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Press Room

November 30, 2011

Copyright Office Should Expand Legal Protections for Jailbreakers and Video Artists

San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Copyright Office today to renew and expand the critical exemptions to the Digital Millennium Copyright Act (DMCA) granted last year in response to EFF's requests to protect the rights of American consumers who modify electronic gadgets and make remix videos.

In the exemption requests filed today, EFF asked the Copyright Office to protect the "jailbreaking" of smartphones, electronic tablets, and video game consoles – liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create new, remixed works. These exemptions build on and expand exemptions that EFF won last year for jailbreakers and remix artists.

"The DMCA is supposed to block copyright infringement. But instead it can be misused to threaten creators, innovators, and consumers, discouraging them from making full and fair use of their own property," said EFF Intellectual Property Director Corynne McSherry. "Hobbyists and tinkerers who want to modify their phones or video game consoles to run software programs of their choice deserve protection under the law. So do artists and critics who use short excerpts of video content to create new works of commentary and criticism. Copyright law shouldn't be stifling such uses – it should be encouraging them."

EFF's requests are part of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Exemptions are meant to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.

"We were thrilled that EFF won important exemptions to the DMCA in the last rulemaking," said EFF Senior Staff Attorney Marcia Hofmann. "But technology has evolved over the last three years, and so it's important to expand these exemptions to cover the real-world uses of smartphones, tablets, video game consoles, DVDs, and video downloads."

In drafting the requests, EFF had the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, and the Organization for Transformative Works.

The Copyright Office will hold hearings on the proposed DMCA exemptions in the spring of 2012, with a final rulemaking order expected in October 2012.

For the full exemption requests:
https://www.eff.org/files/filenode/2012_dmca_exemption_requests_no_appendix.pdf

For more on DMCA rulemaking:
https://www.eff.org/issues/dmca-rulemaking

Contacts:

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

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

Related Issues:
November 29, 2011

Site Will Document Copyright Enforcement's Effects on Freedom of Expression Worldwide

San Francisco - The Electronic Frontier Foundation (EFF), in collaboration with over a dozen civil society organizations worldwide, today launched Global Chokepoints at www.globalchokepoints.org to document how copyright enforcement is being used to censor online free expression in countries around the world.

Global Chokepoints, funded in part through a grant by the Open Society Foundation, is an online resource created to document and monitor proposals from around the world to turn Internet intermediaries into copyright police. These proposals harm Internet users' rights of privacy, due process and freedom of expression, as well as endanger the future of the free and open Internet. Global Chokepoints is designed to provide empirical information to digital activists and policymakers and to help coordinate international opposition to attempts to cut off free expression through misguided copyright laws and transnational agreements, like the Anti Counterfeiting Trade Agreement (ACTA).

Global Chokepoints will document the escalating global efforts to turn Internet intermediaries into chokepoints for online free expression. Internet intermediaries all over the world—from Internet Service Providers (ISPs) to community-driven sites like Twitter and YouTube to online payment processors—are increasingly facing demands by IP rightsholders and governments to remove, filter, or block allegedly infringing or illegal content, as well as to collect and disclose their users' personal data.

At the same time, it's unclear whether and under what circumstances Internet intermediaries have liability for content posted by their users. Hotly contested court cases in Europe, Australia, and elsewhere are considering how copyright law fits with obligations to protect Internet users' rights of privacy, due process, and freedom of expression.

Global Chokepoints analyzes global trends in four types of copyright censorship: 1) three-strikes policies and laws that require Internet intermediaries to terminate their users' Internet access on repeat allegations of copyright infringement; 2) requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material; 3) ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement; and 4) efforts to force intermediaries to disclose the identities of their customers to rightsholders upon allegations of copyright infringement. The site includes links to digital rights organizations, consumer groups, law school clinics, and technology industry groups that are opposing the spread of overbroad copyright policing efforts, as well as national advocacy campaigns to protect the free and open Internet and citizens' fundamental rights.

"IP rightsholders are attempting to choke-off online free expression through overbroad laws, litigation, and coercive agreements that require Internet intermediaries to filter, block and disconnect their customers," said EFF International Intellectual Property Director Gwen Hinze. "As both the UN Special Rapporteur on Freedom of Opinion and Expression and the European Court of Justice have recently recognized, these initiatives harm Internet users' rights of privacy, due process and freedom of expression, and endanger the future of the free and open Internet."

Global Chokepoints is launching with in-depth analysis of ten regions: Chile, Columbia, the European Union, France, Ireland, New Zealand, Spain, South Korea, the United Kingdom and the United States of America. The website will expand to include additional regions and countries in the coming months and will be updated as new copyright proposals and agreements are introduced.

"Laws around the world are forcing service providers like ISPs to act as judges for what's valid speech on the Internet, using copyright as an excuse to cut off speech and infringe on the privacy rights of users," EFF Activism Director Rainey Reitman said. "For example, in the United States, the Stop Online Piracy Act (SOPA) could undermine long-standing legal protections for intermediaries and could potentially 'blacklist' many popular websites–like Etsy, Flickr, and Vimeo. The Global Chokepoints project will help concerned citizens fight dangerous legislation around the world."

For the Global Chokepoints website:
www.globalchokepoints.org

Contact:

Rainey Reitman
   Activist
   Electronic Frontier Foundation
   rainey@eff.org

Related Issues:
November 18, 2011

Newspaper Publisher Caves at Last, Agrees Excerpts of Articles Do Not Infringe Copyright

San Francisco - In a victory for fair use, the publisher of the Las Vegas Review-Journal, Stephens Media, filed papers yesterday conceding that posting a short excerpt of a news article in an online forum is not copyright infringement. The concession will result in entry of a judgment of non-infringement in a long-running copyright troll case that sparked the dismissal of dozens of baseless lawsuits filed by Righthaven LLC.

The case began when the online political forum Democratic Underground -- represented by the Electronic Frontier Foundation (EFF), Fenwick & West LLP, and attorney Chad Bowers -- was sued by Righthaven for a five-sentence excerpt of a Review-Journal news story that a user posted on the forum with a link back to the newspaper's website. Democratic Underground countersued, asking the court to rule that the excerpt did not infringe copyright and is a fair use of the material, and brought Righthaven-backer Stephens Media into the case.

The Court dismissed Righthaven's infringement case because it did not own the article, but Democratic Underground's counterclaim against Stephens Media continued. After initially attempting to defend the bogus assertion of copyright infringement, Stephens Media has now conceded it was incorrect.

"I knew the lawsuit was wrong from the start, and any self-respecting news publisher should have, too," said Democratic Underground founder David Allen. "I'm glad that they have finally admitted it."

"This concession comes after more than a year of needless litigation," said EFF Senior Staff Attorney Kurt Opsahl. "Stephens Media never should have authorized Righthaven to file this suit in the first place, and should never have wasted our client's and the court's time with its attempts to keep Righthaven's frivolous claim alive for the last year."

The original lawsuit against Democratic Underground was dismissed earlier this year, when Judge Hunt found that Righthaven did not have the legal authorization to bring a copyright lawsuit because it had never owned the copyright in the first place. Righthaven claimed that Stephens Media had transferred copyright to Righthaven before it filed the suit, but a document unearthed in this litigation -- the Strategic Alliance Agreement between Righthaven and Stephens Media -- showed that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the newspaper's case at its own expense in exchange for a cut of the recovery. In addition to dismissing Righthaven's claim, Judge Hunt sanctioned Righthaven with fines and obligations to report to other judges its actual relationship with Stevens Media.

Righthaven has filed hundreds of copyright cases based on its sham copyright ownership claims. Despite several attempts by Righthaven and Stephens Media to re-write their Strategic Alliance Agreement, half a dozen judges have ruled against the scheme to turn copyright litigation into a business.

"This is a hard fought and important victory for free speech rights on the Internet," said Laurence Pulgram, the partner who led the team at Fenwick & West, LLP in San Francisco. "Unless we respond to such efforts to intimidate, we'll end up with an Internet that is far less fertile for the cultivation and discussion of the important issues that affect us all."

Democratic Underground's motion for summary judgment:
https://www.eff.org/files/filenode/dumsj.pdf

Stephens Media's consent to the motion:
https://www.eff.org/files/filenode/stephensmediaresponse.pdf

Contacts:

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

Laurence Pulgram
   Chair, Copyright Litigation Group
   Fenwick & West LLP
   lpulgram@fenwick.com

November 17, 2011

Court Protects Web Site Operators From Acting in 'Noxious' Oversight Role

San Francisco - The Illinois Court of Appeals today overturned a lower court ruling that had ordered the disclosure of the identity of an anonymous online critic of a political candidate, ruling that the First Amendment prevented such "fishing expeditions" undertaken by "those easily offended by online commentary."

The Electronic Frontier Foundation (EFF) and the Media Freedom and Information Access Clinic (MFIA) at Yale Law School filed a friend-of-the-court brief in the case. While defamatory or other actionable speech may allow for the unmasking of an online speaker, EFF and MFIA argued that the First Amendment requires a heightened standard for unmasking anonymous speakers in order to protect robust debate -- political or otherwise.

"We are pleased that the Court of Appeals overturned the trial court's troubling decision," said EFF Senior Staff Attorney Matt Zimmerman. "The First Amendment provides robust protection for controversial and critical speech. This case demonstrates that critics of political figures and others with power may find themselves on the receiving end of retaliatory legal threats. Today's opinion shows that Illinois courts will defend speakers engaged in lawful speech from improper efforts to 'out' them."

The anonymous critic in this case commented on a story on the website of a suburban Chicago newspaper called the Daily Herald, and engaged in a heated debate with other commenters – including the son of the village trustee candidate in Buffalo Grove, Illinois, who was discussed in the article. The candidate, Lisa Stone, who eventually won her race, asked a state court to order the newspaper to release the critic's name and address without appropriately showing that the statements directed towards her son were defamatory or otherwise illegal. Last year, a lower court granted Stone's pre-lawsuit request for her critic's identity, incorrectly holding that a narrow disclosure to Stone would adequately protect the speaker's First Amendment rights.

The Court today reversed that lower court's opinion, articulating the First Amendment interests at stake: "While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court's order to be upheld. Encouraging those easily offended by online commentary to sue to find the name of their 'tormenters' would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals. Putting publishers and website hosts in the position of being a 'cyber-nanny' is a noxious concept that offends our country's long history of protecting anonymous speech."

"Politicians cannot pry into someone's life just because they've been publicly criticized," said Margot Kaminski, co-founder of MFIA and Executive Director of Yale's Information Society Project. "Because of the enormous potential of abuse, the First Amendment requires showing that there's a legitimate case before using the courts to unmask anonymous speakers. We're pleased the Illinois Court of Appeals protected free speech rights in this case and recognized the potential chilling effect of such fishing expeditions on citizens who choose to post anonymously."

For the full order from the court:
https://www.eff.org/files/filenode/stonevpaddock-opinion-111711.pdf

Contact:

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

November 10, 2011

Ruling Allows U.S. Government Warrantless Access to Users' Data

San Francisco - A district court judge in Virginia ruled against online privacy today, allowing U.S federal investigators to collect private records of three Twitter users as part of its investigation related to Wikileaks. The judge also blocked the users' attempt to discover whether other Internet companies have been ordered to turn their data over to the government.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) represent Icelandic parliamentarian Birgitta Jonsdottir in this case. Jonsdottir has appealed an earlier ruling with fellow Twitter users Jacob Appelbaum and Rop Gonggrijp.

"With this decision, the court is telling all users of online tools hosted in the U.S. that the U.S. government will have secret access to their data," said Jonsdottir. "People around the world will take note, and since they can easily move their data to companies who host it in locations that better protect their privacy than the U.S. does, I expect that many will do so. I am very disappointed in today's ruling because it is a huge backward step for the United States' legacy of freedom of expression and the right to privacy."

In this case, Jonsdottir and others only found out about the government requests for information because Twitter took steps to notify them of the court order. EFF is urging other companies to follow Twitter's lead, stand with their customers, and promise to inform users when their data is sought by the government, as part of our Who Has Your Back? campaign.

"When you use the Internet, you entrust your online conversations, thoughts, experiences, locations, photos, and more to dozens of companies who host or transfer your data," said EFF Legal Director Cindy Cohn. "In light of that technological reality, we are gravely worried by the court's conclusion that records about you that are collected by Internet services like Twitter, Facebook, Skype and Google are fair game for warrantless searches by the government."

Attorneys for Jonsdottir are Aden Fine of the ACLU, Rebecca Glenberg of the ACLU of Virginia, and Cindy Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF. The motions were joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Appelbaum and Gonggrijp, respectively, as well as local counsel in Virginia. Jonsdottir, Appelbaum, and Gonggrijp are still reviewing the order and considering possible next steps.

For the judge's full order:
https://www.eff.org/files/filenode/MemorandumOpinion1353.pdf

For Who Has Your Back?:
https://www.eff.org/pages/when-government-comes-knocking-who-has-your-back

Contacts:

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

Related Issues:
October 31, 2011

EFF to Honor Senator Ron Wyden, Technologist Ian Goldberg, and Blogging Collective Nawaat at San Francisco Ceremony

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the winners of its 2011 Pioneer Awards: U.S. Senator Ron Wyden, encryption innovator Ian Goldberg, and Tunisian blogging collective Nawaat.

