."

EFF Staff Attorney Jason Schultz added, "Without the protections acknowledged by this ruling, any copyright owner could drag dozens of general service companies into court -- from the gas company to the electric company. This decision imposes important limits on overzealous copyright owners."

Perfect 10 brought a similar suit against financial transactions companies and age verification services in the Central District of California earlier this year. Most of the claims in that suit were dismissed, as well.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

Related Issues:
August 10, 2004

Lawsuit Attacks Secrecy of Meetings Where E-voting Machines Are Evaluated

Austin, TX - The ACLU of Texas and a Texas voter today filed a lawsuit demanding that the meetings of the state's voting examiners be held in public.

The voting examiners are responsible for studying electronic voting machines and other voting technologies and recommending to the Secretary of State which systems should be certified for use in Texas. In the past few years, the Secretary of State has routinely adopted the recommendations of the panel, yet he has rebuffed efforts by the public to observe the proceedings, claiming that the panel is not subject to Texas' Open Meetings Act.

Recently, the Texas Safe Voting Coalition obtained videotapes of previous meetings, including one involving Diebold, that suggest a lack of rigor and failure to properly address security and certification compliance issues.

"Texans deserve secure, reliable voting machines, and they deserve to see that the officials charged with certifying those machines are conducting a rigorous evaluation to ensure the systems are secure and effective," said Adina Levin of theTexas ACLU. "All aspects of the voting process in a democracy should be open and transparent, to give citizens confidence in their vote. The evaluation process should not be hidden behind closed doors."

The case, which will be handled by lead counsel Renea Hicks, seeks a ruling opening up the meetings prior to the upcoming August meeting of the examiners. The lawsuit comes on the heels of a letter filed with the Attorney General in July by Consumers Union that also argued that these closed meetings violate the Texas Open Meetings Act. "The public's interest in the state's certification of electronic voting equipment is high," noted Kathy Mitchell, Open Government Policy Analyst for Consumers Union. "The meetings of the examiners represent the critical point of deliberation during which key issues of interest to the public are discussed and debated."

"The country is beginning to look under the rug of election certifications and testing processes, and the scene is not pretty," added Cindy Cohn, Legal Director of the Electronic Frontier Foundation, which is serving as co-counsel in the case. "Opening up Texas certification processes should send a signal to testing and certification authorities nationwide that they must perform rigorous, public review of the systems that count our votes."

The Complaint is available here.

Texas Safe Voting Coalition (including clips of a January, 2004 examiner meeting).


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Adina Levin
Director, Cyberliberties Project

Related Issues:
August 9, 2004

EFF and National Voter Rights Organizations Support Appeal to State's Highest Court

Maryland - Lawyers representing eight Maryland citizens today filed a petition with the state supreme court seeking to decertify or fix Diebold voting machines that computer security experts have deemed insecure. The Electronic Frontier Foundation (EFF), working with over a dozen organizations concerned with voting integrity, has filed a friend of the court brief supporting the suit. Groups signing on to the brief include People for the American Way, Common Cause, Center for Constitutional Rights, America's Families United, and the Verified Voting Foundation.

In Schade v. Lamone, the plaintiffs ask that the state of Maryland address widely publicized security and reliability concerns with the Diebold machines and implement a voter verified paper ballot as required by state law. In the short term, the voters are seeking an injunction that would require the state to take steps to address these concerns before the November 2004 elections, including decertifying the machines altogether. The interim steps the lawsuit asks the state to take include implementing the same 23 basic security standards that California is now implementing, and offering Maryland voters the alternative of a paper ballot if they do not wish to have their vote counted by the Diebold machines.

EFF Legal Director Cindy Cohn said, "The Maryland court has the opportunity to make a more secure and accurate election in November."

If the Maryland supreme court agrees to hear the case, it would be the highest court in the country to consider this issue.

Friend of the court brief:

Documents in Schade v. Lamone:


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Related Issues:
July 27, 2004

Lawsuit Remedy Should Permit Secure, Accessible Voting Systems

Akron, OH - Organizations focused on election integrity today asked a federal judge to choose secure electronic voting machines with voter-verified paper audit trails as the remedy for a lawsuit challenging the use of punch card and certain kinds of optical scan systems in Ohio.

In a friend-of-the-court brief, the Electronic Frontier Foundation, the Citizens' Alliance for Secure Elections, the Verified Voting Foundation and VotersUnite wrote that they "urge that in considering the issues and potential remedies in this case, this court not suggest or require that any Ohio Counties adopt electronic voting machine technologies that do not contain a voter-verified paper ballot."

The brief also lists 18 incidents in which electronic voting machines caused problems in elections, including several where voters were disenfranchised and one in which an election had to be redone due to problems with the machines. It discusses a variety of available technologies that are accessible and secure, and presents evidence that e-voting machines may not be the panacea for disabled voters that they are advertised to be.

Voter-verified paper ballots permit voters to check a paper ballot to make sure that their votes are recorded as intended and allow election officials to perform recounts and audits.

Judge Dowd is hearing the case called Effie Stewart et al. v. J. Kenneth Blackwell et al. (Case No. 5:02CV-2028).

Donald McTigue of Columbus, OH serves as local counsel for the groups.

Stewart v. Blackwell case documents amicus brief [PDF, 163k]


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Will Doherty
Executive Director

About Verified Voting Foundation

The Verified Voting Foundation is a nonprofit organization championing reliable and publicly verifiable elections. Founded by Stanford University Computer Science Professor David Dill, the organization supports a requirement for voter-verified paper ballots on electronic voting machines allowing voters to inspect individual permanent records of their ballots and election officials to conduct meaningful recounts as needed.

About VotersUnite!

Voters Unite! is a nonpartisan national grassroots network for fair and accurate elections.

About CASE Ohio

CASE Ohio, Citizens' Alliance for Secure Elections, is nonpartisan statewide grassroots association of volunteers that advocates for fair and accurate elections, and supports a voter-verified paper audit trial.

Related Issues:
July 27, 2004

Red Hat Sponsors the Fourth Annual EFF Freedom Fest at LinuxWorld August 4

San Francisco, CA - For the past four years, the Electronic Frontier Foundation has been thanking its members for their support with a free outdoor concert called Freedom Fest. This year's event will be bigger and better than ever. EFF has partnered with Red Hat, the world's leading provider of Linux and open source solutions, to conduct the festivities as part of the LinuxWorld Conference and Expo in San Francisco. The Freedom Fest will be held outdoors at the gorgeous Yerba Buena Gardens, with an all-star lineup that features celebrated local artists Austin Willacy, Josh Fix and the Furious Force, and The Megan Slankard Band.

Warwick Davies, Group Vice President, IDG World Expo, said, "We're pleased to have EFF's Freedom Fest at LinuxWorld. It's a natural partnership, and we hope everybody who attends has a great time."

Red Hat Vice President of Corporate Communications David Burney added, "As an open source company, Red Hat believes in providing freedom and choice to technology users, and we are excited to partner with EFF to bring this great event to the Bay Area."

In addition to celebrating digital rights, this year's Freedom Fest is held in honor of the attorneys who volunteered their time to help win the Bunner case, defending Andrew Bunner and hundreds of other Linux users who hosted DeCSS code on their websites against a lawsuit brought by several large entertainment companies. The annual concert is also a chance for people interested in EFF issues to meet the staff in a relaxed atmosphere, enjoy some free music, and share food and drink. And for the first time ever, the event will be simulcast live over the Web at the EFF website.

The EFF Freedom Fest will take place on Wednesday, August 4th, from 5:00-8:00 p.m. The event is open to everyone attending LinuxWorld and all EFF supporters.

Freedom Fest website.


Shari Steele
Executive Director
Electronic Frontier Foundation

July 16, 2004

Arca Foundation Gives $85,000 Quixote Foundation Gives $21,000 Rockefeller Family Fund Gives $25,000

San Francisco, CA -- The Electronic Frontier Foundation (EFF) has been awarded three grants totaling $131,000 for its work leading the national litigation strategy on computerized voting. The first grant of $85,000 is from the Washington, DC-based Arca Foundation the second grant of $21,000 is from the Quixote Foundation of Madison, WI and the third grant is from the Rockefeller Family Fund based in New York City.

"The reports of problems using computerized voting machines increase with every election," said Cindy Cohn, Legal Director for EFF. "These machines have been hastily developed and poorly tested. Worse, since they do not create voter-verifiable paper ballots, there is no way to do a real recount or audit of election results." EFF has joined with other organizations in a nationwide campaign to raise awareness about the ways insecure voting machines threaten the democratic process. Cohn added, "We are thrilled to have the support of the Arca Foundation and the Quixote Foundation in this endeavor. Their grant-making focuses on empowering citizens to help shape public policy -- this is a great partnership."

Arca Foundation Executive Director Donna Edwards said, "This is a natural affiliation. Our Foundation is dedicated to the pursuit of social equity and justice -- if we lose the ability to have our votes verified, we give up our most basic constitutional rights. We are pleased to support EFF in this endeavor."

Lenore Hanisch of the Quixote Foundation added, "EFF is performing an essential public service, providing litigation services for computerized voting problems. We're very happy to help them be able to perform this important work."

EFF is developing a national legal and activist support network to tackle problems related to governments' use of computerized voting machines. The organization will litigate for e-voting reform and do outreach with traditional voting rights organizers before and after the November presidential election. Ultimately, the goal is to ensure accessible, secure voting on transparent, auditable systems to ensure that votes are counted as cast.

