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August 15, 2007

NSA Surveillance Comes Under Fire Today in Appeals Court Battle

San Francisco - In a packed San Francisco courtroom today, the Electronic Frontier Foundation (EFF) urged the 9th U.S. Circuit Court of Appeals to allow AT&T customers to continue to fight against illegal spying on their telephone and Internet communications.

EFF is representing the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the giant telco of violating their rights by illegally assisting the National Security Agency in domestic surveillance. The U.S. government is fighting to get the class-action lawsuit thrown out of court, contending that the litigation jeopardizes state secrets.

"The courts cannot permit the government to evade responsibility for unconstitutional activities with thin claims of 'state secrets.' Without judicial review, there is no way to stop abuses of power," said EFF Legal Director Cindy Cohn. "The courts are well equipped to protect state secrets while determining whether the spying is illegal and if so, to put a stop to it."

"In trying to shut down this case, the government is hoping to avoid accountability for spying on millions of AT&T customers," said EFF Staff Attorney Kevin Bankston. "Our system of checks and balances is supposed to thwart abuses of power. The White House is trying to wiggle out of those checks by taking the courts out of the picture."

Also Wednesday, the court heard arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the federal agents illegally wiretapped calls between the charity and its lawyers. The government also wants this case dismissed on state secrets grounds.

"The President is trying to hide behind a veil of false secrecy to evade a judicial determination that he broke the law. We're asking the court to see through that ploy," said Jon B. Eisenberg of Eisenberg and Hancock, LLP, attorney for the Al-Haramain plaintiffs.

C-SPAN television recorded today's hearing and said it would air later in the day.

The appeals court did not make a ruling Wednesday. The decision will be released at a later date.

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Jon B. Eisenberg
Attorney for the Al-Haramain plaintiffs
Eisenberg and Hancock, LLP
jon@eandhlaw.com

Ashlee Albies
Attorney for the Al-Haramain plaintiffs
ashlee@albieslaw.com

Related Issues:
August 9, 2007

Government Aims to Block Accountability for Illegal Spying on Americans

San Francisco - In the wake of Congress approving a dramatic expansion of U.S. warrantless wiretapping powers, the 9th U.S. Circuit Court of Appeals will hear arguments on the future of two critical lawsuits over illegal surveillance of Americans. The hearing is set for August 15, at 2 p.m. in San Francisco.

The government is fighting to get the cases thrown out of court, contending that the litigation jeopardizes state secrets. The Electronic Frontier Foundation (EFF) is representing the plaintiffs in Hepting v. AT&T, which accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal electronic surveillance of millions of AT&T's customers. The court will also hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.

"At issue here is whether the courts have any meaningful role to play in protecting Americans' privacy from Executive branch abuses of its surveillance powers," said EFF Legal Director Cindy Cohn. "If the claim of 'state secrets' is allowed to shut down litigation, then the courts will never be able to exercise their Constitutional duty to hold the White House accountable for illegal and even unconstitutional abuses of power."

The court has scheduled one hour of arguments for Hepting v. AT&T, and 40 minutes for Al-Haramain Islamic Foundation v. Bush. Because of the large number of attendees expected at Wednesday's hearing, the court will provide an overflow room with audio and video of the proceedings for spectators who cannot get a seat in the courtroom itself.

For more information about attending the hearing, contact press@eff.org.

WHAT:
Hepting v. AT&T
Al-Haramain Islamic Foundation v. Bush

WHEN:
2 p.m.
Wednesday, August 15

WHERE:
9th U.S. Circuit Court of Appeals
Courtroom 1, 3rd Floor
95 Seventh Street
San Francisco, CA 94103

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

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

Lisa Jaskol
Attorney for the Al-Haramain plaintiffs
ljaskol@earthlink.net

Related Issues:
August 6, 2007

Record Industry Takes Aim at Right of 'First Sale'

San Francisco - An eBay seller is taking on Universal Music Group (UMG) in court after the record industry giant targeted his online music sales with false claims of copyright infringement.

The Electronic Frontier Foundation (EFF) and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Augusto does business on eBay under the name Roast Beast Music and specializes in sales of rare and collectible music.

Copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder. Nevertheless, Universal demanded that eBay take down Augusto's auctions, claiming that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.

"When a consumer buys a CD, he gets certain rights, including the right to resell it. Universal is mistaken if it thinks that it can trump these rights simply by putting a label on a CD," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "Universal is trying to unilaterally rewrite copyright law to the detriment of Augusto's legitimate business and the public. Unless this effort is blocked, it could jeopardize not only sales of used CDs, but also libraries, used bookstores, and businesses that rent movies and video games."

In May, Universal filed a copyright infringement lawsuit against Augusto. Today, EFF filed papers with the federal court in Los Angeles answering Universal's claims and counter-suing the company for sending bogus "takedown notices" to eBay that resulted in the unwarranted suspension of Augusto's auctions.