The award ceremony will be held on the evening of November 15 at the Children's Creativity Museum in San Francisco. Twitter co-founder Evan Williams will be the keynote speaker.

Few legislators have done more to promote and protect online speech, privacy rights and innovation than U.S. Senator Ron Wyden (D-Ore.). Most notably, he authored Section 230 of the Communications Decency Act, a law that helps make user-generated content and online services possible by protecting hosts from liability. Senator Wyden is currently the lone senator blocking passage of the PROTECT IP Act, legislation that attempts to safeguard intellectual property at the expense of free speech, technological innovation and the very foundation of the Internet. Most recently, Senator Wyden introduced legislation to create a legal framework for when and how location information derived from cell phones and other electronic devices can be accessed and used by both government agents and private entities.

Encryption innovator Ian Goldberg is an Associate Professor of Computer Science at the University of Waterloo, where he is a founding member of the Cryptography, Security, and Privacy (CrySP) research group. Goldberg's research has helped expose design weaknesses in the encryption used to protect cell phone conversations and wifi networks, spurring improvements to these systems. Goldberg also co-invented the widely used Off-The-Record Messaging protocol, which makes secure instant messaging easy. Goldberg is a Senior Member of the Association for Computing Machinery (ACM) and a winner of both the Early Researcher Award and the Outstanding Young Computer Science Researcher Award.

Created in 2004, Nawaat.org is an independent, award-winning, collective community blog operated by four Tunisian bloggers. Nawaat means "the core" in Arabic, and Nawaat.org played a crucial role in covering the social and political unrest in Tunisia last winter, which ended in the toppling of Ben Ali's regime. Nawaat disseminated day-by-day user-generated news about the uprising and helped bridge the gap between international mainstream media and citizen journalists and activists by aggregating and contextualizing information spread through social media. Nawaat has won the Reporters Without Borders Netizen Prize and the Index on Censorship Award for its work before and during the Tunisian revolution.

"The Internet and other electronic communication tools are deeply woven into today's global community, playing key roles in activism, dissent, and revolution," said EFF Executive Director Shari Steele. "These Pioneer Award winners are all working to make sure that technology protects freedom instead of curtailing it, and we're so proud to honor them for their invaluable contributions."

Tickets to the Pioneer Awards are $75 for regular admission, or $65 for EFF members. They are available online at https://www.eff.org/awards/pioneer along with more information about a special VIP event featuring the Pioneer Award winners and keynoter Evan Williams, an American entrepreneur who has co-founded several Internet companies, including Pyra Labs (creators of Blogger) and Twitter.

Awarded every year since 1992, EFF's Pioneer Awards recognize leaders who are extending freedom and innovation on the electronic frontier. Previous honorees include Tim Berners-Lee, Linus Torvalds, Amy Goodman, and Craigslist, among many others. Sponsors of this year's Pioneer Awards include Adobe, Facebook, JibJab, JunkEmailFilter, Orrick, Herrington & Sutcliffe LLP, Palantir Technologies, and Sonic.net.

For more information about the Pioneer Awards and to buy tickets:
https://www.eff.org/awards/pioneer

Contact:

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

October 26, 2011

'Secret Interpretations' Raise Questions from Lawmakers, Public

San Francisco - The Electronic Frontier Foundation (EFF) sued the Department of Justice (DOJ) today for answers about "secret interpretations" of the USA PATRIOT Act, signed into law ten years ago today.

Several senators have warned that the DOJ is using Section 215 of the PATRIOT Act to support what government attorneys call a "sensitive collection program" that may be targeting large numbers of Americans. Section 215 allows for secret court orders to obtain "tangible things" when the FBI certifies they are relevant to a government investigation. The list of possible "tangible things" the government can obtain is seemingly limitless, and could include everything from driver's license records to Internet browsing patterns. Section 215 also limits the court's discretion to deny the order and prevents the recipient of an order from disclosing its existence.

Before the PATRIOT Act became law, the government could only obtain Section 215 orders for limited types of records and for suspects the government could demonstrate were agents of a foreign government. But the PATRIOT Act expanded the section's scope, increasing both the government's surveillance powers and the threat to citizens' civil liberties.

"In the last few months, senators have taken to the floor of Congress to warn that Americans would be stunned and angry about the government's interpretation of Section 215," said EFF Open Government Legal Fellow Mark Rumold. "The only way to ensure accountability is if citizens understand how the government is interpreting this section. The public deserves answers."

EFF's lawsuit comes after the DOJ failed to respond to a Freedom of Information Act (FOIA) request on the interpretation and use of Section 215. The suit demands records describing the types of "tangible things" that have been collected so far, the legal basis for the "sensitive collection program," and information on the how many people have been affected by Section 215 orders.

"Senators have said publicly that the Justice Department is misleading the American people about the use of the PATRIOT Act, but the DOJ continues to hide this information from public scrutiny," said Staff Attorney Jennifer Lynch. "The government should follow the law and release this critically important information."

Separately, in New York today, the American Civil Liberties Union (ACLU) filed a similar FOIA lawsuit against the Department of Justice also seeking the release of records related to Section 215.

For the full complaint:
https://www.eff.org/document/complaint-3

Contacts:

Mark Rumold
   Open Government Legal Fellow
   Electronic Frontier Foundation
   mark@eff.org

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

October 14, 2011

Sens. Wyden and Kirk Join EFF for Press Conference and ‘Retro Tech’ Fair

Washington, D.C. - On Oct. 18 at 11 a.m., Sens. Ron Wyden (D-OR) and Mark Kirk (R-IL) will jointly call for updating U.S. privacy law to keep pace with 21st Century technology.

The press conference comes the same week as the 25th anniversary of the Electronic Communications Privacy Act (ECPA), the main federal law setting standards for government surveillance of digital technologies. ECPA – signed at a time when mobile phones were the size of bricks and the World Wide Web didn't even exist – is woefully outdated, putting Americans' privacy at risk as technology continues to advance.

The Electronic Frontier Foundation (EFF) is co-sponsoring the press conference along with the American Civil Liberties Union (ACLU), Americans for Tax Reform, the Competitive Enterprise Institute, the Center for Democracy & Technology, the Constitution Project, and TechFreedom. Representatives of each organization, including EFF Senior Staff Attorney Kevin Bankston, will be on hand to answer questions.

Tuesday's conference will also include a "Retro Tech Fair," featuring various "high tech" devices from the 1980s. The display – including what was then state-of-the-art cell phones, desktop computers, and other gadgets – will spotlight just how far technology has advanced since ECPA was originally passed.

WHAT:
Media Conference and Tech Fair

WHEN:
Tuesday, Oct. 18
10 a.m. - Tech Fair begins
11 a.m. - Media Conference begins

WHERE:
U.S. Capitol Congressional Visitors Center
Room SVC 209
Washington, D.C.

MEMBERS OF THE PRESS: Please check in at the Senate Appointment Desk and be prepared to show your Congressional ID. If you do not have a Congressional ID, please contact Mark Stanley (mark@cdt.org) to get on the press list for this event.

Contacts:

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

Mark Stanley 
   Center for Democracy and Technology
   mark@cdt.org

October 3, 2011

Coalition Urges Supreme Court to Block Government Abuse of Surveillance Technology

Washington, D.C. - The principal inventor of the Global Positioning System (GPS) and other leading technologists have joined the Electronic Frontier Foundation (EFF) in urging the U.S Supreme Court to block the government from using GPS tracking without first getting a warrant, arguing that the massive collection of sensitive location data should require court oversight.

Roger L. Easton is considered the father of GPS as the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory. The current GPS is based on Timation, and its principles of operation are fundamentally identical. In an amicus brief filed with the Supreme Court Monday in United States v. Jones, EFF, Mr. Easton, along with other technology experts, pointed out the many ways in which GPS tracking is fundamentally different from and more invasive than other surveillance technologies the court has allowed before, and how law enforcement use of GPS without a warrant violates Americans' reasonable expectations of privacy.

"This is the first case where the Supreme Court will consider automatic, persistent, passive location tracking by law enforcement," said EFF Senior Staff Attorney Marcia Hofmann. "The government can use location information over time to learn where you go to church, what sort of doctors you go to, what meetings and activities you participate in, and much more. Police should not have blanket permission to install GPS devices and collect detailed information about people's movements over time without court review."

In Jones, FBI agents planted a GPS device on a car while it was on private property. Agents then used the GPS to track the position of the vehicle every ten seconds for a full month without obtaining a search warrant. An appeals court ruled that the surveillance was unconstitutional without a warrant, but the government appealed the decision.

"If police are allowed to plant GPS devices wherever they please, that's essentially blanket permission for widespread, ongoing police surveillance without any court supervision," said EFF Legal Director Cindy Cohn. "It's not hard to see how that kind of leeway would be abused. We hope the Supreme Court takes a close look at how this technology works and act to protect the Fourth Amendment rights of Americans."

The brief was authored by Andrew Pincus of Mayer Brown LLP and The Yale Law School Supreme Court Clinic. It was also signed by the Center for Democracy and Technology, Professor Matt Blaze of the University of Pennsylvania, Professor Andrew J. Blumberg of the University of Texas at Austin, and Professor Norman M. Sadeh of Carnegie Mellon University.

For the full amicus brief in U.S. v. Jones:
https://www.eff.org/files/filenode/US_v_Jones/10-1259bsac_eff_cdt_amicus.pdf

For more on this case:
https://www.eff.org/cases/us-v-maynard

Contacts:

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

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

October 3, 2011

EFF-Backed Bill Will Protect Californians' Reading Habits

Sacramento, CA - California Governor Jerry Brown has signed the Reader Privacy Act, updating reader privacy law to cover new technologies like electronic books and online book services as well as local bookstores.

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) were sponsors of the bill, authored by California State Senator Leland Yee. It had support from Google, TechNet and the Consumer Federation of California, along with the Internet Archive, City Lights Bookstore, and award-winning authors Michael Chabon and Ayelet Waldman. The Reader Privacy Act will become law on January 1, and will establish privacy protections for book purchases similar to long-established privacy laws for library records.

"This is great news for Californians, updating their privacy for the 21st Century," said EFF Legal Director Cindy Cohn. "The Reader Privacy Act will help Californians protect their personal information whether they use new digital book services or their corner bookstore."

Reading choices reveal intimate facts about our lives, from our political and religious beliefs to our health concerns. Digital books and book services can paint an even more detailed picture -- including books browsed but not read, particular pages viewed, how long spent on each page, and any electronic notes made by the reader. Without strong privacy protections like the ones in the Reader Privacy Act, reading records can be too easily targeted by government scrutiny as well as exposed in legal proceedings like divorce cases and custody battles.

"California should be a leader in ensuring that upgraded technology does not mean downgraded privacy," said Valerie Small Navarro, Legislative Advocate with the ACLU's California affiliates. "We should be able to read about anything from politics, to religion, to health without worrying that the government might be looking over our shoulder."

"California law was completely inadequate when it came to protecting one's privacy for book purchases, especially for online shopping and electronic books," said Yee. "Individuals should be free to buy books without fear of government intrusion and witch hunts. If law enforcement has reason to suspect wrongdoing, they should obtain a court order for such information."

Contacts:

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

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

September 27, 2011

Federal Officials Withhold Records on Obama Appointments

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the Office of the Director of National Intelligence (ODNI) demanding records of who is on the Intelligence Oversight Board (IOB) -- the presidentially appointed, civilian panel in charge of reviewing all misconduct reports for American intelligence agencies.

The IOB is supposed to alert the president and attorney general when it spots behavior that is unlawful or contrary to executive order. However, in his nearly three years in office, President Obama has not yet announced any appointments to the IOB. EFF's suit comes after the ODNI refused to respond to a Freedom of Information Act (FOIA) request for membership, vacancies, and other information about the IOB made earlier this year.

"The IOB has a critically important mission – civilian oversight of America's intelligence activities. The board exists to make sure government agencies are not overstepping their authority and abusing citizens' rights," said EFF Open Government Legal Fellow Mark Rumold. "History has shown that intelligence agencies overseeing their own behavior is like the fox guarding the henhouse. If the IOB is ineffective, impaired, or short-staffed, that's information Americans need to know."

EFF's ongoing FOIA litigation work has already uncovered widespread violations in intelligence investigations. Most recently, EFF revealed that the U.S. Army issued three National Security Letters (NSLs) for phone records, even though the law authorizes only the FBI to make these extraordinary requests for information. EFF also obtained documents detailing how the Army improperly attempted to investigate participants at a law school conference on Islamic law.

"We're trying to create a picture of the federal government's intelligence violations as Congress considers updates and changes to current surveillance law and oversight," said EFF Staff Attorney Jennifer Lynch. "Part of that picture is who is on the IOB. We're asking the government to follow the law and release the records on IOB membership."

For the full complaint in EFF v. ODNI:
https://www.eff.org/files/filenode/FOIA_IOB/ODNIIOBComplaint_92711.pdf

For more on the Defense Department intelligence violations:
https://www.eff.org/foia/intelligence-agencies-misconduct

Contacts:

Mark Rumold
Open Government Legal Fellow
Electronic Frontier Foundation
mark@eff.org

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

Related Issues:
September 23, 2011

EFF Urges Appeals Court to Scrutinize Seizure Campaign

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court in an amicus brief today to order the return of two domain names seized by the U.S. government in violation of the First Amendment.