Lisa Guide, Associate Director of the Rockefeller Family Fund said, "Our purpose is to help citizens exercise the right to vote, and to make government more accountable and responsive. This grant to EFF helps fulfill our goals and the goals of this project."


Cindy Cohn
Legal Director
Electronic Frontier Foundation

July 15, 2004

Dept. of Homeland Security Puts Stake in the Heart of Passenger Profiling System

Homeland Security Secretary Tom Ridge said yesterday that development of CAPPS II - the government's controversial airline passenger surveillance program – will not continue. As reported by USA Today:

Asked Wednesday whether the program could be considered dead, Ridge jokingly gestured as if he were driving a stake through its heart and said, "Yes."
EFF Senior Staff Attorney Lee Tien said, "Finally, the Department of Homeland Security has recognized what EFF has been saying all along: the proposed CAPPS II system would be an ineffective, expensive, and unnecessary invasion of travelers' privacy."

Related Issues:
July 6, 2004

Los Angeles - A federal judge today ruled that California Secretary of State Kevin Shelley's requirements to ensure the security of electronic voting machines do not violate federal or state law. The Electronic Frontier Foundation, California Voter Foundation,, and Voters Unite! submitted a friend-of-the-court brief and a surreply in support of Secretary Shelley. The case is Benavidez v. Shelley.

"This decision is a landmark," said EFF Legal Director Cindy Cohn. "The court said - in clear, unambiguous terms - that requiring a paper trail for e-voting machines is consistent with the 'obligation to assure the accuracy of election results.' That's an enormous victory for secure elections."

The court determined that the "defendant's decision to decertify touch-screen voting machines and to withhold further certification until he is satisfied that manufacturers have complied with specified conditions is a reasonable one. It is based on studies conducted and information gathered which convinced him that the voting public's right to vote is not adequately protected by the systems currently in place."

This ruling is particularly significant because Secretary Shelley's e-voting reforms are setting the tone for national debate on this issue. He was the first state election official to issue a blanket requirement for voter-verified paper audit trails (VVPAT) on e-voting machines, though Nevada later followed suit. On April 30, after further review and a scandal with embattled voting machine vendor Diebold Election Systems, Shelley decertified all of the state's e-voting machines until additional safeguards could be implemented. His responsiveness to the growing evidence of problems in e-voting systems has led to pressure in states like Maryland and Ohio, where similar evidence has been downplayed.

"California is at the forefront of the nationwide movement for e-voting reform," said California Voter Foundation President Kim Alexander. "Today's court decision reinforces the leadership California Secretary of State Kevin Shelley is bringing to this critical issue."

The suit was brought by disability rights advocates and four California counties (Riverside, San Bernardino, Kern and Plumas) that oppose Secretary Shelley's voter verified paper trail requirement and April 30th decertification orders.

The ruling concerned the plaintiffs' requests for a preliminary injunction and temporary restraining order to prevent Shelley's orders from taking effect.

The decision is posted on EFF's website:


Kim Alexander
California Voter Foundation

Cindy Cohn
Legal Director
Electronic Frontier Foundation

About EFF:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at

About the California Voter Foundation:
The California Voter Foundation is a nonprofit, nonpartisan organization
dedicated to promoting and applying the responsible use of technology to
improve the democratic process. For more information about the California Voter Foundation, please visit

About Verified Voting
Verified Voting champions reliable and publicly-verifiable elections in the United States. Please visit

About Voters Unite!
Voters Unite is a non-partisan grassroots network for fair and accurate elections. Please visit

Related Issues:
July 1, 2004

One Year Before the Broadcast Flag Locks Up DTV Signals, EFF Announces Plans for a "Build Your Own DTV" Cookbook

San Francisco - One year from today, on July 1, 2005, an FCC regulation known as the Broadcast Flag will lock up your digital television signals. But EFF's "DTV Liberation Project" aims to help the public keep over-the-air programming free.

The Broadcast Flag, which places copy controls on DTV signals, attempts to stop people from making digitally-perfect copies of television shows and redistributing them. It also stops people from making perfectly legitimate personal copies of broadcasts. More disturbing, the Broadcast Flag will outlaw the import and manufacture of a whole host of personal video recorders (PVRs), TiVo-like devices that send DTV signals into a computer for backup, editing and playback. After the Broadcast Flag regulations go into effect, all PVR technologies must be Flag-compliant and "robust" against user modification – and that means, once again, that the entertainment industry is trying to tell you what you can do with your own machines.

It's not too late for consumers to get their hands on Broadcast Flag-resistant PVRs. For the next year, DTV tuners can still be manufactured that make digitally-perfect recordings of broadcasts these tuners will continue to work even after the FCC's regulation takes effect. To help people get these endangered devices before it's too late, EFF today launched the Digital Television Liberation Project. The Project aims to create a "cookbook" that teaches technically-minded (and not-so-technically-minded) people how they can whip up their own fully-capable DTV devices. "We want to open the high-definition revolution to everyone, preserving the abilities to time-shift and manipulate media that we've come to expect," said Wendy Seltzer, EFF Staff Attorney and a leader of the DTV Liberation Project.

The DTV Liberation Project will use these PC-based PVRs as benchmarks, comparing the capabilities of the general-purpose computer to the limited subset of viewing options Broadcast Flag-compliant devices can offer. "When people see how many more features today's PVR has than next year's, we think they'll be as puzzled as we are by the FCC's choices to 'advance the DTV transition'," Seltzer said.

The Project, which is currently seeking donations of hardware, money, and volunteers to help develop the cookbook, has already built an HD-PVR around the free software MythTV package. Seltzer will be demonstrating that machine at DefCon in late July.


Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation

June 30, 2004

Targets Will Be Busted for "Crimes Against the Public Domain"

San Francisco - Start forming your patent-busting posses! Today, the Electronic Frontier Foundation's Patent Busting Project announced which patents the organization will target first in its campaign to rid the world of frivolous patent infringement lawsuits. After sifting through dozens of software and Internet-related patents submitted to its patent busting contest, EFF targeted ten whose crimes have made them enemies of the public domain. All the most-wanted patents are dangerously overbroad many pose a threat to freedom of expression online. And every single one of the targeted patents is held by an entity that has threatened or brought lawsuits against small businesses, individuals, or nonprofits.

Target number one is Acacia, a company that has litigated relentlessly against small businesses to enforce patents that it claims cover a broad array of technologies used to send and receive streaming media online. Victims of Acacia's legal threats include websites that host home videos and several "mom-and-pop" adult media companies.

Other offenders include Acceris, which claims that its patents cover any technologies (such as Voice over Internet Protocol, or VoIP) that allow people to make phone calls over the Internet, and ClearChannel, which has been threatening artists and small CD companies that record live concerts and burn them to CDs for fans at the end of a show. Another target is, which has a patent on a method for taking and scoring tests online, and has been sending threatening letters to universities with distance learning programs.

"Patents are meant to protect companies against giant competitors, not to help them prey on folks who can barely afford a lawyer," said EFF Staff Attorney Jason Schultz, who leads the Patent Busting Project. "We hope our project will not only assist the victims of these abusive patents but also help make the case for global reform of the patent system."

With its targets in sight, EFF's team of lawyers, technologists, and experts will now begin to research and collect prior art. Prior art is hard evidence that a patent is "obvious" because it is based on a commonly known idea or because the claimed "invention" actually existed before the patent was filed. Once the team has gathered enough prior art on a given patent, EFF will submit a petition to the U.S. Patent and Trademark Office in a legal process known as "reexamination." If the USPTO finds the prior art compelling, it will formally revoke the patent and release the idea back into the public domain, where it belongs.

Ten "most wanted" patents.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

Annalee Newitz
Media Coordinator/Policy Analyst
Electronic Frontier Foundation

Related Issues:
June 29, 2004

EFF applauds today's Supreme Court decision to uphold a preliminary injunction that restricts the government from enacting the Child Online Protection Act (COPA). The law, which was passed in 1998, criminalizes sexual expression on the Internet that could be deemed "harmful to minors" by a reasonable person using contemporary community standards. Justice Kennedy wrote the opinion, emphasizing that the government failed to demonstrate that COPA is not the "least restrictive" method for protecting children online. He explained that filtering and blocking software are examples of less restrictive ways to regulate minors' access to harmful material.

EFF attorney and Equal Justice Works Fellow Kevin Bankston said, "The Supreme Court rightly recognized that there are ways of protecting our children from harmful material on the Internet that are much less restrictive and less damaging to First Amendment principles than COPA."

Added EFF Policy Analyst Annalee Newitz, "We are pleased that Justice Kennedy's opinion recommended solutions that would give people the choice to block harmful content on their home PCs, rather than chilling free speech at its source by threatening Internet speakers with criminal prosecution." Justice Kennedy wrote that COPA's criminal penalties, which include steep fines and even imprisonment, are a potentially "repressive force" in a free society.

The Supreme Court decision sends COPA back to the District Court for full trial.

