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June 14, 2004

Satellite TV Giant Will No Longer Prosecute Users for Mere Possession

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

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

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

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

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

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

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

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


Contact:

Jennifer Granick
Clinical Director
Stanford Law School Center for Internet and Society
jennifer@granick.com
+1 650 724-0014

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
+1 415 436-9333 x112

June 10, 2004

Organization Seeking Ten Patents to Challenge

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

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

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

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

Check out the Patent Busting Contest.

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
+1 415 436-9333 x112

Related Issues:
June 10, 2004

Idaho Student Acquitted of Terrorism Charges

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

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

Contact:

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

June 8, 2004

EFF Backs California Senate Bill Protecting Anonymous Speech Online

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

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

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

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

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

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

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

EFF Action Alert: http://action.eff.org/action/index.asp?step=2&ampitem=2914

Contact:

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

Deirdre Mulligan
Director
Samuelson Law, Technology &amp Public Policy Clinic
dmulligan@law.berkeley.edu
+1 510 642-0499


About EFF

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

About Samuelson Law Clinic

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

Related Issues:
June 2, 2004

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

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

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

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

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

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

Contact:

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

Brief

Exhibits available here.

EFF's e-voting pages

VerifiedVoting.org's litigation archive for Schade v. Maryland State Board of Elections

Related Issues:
May 25, 2004

EFF Urges Court to Find USA PATRIOT Act Powers Unconstitutional

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

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

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

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

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

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

Download the brief.

Contact:

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

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

May 18, 2004

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

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

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

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

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

Contact:

Ren Bucholz
Activist
Electronic Frontier Foundation
ren@eff.org
+1 415 436-9333 x121 (office), +1 415 254-9945 (cell)

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

Related Issues:
May 13, 2004

Donation to Support Patent-Busting Project

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

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

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

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

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

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

Contact:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org
+1 415 436-9333 x112

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org
+1 415 436-9333 x103

For more information on EFF's Patent-Busting Project, see: http://www.eff.org/Patent/

Related Issues:
May 12, 2004

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

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

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

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

May 12, 2004

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

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

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

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

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

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


Contact:

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

Related Issues:
May 5, 2004

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

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

April 30, 2004

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

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

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

Related Issues:
April 19, 2004

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

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

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

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

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

For this release:
http://www.eff.org/Patent/20040419_eff_pr_patent.php

EFF Patent Busting Project White Paper and related materials:
http://www.eff.org/Patent/

Federal Trade Commission Patent Reform Report:
http://www.ftc.gov/opa/2003/10/cpreport.htm

National Academy of Sciences Patent Reform Report:
http://www4.nationalacademies.org/news.nsf/isbn/0309089107?OpenDocument

Related Issues:
April 13, 2004

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

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

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

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

For this release:
http://www.eff.org/news/breaking/archives/2004_04.php#001412

EFF comments:
http://www.eff.org/Privacy/Surveillance/20040413_EFF_CALEA_comments.php

More information on surveillance:
http://www.eff.org/Privacy/Surveillance/

Related Issues:
April 1, 2004

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

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

The Orlando decision is here.

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

The Canadian decision is available here.

March 9, 2004

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

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

Related Issues:
March 9, 2004

Electronic Frontier Foundation Joins Other Organizations Opposing FCC Action

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

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

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

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

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

Links:

Contact:

Fred von Lohmann

   Senior Intellectual Property Attorney

   Electronic Frontier Foundation

   fred@eff.org

March 5, 2004

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

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

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

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

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

Links:

Contact:

Cindy Cohn

   Legal Director

   Electronic Frontier Foundation

   cindy@eff.org

Paul Levy

   Attorney

   Public Citizen Litigation Group

   plevy@citizen.org

About Public Citizen:

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

March 1, 2004

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

Related Issues:
February 27, 2004

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

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

Related Issues:
February 24, 2004

Electronic Frontier Foundation Says Exclude Non-Commercial Infringement

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

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

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

Links:

Contact:

Gwen Hinze

   Staff Attorney

   Electronic Frontier Foundation

   gwen@eff.org

Related Issues:
February 19, 2004

1-800 Contacts Can't See the Big Picture

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

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

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

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

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

Contact:

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

January 26, 2004

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

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

Related Issues:
January 26, 2004

Electronic Frontier Foundation Supports Extending Verizon Decision to Protect User Privacy