The domain names -- Rojadirecta.com and Rojadirecta.org, owned by Spanish company Puerto 80 -- were seized by U.S. Immigration and Customs Enforcement (ICE) as part of "Operation in Our Sites," an initiative ICE claims will help stop piracy. It appears ICE targeted the sites because they contained links to live sport video streams, but the domain seizures impeded access to all of the content on the websites, including obviously non-infringing content like user-created forums, discussions, and technical tutorials. Prior to the seizure, Spanish courts found that Puerto 80 had not violated copyright law.

"Domain name seizures are blunt instruments that cause unacceptable collateral damage to free speech rights," said EFF Senior Staff Attorney Matt Zimmerman. "Web site operators must have the confidence that government actions ostensibly targeting copyright infringement are undertaken legally. We urge the Court of Appeals to ensure that that happens."

Puerto 80 first tried to work with ICE and other U.S. government authorities to resolve the matter without court involvement, but when that was unsuccessful, petitioned the district court to return the domain names. The judge rejected the request, and so Puerto 80 appealed to the 2nd U.S. Circuit Court of Appeals.

"ICE's domain name seizures, including this one, are occurring without meaningful court oversight, with no chance for the targets to defend themselves before their websites are taken down and a highly cumbersome process for challenge afterwards," said EFF Intellectual Property Director Corynne McSherry. "The government should stop these seizures until they comply with the law."

The Center for Democracy and Technology and Public Knowledge joined EFF's amicus brief.

For the full amicus brief:
https://www.eff.org/files/filenode/puerto80_v_US/rojaamicus92311.pdf

For more on Puerto 80 v. U.S.:
https://www.eff.org/cases/puerto-80-v-us

Contacts:

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

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

Related Issues:
September 22, 2011

Coalition Urges Appeals Court to Block Government Attempts to Hide Illegal Surveillance

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of whistleblowers, intelligence experts, and veterans urged a federal appeals court Wednesday to reject government attempts to bury yet another lawsuit challenging illegal surveillance with baseless claims of "state secrets."

"This group includes experts from throughout America's intelligence community, and they are all concerned about the government's abuse of the state secrets privilege," said EFF Legal Director Cindy Cohn. "If courts cannot review potentially illegal behavior by the government, then there's no meaningful oversight. That's unconstitutional. America needs to be able to protect against officials who abuse their power."

EFF's amicus brief, filed in Al-Haramain Islamic Foundation v. Obama, was joined by Coleen Rowley, a retired FBI agent who blew the whistle on intelligence failures before the September 11th attacks, and Thomas Drake, a former NSA executive and whistleblower about systemic privacy violations in intelligence programs.

Also signing the brief was James Bamford, author of three important books on the NSA, and the Government Accountability Project, the nation's leading whistleblower organization. Other signers include a counterterrorism deputy from the Bush Administration, a senior CIA analyst, a former intelligence officer from the U.S. Army, and other military veterans.

The Al-Haramain Islamic Foundation alleges in its lawsuit that federal agents illegally wiretapped calls between the charity and its lawyers. The government has refused to confirm or deny any court order authorizing surveillance, arguing only that the state secrets privilege protects the government from any litigation. A district judge disagreed, and ruled that the government violated federal surveillance law.

The government appealed that ruling to the 9th U.S. Circuit Court of Appeals. In the brief filed today, EFF and other signers asked the court to uphold the district judge's decision, and allow the court to do its job.

"Congress has already provided the courts with strong, clear security procedures for handling evidence related to secret government surveillance. Letting the courts do their job and judge the legality of government wiretapping will not risk national security," said EFF Senior Staff Attorney Kevin Bankston. "The real risk is in allowing government officials to shield their conduct from judicial scrutiny based on broad assertions of state secrecy, which is a recipe for abuse."

EFF has two cases of its own aimed at obtaining court review of warrantless domestic surveillance: Hepting v. AT&T was the first lawsuit against a telecom over bulk interception of Americans calls and emails; Jewel v. NSA is directed against the government and government officials. Both Hepting and Jewel are currently at the appeals court, which heard oral arguments in each case last month.

For the full amicus brief:
https://www.eff.org/files/filenode/att/AlHaramainAmicus92111.pdf

For more on this case:
https://www.eff.org/cases/al-haramain

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

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

August 31, 2011

Lawyers Fight for the Future of Lawsuits Challenging Massive Spying Program

Seattle - The Electronic Frontier Foundation (EFF) urged the 9th U.S. Circuit Court of Appeals today to preserve lawsuits challenging the government's illegal mass surveillance of millions of ordinary Americans. In oral arguments today, EFF asked the court to block the government's attempt to bury the suits with claims of state secrecy and an unconstitutional "immunity" law for telecoms that participated in the spying.

Appearing before the court in Seattle, EFF Legal Director Cindy Cohn and Senior Staff Attorney Kevin Bankston argued against the dismissal of EFF's two lawsuits, Hepting v. AT&T and Jewel v. NSA, along with the 32 other cases against various telecommunications carriers. At stake is whether the courts can judge the legality and constitutionality of the National Security Agency's (NSA's) bulk interception of Americans' phone calls and emails, accomplished through back-door access to AT&T's domestic telecom network and its databases of communications records.

"The scope and legality of the NSA program has been the subject of widespread reporting and debate for half a decade -- it is hardly a secret. And Congress long ago crafted balanced and comprehensive security procedures to govern courts' handling of secret evidence about electronic surveillance to ensure that the Judicial Branch is always able to watch over Executive Branch spying while preserving national security," said Bankston. "Yet the government still claims that any judicial scrutiny of the NSA program would disclose 'state secrets' and harm national security. It's time for these lawsuits to proceed and for the courts to be allowed to do their job and determine the legality of the NSA program."

EFF also argued that the FISA Amendments Act (FAA) -- the 2008 legislation aimed at getting telecoms participating in the NSA program off the hook for breaking the law -- violates the Constitutional separation of powers.

"The FAA effectively allows the President to grant favored companies a 'get out of jail free' card even though the law prohibits telecoms from violating their customers' privacy," said Cohn. "We can't allow the government to stack the deck against ordinary Americans. We need to protect against officials who overstep limits on their power."

More than five years ago, EFF filed Hepting v AT&T, the first lawsuit against a telecom aimed at stopping the government's dragnet domestic wiretapping. In 2008, when Congress passed legislation that threatened to end the Hepting case, EFF filed Jewel v. NSA -- a case directly against the government and government officials.

For more on NSA spying:
https://www.eff.org/issues/nsa-spying

Contact:

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

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August 4, 2011

Firefox Extension Defends Against Search Hijacking Schemes and Improves Web Security

San Francisco - The Electronic Frontier Foundation (EFF), in collaboration with the Tor Project, has launched an official 1.0 version of HTTPS Everywhere, a tool for the Firefox web browser that helps secure web browsing by encrypting connections to more than 1,000 websites.

HTTPS Everywhere was first released as a beta test version in June of 2010. Today's 1.0 version includes support for hundreds of additional websites, using carefully crafted rules to switch from HTTP to HTTPS. HTTPS protects against numerous Internet security and privacy problems, including the search hijacking on U.S. networks that was revealed by an article published today in New Scientist magazine. The article, entitled "US internet providers hijacking users' search queries," documents how a company called Paxfire has been intercepting and altering search traffic on a number of ISPs' networks. HTTPS can prevent such attacks.

"HTTPS secures web browsing by encrypting both requests from your browser to websites and the resulting pages that are displayed," said EFF Senior Staff Technologist Peter Eckersley. "Without HTTPS, your online reading habits and activities are vulnerable to eavesdropping, and your accounts are vulnerable to hijacking. Today's Paxfire revelations are a grand example of how things can go wrong. EFF created HTTPS Everywhere to make it easier for people to keep their user names, passwords, and browsing histories secure and private. With the revelation that companies like Paxfire are out there, intercepting millions of people's searches without their permission, this kind of protection is indispensable."

HTTPS Everywhere 1.0 encrypts connections to Google Image Search, Flickr, Netflix, Apple, and news sites like NPR and the Economist, as well as dozens of banks. HTTPS Everywhere also includes support for Google Search, Facebook, Twitter, Hotmail, Wikipedia, the New York Times, and hundreds of other popular websites.

However, many websites have not implemented HTTPS at all. On sites that are HTTP-only, users still have to live with lower levels of privacy and security.

"More websites should implement HTTPS to help protect their users from identity theft, viruses, and other security threats," said Senior Staff Technologist Seth Schoen. "Our Firefox extension is able to protect people using Google, DuckDuckGo or StartingPage for their searches. But we currently can't protect Bing and Yahoo users, because those search engines do not support HTTPS."

HTTPS Everywhere has been downloaded millions of times since last year's initial beta release.

To download HTTPS Everywhere for Firefox:
https://www.eff.org/https-everywhere

For more on implementing HTTPS in websites:
https://www.eff.org/pages/how-deploy-https-correctly

Contacts:

Peter Eckersley
Senior Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Seth Schoen
Senior Staff Technologist
Electronic Frontier Foundation
seth@eff.org

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July 29, 2011

EFF Files Amicus Brief to Defend Free Speech on Social Networks

San Francisco - EFF filed a friend-of-the-court brief today urging a federal court to block the government's use of the federal anti-stalking law to prosecute a man for posting criticism of a public figure to Twitter.

At issue is a federal law originally enacted to criminalize traveling across state lines for the purpose of stalking. In 2005, the law was modified to make the "intentional infliction of emotional distress" by the use of "any interactive computer service" a crime. In this case, the government has presented the novel and dangerous theory that the use of a public communication service like Twitter to criticize a well-known individual can result in criminal liability based on the personal sensibilities of the person being criticized.

"Wielding the threat of criminal sanctions to punish the pointed, online criticism of public figures is not only bad policy, it is unconstitutional," said EFF Senior Staff Attorney Matt Zimmerman. "While true threats can and should be opposed, public speech about prominent people must be vigorously protected."

In the brief, EFF argues that an indictment of a Twitter user pursuant to the federal anti-stalking statute violates the First Amendment, not only because the speech is protected, but also because the language of the statute is unconstitutionally vague.

"The idea that the government should police every inflammatory word spoken online chills freedom of speech and goes against decades of First Amendment case law," said EFF Staff Attorney Hanni Fakhoury. "The court must recognize social network users' right to speak freely online, even if that speech is unpopular or offensive to some."

For the full amicus brief in US v. Cassidy:
https://www.eff.org/files/filenode/us_v_cassidy/eff_amicus_cassidy.pdf

For more on this case:
https://www.eff.org/cases/us-v-cassidy

Contacts:

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

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

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July 27, 2011

EFF Urges Appeals Court to Block Unconstitutional Federal Law

San Francisco - The forced collection of DNA samples from arrestees without search warrants violates their Fourth Amendment right to privacy, the Electronic Frontier Foundation (EFF) told a federal appeals court in an amicus brief filed Monday.

A federal law mandates DNA collection as a condition for bail for people who have been arrested for felonies. The FBI receives the DNA samples, conducts an analysis, and places a profile into CODIS, a national database. Those who are not eventually convicted of a crime must make a request if they want their information removed from the FBI's system, while the data collected without cause from other individuals remains permanently. In its amicus brief filed with the 9th U.S. Circuit Court of Appeals, EFF argues that this collection and storage is unconstitutional, violating the Fourth Amendment prohibition on baseless search and seizure of private information.

"DNA reveals an extraordinary amount of private information about you—your family background, your current health, your future propensity for disease, and possibly even your behavioral tendencies," said EFF Staff Attorney Hanni Fakhoury. "This data is bound to get even more sensitive as technology advances and we learn more about DNA."

The widespread data collection mandated by this unconstitutional law was upheld by a three-judge panel from the 9th Circuit. If the law is not struck down by the en banc court, it could open the door to other expansions of warrantless DNA collection.

"The government is collecting these genetic profiles without warrants and storing them in a database freely accessed by federal and state law enforcement agencies across the country," said EFF Staff Attorney Jennifer Lynch. "We urge the 9th Circuit to reverse the opinion and strike down this sweeping law."

The Center for Constitutional Rights, the National Immigration Project of the National Lawyers Guild, and Generations Ahead joined EFF in Monday's amicus brief.

For the full amicus brief in US v. Pool:
https://www.eff.org/files/filenode/usa_v_pool/eff_pool_amicus.pdf

Contacts:

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

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

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July 8, 2011

EFF Urges Court to Uphold Privilege Against Self-Incrimination

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court in Colorado today to block the government's attempt to force a woman to enter a password into an encrypted laptop, arguing in an amicus brief that it would violate her Fifth Amendment privilege against self-incrimination.

A defendant in this case, Ramona Fricosu, is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

"Decrypting the data on the laptop can be, in and of itself, a testimonial act -- revealing control over a computer and the files on it," said EFF Senior Staff Attorney Marcia Hofmann. "Ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court."

The government has offered Fricosu some limited immunity in this case, but has not given adequate guarantees that it won't use the information on the computer against her.

"Our computers now hold years of email with family and friends, Internet browsing histories, financial and medical information, and the ability to access our online services like Facebook. People are right to use passwords and encryption to safeguard this data, and they deserve the law's full protection against the use of it against them," said EFF Staff Attorney Hanni Fakhoury. "This could be a very important case in applying Americans' Fifth Amendment rights in the digital age."