Related Issues:
June 29, 2004

The First Circuit Court of Appeals dealt a grave blow to the privacy of Internet communications with its decision today in the case of U.S. v. Councilman. The court held that it was not a violation of criminal wiretap laws for the provider of an email service to monitor the content of users' incoming messages without their consent. The defendant in the case is a seller of rare and used books who offered email service to customers. The defendant had configured the mail processing software so that all incoming email sent from, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. As the court itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

"By interpreting the Wiretap Act's privacy protections very narrowly, this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time," says Kevin Bankston, EFF attorney and Equal Justice Works fellow. "This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy."

Decision in U.S. v. Councilman (PDF file).

June 24, 2004

EFF Attorneys Play Devil's Advocates, Post Mock Inducement Complaint against Apple

San Francisco - With Senator Orrin Hatch (R-Utah) and his colleagues pushing hard to bring the Inducing Infringement of Copyright Act ("Induce Act") to the full Senate for a vote, the Electronic Frontier Foundation (EFF) is already dreading the loss of all technologies this legislation has the potential to destroy. Although Hatch wants the public to believe that the legislation will only hurt "the bad guys" in the P2P wars, EFF argues that the Act is so sweeping that "the good guys" will get taken down too. The Induce Act, which would make it illegal to "induce" people to infringe copyright, could potentially outlaw everything from CD burners to the iPod.

To dramatize how the Induce Act might harm innovators and consumers, EFF attorneys realized they would have to make the threat a reality by becoming devil's advocates. Today, EFF posted a mock complaint in a lawsuit that could be brought against Apple, accusing the corporation of selling its popular iPod music player to induce people to infringe copyright.

The complaint, which mimics the format of an actual complaint that record companies might draft, points out that "Apple advertises that its 40 GB iPod can hold 'up to 10,000 songs.' This amount of capacity far exceeds the total CD collection of the vast majority of Americans. This suggests that Apple knew and intended that iPod owners would be getting their music from elsewhere, including P2P networks." The complaint also named Toshiba as a defendant for manufacturing the hard drive used exclusively by Apple for its iPod and CNET Networks for writing a review of the iPod that instructs users on how to copy music files between computers.

Because the Induce Act defines "intent" as being "determined by a reasonable person taking into account all relevant facts," it's unlikely that a technology company like Apple would be able to easily dismiss any lawsuit brought against it. It would face the prospect of an expensive trial, with all the attendant legal fees and negative publicity. One such company, SonicBlue, recently fought against a group of copyright holders in court over its ReplayTV and spent close to $1,000,000 per month in legal fees alone. In essence, this means that copyright owners can use the "inducement" theory to inflict an arbitrarily large penalty on any tech company that builds a device they don't like. That's not a pleasant possibility for an innovator to face as he or she tries to launch a new product.

EFF hopes that its mock complaint, brought by a hypothetical "group of major recording labels" against Apple, will raise awareness about how the Induce Act will destroy incentives to innovate. "We knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for the everyday devices we all know and love, like CD burners and MP3 players," said EFF Staff Attorney Jason Schultz. "We picked Apple as our mock target because one could argue it's 'reasonable to know' that having an iPod enhances the lure of using P2P to download music."

"We don't mean to single out Apple, Toshiba or CNET," said Cindy Cohn, EFF's legal director. "If the Induce Act passed, a similar lawsuit could easily be imagined against Hewlett-Packard for selling PCs equipped with CD burners or against cell phone manufacturers who allow users to swap ringtones."

EFF Action Alert on Inducing Infringement Act


Jason Schultz
Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x112

Cindy Cohn
Legal Director
Electronic Frontier Foundation
+1 415 436-9333 x108

Related Issues:
June 23, 2004

Civil Liberties Group and Technical Publisher Work Toward a Common Goal

San Francisco - No Starch Press has announced a partnership with the Electronic Frontier Foundation (EFF) in which the progressive technical publisher will donate a percentage of its sales to EFF.

When customers purchase books from a special area on the publisher's website, No Starch will donate 30% of the purchase price to EFF. No Starch published EFF client Andrew "bunnie" Huang's Hacking the Xbox last year and is dedicated to providing the public with information about open source software and network exploration.

No Starch Press Founder Bill Pollock said, " I am so pleased to be supporting EFF, an organization I greatly admire. Whether fighting to protect our rights to remain anonymous, or fighting against wrongheaded acts like the DMCA or the USA Patriot Act, EFF is the one organization watching our backs."

EFF recently entered into similar partnerships with 321 Studios and Slim Devices. "EFF is proud do have the support of these innovative companies," lauded EFF Executive Director Shari Steele. "It's important to see creative companies understand that technology can and should be freedom enhancing." More and more, especially in the world of intellectual property, it has become increasingly difficult for companies to simply create technology without paying attention to the legal framework in which their products will be released. Increasingly, innovative companies face legal challenges from over-zealous intellectual property holders, which block the development of new products and the publication of technical books that the public wants. As a defender of free speech in the digital world, EFF is is a natural partner for these companies.


Kevin McLaughlin
Membership Coordinator
Electronic Frontier Foundation

Leigh Sacks
Marketing Coordinator
No Starch Press

June 23, 2004

Industry, Academic, Public Interest Groups Support Bill To Improve Consumer Rights and Protect Technological Innovation

A broad group of organizations and companies representing diverse sectors of the U.S. economy has come together to form a new organization, the Personal Technology Freedom Coalition.

With members ranging from the telephone industry to high-tech firms, libraries, universities and the public-interest sector, the Coalition is committed to repairing recent damage dealt to the Founders' original commitment to balanced copyright protection. Specifically, the Coalition will press for consumer protections in the use of digital music and movies, including working to ensure that consumers can legally use and have access to digital content they have purchased.

The group supports the right of inventors to improve upon technologies already on the market, in particular the right of researchers to protect the nation from the threat of cyber terror. Members also support parents’ rights to use modern filtering technologies to protect their children from inappropriate materials in the privacy of their own homes.

The group strongly supports the Digital Media Consumers’ Rights Act (H.R. 107), legislation introduced by Rep. Rick Boucher, D-Va., and John Doolittle, R-Calif.

The Coalition upholds the following principles:

• Freedom. The Constitution gives us the freedom to enjoy and make many uses of books, music and other materials without permission of others... From these uses come new works that benefit us all.

• Fairness. The big media companies want to control every aspect of how we use digital music and video. That’s not fair. The Constitution demands respect for users’ rights.

• Innovation. New technologies cannot develop unless engineers can study what has already been written or invented. By limiting the examination of products now, we limit what will be produced later.

• CyberSecurity. Anti-terror efforts depend on secure computer networks. We will never be secure if researchers cannot test those networks for flaws in the first place.

Below is a list of the coalition members, as of June 22, 2004:

American Association of Law Libraries
American Foundation for the Blind
American Library Association
Association of American Universities
Association of Research Libraries
Computer & Communications Industry Association
Consumer Electronics Association
Consumers Union
Digital Future Coalition
Electronic Frontier Foundation
Home Recording Rights Coalition
Intel Corp.
Medical Library Association
National Writers Union
Open Source and Industry Alliance
Philips Consumer Electronics North America
Public Knowledge
Special Libraries Association
Sun Microsystems
Telecommunications Industry Association
United States Student Association
United States Telecom Association


Art Brodsky
Public Knowledge

Jeff Joseph
Consumer Electronics Association

June 16, 2004

EFF, Brennan Center Argue Against Restrictions on Future Technologies

San Francisco, CA and New York, NY - If the Recording Industry Association of America (RIAA) gets its way, consumers will not be permitted to listen to digital radio broadcasts unless they use an industry-approved device. The RIAA is particularly hostile to any TiVo-like recording device for digital radio. Today, the Electronic Frontier Foundation (EFF) and the Brennan Center for Justice filed comments with the Federal Communications Commission (FCC) in an attempt to stop the RIAA's plan to regulate digital radio technologies of the future.

In a letter to the FCC, the RIAA argued that the commission should force broadcasters to encrypt their digital radio signals so that only approved devices can descramble and play digital broadcasts. This is only the latest chapter in a decades-long campaign by the RIAA to stop home recording of radio broadcasts. But as EFF and the Brennan Center point out in their comments, it is perfectly legal for people to make home recordings of radio broadcasts under current copyright laws.In essence, the RIAA is urging the FCC to override home recording rights guaranteed to the public by copyright law.

Marjorie Heins, founder of the Brennan Center's Free Expression Policy Project, said, "Having failed in their congressional efforts to restrict home taping, the recording industry is now asking the FCC to go beyond copyright law to interfere with the public's right to make recordings of radio broadcasts for home use. This would be a perversion of the FCC's role, and home recording poses no threat to corporate copyright interests that could conceivably justify it."

"The RIAA is trying to halt the development of next-generation digital technologies, like a Tivo for radio -- technologies that are perfectly legal under copyright law," said EFF Senior Staff Attorney Fred von Lohmann. "This is about restricting personal home taping off the radio, something that Congress has said is legal and that millions of Americans have been doing for decades."

The EFF/Brennan Center comments .


Natalia Kennedy
Media Relations Manager
Brennan Center for Justice

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

Related Issues:
June 15, 2004

Based on arguments made by civil liberties group the Electronic Frontier Foundation (EFF) and attorney Albert Zakarian for defendant Mike Treworgy, the Eleventh Circuit Court of Appeals today ruled that DirecTV cannot sue individuals for "mere possession" of technology that is capable of intercepting DirecTV's satellite signal. "We're glad to see the court apply common sense to this issue," said EFF Staff Attorney Jason Schultz. "Merely possessing a device doesn't harm anyone and shouldn't give a company like DirecTV the right to drag you into court without proof that you're actually stealing something from them."