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

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

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

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

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

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

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

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

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

Contact:

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

Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
&nsbp; wendy@eff.org
About EFF:

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

January 24, 2004

1984 COURT RULING LAUNCHED A TECHNOLOGICAL REVOLUTION

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

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

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

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

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

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

January 23, 2004

Hollywood Promises Not to Sue Consumer Plaintiffs

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

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

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

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

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

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

Contact:

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

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

January 22, 2004

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

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

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

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

Related Issues:
January 21, 2004

Seeks Identities of More Than 500 Sharing Files Online

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

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

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

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

Links:

Contact:

Cindy Cohn

   Legal Director

   Electronic Frontier Foundation

  
href="mailto:cindy@eff.org">cindy@eff.org

Fred von Lohmann

   Senior Intellectual Property Attorney

   Electronic Frontier Foundation

 &nbsp
href="mailto:fred@eff.org">fred@eff.org

January 21, 2004

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

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

Related Issues:
January 8, 2004

Consumers Defend Use of Digital Video Recorders

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

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

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

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

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

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

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

Contact:

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

Gwen Hinze
Staff Attorney
Electronic Frontier Foundation
gwen@eff.org

January 5, 2004

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

January 5, 2004

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

January 4, 2004

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

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

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

Related Issues:
December 29, 2003

Evisa.com today won its appeal at the Ninth Circuit over whether its domain name diluted Visa's trademark for credit cards, keeping the word "visa" in the dictionary (and DNS servers) for now. "Visa is a generic word used throughout the world to describe foreign travel and was used long before it became a brand name for credit cards," said EFF Staff Attorney Jason Schultz. "The Court of Appeals wisely rejected Visa's attempt to monpolize use of the word 'visa' in a domain name without further proof of harm to Visa's business." EFF represented Evisa.com in its appeal along with Thomas Moore III of Tomlinson Zisko LLP.

For more information, see the EFF case archive.

December 19, 2003

In a victory for Verizon and the privacy of Internet users, the D.C. Circuit Court today dismissed the recording industry's subpoenas for user identities. (PDF opinion) The Recording Industry Association of America (RIAA) has filed
nearly 3,000 subpoenas in Washington, D.C., as a prelude to
lawsuits against 382 alleged filesharers. The court today
ruled that those subpoenas are not authorized by the Digital
Millennium Copyright Act.

"Internet users are the winners in the Verizon case," said
Electronic Frontier Foundation (EFF) Staff Attorney Wendy
Seltzer. "The effect of the appeals court decision is that
we do not lose our privacy simply by connecting to the
Internet. The ruling stops the record labels from taking our
free speech rights as collateral damage in the campaign
against the American music fan."

EFF filed an amicus brief supporting Verizon on behalf of 45
consumer, privacy, and Internet industry groups. (case archive)

December 18, 2003

"Allowing ordinary people to influence the rules that affect their lives through website 'action centers' is one of the best benefits of the technology revolution," said EFF Legal Director Cindy Cohn. "The Forest Service is right to listen to the opposition presented by a broad coalition of groups, led by EFF, and allow the public to continue to make its voice heard."

The Forest Service announced that it is abandoning its plan to reject public comments from online action centers and other "duplicative" sources. EFF led a coalition of 19 diverse organizations, including the Campaign for Tobacco Free Kids, the League of Conservation Voters and the AFL-CIO, that objected to the proposed rule.

Press Coverage
EFF's Comments to Forest Service
Coalition Letter to OMB Opposing Forest Service Rule

December 10, 2003

The RIAA announced yesterday that they have hired Bradley A. Buckles, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), to head up their anti-piracy unit. "This is just another example of the RIAA's ongoing plan to treat American consumers like criminals instead of customers," said EFF Staff Attorney Jason Schultz. "If they really wanted to solve their file-sharing problems, the RIAA should have considered hiring someone with a business plan rather than a baton and a bulletproof vest."

November 21, 2003

California Takes Lead in Protecting Democratic Voting

Sacramento, CA - Responding to a raft of reports detailing
flaws in electronic voting systems, California Secretary of
State Kevin Shelley today announced that he is requiring all
electronic voting systems purchased by California counties
to provide a paper printout to allow voters to verify their
votes and auditors to verify election results.

The Secretary of State is responsible for certifying all
voting machines used for elections within the state of
California.