For the full amicus brief:
https://www.eff.org/files/filenode/us_v_fricosu/fricosuamicus7811.pdf

Contacts:

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

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

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June 27, 2011

EFF Releases 'Know Your Digital Rights' Guide to Your Constitutional Liberties

San Francisco - Your computer, your phone, and your other digital devices hold vast amounts of personal information about you and your family. Can police officers enter your home to search your laptop? Do you have to give law enforcement officials your encryption keys or passwords? If you are pulled over when driving, can the officer search your cell phone?

The Electronic Frontier Foundation (EFF) has answers to these questions in our new "Know Your Digital Rights" guide, including easy-to-understand tips on interacting with police officers and other law enforcement officials.

"With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information," said EFF Staff Attorney Hanni Fakhoury. "That smart phone in your pocket right now could contain email from your doctor or your kid's teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data -- your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that's worth protecting from prying eyes."

The Fourth Amendment to the Constitution protects you from unreasonable government searches and seizures, and this protection extends to your computer and portable devices. In EFF's "Know Your Digital Rights" guide, we outline various common scenarios and explain when and how the police can search the data stored on your computer or portable electronic device -- or seize it for further examination somewhere else -- and give suggestions on what you can and can't do to protect your privacy.

"In the heat of the moment, it can be hard to remember what your rights are and how to exercise them," said EFF Senior Staff Attorney Marcia Hofmann. "Sometimes police can search your computer whether you like it or not, but sometimes they can't. We wrote this guide to help you tell the difference and to empower you to assert your rights when the police come knocking."

For the full "Know Your Digital Rights" guide:
https://www.eff.org/wp/know-your-rights

For a one-page summary to print and post:
https://www.eff.org/files/EFF_Police_Tips_2011.pdf

Contacts:

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

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

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June 22, 2011

Righthaven Had No Authority to Bring Claims Against Former Prosecutor Tad DiBiase

Las Vegas - For the second time in a week, the Electronic Frontier Foundation (EFF) has won the dismissal of an infringement case filed by copyright troll Righthaven LLC.

EFF, along with the law firm of Wilson Sonsini Goodrich & Rosati and attorney Chad Bowers, represent Thomas DiBiase in Righthaven v. DiBiase. Righthaven had sued DiBiase, a former prosecutor, for a post on his blog that provides resources for prosecutors in difficult murder cases where the victim is presumed dead but no body is found. A document unearthed by EFF in a related case showed that the copyright assignment was a sham and that Righthaven was merely agreeing to undertake the Las Vegas Review-Journal newspaper's case at its own expense in exchange for a cut of the recovery.

Echoing his earlier decision, Judge Hunt ruled Wednesday that Righthaven did not have the legal authorization to bring a copyright lawsuit, because it never owned the copyright in the first place.

"We are pleased that the Court again saw through Righthaven's sham assignment of the copyright and dismissed its improper claim," said Kurt Opsahl, Senior Staff Attorney at EFF. "Now that the truth about its copyright ownership has been exposed, Righthaven's house of cards is falling apart."

"We are gratified by the Court's ruling and pleased that our client, Mr. DiBiase, achieved a complete victory," said Wilson Sonsini Goodrich & Rosati attorney Bart Volkmer. "His decision to fight Righthaven's misguided lawsuit has been vindicated completely."

DiBiase said, "I'm happy to get back to the job of assisting police and prosecutors with these difficult murder cases and not fighting frivolous lawsuits concocted to make a quick buck."

Just last week, the judge also dismissed Righthaven v. Democratic Underground, a similar case where EFF is representing the defendant. On Monday, Judge Phillip Pro agreed with Judge Hunt and dismissed Righthaven v. Hoehn, a case against a Vietnam war veteran.

For the full opinion in Righthaven v. DiBiase:
https://www.eff.org/files/filenode/righthaven_v_dib/dibiaseorder62211.pdf

Contact:

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

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June 21, 2011

Law Hurts Libraries, Artists, and First Amendment Rights

San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court to block a federal law that erodes the public domain and hurts libraries, artists, and others who want to exercise their First Amendment right to share and receive information in an amicus brief filed today on behalf a coalition of libraries and other digital repositories.

The law in question is Section 514 of the Uruguay Round Agreements Act, which takes potentially millions of works by foreign authors that were previously in the public domain and puts them back under copyright protection. Works affected by this law include Sergei Prokofiev's Peter and the Wolf, music by Stravinski, paintings by Picasso and drawings by M.C. Escher, and writings by George Orwell and J.R.R. Tolkien -- material that has been used and performed countless times. Now that the works are back under copyright protection, use of the works may require paying hefty license fees.

In the amicus brief, EFF argues that this law creates dangerous uncertainty about copyright policy, posing a significant threat to libraries, digital repositories, and others that promote access to knowledge.

"Libraries and digital repositories are using new technologies to make our cultural commons more accessible than ever, but they need a robust and stable public domain to be able to do that crucial work," said EFF Staff Attorney Julie Samuels. "Section 514 has up-ended a basic tenet of copyright law: once a work enters the public domain, it stays in the public domain."

"The public domain helps make sure the copyright monopoly serves its purpose: to promote the progress of science and the useful arts," said EFF Intellectual Property Director Corynne McSherry. "Congress should not have put a small potential benefit to some authors ahead of the public interest."

EFF represents the Internet Archive and the University of Michigan Dean of Libraries. Joining the brief are the Wikimedia Foundation, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries.

For the full amicus brief:
https://www.eff.org/files/filenode/golan_v_holder/236590_Brief.pdf

For more on this case:
https://www.eff.org/cases/golan-v-holder

Contacts:

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

Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org

June 21, 2011

EFF Challenges Flawed Anti-Infringement Campaign in Amicus Brief

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court to return two domain names seized in the U.S. government's fundamentally flawed anti-infringement campaign in an amicus brief filed Monday.

"This misguided intellectual property enforcement effort is causing serious collateral damage to free speech rights," said EFF Intellectual Property Director Corynne McSherry. "These domain seizures should cease unless and until the government can fix the First Amendment flaws inherent in the program."

EFF's brief was filed in support of a petition from Puerto 80, the Spanish company behind popular sports streaming sites Rojadirecta.com and Rojadirecta.org, which were both seized by U.S. Immigration and Customs Enforcement (ICE) earlier this year, even though a Spanish court found they did not violate copyright law. Puerto 80 tried to work with ICE and other U.S. government authorities to resolve the matter without court involvement, but its efforts were unsuccessful.

ICE began seizing domain names last year as part of "Operation in Our Sites," a government initiative to crack down on Internet piracy. ICE has seized 125 domains and redirects visitors of those sites to a banner notifying them that the domain name of that website has been seized by federal authorities.

"Neither the government nor rightsholders should fear a copyright enforcement process that complies with the rule of law," said EFF Senior Staff Attorney Matt Zimmerman. "Valid claims of copyright infringement can be pursued in a manner that allows the accused parties to defend themselves. The unilateral seizure of domain names without a court ruling -- which obstructs access to all of a website's content -- is improper and should be strongly opposed by free speech advocates everywhere."

The Center for Democracy and Technology and Public Knowledge joined EFF's amicus brief. Jeffrey Neu and Luc Ulmet of the law firm Kuzas Neu serve as local counsel.

For the full amicus brief: https://www.eff.org/files/filenode/puerto80_v_US/2011-06-20-rojadirecta.pdf

For more on this case: https://www.eff.org/cases/puerto-80-v-us

Contacts:

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

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

Related Issues:
June 17, 2011

EFF Urges Court to Respect Judge's Ruling on Reasonable Bounds

San Francisco - The Electronic Frontier Foundation (EFF), along with the American Civil Liberties Union (ACLU) and ACLU Vermont, urged the Vermont Supreme Court today to reject prosecutors' demands to override a judge's instructions and allow a limitless warrant for a computer search.

During the investigation into an alleged identity theft last year, a detective from the Burlington Police Department applied for a wide-ranging search warrant, which included any computers, compact discs, cell phones, or mobile devices in the home, despite noting it was possible that some of the equipment might be owned by people not suspected in a crime. A judge granted the warrant application after putting reasonable bounds on the search, as well as including basic privacy protections for information and data not connected to the identity theft under investigation.

In response, prosecutors filed a petition for extraordinary relief with the Vermont Supreme Court, asking that the original overbroad warrant be approved. In an amicus brief filed today, EFF argues that the judge was following the law when he limited the search warrant in order to protect basic privacy rights.

"Our personal computers contain a unprecedented amount of highly sensitive personal information -- things like medical histories, financial status, political affiliation, and more," said EFF Staff Attorney Hanni Fakhoury. "If the state of Vermont has its way, all of this data can be collected and retained without any privacy protections. It's completely reasonable for a judge to act to protect privacy in this case."

The amicus brief urges the Vermont Supreme Court to reject the state's petition for extraordinary relief and uphold the limitations placed on the search warrant.

"Judges are charged with upholding constitutional protections against unreasonable search and seizure. That's what the judge in this case did," said Fakhoury. "There's no reason to block basic privacy protections that don't interfere with law enforcement investigations."

For the full amicus brief:
https://www.eff.org/files/filenode/vermontsearch/vermontamicus61711.pdf

Contact:

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

Related Issues:
June 16, 2011

EFF Urges Court to Block Misuse of Copyright Law

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Wednesday to block Microsoft Corporation's attempt to misuse copyright law to thwart a competitor offering memory cards for the Xbox gaming system.

Datel Holdings is a British company that sells memory cards that compete with Microsoft's own memory card product for the Xbox, and Microsoft and Datel are in the middle of court battle over the legality of the product. As part of the case, Microsoft claims that Xbox users violate U.S. federal law -- the Digital Millennium Copyright Act (DMCA) -- if they use third-party cards. In an amicus brief filed Wednesday, EFF explains that the DMCA was aimed at preventing access to copyrighted material by non-paying customers, not at blocking competitors or policing users' behavior in regards to their own property.

"Letting Xbox owners use a third-party memory card does not put Microsoft at risk of copyright infringement," said EFF Intellectual Property Director Corynne McSherry. "Microsoft is misusing the law in order to sell more accessories and control customers' use of the Xbox. The DMCA is supposed to be a shield against piracy, not a weapon to smash competition and consumer choice."

If Microsoft were to prevail on this point, it could give the software giant the ability to use the DMCA to prevent competitors from selling Xbox-compatible accessories, like memory cards, controllers, and headsets. Such a ruling would have wide-ranging ramifications for hundreds of other consumer products where content such as computer code or users' game play progress is involved.

"Congress did not intend to grant manufacturers the power to eliminate competition for replacement parts, accessories, or repair services," said EFF Senior Staff Attorney Abigail Phillips. "That's bad for consumers and bad for innovation."

Jason Schultz of the Samuelson Law Technology & Public Policy Clinic and the University of California, Berkeley School of Law, working with clinic students Joby Martin, Sam Edwards, and Kevin Krisiloff, was co-counsel on the brief. Public Knowledge also joined Wednesday's filing.

For the full amicus brief:
https://www.eff.org/files/filenode/datel_v_microsof/datelamicus61511.pdf

Contacts:

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

Abigail Phillips
Senior Staff Attorney
Electronic Frontier Foundation
abigail@eff.org

June 14, 2011

Court Finds Righthaven Had No Authority to Bring Claims Against Political Forum

San Francisco - In a decision with likely wide-ranging impact, a judge in Las Vegas today dismissed as a sham an infringement case filed by copyright troll Righthaven LLC. The judge ruled that Righthaven did not have the legal authorization to bring a copyright lawsuit against the political forum Democratic Underground, because it had never owned the copyright in the first place. The Electronic Frontier Foundation (EFF), Fenwick & West LLP, and Las Vegas attorney Chad Bowers are defending Democratic Underground.

"We are pleased that the Court saw through Righthaven's sham assignment of the copyright and dismissed its improper claim," said EFF Senior Staff Attorney Kurt Opsahl. "Today's decision shows that Righthaven's copyright litigation business model is fatally flawed, and we expect the decision to have wide effect on the over 270 other cases Righthaven has brought."

Righthaven sued Democratic Underground last fall over an excerpt of a Las Vegas Review Journal news story that a user posted on the forum, claiming that the newspaper had transferred copyright to Righthaven before it filed the suit. However, a document unearthed in this litigation showed that the copyright assignment was a sham and that Righthaven was merely agreeing to undertake the newspaper's case at its own expense in exchange for a cut of the recovery.

"In dismissing Righthaven's claim in its entirety, Chief Judge Hunt's ruling decisively rejected the Righthaven business model of conveying rights to sue, alone, as a means to enforce copyrights," said Laurence Pulgram, head of copyright litigation at Fenwick & West in San Francisco. "The ruling speaks for itself. The court rejected Righthaven's claim that it owned sufficient rights in the copyright, stating that claim was 'flagrantly false--to the point that the claim is disingenuous if not outright deceitful.'"

Judge Hunt also noted that "Righthaven has made multiple inaccurate and likely dishonest statements to the Court" and rejected Righthaven's efforts to fix things after the fact with a May 9, 2011, amendment to the original assignment agreement. The judge expressed "doubt that these seemingly cosmetic adjustments change the nature and practical effect" of the invalid assignment.

As part of his ruling today, the judge ordered Righthaven to show why it should not be sanctioned for misrepresentations to the court. The Court permitted Democratic Underground's counterclaim to continue against Stephens Media -- the publisher of the Review Journal -- allowing Democratic Underground to show that it did nothing wrong in allowing a user to post a five-sentence excerpt of a 50-sentence article.