EFF filed an amicus brief in the appeal and maintains further information about the DirecTV legal campaign on the DirecTV Defense website. Defendant Treworgy was represented by Florida attorney Albert Zakarian.

June 14, 2004

Satellite TV Giant Will No Longer Prosecute Users for Mere Possession

San Francisco and Palo Alto, CA – After discussions with the Electronic Frontier Foundation (EFF) and the Center for Internet and Society (CIS) Cyberlaw Clinic, satellite television giant DirecTV has agreed to modify its nationwide campaign against signal piracy in order to reduce threats and lawsuits against innocent users of smart card technology. Chief among these changes is a promise to no longer sue or threaten to sue people merely for possessing smart card devices.

“American innovators and hobbyists shouldn’t have to fear legal action merely for possessing new technologies that have many legitimate uses,” said EFF Staff Attorney Jason Schultz. “We’re also pleased that DirecTV has agreed to stop targeting general purpose devices in its campaign and will investigate all substantive claims of innocence.”

Over the past few years, DirecTV has orchestrated a nationwide legal campaign against hundreds of thousands of individuals, claiming that they were illegally intercepting its satellite TV signal. The company began its crusade by raiding smart card device distributors to obtain their customer lists, then sent over 170,000 demand letters to customers and eventually filed more than 24,000 federal lawsuits against them. Because DirecTV made little effort to distinguish legal uses of smart card technology from illegal ones, EFF and the CIS Cyberlaw Clinic received hundreds of calls and emails from panicked device purchasers.

In August 2003, EFF and CIS created the DirecTV Defense website to provide innocent users and their lawyers with the information necessary to defend themselves. The organizations also began a series of discussions with DirecTV about ways to reform its anti-piracy tactics and protect innocent consumers.

As a result, DirecTV has agreed to make several changes to its campaign. The company will no longer pursue people solely for purchasing smart card readers, writers, general-purpose programmers, and general-purpose emulators. It will maintain this policy into the forseeable future and file lawsuits only against people it suspects of actually pirating its satellite signal. DirecTV will, however, continue to investigate purchasers of devices that are often primarily designed for satellite signal interception, nicknamed “bootloaders” and “unloopers.”

DirecTV also agreed to change its pre-lawsuit demand letters to explain in detail how innocent recipients can get DirecTV to drop their cases. The company also promised that it will investigate every substantive claim of innocence it receives. If purchasers provide sufficient evidence demonstrating that they did not use their devices for signal theft, DirecTV will dismiss their cases. EFF and CIS will monitor reports of this process to confirm that innocent device purchasers are having their cases dismissed.

“While EFF still disagrees with DirecTV over other aspects of its campaign, we’re pleased that we could find mutual ground on these issues,” said CIS Executive Director Jennifer Granick, who represented EFF in the negotiations. "We hope to continue working with DirecTV to resolve the remaining disputes so that everyone can enjoy the benefits of smart card technology."

Smart card readers and their various derivatives have many legitimate uses, including computer security and scientific research.


Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
+1 650 724-0014

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x112

June 10, 2004

Organization Seeking Ten Patents to Challenge

The Electronic Frontier Foundation (EFF) is calling on the public to help identify patents that are having negative effects on Internet innovation and free expression. As part of EFF's Patent Busting Project, EFF seeks nominations for the ten worst offenders in the world of intellectual property. Winners will become the first targets for the project's team of attorneys, technologists and experts, who will file "re-examination" requests with the United States Patent and Trademark Office (USPTO), asking the agency to revoke the patents.

EFF staff attorney Jason Schultz, who heads the project, said he can't wait to see what the contest turns up. "We have seen illegitimate patents asserted on such simple technologies as one-click online shopping, video streaming, and paying with credit cards online. When individuals and small businesses are faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees. We aim to change that."

To qualify for the contest, a bad patent has to be more than just stupid and invalid. It must be issued in the United States and be software or Internet-related. Also, the patent owner must be actively threatening or suing people for licensing fees. Contest judges are particularly interested in patents for technologies that enable free expression, such as streaming video, blogging tools, and voice over IP (VoIP). "Patent owners who claim control over communication tools can threaten anyone who uses them, even for personal or non-commercial purposes," explained Schultz. "Overreaching patent claims unfairly reduce the tremendous benefits that software and technology bring to freedom of expression."

The contest opens today and closes on June 23. Winners will be announced on June 30.

Check out the Patent Busting Contest.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x112

Related Issues:
June 10, 2004

Idaho Student Acquitted of Terrorism Charges

In a victory for the First Amendment rights of Internet users, jurors returned a verdict today acquitting University of Idaho graduate student Sami Omar Al-Hussayen of terrorism charges. Hussayen had been charged in federal court with providing "material support" to terrorists in the form of "expert advice and assistance," based on his activities as webmaster for a number of web sites and message boards serving Muslims. This same law, which was expanded by the USA PATRIOT Act, has already been found unconstitutional by one federal court.

"Providing a forum for Internet speakers -- especially those with controversial political or religious views -- is a service to the First Amendment, not a crime," says EFF attorney and Equal Justice Works fellow Kevin Bankston. "Hopefully, the jury's acquittal in this case will convince the Department of Justice to think twice before it again tries to prosecute someone for exercising his right to free speech."


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
+1 415 436-9333 x126

June 8, 2004

EFF Backs California Senate Bill Protecting Anonymous Speech Online

San Francisco and Berkeley, CA - Your employer just laid off 300 of your colleagues without notice and without severance pay. So you go online and post an angry, anonymous comment about it on a Yahoo! message board. Although you could lose your job if your boss discovered what you’ve said, you feel safe because nobody who reads the comment knows who you are. Plus, your right to engage in anonymous free speech is protected under the First Amendment, right? Wrong.

In California, it is currently legal for anyone to subpoena personal information from your Internet Service Provider (ISP) without any court oversight – and without notifying you. That means you have no chance to protect your anonymity or secure legal representation before the person requesting the subpoena figures out who you are and takes action against you. Your boss could read that anonymous comment, subpoena your ISP to get your name, and fire you the next day.

Over the past few years, the Electronic Frontier Foundation (EFF) and other organizations have defended dozens of individuals whose identities have been sought after they criticized corporations or other people online. Nearly all of the cases are dropped once opposition begins, indicating that the lawsuits are aimed at silencing criticism and identifying critics, rather than addressing legitimate legal claims.

To remedy this problem, California Assembly Member Joe Simitian (D-Palo Alto) is sponsoring Assembly Bill 1143, the Internet Communications Protection Act (ICPA). The bill protects anonymous speakers on the Internet by requiring service providers to notify them before handing over personal information that’s been subpoenaed. This information could include addresses, phone numbers, and any other private details a person provided to enable him or her to get Internet connectivity. Once a user is notified and given the basic information about the claims, he or she is given a window of time to respond and thus gain the opportunity to secure legal representation to contest the validity of the subpoena and protect personal information.

AB 1433 is backed by EFF, which is represented by the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley’s School of Law. It also has the support of the American Civil Liberties Union, the California Anti-SLAPP project and the Competitive Enterprise Institute. Cindy Cohn, Legal Director of EFF, said, “This act ensures that you have a reasonable opportunity to protect your own privacy. It levels the playing field by giving you the time and information you need to defend yourself if the claim against you is invalid, while preserving the right of those who have legitimate claims to find out who has harmed them.” Assemblyman Simitian added, “Internet users deserve to have their privacy and their anonymity protected. And they deserve due process in defending themselves against frivolous lawsuits.”

In addition, ICPA eases the burden placed on service providers by allowing them to bill subpoenaing parties for the costs of notifying users about their subpoenas. It also allows people to subpoena information without notification in emergency cases.

The hearing for the bill is tentatively set for June 15. Cohn and other supporters will be lobbying for it in Sacramento on June 9.

EFF Action Alert:


Cindy Cohn
Legal Director
Electronic Frontier Foundation
+1 415 436-9333 x108 (office), +1 415 307-2148 (cell)

Deirdre Mulligan
Samuelson Law, Technology & Public Policy Clinic
+1 510 642-0499

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at

About Samuelson Law Clinic

The Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, School of Law (Boalt Hall), represents individuals and non-profits on privacy, copyright and First Amendment issues relating to the Internet and other advanced technology. More information about the Samuelson Clinic can be found online at

Related Issues:
June 2, 2004

EFF Files Brief in Case Challenging the Use of Insecure Diebold E-Voting Machines

Maryland - EFF has filed a friend-of-the-court brief in a Maryland case that challenges the integrity of that state's electronic voting machines, which are manufactured by the troubled electronic voting machine company, Diebold Election Systems. EFF presented evidence of problems with electronic voting machines from more than 18 elections nationwide in the past few years, including the 2002 gubernatorial election and March 2004 primaries in Maryland. The evidence includes reports of lost votes, votes registering for the wrong candidate, and voters turned away from the polls using both Diebold and other electronic voting systems.

In addition, the California Secretary of State found that Diebold illegally installed uncertified software onto voting machines in 17 counties and referred the matter to the California Attorney General's office for potential criminal prosecution. EFF's brief also provides information on the growing number of technologies that can offer secure voting as well as accessibility for people with manual and visual disabilities.