The Electronic Frontier Foundation (EFF) has urged election
officials and legislators to require that electronic voting
machines use publicly reviewed software and generate a paper
record, which would allow voters to verify their votes as
well as create a "paper trail" for potential recounts.

"Secretary of State Shelley has taken a courageous and
important step in response to the growing public concern
about the security of voting machines," said EFF Legal
Director Cindy Cohn. "Paper audit trails are currently the
best way to prevent anyone from bungling or stealing our
elections."

"We hope that California can continue to lead the country
and the world in implementing secure electronic voting
standards," added EFF Activist Ren Bucholz.

"By requiring a voter verified paper trail, the Secretary of
State has taken a critical step toward preserving the
integrity of the voting process in the wake of new
technologies that change the ways in which we vote,"
commented California Voter Foundation President Kim
Alexander.

According to the California Voter Foundation, 9% of
California counties used electronic voting systems in the
October 2003 recall election, and 32-40% will likely use
electronic voting systems in the upcoming March 2004
elections.

Links:

Media coverage anticipating Shelley's electronic voting
paper trail announcement:


  • href="http://www.oaklandtribune.com/Stories/0,1413,82~1865~1781838,00.html">www.oaklandtribune.com/Stories/0,1413,82~1865~1781838,00.html

  • href="http://www.latimes.com/news/local/la-me-shelley21nov21,1,847438.story">www.latimes.com/news/local/la-me-shelley21nov21,1,847438.story (requires registration)

Contact:

Cindy Cohn

   Legal Director

   Electronic Frontier Foundation

   cindy@eff.org

Ren Bucholz

   Activist

   Electronic Frontier Foundation

   cindy@eff.org

Kim Alexander

   President

   California Voter Foundation

Related Issues:
November 13, 2003

The Northern District of Illinois District Court today ruled that the universal garage door clicker sold by Skylink Technologies that interoperates with Chamberlain Group garage door openers does not violate the DMCA

"We're pleased the court recognized consumers' reasonable expectation that they can replace lost or damaged remote controls with competing products without violating the DMCA. Congress clearly did not intend to give copyright owners the power to veto interoperable consumer products when it passed the DMCA" said EFF staff attorney Gwen Hinze.

November 4, 2003

"The broadcast flag rule forces manufacturers to remove useful features from television products you can buy today," said EFF Staff Technologist Seth Schoen. "The FCC has decided that the way to get Americans to adopt digital DTV is to make it cost more and do less."

November 3, 2003

Student Publishers and ISP Aim to Stop Diebold's Abusive Copyright Claims

PRESS CONFERENCE - LOCATION CHANGE!

Since the court system assigned us a judge in San Jose,
rather than San Francisco, the location of the press
conference in the OPG v. Diebold case has changed to
the location listed below.

EFF invites media professionals in the San Francisco Bay
Area to attend a press conference immediately following the
ruling of the judge at the federal courthouse on the motion
for a temporary restraining order to prevent Diebold from
sending further specious cease-and-desist notices (see media
release below for more details).

Date: Tuesday, November 4, 2003 (Election Day)

Time: Approximately 12:00 PM or when judge announces
decision. Please call cell phone numbers listed below or
EFF Media Relations Director Will Doherty at +1 415 425-3936
on day of press conference only.

Location: Federal Courthouse, 280 South 1st Street, San
Jose, CA 95113, near W. San Carlos St.

Judge: Jeremy Fogel, Courtroom 3, 5th Floor

For Immediate Release: Monday, November 3, 2003

Electronic Frontier Foundation and Stanford Law Clinic Sue Electronic Voting Company

Student Publishers and ISP Aim to Stop Diebold's Abusive
Copyright Claims

Electronic Frontier Foundation Media Release

San Francisco - A nonprofit Internet Service Provider (ISP)
and two Swarthmore College students are seeking a court
order on Election Day tomorrow to stop electronic voting
machine manufacturer Diebold Systems, Inc., from issuing
specious legal threats. The Electronic Frontier Foundation
(EFF) and the Center for Internet and Society Cyberlaw
Clinic at Stanford Law School are providing legal
representation in this important case to prevent abusive
copyright claims from silencing public debate about voting,
the very foundation of our democratic process.

Diebold has delivered dozens of cease-and-desist notices to
website publishers and ISPs demanding that they take down
corporate documents revealing flaws in the company's
electronic voting systems as well as difficulties with
certifying the systems for actual elections.