"This kind of copyright trolling from Righthaven and Stephens Media has undermined free and open discussion on the Internet, scaring people out of sharing information and discussing the news of the day," said Opsahl. "We hope this is the beginning of the end of this shameful litigation campaign."

"To Righthaven and Stephens Media, the Court has issued a stinging rebuke," added Pulgram. "For those desiring to resist the bullying of claims brought by pseudo-claimants of copyright interests, the ruling today represents a dramatic and far reaching victory."

For the judge's full order:
https://www.eff.org/files/filenode/righthaven_v_dem/order6-14-11.pdf

Contact:

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

May 20, 2011

Justice Department Withholding Information on Controversial Legal Theory

Washington, D.C. - The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) suit against the Department of Justice (DOJ), demanding the release of a secret legal memo used to justify FBI access to Americans' telephone records without any legal process or oversight.

A report released last year by the DOJ's own Inspector General revealed how the FBI, in defending its past violations of the Electronic Communications Privacy Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records. According to the report, the DOJ's Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI's theory. That legal opinion is the target of the FOIA lawsuit filed Thursday.

The Inspector General's report is heavily redacted, concealing which part of the surveillance statutes the FBI and OLC are relying on to reach their dangerous conclusion and to what types of records this new purported exception to the law applies. However, the report does show that the Inspector General had grave concerns about the FBI's interpretation of the law.

"Even officials within the Justice Department itself are concerned that the FBI's secret legal theory jeopardizes privacy and government accountability, especially considering the FBI's demonstrated history of abusing surveillance law," said EFF Senior Staff Attorney Kevin Bankston. "Secret law has no place in our democracy. Congress can't even consider closing this dangerous surveillance loophole until we understand the FBI's legal argument, yet the Department of Justice is still hiding it from Congress and the public."

Earlier this year, the DOJ denied a FOIA request from a journalist seeking disclosure of the secret OLC opinion and in doing so revealed -- perhaps inadvertently -- the specific portion of the law on which the FBI's aggressive legal theory relies. Based on its analysis of that particular ECPA provision, 18 U.S.C. 2511(2)(f), EFF fears that the FBI and OLC have wrongly concluded that national security investigators are free to obtain records of Americans' international communications without first obtaining a subpoena or any other legal process. With this additional information about the contents of the OLC opinion, EFF filed its own FOIA request, but the DOJ has continued to stall its release.

"Congress is currently debating how to reform surveillance statutes like the PATRIOT Act and the Electronic Communications Privacy Act," said EFF Senior Counsel David Sobel. "If the FBI is claiming that it has the right to secret, unchecked access to Americans' communications records, Congress and the American public need to know that now."

For the full FOIA lawsuit:
https://www.eff.org/files/filenode/secretlawmemo/complaint.pdf

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

David Sobel
Senior Counsel
Electronic Frontier Foundation
sobel@eff.org

Related Issues:
May 5, 2011

Unsealed Documents Show Righthaven Not True Owner of News Article's Copyright

Las Vegas - The publisher of a criminal justice blog that provides resources for difficult-to-prosecute murder cases has asked a judge to dismiss the sham infringement lawsuit filed against him by copyright troll Righthaven LLC. Recently unsealed documents show that Righthaven is not the true owner of the copyright of the news article that is the basis for the lawsuit.

The Electronic Frontier Foundation (EFF) and the law firm of Wilson Sonsini Goodrich & Rosati are representing former prosecutor Thomas DiBiase. In this case, as in many others, Righthaven sued over the use of a Las Vegas Review-Journal article, claiming that the newspaper had transferred the copyright to Righthaven before filing the suit. However, a critical document unearthed by EFF in another Righthaven lawsuit shows that the copyright assignment was a sham, and that Righthaven was merely agreeing to undertake the lawsuit at its own expense in exchange for a cut of the recovery.

"Copyright law demands that only the owner of exclusive rights under the Copyright Act can enforce copyrights -- someone with some skin in the game," said EFF Senior Staff Attorney Kurt Opsahl. "But the Strategic Alliance Agreement between Righthaven and the Review-Journal shows that the newspaper kept all the rights to exploit its article. Righthaven's role is only to pursue heavy-handed lawsuits while trying to extract settlements for less than the cost of defense."

Righthaven has brought hundreds of copyright cases in Nevada federal court that are riddled with bogus claims and baseless demands. For example, Righthaven contends that the mere hosting of any infringing material means that the entire domain is forfeit to Righthaven. While the judge in this case has already rejected that claim, finding that there was no basis for it under the law, Righthaven continues to assert this claim in newly filed cases.

"Righthaven's copyright trolling undermines free and open discussion on the Internet by punishing people for sharing information about the news of the day, even where that sharing is perfectly legal," said EFF Intellectual Property Director Corynne McSherry. "We're asking the judge here to put a stop to this bogus lawsuit and help set a precedent that may finally end Righthaven's litigation campaign."

Las Vegas attorney Chad Bowers also assisted in the filing of the motion Wednesday.

For the motion to dismiss:
https://www.eff.org/files/filenode//mtd5411.pdf

For more on this case:
https://www.eff.org/cases/righthaven-v-dibiase

Contacts:

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

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

Related Issues:
April 20, 2011

Wide Deployment of Encryption Protocol Provides Basic Security for Web Surfing

San Francisco - The Electronic Frontier Foundation (EFF) and Access have launched an international campaign for HTTPS Now, rallying consumers around the world to help us make web surfing safer.

"We've heard a lot about how malicious tools like Firesheep can be used to steal data, including passwords for email and social networking accounts," said EFF Activist Eva Galperin. "HTTPS Now is aimed at protecting users from attacks like these by spreading the word about HTTPS and how to use it correctly. HTTPS provides the minimum level of security for websites. Without it, no site can make any meaningful security or privacy guarantees to its users."

HTTPS (Hypertext Transfer Protocol Secure) protects web surfing by encrypting requests from a user's browser and the resulting pages that are displayed, but many websites default to using the unencrypted and vulnerable HTTP protocol. The HTTPS Now campaign takes a three-pronged approach to protecting web surfing, including distributing updated tools for people to use to protect their web browsing, taking an Internet-wide survey of the state of HTTPS deployment, and helping website operators implement HTTPS.

As a first step, individuals using the web are encouraged to install HTTPS Everywhere, a security tool for the Firefox browser developed by EFF and the Tor Project. HTTPS Everywhere automatically encrypts a user's browsing, changing it from HTTP to HTTPS whenever possible.

Often, however, security vulnerabilities can't be cured by changes to a user's browser. Many websites have not deployed HTTPS, leaving their visitors vulnerable to malicious attacks. For the second prong, we are asking users to let us know whether the sites they visit use HTTPS. We are hoping that our crowd-sourced survey of websites will give us a relatively accurate picture of the current state of HTTPS deployment and Internet security.

Finally, we have created detailed resources for website operators who are interested in learning how to deploy HTTPS and why it's important for them to do so.

"We want to make it easier for web users to get the security they need and deserve, but we can't do it alone. We need an accurate picture of the state of HTTPS on the Internet. After that, we can target website operators and make it easy for them to update their sites," said Jochai Ben-Avie of Access. "Working together, we can all be safer from identity theft, security threats, viruses, and other things that come from an insecure Internet."

For more on HTTPS Now:
https://www.httpsnow.org

Contacts:

Eva Galperin
Activist
Electronic Frontier Foundation
eva@eff.org

April 19, 2011

EFF and ACLU Argue Against Government Attempt to Collect Private Data

UPDATE: Friday's hearing about whether the government can collect the private records of three Twitter users as part of its investigation related to Wikileaks has been canceled.

Alexandria, VA - On Friday, April 22, at 10 a.m., a district court in Virginia will hear oral argument about whether the government can collect the private records of three Twitter users as part of its investigation related to Wikileaks.

Last month, following an initial challenge, a magistrate judge ruled in favor of the government and against the privacy rights of the users. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) are challenging the magistrate's ruling on behalf of Birgitta Jonsdottir, an Icelandic parliamentarian who is appealing jointly with fellow Twitter users Jacob Appelbaum and Rop Gonggrijp. Also at issue is whether the users can learn which other Internet companies were ordered to turn over information about them to the government.

EFF cooperating counsel John Keker of Keker and Van Nest will urge the court Friday to require the government to protect the First Amendment freedoms of speech and association of the Twitter users and the Fourth Amendment rights of the users in their locations. ACLU attorney Aden Fine will ask the court to unseal all documents related to other requests for private data.

WHAT:
Oral argument in re application of the U.S. for an order pursuant to 18 U.S.C. 2703(d)

WHEN:
Friday, April 22
10 a.m.

WHERE:
Albert V. Bryan U.S. Courthouse
401 Courthouse Square
Alexandria, VA 22314
Judge Liam O'Grady

Contact:

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

Related Issues:
April 7, 2011

Legal Attack on Online Video Site Could Throttle Innovation with Fears of Litigation

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of advocacy groups have asked a federal appeals court to reject attempts to thwart federal copyright law and saddle online communities with new litigation fears in the appeal of Viacom v. YouTube.

In an amicus brief filed Thursday, EFF argues that the infringement claims made by Viacom and the other plaintiffs threaten to undermine the "safe harbor" provisions of the Digital Millennium Copyright Act (DMCA) -- safe harbors that have fostered free speech and innovation around the globe. Without the clear legal structure of the DMCA process, companies that host user-generated expression could be hit with potentially massive damage awards, which would encourage over-blocking of content or even the shutdown of services altogether.

"If the DMCA safe harbors are undermined in the way Viacom and the other content companies would like, the free flow of information will be seriously threatened," said EFF Senior Staff Attorney Abigail Phillips. "Communications platforms like YouTube have enabled political and other speech to flourish online. We've all seen the critical role digital communications have been playing in protests across the Middle East. The safe harbors make posting of user-generated content like this possible."

At issue in this case is copyright infringement on YouTube before the online video service voluntarily implemented content filtering technologies in May of 2008. The district court correctly found that YouTube was shielded by the DMCA safe harbors, and Viacom and others appealed the ruling to the 2nd U.S. Circuit Court of Appeals.

"All the online services you use every day -- Facebook, Twitter, Amazon, eBay -- depend on the DMCA safe harbors in order to allow user-generated content on their sites," said EFF Intellectual Property Director Corynne McSherry. "That's why Congress designed the safe harbors -- to allow innovators to manage legal risk and develop new services without fear of devastating litigation, while offering copyright owners an expedited process for taking down infringing content. Viacom's arguments here misinterpret the law, with potentially disastrous results."

Also joining EFF's brief are the International Federation of Library Associations and Institutions, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Center for Democracy and Technology.

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

For more on this case:
http://www.eff.org/cases/viacom-v-youtube

Contacts:

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

Abigail Phillips
Senior Staff Attorney
Electronic Frontier Foundation
abigail@eff.org

Related Issues:
April 5, 2011

Takedown Targets Petition to Cancel Bogus 'Urban Homesteading' Trademarks

San Francisco - Activists in the urban homesteading movement petitioned today to cancel the registration of bogus trademarks for the terms "urban homesteading" and "urban homestead" -- trademarks that have been used to threaten other urban homesteaders and remove online content and discussion.

The Electronic Frontier Foundation (EFF) has teamed up with the law firm of Winston & Strawn to represent Kelly Coyne and Erik Knutzen, authors of The Urban Homestead: Your Guide to Self-sufficient Living in the Heart of the City, as well as their publisher, Process Media. The book, published in 2008, was the culmination of years of participation in the global urban homesteading movement, which supports sustainable living techniques in urban areas. Urban homesteading includes growing food, raising livestock, and producing simple food products.

Despite the fact that "urban homesteading" and "urban homestead" have been used as generic descriptions for decades, a group called the Dervaes Institute managed to register the terms as trademarks with the U.S. Patent and Trademark Office (USPTO) for "educational services" like blogging. Dervaes has used the trademark registrations to claim broad ownership rights and threaten urban homesteaders who use the term online.

"Dervaes got Facebook to take down pages that talk about urban homesteading and help publicize our book, and Facebook won't put those pages back up because of the bogus trademarks," said Ms. Coyne. "This doesn't just hurt our business and our book sales, it hurts the whole urban homesteading community -- a group of people who are dedicated to sharing information about sustainable living."

The Dervaes Institute has submitted similar complaints to Facebook and other online services causing a variety of online content to be taken down, including the Facebook page of a Denver farmer's market.

"For years, the bedrock of the urban homesteading community is the sharing of information -- spreading the word about how to become self-sustaining in food and energy production," said EFF Intellectual Property Director Corynne McSherry. "The Dervaes Institute is trying to shut down this thriving community with its outrageous trademark complaints. The USPTO should cancel the trademark, so urban homesteaders can get back to work free of threats."

"The efforts to control all use of these generic and descriptive terms is a classic example of trademark bullying," said Winston & Strawn Partner Jennifer Golinveaux. "We're glad to help push back against these unreasonable demands."