In Schade v. the Maryland State Board of Elections, the plaintiffs are a group of concerned Maryland voters who ask that the state of Maryland address widely publicized security and reliability concerns with the Diebold machines and implement a voter verified paper ballot as required by state and federal law. In the short term, the voters are seeking an injunction that would require the state to either take steps to remedy these concerns before the November 2004 elections or follow California's lead in decertifying the machines altogether. The interim steps the lawsuit asks the state to take include implementing the same 23 basic security standards that California is now implementing, and offering Maryland voters the alternative of a paper ballot if they do not wish to have their vote counted by the Diebold machines.

Several independent researchers, including two teams hired by Maryland state officials, have demonstrated that the machines the state of Maryland intends to use in the upcoming November elections have a long list of problems and are vulnerable to vote tampering. One state-paid researcher noted that the results of an election could be altered by "an 8th grader." Most importantly, the Diebold machines used in Maryland provide no voter verified audit capacity, meaning that there is no reliable way to conduct a recount to ensure that the systems have not been tampered with or are malfunctioning.

EFF is joined by several other groups who support the plaintiffs in this case. Other signatories to the brief are Verified Voting and VotersUnite!, two grassroots voter organizations. Christopher M. Loveland of the firm of Schmeltzer, Aptaker & Shepard, PC, is local counsel in the case.


Cindy Cohn
Legal Director
Electronic Frontier Foundation
+1 415 436-9333 x108 (office), +1 415 307-2148 (cell)


Exhibits available here.

EFF's e-voting pages's litigation archive for Schade v. Maryland State Board of Elections

Related Issues:
May 25, 2004

EFF Urges Court to Find USA PATRIOT Act Powers Unconstitutional

San Francisco -- The Electronic Frontier Foundation (EFF) yesterday filed a friend-of-the court brief supporting the American Civil Liberties Union (ACLU) in a suit challenging the constitutionality of National Security Letters (NSLs). Authorized by the USA PATRIOT Act and issued directly by FBI agents without any court supervision and without a show of probable cause, the letters are used to demand detailed information about people's private Internet communications from ISPs, web mail providers, and other communications service providers. The people whose communications are searched are not notified, and every letter is accompanied by a gag order that prohibits the letter's recipient from ever revealing its existence.

"Before PATRIOT, the FBI could use National Security Letters only for securing the records of suspected terrorists or spies," said EFF Attorney and Equal Justice Works Fellow Kevin Bankston. "Now the FBI can use them to get private records about anybody it thinks could be relevant to a terrorism or espionage investigation, without ever having to show probable cause to a judge."

In its brief, EFF argues that the portion of the PATRIOT Act authorizing these warrantless government demands is unconstitutional, violating both First Amendment free speech rights and the Fourth Amendment right against unreasonable searches and seizures. By allowing FBI agents to access the complete online history of innocent Americans without proper safeguards against abuse, PATRIOT threatens to chill free speech on the Internet and make it impossible for Internet users to share unpopular ideas or associate with controversial groups anonymously.

"Using National Security Letters, the FBI can see what websites you visit, what mailing lists you subscribe to, who you correspond with, and much more -- all without judicial oversight of any kind," Bankston explained. "Yet this unrestrained power to examine innocent citizens' First Amendment activities online is merely one of the unconstitutional surveillance authorities granted to the FBI by the PATRIOT Act."

A favorable judgment in the ACLU's case would prohibit the FBI from using the National Security Letters any further.

Co-signatories to the EFF brief include the Center for Constitutional Rights, the Center for Democracy and Technology, the Electronic Privacy Information Center, the Online Policy Group, Salon Media Group's division the WELL, and the U.S. Internet Industry Association.

Download the brief.


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
+1 415 436-9333 x126

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x102 (office), +1 510 501-8755 (cell)

May 18, 2004

Amicus Brief and White Paper Support Shelley's Plan for Secure, Accessible E-Voting

San Francisco, CA -- EFF today filed an amicus brief in Benavidez v. Shelley (case number 2:04-cv-03318-FMC-PJW), a suit brought by Riverside County and several disability rights groups against California Secretary of State Kevin Shelley. The suit seeks to delay Shelley's order, issued April 30, that every California voter have the option to cast a paper ballot in the November presidential election. In its brief, EFF, joined by, the California Voter Foundation and VotersUnite!, argues that the court should deny this request. “There is substantial evidence supporting Shelley's decision,” said EFF Legal Director Cindy Cohn. “A long list of incidents involving electronic voting machines in California and nationwide shows that Shelley's concerns about security are strongly justified.”

In addition, EFF argues that the suit sets up a false distinction between secure electronic voting machines and ones that provide access for the disabled to vote in privacy. Peter Benavidez, a partly blind man in Los Angeles, initiated the suit because he believed he wouldn't be able to vote without assistance if the state de-certified its electronic voting machines. But this isn't true. “There is technology available right now that would give the disabled access while not compromising security,” said Cohn. She added that there is additional evidence showing that many of the electronic machines already in use aren't more accessible in practice than ones that produce a paper trail.

The false distinction between accessibility and security in electronic voting machines is also the subject of an EFF white paper released today. “Accessibility and Auditability in Electronic Voting,” authored primarily by EFF Activism Coordinator Ren Bucholz, demonstrates that there are many already-existing technologies which would give California voters, including the disabled, a chance to leave a paper trail when they vote in November. Bucholz offers several ways for California counties to comply with Shelley's order, using currently existing technologies, while also remaining accessible.

“Opponents of Shelley's order imply that the push toward secure, verifiable elections must pull us away from accessible elections,” Bucholz said. “But accessible, federally-certified machines are available today and more are scheduled for release in the coming months.”


Ren Bucholz
Electronic Frontier Foundation
+1 415 436-9333 x121 (office), +1 415 254-9945 (cell)

Cindy Cohn
Legal Director
Electronic Frontier Foundation
+1 415 436-9333 x108 (office), +1 415 307-2148 (cell)

Related Issues:
May 13, 2004

Donation to Support Patent-Busting Project

San Francisco - The Electronic Frontier Foundation (EFF), the leading civil liberties organization working to defend freedom in the digital world, has received a $50,000 grant from The Parker Family Foundation of Lexington, Massachusetts, for EFF's Patent-Busting Project.

“We are concerned about the growing number of illegitimate software and Internet patents,” said Glenn Parker, trustee of The Parker Family Foundation. “By investing in EFF, we know that we will be helping to protect the rights of individuals, nonprofits and others that have legitimate noncommercial uses of software and Internet technology.”

EFF is disturbed by the way innovation is stymied by increasing demands for patents that are overly broad (for example, hyperlinks) or exceptionally trivial (such as patenting a piece of software based on adding a single line of code). As a result, technologies built upon prior invention can be tied up in litigation for years over patent disputes.

“We seek to attack these types of patents,” said Jason Schultz, EFF staff attorney and project leader. By doing so, we hope to clear the way for the public to enjoy the benefits of these technologies and help build the case for stronger reform to the patent system. These patents strip our right to use publicly available knowledge, disrupt ongoing research and innovation, and threaten to shut down important community-based projects.”

The patents will be challenged under a legal process called Re-exam, which allows third parties to advocate affirmatively for the invalidity of the patents.

"We'd like to thank The Parker Family Foundation for its generous contribution," added EFF Executive Director Shari Steele. "EFF would not be able to take on important projects like this without the kind support of our funders."


Jason Schultz
Staff Attorney
Electronic Frontier Foundation
+1 415 436-9333 x112

Shari Steele
Executive Director
Electronic Frontier Foundation
+1 415 436-9333 x103

For more information on EFF's Patent-Busting Project, see:

Related Issues:
May 12, 2004

The World Intellectual Property Organization of the United Nations (WIPO) has accredited EFF to attend and observe the 11th session of the WIPO Standing Committee on Copyright and Related Rights in Geneva on June 7-10, 2004.

The committee meeting will discuss the proposed Broadcasting Treaty, which would extend the scope and duration of rights of broadcasters, cablecasters, and possibly, webcasters. EFF is concerned that, as currently drafted, this treaty may frustrate the free flow of information, even if that information is in the public domain. EFF will be attending with a coalition of non-governmental organizations (NGOs), including the Consumer Project on Technology (CPTech), which aims to educate national delegates about the public interest concerns with the treaty's more problematic clauses.

"Big entertainment companies are present in force at these meetings, and it's high time that public-interest groups took a seat at the table to explore a range of balanced approaches," said Cory Doctorow, EFF European Affairs Director.

"We welcome the opportunity to participate in this important discussion and look forward to working together with the delegates in future meetings." added EFF staff attorney Gwen Hinze.

May 12, 2004

After Daylong Debate, the Future of H.R. 107 Looks Bright

Washington, D.C. - Today at 10:00 AM., the House Energy and Commerce subcommittee on Trade, Commerce and Consumer Protection held a hearing on H.R. 107, also known as the Digital Media Consumers' Rights Act (DMCRA). Introduced by Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA), the DMCRA aims to reform the DMCA and require the recording industry to label CDs containing technological barriers that restrict consumers' rights.

EFF staff attorney Fred von Lohmann attended the hearing and reported that news from the Capitol is promising. “As of today, DMCA reform has a very real chance of passing the U.S. Congress,” he said. “The biggest ray of hope came during a lunch session that took place during a recess in the testimony of the 13 witnesses. Rep. Barton announced that he intends to see the bill marked up, passed by the subcommittee, passed by the full committee, passed by the full House of Representatives, and ultimately signed into law by the President.”