Swarthmore students Nelson Pavlosky and Luke Smith have
published an email archive of the Diebold documents, which
contain descriptions of these flaws written by the company's
own employees.

"Diebold's blanket cease-and-desist notices are a blatant
abuse of copyright law," said EFF Staff Attorney Wendy
Seltzer. "Publication of the Diebold documents is clear fair
use because of their importance to the public debate over
the accuracy of electronic voting machines."

Diebold threatened not only the ISPs of direct publishers of
the corporate documents, but also the ISPs of those who
merely publish links to the documents. In one such instance,
the ISP Online Policy Group (OPG) refused to comply with
Diebold's demand that it prohibit Independent Media Network
(IndyMedia) from linking to Diebold documents. Neither
IndyMedia nor any other publisher hosted by OPG has yet
published the Diebold documents directly.

"As an ISP committed to free speech, we are defending our
users' right to link to information that's critical to the
debate on the reliability of electronic voting machines,"
said OPG's Colocation Director David Weekly. "This case is
an important step in defending free speech by helping
protect small publishers and ISPs from frivolous legal
threats by large corporations."

The Digital Millennium Copyright Act (DMCA), passed by
Congress in 1998, provides a "safe harbor" provision as an
incentive for ISPs to take down user-posted content when
they receive cease-and-desist letters such as the ones sent
by Diebold. By removing the content, or forcing the user to
do so, for a minimum of 10 days, an ISP can take itself out
of the middle of any copyright claim. As a result, few ISPs
have tested whether they would face liability for such user
activity in a court of law. EFF has been exposing some of
the ways that the safe harbor provision can be used to
silence legitimate online speech through the Chilling
Effects Clearinghouse.

"Instead of paying lawyers to threaten its critics, Diebold
should invest in creating electronic voting machines that
include voter-verified paper ballots and other security
protections," said EFF Legal Director Cindy Cohn.

Links:

Contact:

Wendy Seltzer

   Staff Attorney

 &nbsp Electronic Frontier Foundation

   wendy@eff.org

Cindy Cohn

   Legal Director

   Electronic Frontier Foundation

   cindy@eff.org

David Weekly

   Colocation Director

   Online Policy Group

   david@onlinepolicy.org

October 28, 2003

Ignores Fair Uses of DVDs and CDs

Washington, DC - The Librarian of Congress today continued
to disregard consumers' rights and denied exemptions to
copyright law related to consumers' use of CDs and DVDs that
they legally purchase.

The Electronic Frontier Foundation (EFF) had urged the
Register of Copyrights and the Librarian of Congress to
grant exemptions to the 1998 Digital Millennium Copyright
Act (DMCA) ban on circumventing technological locks that
prevent consumers from fully enjoying the digital media that
they own. These digital locks, technically known as "digital
rights management" systems, limit how consumers can play and
view their CDs and DVDs.

Specifically, EFF had asked the Copyright Office to allow
consumers to:

  1. Play copy-protected audio CDs that malfunction to prevent
    playback
  2. View foreign region-coded DVD movies on U.S. players
  3. Fast-forward through unskippable commercials prior to
    movies on DVDs
  4. Play and make full use of public domain movies on DVDs

"Consumers are the real losers in today's ruling, because
the Librarian of Congress is ignoring the rights of nearly
everyone who has purchased CDs and DVDs," said EFF Staff
Attorney Gwen Hinze. "We're disappointed that the Copyright
Office and the Librarian of Congress did not recognize the
significant impact that the DMCA is having on millions of
consumers' ability to make reasonable uses of digital
media they've purchased."

"Although the exemptions granted by the Librarian of
Congress are important, today's ruling just underscores
the need for legislative reform of the DMCA to restore
the balance in U.S. Copyright law," commented EFF Senior
Intellectual Property Attorney Fred von Lohmann.

The Copyright Office did grant exemptions for the following
activities:

  1. Decoding lists of Web pages or directories blocked by
    Internet filtering software, also known as censorware. EFF
    Pioneer Award recipient Seth Finkelstein was instrumental in
    lobbying for censorware exemptions to the DMCA for each U.S.
    Copyright Office rulemaking period.
  2. Circumventing obsolete digital rights management devices
    called dongles that prevent access due to malfunction or
    damage. The Internet Archive requested this exemption.
  3. Accessing computer programs and video games distributed
    in obsolete formats. The Internet Archive requested this
    exemption.
  4. Accessing ebooks for which the publisher has disabled the
    read-aloud function or the ability to use screen readers to
    render the text into a specialized format, such as Braille
    for access by the blind. The American Foundation for the
    Blind and five major library associations requested this
    exemption.