This is not the first instance of Universal and its affiliated companies abusing copyright law. Last month, EFF filed suit against Universal Music Publishing Group on behalf of a mom who had a home video yanked from YouTube because a snippet of a Prince song could be heard in the background. In May, UMG made baseless copyright complaints about a video podcast by political blogger Michelle Malkin.

EFF has also fought other efforts to override the first sale doctrine, arguing in 2004 that Lexmark should not be permitted to use a "label license" to prohibit the resale of laser printer toner cartridges.

For the answer and counterclaim:
http://www.eff.org/legal/cases/umg_v_augusto/20070806_augusto_answer.pdf

For more on this case:
http://www.eff.org/legal/cases/umg_v_augusto

Contacts:

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

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

Related Issues:
July 24, 2007

Home Video of Dancing Toddler Yanked From YouTube After Bogus Claim

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against Universal Music Publishing Group (UMPG), asking a federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on the Internet.

Stephanie Lenz's 29-second recording shows her son bouncing along to the Prince song "Let's Go Crazy," which is heard playing in the background. Lenz uploaded the home video to YouTube in February to share it with her family and friends.

But last month, YouTube informed Lenz that it had removed the video from its website after Universal claimed that the recording infringed a copyright controlled by the music company. Under federal copyright law, a mere allegation of copyright infringement can result in the removal of content from the Internet.

"I was really surprised and angry when I learned my video was removed," said Lenz. "Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends."

"Universal's takedown notice doesn't even pass the laugh test," said EFF Staff Attorney Corynne McSherry. "Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video."

Last May, UMPG's parent company, Universal Music Group, sent a baseless copyright takedown demand to YouTube for a video podcast by political blogger Michelle Malkin. That video was quickly reposted after Malkin fought back.

"Copyright abuse can shut down online artists, political analysts, or -- as in this case -- ordinary families who simply want to share snippets of their day-to-day lives," said EFF Staff Attorney Marcia Hofmann. "Universal must stop making groundless infringement claims that trample on fair use and free speech."

The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video.

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper takedowns under the Digital Millennium Copyright Act.

For the video (since reposted):
http://www.youtube.com/watch?v=N1KfJHFWlhQ

For the full complaint:
http://www.eff.org/legal/cases/lenz_v_universal/lenz_complaint_final.pdf

For more on DMCA abuse and free speech:
http://www.eff.org/IP/freespeech/

Contacts:

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

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

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

Related Issues:
July 23, 2007

Justice Department Withholds Records on Electronic Surveillance

Washington, D.C. - On Thursday, July 26, at 11 a.m., the Electronic Frontier Foundation (EFF) will argue for the release of court orders that supposedly authorize the government's highly controversial electronic domestic surveillance program that intercepts and analyzes millions of Americans' communications.

The White House first acknowledged the surveillance program's existence in 2005, claiming that it could be conducted without warrants or judicial authorization of any kind. But in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF filed a Freedom of Information Act (FOIA) request with Department of Justice (DOJ) for the FISC orders and other records concerning the purported changes in the program, but when the DOJ did not comply, EFF filed suit in federal court.

Thursday's hearing, before Chief Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia, will include oral arguments from both EFF and the DOJ.

WHAT:
EFF v. Department of Justice

WHEN:
11 a.m.
Thursday, July 26

WHERE:
United States District Court for the District of Columbia
Courtroom 25A
333 Constitution Avenue, N.W.
Washington, D.C. 20001

For more on EFF's lawsuit:
http://www.eff.org/flag/07403TFH

Contact:

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

Related Issues:
July 16, 2007

EFF Urges Appeals Court to Protect Innovation

San Francisco - The Electronic Frontier Foundation (EFF) has filed a brief urging the 9th U.S. Circuit Court of Appeals to reconsider a recent ruling that endangers features like search customization and user feedback on interactive web services.

The ruling came in a housing discrimination lawsuit against Roommate.com, which runs Internet forum where users can search for potential roommates. A three-judge panel held that Roommate.com could be held liable for the activity of its users because it "suggested, encouraged, or solicited" and then sorted and categorized content that may have violated fair housing law. But this reasoning threatens both current and future Internet innovators with potentially insurmountable liability problems -- impacting everything from search engine functionality to the ability to tag content on media sharing sites such as YouTube and Flickr -- and is directly contrary to federal law. As EFF argued Friday in its amicus brief in support of appeal, Roommate.com is immune to liability for its users' activities under Section 230 of the Communications Decency Act, which specifically protects hosts of interactive computer services.

"Section 230 of the Communications Decency Act was passed specifically to help the Internet continue to grow without being tied down by regulation," said EFF Staff Attorney Matt Zimmerman. "If service providers have to worry about potentially crushing liability, it will strongly discourage the development of new tools for online users. In fact, many of the tools we use already would be impacted by this ruling, potentially crippling innovations in search and customization."

Search engines, for example, are designed to categorize and sort content, features potentially at risk under the Ninth Circuit's ruling. Sites that solicit user feedback and opinions and allow searching by user ranking could also run afoul of the new ruling.