Rep. Barton's statements aren't enough to assure the bill's success, but because he is Chair of the House Energy and Commerce Committee, his support is crucial.

“Today was a good day for fair use, for consumers, and for our nation's tradition of balance in copyright law,” concluded von Lohmann. “Fortunately, despite the efforts of Hollywood lobbyists, the message that the DMCA is broken and needs fixing got through.”

This is the first time a DMCA reform bill has made it to the hearing stage. Its success is a testament to the efforts of the roughly 30,000 citizens who have used EFF’s Action Center to write to Congress to support the DMCRA, as well as the efforts of 321 Studios, which has hired lobbyists to explain the importance of fair use in the digital age.


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
+1 415 436-9333 x123 (office), +1 415 215-6087 (cell)

Related Issues:
May 5, 2004

EFF this week filed comments (PDF) in the FCC's "Cognitive Radio" proceeding (ET Docket No. 03108) asking the Commission to answer empirically the question of what spectrum is actually in use (as opposed to simply allocated to a licensee), and to uphold its duty under the First Amendment by creating opportunities for flexible, software-defined radios to thrive on open hardware and in open systems.

"Radios built on PCs present unique enforcement challenges for the Commission," said Cory Doctorow, EFF's European Affairs Coordinator. "But retarding innovation in the hope that its enforcement tools will remain effective is the wrong way to meet these challenges. Instead, the Commission should assume
that our computers will be the basis of open, frequency-agile radios, then determine how best to address the problem of radios that harmfully interfere."

April 30, 2004

Acting to ensure the integrity of California's November elections, California Secrectary of State Kevin Shelley on Friday announced the adoption of a new state policy making it so that all California voters will have the option of recording their votes on paper. In addition, the state has decertified Diebold's infamous TsX electronic voting machines, while mandating key security enhancements for the voting terminals that will remain in use.

"Today's decision is historic. The largest state in the nation is once again pointing out that un-auditable e-voting has no clothes," said EFF Activism Coordinator Ren Bucholz. "Shelley has responded to the disenfranchisement of tens of thousands of California voters, repeated violations of election law, and the overwhelming
body of evidence that these systems are vulnerable to attack."

Shelley previously mandated that all electronic voting machines have voter-verifiable paper trails by 2006, becoming the first Secretary of State in the nation to do so.

Related Issues:
April 19, 2004

San Francisco, CA - In light of growing concerns about illegitimate software and Internet patents, the Electronic Frontier Foundation (EFF) today announced a new initiative to combat the chilling effects bad patents have on public and consumer interests.

"Patents traditionally only targeted large commercial companies," said EFF Staff Attorney Jason Schultz. "Now bad patents are threatening non-profits, small businesses, and even individuals who use software and Internet technology." These threats target non-commercial personal use, such as building a hobbyist website or streaming a wedding video to your friends.

The new EFF initiative seeks to document these threats and fight back against them. EFF has pledged to file "re-examination" requests with the United States Patent and Trademark Office (PTO), asking the agency to revoke patents that are having negative effects on Internet innovation and free expression.

"More and more, people are using software and Internet technology to express themselves," said EFF Staff Attorney Wendy Seltzer. "Patent owners who threaten this expression are creating a chilling effect on free speech."

The EFF announcement comes on the heels of two recent public criticisms of the patent system, one by the Federal Trade Commission and the other by the National Academy of Sciences.

For this release:

EFF Patent Busting Project White Paper and related materials:

Federal Trade Commission Patent Reform Report:

National Academy of Sciences Patent Reform Report:

Related Issues:
April 13, 2004

Washington, D.C. - The Electronic Frontier Foundation (EFF) today submitted comments to the Federal Communications Commission opposing an FBI proposal that would extend a decade-old telephone surveillance law to the Internet. The Communication Assistance for Law Enforcement Act of 1994 (CALEA) forced telecommunications carriers like your phone company to build convenient wiretap features into their networks. Congress never intended CALEA's requirements to reach the Internet, but now the FBI is demanding that broadband ISPs build "wiretappability" into their equipment too.

"The FBI has made it clear that they don't want to understand how the Internet is fundamentally different from the public phone service," said EFF Staff Technologist Chris Palmer. "The rapid innovation and open access that makes the Internet great will be severely hampered if creators have to get past the FCC and FBI every time they want to make an innovative product."

EFF Staff Attorney Lee Tien continued, "The FBI's plan to turn the FCC into the 'Federal Bureau of Innovation Control' will be terribly expensive for everyone involved - except the FBI. The FCC, Internet service providers, equipment builders and broadband consumers are being set up to subsidize the FBI's surveillance state."

EFF's comments were filed in response to an FBI rulemaking proposal to the FCC.

For this release:

EFF comments:

More information on surveillance:

Related Issues:
April 1, 2004

The Federal District Court in the Middle District of Florida today denied the motion of sixteen record companies to force the Internet Service Provider Bright House to provide the identities of 25 individuals accused of copyright infringement using the FastTrack peer-to-peer network. The Court decided that the record companies had improperly joined the 25 individuals, who had nothing in common other than their ISP, into a single lawsuit. The court noted that joining the defendants together would result in "unreasonable prejudice and expense to the Defendants" and cause "great inconvenience" to the court.

"Courts are beginning to recognize that the record companies crusade against filesharers is stepping on the privacy and due process rights of those accused," noted Cindy Cohn, EFF's Legal Director. "These decisions are simply requiring the record companies to follow the rules that everyone else has to follow when bringing litigation."

The Orlando decision is here.

This decision adds to the difficulties faced by the record companies in pursusing filesharers. Yesterday a court in Canada rejected a similar request on several grounds, including that simply making available files on a filesharing network did not violate Canadian copyright laws and that the privacy of Internet users outweighed the strength of the record companies' case.

The Canadian decision is available here.

March 9, 2004

The European Parliament today voted to adopt an overbroad Directive on
Intellectual Property Enforcement that gives rightsholders powerful new
enforcement tools to use against intellectual property infringers. EFF
opposed the proposed Directive because it did not distinguish between
unintentional, non-commercial infringement by consumers and for-profit
criminal counterfeiting enterprises. "Under this Directive, a person who
unwittingly infringes copyright - even if it has no effect on the market -
could potentially have her assets seized, bank accounts frozen, and home
invaded," said EFF staff attorney Gwen Hinze.

EFF and a coalition of consumer groups strongly supported a set of
amendments to the proposed Directive tabled by Italian MEP On. Marco
Cappato, which would have limited the Directive's application to
intentional, commercial-scale infringement. Unfortunately, those
amendments were rejected in a 330 -151 member vote with 39 abstentions.
The Directive now moves to the Council of Ministers, which is likely to
endorse it on March 11, 2004. EU Member States will then have 2 years to
implement the new enforcement provisions in their national law.

Related Issues:
March 9, 2004

Electronic Frontier Foundation Joins Other Organizations Opposing FCC Action

Washington, D.C. - The Electronic Frontier Foundation (EFF) joined five library associations, Public Knowledge, the Consumer Federation of America, and the Consumers Union in suing the Federal Communications Commission (FCC) last week to block overbroad regulation of next-generation televisions and related devices.

"The FCC's digital broadcast television mandate is a step in the wrong direction because it would make digital television cost more and do less, undermining innovation, fair use, and competition," said EFF Senior Intellectual Property Attorney Fred von Lohmann, "The FCC overstepped its bounds, unduly restricting consumers and manufacturers when it issued its broadcast flag ruling."

The Federal Communications Commission (FCC) ruled on November 4, 2003, that consumer devices capable of receiving broadcast digital television (DTV) signals must implement content control technologies demanded by the entertainment industry to restrict consumer uses of digital television. Left unchallenged, the "broadcast flag" mandate would go into effect by July 1, 2005.

The lawsuit, called ALA v. FCC, was filed in the Court of Appeals in Washington, D.C., and charges that the FCC exceeded its jurisdiction, acted in an arbitrary and capricious manner, and failed to point to substantial evidence in adopting a broadcast flag mandate.

The FCC has asked the court to put the lawsuit on hold, pending the FCC's decision on petitions to reconsider the broadcast flag mandate, although all of the petitions address unrelated matters. The coalition of organizations opposed in court the FCC's attempt to postpone the lawsuit.



Fred von Lohmann
   Senior Intellectual Property Attorney

   Electronic Frontier Foundation

March 5, 2004

Here is a brief update on some of the cases in which
Public Citizen, Electronic Frontier Foundation, and the
American Civil Liberties Union and its local affiliates
have filed amicus briefs arguing that persons accused of
file sharing should be accorded minimal due process rights
before subpoenas are authorized to identify them. We have
just received rulings in two of the cases, one which
accepts our argument that the record companies should have
to file separate lawsuits against the individual
filesharers rather than lump them all into a single case
as they have done, and the other which found our arguments
helpful, but premature.

In the case filed in Philadelphia against 203 Doe defendants
whose Internet Service Provider is Comcast (BMG Music v Does
1-203), Judge Clarence Newcomer agreed with at least part of
the legal arguments we raised. He agreed that it was
improper to join all 203 defendants in a single lawsuit, and
ordered the music companies to file separate complaints
against each of the Doe defendants, paying a full filing fee
for each case, for a total of about $30,000, and making
individualized allegations against each defendant. Judge
Newcomer retained the case against Doe #1, one of the three
defendants about whom the music companies had provided
detailed evidence (more than a hundred pages, each listing
many songs made available for download), and authorized the
issuance of a subpoena for that individual's identity only.