Links:

Contact:

Fred von Lohmann

  Senior Intellectual Property Attorney

  Electronic Frontier Foundation

  fred@eff.org

Gwen Hinze

  Staff Attorney

  Electronic Frontier Foundation

  gwen@eff.org

October 27, 2003

MIT today announced an innovative solution aimed at giving students an alternative to swapping music online. Built around the existing on-campus cable television infrastructure, it relies on a blanket licensing approach that offers a possible model for solving the Internet file-sharing dilemma.

"The students get access to a broad array of music, and the copyright owners get paid. This is where we should all be heading," said Fred von Lohmann, EFF senior staff attorney. "I hope the record industry takes note and realizes this is a whole lot more promising than suing people."

October 16, 2003

The recording industry has started the second round of its campaign against American music fans by sending letters threatening them with lawsuits and offering to discuss settlement. "The record companies still aren't listening to their fans instead of continuing their litigation crusade, the labels should give their customers the option to pay a reasonable fee to continue file-sharing," said EFF Staff
Attorney Wendy Seltzer.

October 16, 2003

EFF Defends Right to Publish Links to Electronic Voting Memos

San Francisco - Defending the right to link to controversial
information about flaws in electronic voting systems, EFF
announced today it will defend an Internet Service Provider
(ISP) and a news website publisher against claims of
indirect copyright infringement from the electronic voting
machines' manufacturer.

On October 10, 2003, electronic voting company Diebold,
Inc., sent a cease-and-desist letter to the nonprofit Online
Policy Group (OPG) ISP demanding that OPG remove a page of
links published on an Independent Media Center (IndyMedia)
website located on a computer server hosted by OPG.

Diebold sent out dozens of similar notices to ISPs hosting
IndyMedia and other websites linking to or publishing copies
of Diebold internal memos. OPG is the only ISP so far to
resist the takedown demand from Diebold.

"What topic could be more important to our democracy than
discussions about the mechanics and legitimacy of electronic
voting systems now being introduced nationwide?" said EFF
Staff Attorney Wendy Seltzer. "EFF won't stand by as
corporations like Diebold chill important online debate by
churning out legal notices to ISPs that usually just take
down legitimate content rather than face the legal risk."

The Digital Millennium Copyright Act (DMCA) passed by
Congress in 1998 provides a "safe harbor" as an incentive
for ISPs to take down user-posted content when they receive
cease-and-desist letters such as the ones sent by Diebold.
By removing the content, or forcing the user to do so, for a
minimum of 10 days, an ISP can take itself out of the middle
of any copyright claim. As a result, few ISPs have tested
whether they would face any liability for such user activity
in the first place. EFF has been exposing some of the ways
the safe harbor limits online speech through the Chilling
Effects Clearinghouse.

"We defend strongly the free speech right of our client
IndyMedia to publish links to Diebold memos relevant to the
public debate about electronic voting machine security,"
explained OPG Executive Director Will Doherty. "Diebold's
claim of copyright infringement from linking to information
posted elsewhere on the Web is ridiculous, and even more
silly is the claim that we as an ISP could be liable for our
client's web links."

Links:

Contact:

Wendy Seltzer

Staff Attorney

Electronic Frontier Foundation

wendy@eff.org

Will Doherty

Executive Director

Online Policy Group

press@onlinepolicy.org

October 14, 2003

CD copy-protection vendor SunnComm Technologies has said that it will not sue J. Alex Halderman under the DMCA for publishing a paper that disclosed weaknesses in the company's latest MediaMax protection technology. The final concession comes after a week of off-again, on-again threats against the Princeton computer science graduate student. EFF had offered to represent Mr. Halderman if SunnComm made good on its earlier litigation threats.

"We're glad that cooler heads prevailed at SunnComm," said Fred von Lohmann, EFF senior staff attorney. "But this is just the latest example of the chill that the DMCA has injected into the computer security research community. These irresponsible legal threats imperil not only First Amendment values, but also scare future generations of researchers away from important computer security investigations."