For the full petition to cancel:
https://www.eff.org/files/filenode/urbanhomestead/petitiontocancel_001.pdf

Contacts:

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

Jennifer A. Golinveaux
Partner
Winston & Strawn LLP
JGolinveaux@winston.com

April 4, 2011

Law Enforcement Shouldn't Have Free Rein to Rummage Through Data

San Francisco - The Electronic Frontier Foundation (EFF) urged the Oregon Supreme Court to block warrantless searches of arrestees' cell phones Friday, arguing in an amicus brief that granting law enforcement free rein to search data on the devices violates basic privacy protections guaranteed by the Constitution.

Other state supreme courts have considered the issue, but they have split in their rulings.

In this case, a criminal suspect was arrested and placed in a holding cell. Forty minutes after the arrest, without a warrant, an investigator fished through the suspect's cell phone looking for evidence related to his alleged crime. Law enforcement officials claim they didn't need a warrant because the search was "incident to arrest" -- an exception to the warrant requirement intended to allow officers to perform a search for weapons or to prevent evidence from being destroyed in exigent circumstances.

"This is an empty excuse from the police -- the suspect was in custody and unable to destroy evidence on his cell phone," said EFF Senior Staff Attorney Marcia Hofmann. "The Fourth Amendment protects us from unreasonable intrusions by the police and ensures that a neutral magistrate decides when the police can search private information. There was no need for the police to sidestep the warrant process here. If courts give police the freedom to rummage through the cell phones of anyone they arrest, then the constitutional protection of the warrant process is meaningless."

The average cell phone now includes much more than your calling history. It holds address books, calendars, and emails -- along with websites you've visited, pictures of your family and friends, and often things like lists of questions to ask your doctor or your accountant. This makes questions of privacy in cell phone data critically important.

"Of course, criminal suspects could have information on their cell phones that might be of interest to police. When investigators have enough information to get a warrant, they should be able to search them," said Hofmann. "But judges should not allow a narrow exception to the warrant requirement to swallow the basic rule meant to protect everyone's privacy rights."

EFF's local counsel in this case is J. Ashlee Albies of Creighton & Rose, PC. Mr. Nix is represented by Bronson James, of JDL Attorneys, LLP. Petitioner's briefing is available at http://www.jdlattorneys.com.

For EFF's full amicus brief:
https://www.eff.org/files/filenode/oregon_v_nix/nix_amicus_final.pdf

Contact:

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

March 30, 2011

EFF Backs Bill to Protect Californians' Reading Habits

Sacramento, CA - California Senator Leland Yee has introduced the Reader Privacy Act of 2011 (SB 602), with backing from the California Affiliates of the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). The law would bring a much-needed upgrade to match Californians' reading habits. Under SB 602 the government and other third parties would need a warrant or court order for access to sensitive reading records. This would establish protections for book records—both e-books and in physical bookstores—in line with long-established protections for library records and other expressive material. The bill mirrors the privacy and free speech safeguards in the California constitution and other areas of California law.

As Californians increasingly rely on online services to browse, read, and buy books, it is essential that state law keep pace and safeguard readers in the digital age. Digital books now outsell paperbacks on Amazon.com and over 18 million e-readers are expected to be sold in 2012. Many bookstores already collect information about readers and their purchases. Digital book services can collect even more detailed information: which books are browsed, how long each page is viewed, and digital notes made in the margins. Current law doesn't anticipate this new digital reality. Without strong privacy protections, reading records can be increasingly targeted by government surveillance as well as in legal proceedings like divorce cases and custody battles.

"Current law is completely inadequate when it comes to protecting one's privacy for book purchases, especially considering the increasing popularity of online shopping and electronic books," said Yee. "Individuals should be free to buy books without fear of government intrusion and witch hunts. If law enforcement has reason to suspect wrongdoing, they can obtain a warrant for such information."

"California should be a leader in ensuring that upgraded technology does not mean downgraded privacy," said Valerie Small Navarro, Legislative Advocate with the ACLU's California Affiliates. "We should be able to read about anything from politics, to religion to health without worrying that the government might be looking over our shoulder."

"In the recent Google Books decision, the court noted the importance of the privacy concerns with digital books," said Cindy Cohn, Legal Director at the Electronic Frontier Foundation. "This law will ensure that the enhanced reader tracking that is possible through digital books and book services doesn't create a honeypot for government investigators and other lawyers seeking to snoop on what we search for, browse and read in digital bookstores and libraries."

The United States has a long and proud history of legal protection for reading privacy, and the California Constitution has especially strong privacy and free speech protections. Courts have long recognized that reader privacy must be protected to avoid a chilling effect on freedom of expression, as well as to maintain consumer trust. Sensitive reader information can and does come under fire. During the McCarthy hearings, Americans were questioned about whether they had read Marx or Lenin. In the years following September 11, the FBI sought patron information from more than 200 libraries. Just this past year, Amazon was asked by the North Carolina government to turn over 50 million purchase records including books, videos, and other expressive material. The Reader Privacy Act updates state law to safeguard the free exchange of ideas and open discourse by ensuring that government and third parties cannot access Californians' reading records without proper justification.

Contacts:

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

Rebecca Farmer
Media Relations Director
ACLU of Northern California
rfarmer@aclunc.org

Adam Keigwin
Senator Yee's Office
adam.keigwin@sen.ca.gov

Related Issues:
March 25, 2011

Secret Demands for Information Endanger Privacy Rights

Alexandria, VA - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) today appealed a ruling that the government can collect the private records of three Twitter users as part of its investigation related to WikiLeaks. The ruling further held that the users cannot learn which other Internet companies were ordered to turn over information about them to the government. EFF and the ACLU are challenging the ruling on behalf of Birgitta Jonsdottir, an Icelandic parliamentarian who is appealing jointly with fellow Twitter users Jacob Appelbaum and Rop Gonggrijp.

The secret government demands for information about the subscribers' communications came to light only because Twitter took steps to ensure its customers were notified and had the opportunity to respond. The ACLU and EFF have also asked the court to make public any similar orders to any other companies.

"Except in very rare circumstances, the government should not be permitted to obtain information about individuals' private Internet communications in secret. This is not one of those circumstances," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "If the ruling is allowed to stand, our client might never know how many other companies have been ordered to turn over information about her, and she may never be able to challenge the invasive requests."

"Services like Twitter have information that can be used to track us and link our communications across multiple services including Facebook and Gmail," said EFF Legal Director Cindy Cohn. "The Magistrate's ruling that users have no ability to protect that information from the U.S. government is especially troubling."

The ruling was issued by U.S. Magistrate Judge Theresa Carroll Buchanan of the Eastern District of Virginia. It is being appealed to a U.S. District Judge in the Eastern District of Virginia.

Attorneys for Jonsdottir are Fine and Benjamin Siracusa Hillman of the ACLU, Rebecca Glenberg of the ACLU of Virginia, and Cindy Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF. The motions were joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Appelbaum and Gonggrijp, respectively, as well as local counsel in Virginia.

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

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

Contacts:

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

Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

Related Issues:
March 16, 2011

Adult Film Company Uses 'Reverse Class Action' Lawsuit to Ensnare More Defendants

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in a "reverse class action" lawsuit accusing thousands of people of illegally downloading pornography, and urged the court to dismiss the case. In a friend of the court brief filed Tuesday, EFF argued that the plaintiff's "class action" strategy is an improper attempt to sidestep the rights of the defendants.

EFF has been involved in a number of copyright troll cases where content owners and lawyers team up to try to obtain the identities of thousands of anonymous alleged file sharers at once in order to extract settlements from them. In response, judges across the country have been cracking down on such abusive strategies. Thousands of unnamed "John Does" targeted in lawsuits filed in California, Washington D.C., Texas, and West Virginia have been severed, effectively dismissing over 40,000 defendants. These rulings may have a significant impact on this misguided business model, which relies on being able to sue thousands of Does at once with a minimum of administrative expense.

In this case, OpenMind Solutions v. Does, the plaintiff has taken a new approach: calling its complaint a "class action" lawsuit against the alleged infringers. Normally a class action is used by a group of plaintiffs with similar complaints of a single defendant -- not a single plaintiff targeting thousand of defendants with no attorney in place to defend the rights of the accused. OpenMind then asked the court for permission to issue subpoenas seeking identifying information for the Does, which was granted without the opportunity for anyone to speak on the unknown defendants' behalf.

"There is a short window here, before the defendants' identities are disclosed, in which the court can ensure that these individuals are treated fairly and justly," said EFF Senior Staff Attorney Matt Zimmerman. "The class action process was never intended to be used this way. We're asking the court to call a halt to the gamesmanship from OpenMind Solutions."

"When adult film companies file predatory lawsuits, there is the added embarrassment associated with pornography, which can convince people to quickly pay what's demanded of them even if they have legitimate defenses," said EFF Intellectual Property Director Corynne McSherry. "We hope the court takes immediate steps to restore fairness to this process."

Charles Lee Mudd Jr. and Mark Petrolis of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:

https://www.eff.org/files/filenode/openmind_v_does/openmind-amicus-filed.pdf

For more on copyright trolls:

https://www.eff.org/issues/copyright-trolls

Contacts:

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

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

Related Issues:
March 11, 2011

ACLU And EFF Plan To Appeal Ruling In Case Challenging Government Attempt To Obtain Private Data in WikiLeaks Investigation

Alexandria, VA - A federal magistrate judge in Virginia ruled today that the government can collect the private records of three Twitter users as part of its investigation related to WikiLeaks, and that those users and the public can be prevented from seeing some of the documents that the government submitted to the court to justify obtaining their records. The court denied the government's request to conduct last month's hearing about the records in secret, however, and the court made public all of the documents related to the users' legal challenge. The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union plan to appeal the decision on behalf of their client Birgitta Jonsdottir, an Icelandic parliamentarian.

The secret government demands for information about the subscribers' communications came to light only because Twitter took steps to ensure their customers were notified and had the opportunity to respond. The ACLU and EFF also asked the court to make public any similar orders to any other companies.

"This ruling gives the government the ability to secretly amass private information related to individuals' Internet communications. Except in extraordinary circumstances, the government should not be able to obtain this information in secret. That's not how our system works," said Aden Fine, staff attorney with the ACLU Speech, Privacy, and Technology Project. "If this ruling stands, our client may be prevented from challenging the government's requests to other companies because she might never know if and how many other companies have been ordered to turn over information about her."

"With so much of our digital private information being held by third parties – whether in the cloud or on social networking sites like Twitter – the government can track your every move and statement without you ever having a chance to protect yourself," said EFF Legal Director Cindy Cohn. "We're disappointed that the court did not recognize that people using digital tools deserve basic privacy and that the government should be required to meet a high standard before it demands private information about you from the online services you use, be they Twitter, Facebook, Gmail or Skype."

EFF and the ACLU plan to appeal the ruling on behalf of their client.

For today's ruling:

https://www.eff.org/files/filenode/dorders_twitter/MemOpinion.pdf

For more on this case:

https://www.eff.org/cases/government-demands-twitter-records

Contacts:

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

Rachel Myers
   Media Relations
   American Civil Liberties Union
   media@aclu.org

Related Issues:
March 2, 2011

EFF Asks Justices to Focus on Privacy in Prescription History Data Mining Battle

Washington, D.C. - The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court Tuesday to focus on the privacy issues at stake in a battle over the sale and data mining of medical records, urging justices to reverse a ruling that could jeopardize patient privacy.

At issue is Vermont's Prescription Confidentially Law, which bans pharmacies from selling or using patients' prescription records for marketing purposes without the doctor's express consent. Companies that collect and sell these records challenged the law in court, arguing that they use "de-identified" information and that the law infringed their corporate free speech rights. The 2nd U.S. Circuit Court of Appeals ruled in favor of the companies. In an amicus brief filed Tuesday, EFF argued that the appeals court wrongly ignored patient privacy in its decision.

"There are serious questions about the efficacy of such 'de-identification.' We're concerned that the data-mining will expose patients' prescription histories, which leads to discovery of their underlying medical conditions," said EFF Senior Staff Attorney Lee Tien. "Requiring consent before using this extremely sensitive data is a reasonable protection, and claiming this information is 'public' and not really private goes against common sense. The First Amendment does not require the sacrifice of our privacy to promote data exchanges that benefit only commercial interests."

For the full amicus brief:
https://www.eff.org/files/filenode/sorrell_v_IMS/ims3111.pdf

Contact:

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

Related Issues:
February 8, 2011

Hearing Set for February 15 in Alexandria, Virginia

Alexandria, VA - A federal court in Alexandria, Virginia today unsealed motions filed by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, and others concerning government attempts to obtain Twitter account records about three individuals in connection with its WikiLeaks investigation. The documents were originally filed under seal late last month.

One of the newly-available motions is a request to unseal the still-secret court records of the government's attempts to collect private records from Twitter, Inc., as well as other companies who may have received demands for information from the government. The second motion seeks to overturn the December 14 court order requiring Twitter to provide information about its users. The third motion was subsequently filed to unseal the original two motions, A hearing on the first two motions is set for 10:30 a.m. on February 15 at the U.S. District Court in Alexandria, Virginia.

The ACLU and EFF represent Birgitta Jonsdottir, an Icelandic parliamentarian and one of the Twitter users whose records were sought by the government. The motion was joined by attorneys from the law firm Keker & Van Nest LLP and the Law Office of John D. Cline on behalf of Jacob Appelbaum and Rop Gonggrijp, respectively, as well as local counsel in Virginia. The government had also requested information concerning Appelbaum and Gonggrijp's Twitter accounts.