Although Judge Newcomer left it to the discretion of each
judge to which the 202 new complaints would be assigned to
decide how to handle discovery, it would seem that in each
case, the plaintiffs will need an affidavit making the
proper showing about that individual defendant. Defendants
will presumably need to decide, in each case, whether they
can allege that filing in Philadelphia is appropriate.

In the case filed in Atlanta against 252 Doe defendants
whose Internet Service Provider is Cox Communications,
(Motown Record Co. v. Does 1-252), Judge Willis Hunt
authorized a subpoena, and required that Cox be allowed a
full twenty five days before compliance with the subpoena,
so that the subscribers could have extra time to object to
identification if they so desired. However, the Court
declined to consider the constitutional issue that amici
raised on the grounds that they were premature and could be
raised by the Defendants (and amici at that time) once the
Defendants have been notified that their identities are
being sought.

The judges who are hearing Virgin Records v. Does 1-44
(filed in Atlanta seeking to subpoena the identity of
alleged filesharers whose ISP is Earthlink), and BMI
Recordings v. Does 1-199 (filed in Washington, DC against
Doe defendants whose ISP is Verizon), are still considering
the issues presented by the motions and by amici.



Cindy Cohn
   Legal Director
   Electronic Frontier Foundation

Paul Levy
   Public Citizen Litigation Group

About Public Citizen:

Public Citizen is a national, nonprofit consumer advocacy
organization that has a history of defending free speech on
the Internet. The organization's website is at

March 1, 2004

EFF encourages the public to speak out for fair use rights by participating in the week-long campaign led by 321 Studios, makers of the popular DVD backup software recently enjoined by a California district court. "The public's rights to fair use of copyrighted works should not disappear in the face of technological restrictions," said EFF staff attorney Wendy Seltzer. "To bring back copyright's balance, we encourage individuals to write to Congress and the entertainment industry about their expectations when purchasing movies and other media." For more on 321 Studios' "Protect Fair Use" campaign, visit their website,

Related Issues:
February 27, 2004

The California Court of Appeal Sixth Appellate District today overturned a 1999 injunction against Andrew Bunner that prohibited him from posting DeCSS DVD decryption computer code, because it found that the DVD-Copy Control Association did not present evidence that CSS was still a trade secret.

"We are thrilled that the Court of Appeal has recognized that the injunction restricting Mr. Bunner's freedom of speech is not justified," said Staff Attorney Gwen Hinze. "Today's Court ruling that there is no evidence that CSS was still a trade secret when Mr. Bunner posted DeCSS vindicates what we have long said DeCSS has been available on thousands of websites around the world for many years."

Related Issues:
February 24, 2004

Electronic Frontier Foundation Says Exclude Non-Commercial Infringement

San Francisco, CA - The Electronic Frontier Foundation (EFF)
today asked concerned Europeans to contact Members of the
European Parliament (MEPs) prior to a March 8 vote on a
controversial proposed directive on Intellectual Property
Enforcement. EFF is asking Europeans to seek an amendment
that would limit application of the directive to intentional
commercial infringements of intellectual property rights.

"EFF is urging its members to ask their MEPs to seek an
amendment to the proposed European Intellectual Property
Enforcement directive because it does not distinguish
large-scale commercial infringement and counterfeiting
enterprises from unintentional, non-commercial infringement
by individuals," said EFF Staff Attorney Gwen Hinze. "If the
European Parliament adopts this directive, a person who
unwittingly infringes copyright -- even if it has no effect
on the market -- could potentially have her assets seized,
bank accounts frozen, and home invaded."

An action alert available on the EFF website makes it
possible for Europeans to contact and voice their concerns
to key members of the European Parliament.



Gwen Hinze
   Staff Attorney
   Electronic Frontier Foundation

Related Issues:
February 19, 2004

1-800 Contacts Can't See the Big Picture

New York, NY - The Electronic Frontier Foundation (EFF) yesterday asked a federal appeals court to reverse a lower court decision involving the right to provide online advertisements during web browsing.

Online contact lens distributor 1-800 Contacts, Inc., won an initial trademark violation lawsuit against, Inc., in October 2002, claiming that's SaveNow software confused potential customers by generating ads related to the words and web addresses people enter into online search engines and web browsers. appealed the lower court's ruling in December 2003 explaining that its ads -- known as pop-ups, pop-unders, and other types -- are all generated in a manner that does not confuse web users.

"If I'm walking to my neighborhood drugstore to purchase contact lenses and on the way I see a pharmacy with lenses at half the price, I should be able to stop by and take a look at the competition before making my purchase," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The lower court failed to consider common sense in making its decision to prevent WhenU from placing ads near other company's websites, and we believe the appeals court will recognize that competitive non-deceptive advertising online is not a violation of trademark law."

EFF filed an amicus brief in the case with the assistance of Professor Eric Goldman of Marquette University Law School.

* For the EFF amicus brief and more information on 1-800 Contacts v WhenU and other trademark cases


Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation

January 26, 2004

Electronic Frontier Foundation Supports Extending Verizon Decision to Protect User Privacy

Saint Louis, Missouri - The Electronic Frontier Foundation (EFF) and 21 other consumer and privacy groups today sided with Charter Communications, Inc., in its struggle to protect customer privacy.

The groups urged a federal court to prevent the Recording Industry Association of America (RIAA) from forcing Internet Service Provider Charter Communications to identify customers the RIAA has accused of offering infringing music on a peer-to-peer system. In December 2003, a federal appeals court in Washington, DC, ruled that the RIAA could not use special, non-judicial subpoenas under the Digital Millennium Copyright Act (DMCA) demanding that Verizon identify unnamed alleged filesharers.

"The RIAA wants to use the Charter case to erase the D.C. court's Verizon decision and set back Internet users' privacy," said EFF Legal Director Cindy Cohn. "The courts should require careful judicial consideration of facts supporting any accusations and hear the other side of the story before violating the privacy of any Internet user."

EFF, along with 21 other groups, including the American Civil Liberties Union, Consumer Federation of America, and the Computer & Communications Industry Association, filed a "friend of the court" brief urging that the same strong protections that apply for anonymous speech in other contexts also apply for claims of copyright infringement.

"Our privacy and free speech rights should not be collateral damage in the RIAA's war against the digital music revolution," added Cohn.

The groups that have signed on to the consumer privacy amicus brief are, in alphabetical order:

* Alliance for Public Technology
* American Association of Law Libraries
* American Civil Liberties Union
* American Civil Liberties Union of Eastern Missouri
* American Legislative Exchange Council
* American Library Association
* Association of Research Libraries
* CSE Freedom Works Foundation
* Computer & Communications Industry Association
* Consumer Action
* Consumer Federation of America
* Digital Future Coalition
* Electronic Frontier Foundation
* Electronic Frontiers Georgia
* National Coalition Against Domestic Violence
* Pacific Research Institute
* Public Knowledge
* PrivacyActivism
* Privacy Rights Clearinghouse
* US Internet Industry Association
* Utility Consumers Action Network

RIAA v. Charter Communications was filed in St. Louis, Missouri, federal district court. EFF is supporting Charter's appeal to the Eighth Circuit Court of Appeals.

* EFF and other groups' amicus brief in RIAA v. Charter
* More information on RIAA v Charter


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at

January 26, 2004

The Federal District Court for the Central District of California today released a ruling declaring unconstitutional a provision of the USA PATRIOT Act that made it a crime to advise or assist an organization designated as 'terrorist' by the U.S. government, even when that support is solely intended to promote lawful, non-violent activities. The Court decided that the provision, Section 805 of the USA PATRIOT Act, is unconstitutionally vague and violates the First and Fifth Amendments.

"Under PATRIOT, it would've been illegal to provide humanitarian or political advocacy training to the anti-apartheid African National Congress, which was a designated 'terrorist' organization before apartheid was defeated," said Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "This decision ensures that Americans can exercise their First Amendment right to engage in non-violent political activism without being branded as terrorists-by-association."

Related Issues:
January 24, 2004


The mp3 generation may not remember it, but 20 years ago, Hollywood fell just one vote short of winning a ban on the VCR. This month marks the 20th anniversary of the Supreme Court's 5-4 decision in Universal City Studios v. Sony, the case where two movie studios asked the federal courts to impound all Betamax VCRs as tools of "piracy."

Thankfully, the Supreme Court spurned Hollywood's arguments, best summarized by Motion Picture Association of America chief Jack Valenti's famous quote: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." The court decided that American consumers were not violating copyright laws when they time-shifted television with their VCRs. It also declared that Sony was not violating copyright laws by selling VCRs, even though some people might use them to infringe copyrights. In other words, you don't go after the crow bar makers just because there are burglars out there.

In the 20 years since, we have learned two important lessons. First, new technologies and copyrights are complementary products in the long run. New technologies make copyrights more valuable because they unleash new markets and business models. That's been the rule, without exception, for a century. The VCR ended up making Hollywood rich, with sales of pre-recorded cassettes quickly eclipsing the receipts from box office ticket sales. There's no reason to think that the Internet won't create even more revenue-generating opportunities.