October 14, 2003

Another Error in Record Companies' Legal Crusade

Los Angeles, California - EFF today announced that it will
defend Ross Plank of Playa Del Rey, California, against a
wrongly filed complaint, among the 261 copyright
infringement lawsuits the recording industry has filed
against individuals.

The federal lawsuit filed against Plank in Los Angeles
accuses him of making hundreds of Latin songs available
using KaZaA filesharing software earlier this summer. Plank
does not speak Spanish and does not listen to Latin music.
More importantly, his computer did not even have KaZaA
installed during the period when the investigation occurred.

EFF has offered to accept service of the complaint on
Plank's behalf, the first step to defending the lawsuit.

Plank is a website consultant who operates his business,
Sitenurturing.com, from his home. "I need my computer and
Internet connection to run my business," said Plank. "I
shouldn't have to feel my business and future are at risk
because the RIAA has somehow linked my name to a set of
Latin songs."

Comcast, Plank's ISP, notified him that they received a
subpoena from the recording industry seeking his identity,
but Plank disregarded the notice because he didn't didn't
use KaZaA and didn't even recognize the song titles. Plank's
records from the time at which the RIAA issued its subpoena
indicate that he was not even using the network address for
which the recording industry had sought the user's identity.

"Whether the error was made by Comcast or the RIAA, the
issuance of a federal complaint on such slim evidence
demonstrates the serious flaws in the Recording Industry's
litigation campaign," said Wendy Seltzer, an EFF staff
attorney representing Plank. "It's not fair to hold people
like Mr. Plank as collateral damage in the RIAA dragnet. If
the labels don't dismiss the complaint, we'll look forward
to discovery into how they made this misidentification in
the first place."

"The recording industry's 'sue first and ask questions
later,' policy caused this problem," added EFF Legal
Director Cindy Cohn. "The RIAA recently told Congress that
its members will contact individuals in the future before
suing them -- but better yet would be to ensure that they
cannot violate the privacy of people like Ross Plank in the
first place until they have demonstrated to a judge that
they have their facts straight."

EFF has urged the recording industry to accept filesharing
by embracing new ways of ensuring that copyright holders and
artists are compensated. "Radio stations pay a blanket fee
and get to 'share' any music that they like," noted EFF
Executive Director Shari Steele. "The record companies could
ensure that artists are paid for music shared using the
filesharing networks if they offered individuals a similar
deal and paid a portion of the funds directly to artists."

Links:

Contact:

Wendy Seltzer

  Staff Attorney

  Electronic Frontier Foundation

  wendy@eff.org

Cindy Cohn

  Legal Director

  Electronic Frontier Foundation

  cindy@eff.org

Ross R. Plank

  Defendant in RIAA Case

  SiteNurturing.com

  ross@sitenurturing.com

October 9, 2003

CD copy-protection vendor, SunnComm Technologies Inc., today threatened to sue Princeton graduate student J. Alex Halderman for publishing a paper that reveals that simply holding down the shift key can defeat its latest copy-protection technology.

"What more proof do you need that the DMCA is chilling legitimate research?" asked EFF senior staff attorney Fred von Lohmann. "In America today, scientists shouldn't have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them."

For a compendium of other incidents involving the use of the Digital Millennium Copyright Act (DMCA) to squelch legitimate research, see EFF's recently revised report, "Unintended Consequences: Five Years Under the DMCA".

October 6, 2003

Princeton computer science student Alex Halderman has released a paper describing a one-click method to bypass the "copy protection" on the recently released Anthony Hamilton CD from BMG. "Halderman's paper illustrates exactly who's hurt by copy protections: the ordinary user, who can't move tracks to his iPod without going to KaZaA to get the music he has already paid for," said EFF Staff Attorney Wendy Seltzer. "These so-called speed bumps haven't kept songs off the peer-to-peer networks, they've only made it more difficult for the public to make fair use of music from authorized sources."

October 3, 2003

EFF welcomed the suspension of VeriSign's SiteFinder service today, after a formal request from ICANN. "We're pleased that ICANN has finally found the will to stand up for the clear interests of Internet users, to stop VeriSign's interference with their network traffic," said Staff Attorney Wendy Seltzer. Staff Technologist Seth Schoen adds "VeriSign complains ICANN gave it no hearing -- yet VeriSign gave no hearing to the Internet community before adopting Site Finder, and still seems deaf to public concerns."

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