"We are troubled that the original court order requiring Twitter to turn over its users' private records was filed under seal.," said Aden Fine, staff attorney with the ACLU Speech, Privacy and Technology Project. "Except in truly extraordinary circumstances, Internet users should receive notice and an opportunity to go to court to defend their constitutional rights before their privacy is compromised. That's what is happening now, and we are hopeful that the court will unseal the rest of the sealed materials."

"Twitter is a publication and communication service, so the information sought by the government relates to what these individuals said and where they were when they said it," said EFF Legal Director Cindy Cohn. "This raises serious First and Fourth Amendment concerns. It is especially troubling since the request seeks information about all statements made by these people, regardless of whether their speech relates to WikiLeaks."

Attorneys for Jonsdottir are Fine and Benjamin Siracusa-Hillman of the ACLU, Rebecca Glenberg of the ACLU of Virginia and Cohn, Lee Tien, Marcia Hofmann and Kevin Bankston of EFF.

For more details on attending next week's hearing contact press@eff.org or media@aclu.org.

For the newly unsealed documents:
https://www.eff.org/cases/government-demands-twitter-records

Contacts:

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

Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

Related Issues:
February 2, 2011

Current Standards to Invalidate Patents Impede Software Innovators

San Francisco - The Electronic Frontier Foundation (EFF), joined by Public Knowledge and the Apache Software Foundation, urged the U.S. Supreme Court Tuesday to make it easier to invalidate bad patents -- a decision that would benefit software innovators both large and small.

In an amicus brief filed in Microsoft v. i4i, EFF argues that the existing high standard of proof for invalidating a patent in federal court unfairly gives the owners of bad patents the upper hand. Currently, when a defendant is accused of infringing a patent, the Federal Circuit wants to see "clear and convincing" evidence that that patent is illegitimate and the case against it unfounded. This is in contrast to the standard of proof for most civil cases, which is a "preponderance of the evidence" -- or a showing that more likely than not the allegations are true. In software cases, "clear and convincing" evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. This is a particular problem with free and open source software, as the collaborative nature of the projects make documentation even harder.

"With the complex technical issues at play in software patent infringement suits, plaintiffs often argue that the original source code is a necessary part of 'clear and convincing' evidence," said EFF Fellow Michael Barclay. "But the law should not require this standard of proof. Instead, software innovators are put at an unfair disadvantage, and bad patents are upheld in court."

Microsoft v. i4i began when i4i sued Microsoft for patent infringement, claiming that its patent covered a Microsoft Word feature that allowed for editing documents with XML. Microsoft argued that i4i's patent was invalid because similar features were included in another product sold more than a year before the patent application was filed. But the Federal Circuit applied the "clear and convincing" standard and rejected Microsoft's argument.

"Software innovators and the free and open source software community play an important role in our economy, and litigation like this threatens to chill lively competition and new products from software companies both big and small," said EFF Staff Attorney Julie Samuels. "We're asking the Supreme Court to help ensure that patent law serves the public interest."

Microsoft v. i4i will be argued in April, and a decision is expected by June.

For the full amicus brief:
https://www.eff.org/files/filenode/microsoft_v_i4i/234530_Brief_Final.pdf

Contacts:

Michael Barclay
Fellow
Electronic Frontier Foundation
michael@eff.org

Julie Samuels
Staff Attorney
Electronic Frontier Foundation
julie@eff.org

Related Issues:
February 1, 2011

Another Victory in Battle Against Flawed Copyright Lawsuits

Dallas, TX - An adult video company has dropped its flawed lawsuit accusing hundreds of Internet users of illegally downloading pornography. The Electronic Frontier Foundation (EFF) and Public Citizen (PC) are counsel for the anonymous defendants at the request of the court.

Late last week, Mick Haig Productions dismissed its case against 670 "John Does," claiming they had infringed the company's copyrighted materials on a file-sharing service. The notice of dismissal came after EFF and Public Citizen argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "When adult film companies launch these cases, there is the added pressure of embarrassment associated with pornography, which can convince those ensnared in the suits to quickly pay what's demanded of them, whether or not they have legitimate defenses. That's why it's so important to make sure the process is fair."

Mick Haig Productions dropped the case just 48 hours after EFF and PC demanded that it withdraw subpoenas Mick Haig's lawyer apparently issued while the question of whether the court should allow the subpoenas at all was still under consideration by the court.

"This dismissal is wonderful news for the 670 anonymous defendants in this case, but troubling questions remain about the behavior of Mick Haig Productions," said EFF Senior Staff Attorney Matt Zimmerman. "Given the extremely invasive power of subpoenas, plaintiffs have a duty to ensure that subpoenas are not misused. EFF is committed to ensuring that litigants are held accountable for taking shortcuts around the due process rights of their opponents, especially in cases such as this one where the very act of obtaining someone's identity could be improperly leveraged into pressure to settle a claim."

This is the latest victory in EFF's battle against copyright trolls. Lawyers around the country are discovering that mass copyright litigation is not such a lucrative business model if you have to pursue your cases fairly. In December and early January, federal judges in West Virginia and California recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyright works. As a practical matter, this means that copyright owners in those cases must file separate lawsuits against each alleged infringer and must have a reasonable basis for believing that they are filing in the right court. Given the additional expense of filing and litigating these cases fairly -- expenses the plaintiffs were likely hoping to avoid by ignoring the court rules and due process requirements -- these cases may not go much further.

"There is often a gap between when cases are filed and when judges have the opportunity to look at them closely," said EFF Legal Director Cindy Cohn. "But that time appears to have arrived. Judges around the country are waking up to the dangers of mass copyright litigation and taking action to make sure the process is fair for the thousands of people who have been targeted in these suits."

For the full notice of dismissal:
https://www.eff.org/files/filenode/uscg/mickhaignotice.pdf

For more on the subpoenas:
https://www.eff.org/files/filenode/uscg/stoneletter.pdf

Contacts:

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

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

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

January 17, 2011

Film Companies Are Abusing the Law to Pressure Defendants to Settle

San Francisco - The Electronic Frontier Foundation (EFF) has asked an Illinois judge to quash subpoenas issued in predatory lawsuits involving alleged illegal downloading of pornography. In an amicus brief filed Friday, EFF argued that the adult film companies were abusing the law in order to coerce settlement payments despite serious problems with the underlying claims.

Friday's brief is the latest of EFF's efforts to stop copyright trolls -- content owners and lawyers who team up to extract settlements from thousands of defendants at a time. Tactics include improperly lumping defendants together in one case and filing it in a court far away from most of the accused people's homes and Internet connections. When adult film companies file these predatory lawsuits, there is the added pressure of embarrassment associated with pornography. All of these factors can convince those ensnared in the suits to quickly pay what's demanded of them instead of arguing the merits of their case in court.

"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "We're asking the court to protect the rights of each and every defendant, instead of allowing these copyright trolls to game the system."

Just last month, a judge in West Virginia blocked an attempt to unmask accused pornography file-sharers in seven predatory lawsuits. Closely following the reasoning from an EFF amicus brief, the judge ordered the plaintiffs to file against each defendant individually. Also in December, a judge in the District of Columbia dismissed hundreds of individuals named in the U.S. Copyright Group troll campaign because of lack of personal jurisdiction. EFF had filed an amicus brief in that case as well.

"As judges start to force copyright trolls to play by rules, this kind of mass litigation will no longer be a good business model. That helps protect the rights of Internet users everywhere," said McSherry.

Charles Lee Mudd Jr. of Mudd Law Offices assisted EFF with the filing of this brief.

For the full amicus brief:
https://www.eff.org/files/filenode/uscg/effamicus11411.pdf

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

Contact:

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

Related Issues:
January 4, 2011

Unreasonable Jury Award in Sony v. Tenenbaum Suit Raises Constitutional Questions

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Monday to affirm downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs. EFF was represented by the Stanford Fair Use Project and the Samuelson Law, Technology & Public Policy Clinic in filing the amicus brief.

A federal judge reduced the jury award to $67,500 last July, citing constitutional concerns and basic fairness. The record companies appealed the judge's decision to the 1st U.S. Circuit Court of Appeals. In Monday's brief, EFF argues that the judge was right to try to ensure that damages in infringement cases bear a reasonable relationship to actual harm.

"The Supreme Court has ruled that courts should review statutory damage awards to ensure they are not grossly excessive," said EFF Intellectual Property Director Corynne McSherry. "But unfortunately, courts have often failed to do so. This is an opportunity for the appeals court to clarify copyright law for creators and guarantee they have their due process rights."

Right now, it is difficult to predict copyright damages. Any creator who relies on an untested theory of fair use or other copyright exemption could be forced to pay up to $150,000 per work if she loses in court. This threat chills start-up companies and online artists as well as libraries and digital archives that may need to enter uncharted areas of copyright law in order to innovate.

"The fundamental purpose of copyright law is to encourage innovation, creativity, and the dissemination of information," said McSherry. "But the fear of crushing liability chills vital experimentation and creativity. Due process review can help bring damage awards back in line with copyright's purpose."

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

Contact:

Corynne McSherry
Intellectual Property Director
Electronic Frontier Foundation

Related Issues:
January 4, 2011

Big Victory for Consumers' First Sale Rights

San Francisco - The U.S. Court of Appeals for the 9th Circuit has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores and rejecting UMG's attempt to claim that a sticker on a CD created a license agreement forbidding resale.

Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and the law firm Durie Tangri LLP, was sued by UMG for offering promo CDs for auction on eBay. At issue was whether the labels on the CDs, some of which stated that they were "promotional use only, not for sale," trumped Augusto's right to resell the CDs that he bought. Copyright's "first sale" doctrine prevents a copyright owner from restricting further sales or uses of a work once title has passed.

In an opinion issued today, the appeals court held: "UMG transferred title to the particular copies of its promotional CDs and cannot maintain an infringement action against Augusto for his subsequent sale of those copies." The court noted that UMG did not maintain control of the CDs once it mailed them out, did not require the recipients to agree to the "conditions" it sought to impose with the not-for-sale label, and did not require return of the CDs if the recipient did not consent.

"This ruling frees promotional CDs from the shadow of copyright infringement claims, which is good news for music lovers," said EFF Intellectual Property Director Corynne McSherry. "But it also has broader ramifications. The court flatly rejected the argument that merely slapping a notice on a copyrighted work prevents the work from ever being sold. It eliminates the risk of copyright infringement claims against later recipients -- regardless of whether they paid for the work."

"The Ninth Circuit recognized an important principle: that you can't eliminate consumers' rights just by claiming there's a 'license agreement,'" said Joe Gratz of Durie Tangri, lead counsel for Mr. Augusto. "Once a copyrighted work is freely given, the copyright holder isn't in charge anymore. The copyright owner can't stop you from selling it or lending it to a friend."

For the full opinion in UMG v. Augusto:
https://www.eff.org/files/filenode/umg_v_augusto/UMGvAugusto9thCircuitOpinion.pdf

Contact:

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

Related Issues:
December 23, 2010

Amicus Brief Rejects Claim That Google's Forwarding of its Legal Notices to the Online Resource is Copyright Infringement

San Francisco - The Electronic Frontier Foundation (EFF) and other founders and participants in the Chilling Effects Clearinghouse urged an appeals court in an amicus brief filed Tuesday to reject an adult entertainment publisher's attempts to block Google's contributions to the online copyright resource. Durie Tangri LLP represented EFF and its co-amici in preparing and filing the brief.

Chilling Effects, at www.chillingeffects.org, gathers and analyzes legal notices alleging online copyright infringement. More than 12,000 notices are available for public review, education and study, and the data there has been the basis for a number of scholarly papers about copyright law and the Internet.

Google is one of many businesses and organizations that provide the legal notices it receives to Chilling Effects. But as part of a long-running court battle with Google, adult publisher Perfect 10 claims that forwarding its infringement notices to the online resource is a copyright infringement, because Perfect 10 includes its copyrighted adult images on the notifications.

"The use of copyrighted works for scholarship or research, like in Chilling Effects, is clearly a fair use of the material and protected under the law," said EFF Intellectual Property Director Corynne McSherry. "Chilling Effects is an important public resource for educating the public and studying the effects of online copyright law -- so important that Perfect 10 itself has used the data as part of its copyright infringement lawsuits. Google's contributions to this resource don't infringe copyright simply because Perfect 10 chooses to attach samples of its adult photos in its infringement notices."

The lawsuit stretches back to 2005, when Perfect 10 first sued Google claiming that Google's Image Search service violated copyright law by indexing Perfect 10 photos posted on unauthorized websites, as well as a hodgepodge of other claims. In 2007, the Ninth Circuit Court of Appeals rejected virtually all of Perfect 10's claims, but it sent the case back down to the district court to determine whether Perfect 10's legal notices of infringement complied with the Digital Millennium Copyright Act (DMCA). The district court held in Google's favor, finding that Perfect 10's notices were not sufficient under the law, and as part of that ruling the court held that Google's contributions to Chilling Effects are protected by the fair use doctrine. Perfect 10 is appealing that ruling back to the 9th Circuit.

"People scour the Chilling Effects archive in order to write academic papers and research the law, not to look for adult photos," said EFF Legal Director Cindy Cohn. "As the district court recognized, this is another bogus copyright claim from Perfect 10 that could have dangerous ramifications for fair use and the Internet."