Second, if you want a vibrant technology sector, you let the innovators invent without forcing them to beg permission from media moguls first. Sony didn't ask permission to build the Betamax, and that's what made the VCR possible. In fact, the Supreme Court's rule set the stage for most of the amazing technologies we take for granted today. After all, would Hollywood have allowed the personal computer, if it had been asked? Would the recording industry have permitted hard drives? What about the book publishing industry and the scanner? And we know how these industries feel about the Internet. Fortunately, the rule in America is that innovators are beholden only to their customers and the marketplace, not to Disney or the Recording Industry Association of America.

Unfortunately, the entertainment industries are trying to get the courts and Congress to forget these lessons. In cases involving peer-to-peer file sharing software, their lawyers hope that amid all the shouting about "piracy" they can persuade judges to make future innovators answer to movie moguls instead of the American consumer. Meanwhile, in Washington, they urge legislators and bureaucrats to put innovators under the thumb of government regulation.

In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation. The legacy of that decision has been technology that benefits us all. Let's hope that Congress and the courts have learned that lesson, even if the movie moguls haven't.

January 23, 2004

Hollywood Promises Not to Sue Consumer Plaintiffs

A federal court today ruled to end a case brought by five ReplayTV digital video recorder (DVR) owners after 28 entertainment companies promised not to sue them for copyright infringement for using the "commercial advance" or "send show" features of their DVRs.

"Skipping commercials is not illegal and neither is sending television shows from your home to your office, as one of our clients does," said EFF Staff Attorney Gwen Hinze. "We're pleased that we were able to protect our clients against unjustifiable copyright claims for exercising their fair use rights."

"This may be first time that the entertainment companies have backed down from a claim of copyright liability," added Cindy Cohn, EFF's Legal Director. "Consumers deserve the full benefits of the digital revolution and specious copyright claims should not stand in their way."

EFF brought the case on behalf of the five plaintiffs in June of 2002 after the entertainment companies sued the creators of ReplayTV arguing that the device infringes their copyrights because it allows consumers to skip commercials and send recorded programs from one device to another. Responding to the lawsuit and to claims by a top industry executive that people who skip commercials are "thieves," EFF asked the court for a declaratory ruling that using the DVR to skip commercials and send shows between devices is fair use.

EFF had asked the court to give affirmative relief to all owners of ReplayTV DVRs with the "commercial advance" and "send show" features. The court declined to do so on the grounds that the entertainment companies promised not to sue here and had indicated no intention to sue any of the other owners. The court did, however, leave open the possibility of relief in the event that the entertainment companies change their position and seek to sue owners of ReplayTV DVRs.

Assisting EFF in this litigation were Ira P. Rothken of San Rafael and Richard R. Wiebe of San Francisco.


Gwen Hinze
Staff Attorney
Electronic Frontier Foundation

Cindy Cohn
Legal Director
Electronic Frontier Foundation

January 22, 2004

In a surprising retreat today, the consortium of entertainment and technology companies known as DVD CCA has attempted to summarily dismiss a lawsuit against Andrew Bunner, a republisher of a computer program that was created to allow movie lovers to play their DVDs on computers that run the Linux operating system. The program is called DeCSS. DVDCCA effectively gave up a multi-year effort to have the republication of the program declared a violation of trade secret laws.

"DeCSS has been available on hundreds if not thousands of websites for 4 years, now" said Cindy Cohn, EFF's Legal Director. "We're pleased that the DVD CCA has finally stopped attempting to deny the obvious: DeCSS is not a secret."

The case reached the California Supreme Court last year and was the subject of ruling that held that computer programs could be preliminarily restrained from publication only in very narrow circumstances. Mr. Bunner was one of hundreds of people sued, including some T-shirt manufacturers.

EFF's Case Archive: DVD-CCA v. Bunner

Related Issues:
January 21, 2004

"While it's an improvement that the record indsutry now has to play by the same rules as everyone else who goes into court, they are still heading in the wrong direction" noted Cindy Cohn, EFF's Legal Director. "There is a better way. The recording industry should be giving America's millions of filesharers the same deal that radio stations have had for decades: pay a fair fee, play whatever you want on whatever software works best for you."

Continuing its crusade against its own customers, the record industry today announced that it would begin filing "John Doe" lawsuits against more than 500 individuals accused of illegal filesharing. This should mean an increase in the privacy protections for individuals, since we expect that the judges overseeing these Doe suits will apply procedural protections similar to those developed in other Doe suits. The targets should get notice of the demand for their identities and an opportunity to be heard in challenging the demand. At the same time record labels will have to prove that they did a "reasonable investigation" before filing suit. The labels can no longer use a subpoena rubber-stamped by a court clerk, which is what the D.C. Circuit outlawed in late December.

Related Issues:
January 21, 2004

Seeks Identities of More Than 500 Sharing Files Online

San Francisco - Continuing a crusade against its own
customers, the recording industry today announced lawsuits
against more than five hundred individuals accused of
illegal filesharing.

The Recording Industry Association of America (RIAA)
announced it would seek the identity of "John Does" known by
the addresses of the computers they use to access the
Internet. The RIAA will have to seek permission from judges
before they can issue subpoenas to ISPs seeking the
identities of the John Does. The process offers more due
process and privacy protections than the automatic
subpoenas the D.C. Circuit court rejected in the RIAA v.
Verizon case.

"While it's an improvement that the record industry now has
to play by the same rules as everyone else who goes into
court, they are still heading in the wrong direction," noted
EFF Legal Director Cindy Cohn. "The recording industry
should be giving America's millions of filesharers the same
deal that radio stations have had for decades: pay a fair
fee, play whatever you want on whatever software works best
for you."

The record labels will have to prove that they have evidence
in support of their claims and do a "reasonable
investigation" before filing suit, rather than obtaining a
subpoena rubber-stamped by a court clerk, which is what the
D.C. Circuit court outlawed in late December.



Cindy Cohn
   Legal Director
   Electronic Frontier Foundation


Fred von Lohmann
   Senior Intellectual Property Attorney
   Electronic Frontier Foundation
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January 8, 2004

Consumers Defend Use of Digital Video Recorders

A group of ReplayTV owners will ask a court on Monday to allow all owners of ReplayTV digital video recorders to join an ongoing lawsuit to protect consumers' rights to skip over television commercials and send recorded programs from one digital device to another.

Date: Monday, January 12, 2004
Time: 3:00 p.m.
Judge: Hon. Florence-Marie Cooper
Court: District Court, Central District of California, Courtroom 750
Location: Edward R. Roybal Federal Building and Courthouse, 255 East Temple Street, Los Angeles, California 90012

The case was sparked after a top entertainment industry executive began publicly to claim that people who don't watch television commercials are "thieves" and 28 entertainment companies subsequently launched a lawsuit against the makers of ReplayTV arguing that using the digital video recorder to skip commercials and send programs is against the law.

Five ReplayTV owners, represented by the Electronic Frontier Foundation (EFF), Richard Wiebe, and Ira Rothken of the Rothken Law Firm in San Rafael, decided to fight back. In June of 2002, they filed a lawsuit asking the court to declare that these uses are legal.

The makers of ReplayTV have since been driven into bankruptcy, and the entertainment companies are now attempting "buy out" the five individual ReplayTV owners by offering them, and only them, a "covenant not to sue," while failing to grant protection to the estimated 5,000 other owners of ReplayTV digital video recorders that have the commercial skipping and "send show" features. The companies have also asked the court to dismiss the case.

In the face of these challenges the plaintiffs are charging ahead, asking the court to include all ReplayTV owners in the case, and to determine, once and for all, whether they can legitimately use all of the device's features.

The proposed consumer class action representatives are Craig Newmark, the founder of, Glenn Fleishman, Phil Wright and Thomas White.


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation

January 5, 2004

The Norwegian authorities have decided not to appeal the aquittal of Jon Johansen to the Norwegian Supreme Court. Johansen was prosecuted for his role in the creation of DeCSS software that decrypts DVDs so that they can be played on computers running the Linux operating system. "The prosecution of Johansen for 'breaking into' DVDs that he already owned was wrong from the beginning," noted EFF Legal Director Cindy Cohn. "We hope this decision will serve as a model for protecting consumer rights elsewhere."

January 5, 2004

EFF has filed comments in response to Intel's draft policy on privacy and owner choice and control issues in Intel's "trusted computing" LaGrande Technology initiative. "We described how this technology exposes the public to new risks, including undetectable spyware that couldn't exist today," said EFF Staff Technologist Seth Schoen. "What's more, Intel says its own privacy policy for LaGrande has no teeth: it's simply a recommendation that nobody is required to follow."

January 4, 2004

The Pew Internet and American Life Project today issued a report suggesting that use of peer-to-peer networks for downloading music has fallen in the wake of the recording industry's lawsuit campaign.

"While the RIAA's crusade may have discouraged some downloaders, today's Pew study shows that 1 in every 7 American Internet users continues to use software like Kazaa," noted EFF senior staff attorney Fred von Lohmann. "Every day that the record labels continue to subpoena and sue, they are losing customers and alienating music fans of all ages. It's hard to see a future in that plan."

"The music industry should give us a chance to pay a reasonable fee and make file sharing legal," said EFF staff attorney Jason Schultz. "After all, that's the same deal that radio stations have had for decades -- pay a blanket fee and play whatever you like on whatever equipment you like."

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