For the full amicus brief:
https://www.eff.org/files/filenode/Perfect10_v_Google/2010-12-21P10vGoogle%20amicus.pdf

Contact:

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

Related Issues:
December 22, 2010

Broad Coalition Calls on U.S. Government Officials to Protect Free Speech

San Francisco - The Electronic Frontier Foundation (EFF) and a broad coalition of advocacy organizations sent an open letter to U.S. lawmakers today, calling on government officials to respect freedom of expression in the debate over the whistle-blower website Wikileaks.

In the wake of Wikileaks' recent publications of U.S. diplomatic cables, some lawmakers have attacked newspapers' rights to report on the information in those documents. Other government officials have cast doubt on Americans' right to download, read, or discuss documents published by Wikileaks and even the news reporting based on those documents. Rash legislation was proposed that could limit the free speech of news reporting organizations well beyond Wikileaks. In the open letter sent Wednesday, 30 groups urged lawmakers to remember and respect constitutional rights as Congress continues to discuss the issues at stake.

"By likening publishers and reporters to spies and cyber-terrorists, some government officials have irresponsibly created an atmosphere of fear and uncertainty leading many to question their rights to publish, read and discuss the Wikileaks cables," said EFF Senior Staff Attorney Marcia Hofmann. "But American law is well settled on these issues: the First Amendment strongly protects publishers' right to distribute truthful political information, and Internet users have a fundamental right to read and debate it."

In a congressional hearing about Wikileaks last week, all seven witnesses to the House Judiciary Committee cautioned against attempts to suppress free speech and criticized the overwhelming secrecy that permeates the U.S. government. The coalition joining the open letter today similarly called for caution against any new laws that could weaken the principles of free expression that are vital to our democracy.

"In a free country, the government cannot and does not have unlimited power to determine what publishers can publish and what the public can read," said EFF Activist Rainey Reitman. "We encourage a robust public debate about Wikileaks and the secret government documents, but lawmakers must protect the rights of all involved."

For the full open letter:
https://www.eff.org/files/filenode/WikiLeaks/wikileaks_open_letter_final.pdf

Join EFF in standing up against Internet censorship:
https://www.eff.org/pages/say-no-to-online-censorship

Contacts:

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

Rainey Reitman
Activist
Electronic Frontier Foundation
rainey@eff.org

Related Issues:
December 20, 2010

Corynne McSherry Named IP Director; Senior Staff Attorney Abigail Phillips and Staff Attorney Julie Samuels Join Team

San Francisco - The Electronic Frontier Foundation (EFF) is proud to announce its new lineup focusing on intellectual property issues: Intellectual Property Director Corynne McSherry; Senior Staff Attorney Abigail Phillips; and Staff Attorney Julie Samuels. EFF Senior Staff Attorney Kurt Opsahl will also continue his dual role on EFF's Civil Liberties and IP teams.

Intellectual Property Director Corynne McSherry has been a staff attorney at EFF for more than five years, working on high-profile EFF cases including the Sony-BMG rootkit litigation and defending the Yes Men and other activists in a lawsuit filed by the U.S. Chamber of Commerce over a political parody. Corynne's practice focuses on fair use and free speech and includes both litigation and advocacy work, such as spearheading EFF's Takedown Hall of Shame campaign and providing public commentary on online copyright and trademark issues. Corynne is the author of "Who Owns Academic Work?: Battling for Control of Intellectual Property" (Harvard University Press, 2001).

Senior Staff Attorney Abigail Phillips recently joined EFF after more than five years at Yahoo!, where she was Senior Legal Director for copyright and advised product development teams such as Yahoo! Search, Flickr, and Yahoo! Video on a range of cyberlaw issues. At EFF, she focuses on copyright and online content matters and will play a central role in EFF's policy work. Prior to Yahoo!, Abigail practiced in the technology policy and IP litigation groups of Perkins Coie LLP in San Francisco. Her non-law experience includes work as an editor, designer, and programmer in new and traditional media areas, including as the first webmaster for the Berkman Center for Internet and Society.

Staff Attorney Julie Samuels focuses on patents as well as other intellectual property issues. Currently Julie is overseeing EFF's Patent Busting Project and assisting on Lenz v. Universal, EFF's landmark case fighting a bogus claim of copyright infringement against a mother who posted a short YouTube video of her son dancing to a Prince song. Before joining EFF, Julie litigated IP and entertainment cases in Chicago at Loeb & Loeb and Sonnenschein Nath & Rosenthal. Prior to becoming a lawyer, Julie spent time as a legislative assistant at the Media Coalition in New York and as an assistant editor at the National Journal Group in D.C.

"EFF's IP work has been long respected by both the public and the courts for its a critical role in bringing balance to the law and for ensuring that technology empowers consumers, creators, and citizens," said EFF Legal Director Cindy Cohn. "Corynne, Abigail, Julie, and Kurt are the perfect team to bring EFF's work on behalf of users, activists, and innovators to the next level."

Contact:

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

Related Issues:
December 16, 2010

Orders Film Companies to Stop Abusing the Law When Suing Accused File-Sharers

San Francisco - In a big victory in the fight against copyright trolls, a judge in West Virginia has blocked an attempt to unmask accused file sharers in seven predatory lawsuits involving the alleged illegal downloading of pornography. The Electronic Frontier Foundation (EFF), working with Charles J. Kaiser of Phillips, Gardill, Kaiser & Altmeyer, PLLC, filed an amicus brief in the case, arguing that the film companies were abusing the law in an attempt to pressure settlements.

In these cases -- as in many others across the country -- the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"This is the next nail in the coffin of the copyright trolls," said EFF Legal Director Cindy Cohn. "Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model." In the seven West Virginia cases, collectively suing over 5,400 people, Time Warner Cable moved to quash subpoenas seeking the identities of accused filed sharers. EFF"s supporting amicus brief specifically noted the problems with suing hundreds of unconnected individuals in the same lawsuit. The judge's ruling today closely followed EFF's reasoning, ordering the plaintiffs to re-file their actions against each defendant individually.

"These lawsuits have caused massive collateral damage to the individuals targeted, due process, and the legal profession," said EFF Intellectual Property Director Corynne McSherry. "Copyright owners have a right to protect their works, but not at the expense of the due process rights of thousands of Doe defendants."

In a further blow against the plaintiffs' blunderbuss tactics, the court also forbade the plaintiffs from re-filing unless the plaintiffs had a valid reason to believe the Does actually were located in West Virginia, noting that a simple Google search would narrow the field.

"Courts must protect the rights of each and every defendant, and attempts to game the system inevitably puts those rights at risk," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the court saw through that attempt here and hope that others avoid this unwarranted, harmful attack in the future."

The West Virginia order comes on the heels of a ruling by a judge in the District of Columbia earlier this month that dismissed hundreds of individuals from across the country named in the U.S. Copyright Group's troll campaign due to lack of personal jurisdiction in Washington, D.C.

For the judge's full orders:
https://www.eff.org/cases/west-virginia-copyright-troll-lawsuits

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

Contacts:

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

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

Related Issues:
November 29, 2010

Risk of Embarrassment Pressures Defendants to Settle, Regardless of Merit

San Francisco - The Electronic Frontier Foundation (EFF) has asked judges in Texas and West Virginia to block requests to unmask accused file sharers in several predatory copyright troll lawsuits involving the alleged illegal downloading of pornography.

The cases were filed by two different companies and involve different copyrighted adult material. However, the tactics are the same. In both cases, the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where the IP addresses indicate the defendants live. Consistent with a recent spike in similar "copyright troll" lawsuits, the motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.

"Suing hundreds or even thousands of people together en masse, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights," said EFF Senior Staff Attorney Matt Zimmerman. "The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified."

In the Texas case, Mick Haig Productions v. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the court in the Northern District of Texas requested us to do so. In a brief filed Wednesday, EFF and Public Citizen opposed discovery into the Does' identities, arguing that almost all of the defendants appear to be outside the court's jurisdiction. Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to individually defend themselves. Moreover, the lawsuit also flouts First Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities.

"There is a real potential for embarrassment, or worse, if a pornographer mistakenly identifies an anonymous individual as having infringed its copyright by downloading one of its movies," said Paul Levy, attorney with Public Citizen Litigation Group. "To ensure justice for the individuals being accused, filmmakers claiming copyright infringement should be required to meet the same standards as defamation plaintiffs and others claiming the right to sue for anonymous speech online."

Also last week, EFF filed an amicus brief in a series of seven similar cases in the district court for the Northern District of West Virginia. In those cases, Time Warner Cable has moved to quash subpoenas seeking the identities of accused filed sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process. EFF's amicus brief -- filed Tuesday in support of Time Warner Cable -- argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to properly exercise personal jurisdiction.

"Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy," said Zimmerman. "It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant."

For the motion to quash filed in Texas:
https://www.eff.org/files/filenode/uscg/opposition-mickhaig.pdf

For the amicus brief filed in West Virginia:
https://www.eff.org/files/filenode/uscg/thirdworldmediavdoesamicus.PDF

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

Contact:

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

November 23, 2010

HTTPS Everywhere Updates Web-Surfing Security

San Francisco - The Electronic Frontier Foundation (EFF) has launched a new version of HTTPS Everywhere, a security tool that offers enhanced protection for Firefox browser users against "Firesheep" and other exploits of webpage security flaws.

HTTPS secures web browsing by encrypting both requests from your browser to websites and the resulting pages that are displayed. Without HTTPS, your online reading habits and activities are vulnerable to eavesdropping, and your accounts are vulnerable to hijacking.

Unfortunately, while many sites on the web offer some limited support for HTTPS, it is often difficult to use. Websites may default to using the unencrypted, and therefore vulnerable, HTTP protocol or may fill HTTPS pages with insecure HTTP references. EFF's HTTPS Everywhere tool uses carefully crafted rules to switch sites from HTTP to HTTPS.

This new version of HTTPS Everywhere responds to growing concerns about website vulnerability in the wake of Firesheep, an attack tool that could enable an eavesdropper on a network to take over another user's web accounts -- on social networking sites or webmail systems, for example -- if the browser's connection to the web application either does not use cryptography or does not use it thoroughly enough. Firesheep, which was released in October as a demonstration of a vulnerability that computer security experts have known about for years, sparked a flurry of media attention.

"These new enhancements make HTTPS Everywhere much more effective in thwarting an attack from Firesheep or a similar tool," said EFF Senior Staff Technologist Peter Eckersley. "It will go a long way towards protecting your Facebook, Twitter, or Hotmail accounts from Firesheep hacks. And, like previous releases, it shields your Google searches from eavesdroppers and safeguards your payments made through PayPal."

Other sites targeted by Firesheep that now receive protection from HTTPS Everywhere include Bit.ly, Cisco, Dropbox, Evernote, and GitHub. In addition to the HTTPS Everywhere update, EFF also released a guide to help website operators implement HTTPS properly.

"Firesheep works because many websites fail to use HTTPS," said EFF Technology Director Chris Palmer. "Our hope is to make it easier for web applications to do the right thing by their users and keep us all safer from identity theft, security threats, viruses, and other bad things that can happen through insecure HTTP. Taking a little bit of care to protect your users is a reasonable thing for web application providers to do and is a good thing for users to demand."

The first beta of HTTPS Everywhere was released last June. Since then, the tool has been downloaded more than half a million times.

To download HTTPS Everywhere for Firefox:
https://www.eff.org/https-everywhere

For more on implementing HTTPS in websites:
https://www.eff.org/pages/how-deploy-https-correctly

Contacts:

Peter Eckersley
Senior Staff Technologist
Electronic Frontier Foundation
pde@eff.org

Chris Palmer
Technology Director
Electronic Frontier Foundation
chris@eff.org

Related Issues:
November 16, 2010

EFF, Public Knowledge, and Other Groups Urge Court to Protect Innovation in EMI v. MP3Tunes

New York - In a legal battle over Internet music storage that could impact innovation and free expression on the Internet, the Electronic Frontier Foundation (EFF), Public Knowledge, and other public interest groups asked a federal judge in an amicus brief Tuesday to protect the "safe harbor" rules for online content in EMI v. MP3Tunes.

MP3Tunes offers a locker service where users can sync their personal digital music and video up to "the cloud" to access from any web browser or many mobile and home entertainment devices. Recording giant EMI claims that MP3Tunes should be held responsible for infringing content stored in the lockers of some of its users. MP3Tunes contends that it is immune from liability because it does not engage in, encourage or benefit from copyright infringement and it quickly removes material identified in a copyright holder's complaint against its users, as required by the "safe harbor" provisions in the Digital Millennium Copyright Act (DMCA). In the amicus brief filed Tuesday, EFF and its co-amici argue that EMI is trying to rewrite the "safe harbor" provisions and hold service providers liable for the actions of their users.

"The DMCA safe harbors were designed to encourage the growth of new Internet innovations and expression by helping service providers manage their legal exposure, and they've been an extraordinary success," said EFF Senior Staff Attorney Corynne McSherry. "Without the safe harbor provisions, companies like YouTube, Facebook, and many others could have been shut down before they got off the ground. That's not what Congress intended."

The Consumer Electronics Association and the Home Recording Rights Coalition also joined the amicus brief. Local counsel Edward Hernstadt, of Hernstadt Atlas LLP, assisted with the filing.

For the full amicus brief:
https://www.eff.org/files/filenode/emi_v_mp3tunes/07civ9931WHP-AmicusBrief.pdf

Contacts:

Corynne McSherry
Senior Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

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