"Courts across the country have recognized the critical role that Section 230 plays in Internet innovation," said Zimmerman. "The 9th Circuit should take this appeal and clarify that its strong protections remain in full force."

For the full amicus brief:
http://www.eff.org/legal/cases/roomate.com/EFFroommateamicus.pdf

For more on this case:
http://www.eff.org/legal/cases/roommate.com

Contact:

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

July 12, 2007

Friday Hearing to Finalize Sanctions, Revote in Contested Election

Oakland, Calif. - On Friday, July 13, at 9:30 a.m., a California judge will rule on sanctions against Alameda County for botching its response to a contested race conducted on Diebold electronic voting machines. In a tentative ruling issued Thursday, Judge Winifred Y. Smith said that the election results in the race were "nullified" and ordered a revote.

Americans for Safe Access and voters in the city of Berkeley brought a legal challenge seeking a recount after Measure R, an initiative addressing the operation of medical marijuana dispensaries, lost by fewer than 200 votes in the 2004 election. While the lawsuit was ongoing, election officials returned the voting machines to supplier Diebold Election Systems, and 96% of the election data was destroyed. The Electronic Frontier Foundation (EFF) helped analyze the remaining data, but too many questions remained.

"Without examining the redundant data, audit logs, and chain-of-custody records, no one can confirm whether any of the reported malfunctions were ever resolved or whether vote data was manipulated or lost," said EFF Staff Attorney Matt Zimmerman. "As a result, no one can ever confirm whether the vote result announced by the county was correct."

Smith's tentative ruling orders the county to place Measure R on the ballot in the next general election, as well as to pay the costs for the incomplete recount. That ruling is likely to be finalized after Friday's hearing.

What:
Americans for Safe Access vs. County of Alameda

When:
9:30 a.m.
Friday, July 13, 2007

Where:
Wiley Manuel Courthouse
Department 114
661 Washington Street
Oakland, CA

Contacts:

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

Gregory G. Luke
Attorney
Strumwasser & Woocher LLP
gluke@strumwooch.com

Rebecca Saltzman
Chief of Staff
Americans for Safe Access
rebecca@safeaccessnow.org

Caleb Dardick
CDA Strategies
caleb@cdastrategies.com

Related Issues:
July 10, 2007

EFF Lawsuit Uncovers History of Surveillance Mistakes

Washington, D.C. - Documents obtained by the Electronic Frontier Foundation (EFF) show years of chronic problems with the Federal Bureau of Investigation's use of National Security Letters (NSLs) to collect Americans' personal information and that Attorney General Alberto Gonzales has long been aware of these problems.

The documents were disclosed after EFF sued the government under the Freedom of Information Act (FOIA) earlier this year for records related to a scathing Justice Department critique of FBI NSL activity. The records detail more than 40 instances of improper, unauthorized collection of information about individuals, including unlawful access to phone records and email. The records show that Gonzales himself was sent several of these problem reports, including one less than a week before he told a congressional committee that no civil liberties abuses have resulted from the USA PATRIOT Act. He also voiced surprise when the Justice Department report on NSL misuse was made public earlier this year.

"These chronic privacy problems have long been known within the Justice Department but still were kept secret from those who really needed to know -- members of the American public, including those who were surveilled," said EFF Staff Attorney Marcia Hofmann. "The FBI can't be trusted to police its own agents. It's time for Congress to provide oversight to protect American citizens."

The FBI's use of NSLs was expanded under the USA PATRIOT Act in 2001, allowing federal agents to gather private records about anyone's domestic phone calls, emails, and financial transactions without any court approval -- as long as an FBI agent claims that the information could be related to a terrorism or espionage investigation. EFF submitted a FOIA request about the reported misuse of NSLs in March, and when no documents were forthcoming, EFF sued the FBI for their immediate release. Last month, a judge held that the FBI was required to release records related to the inspector general's report beginning on July 5, with more documents to be disclosed every 30 days. In all, 1138 pages of NSL records were released to EFF late last week in the first batch of documents complying with the court's order.

"This is by no means the whole story on NSL abuse," said EFF Senior Counsel David Sobel. "We're looking forward to receiving the rest of the documents. Americans deserve the whole story on the FBI's deeply flawed program to issue NSLs."

For the complete FBI documents and more analysis:
http://www.eff.org/flag/07656JDB/

Contacts:

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

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

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
July 6, 2007

Innocent Target of File-Sharing Lawsuit Racked Up Legal Fees Fighting Baseless Charges

Seattle - The Recording Industry Association of America (RIAA) should pay for a single mom's two-year legal ordeal fighting a baseless file-sharing lawsuit, the Electronic Frontier Foundation (EFF) told Washington state court in an amicus brief filed Thursday.

The nightmare began for Dawnell Leadbetter in January of 2005, when she received a letter from the RIAA that accused her of illegally downloading copyrighted music and claiming she owed hundreds of thousands of dollars. Leadbetter contacted the RIAA to deny the baseless claims, and refused to pay any settlement monies. In response, the RIAA sued Leadbetter, and Leadbetter hired an attorney to fight the charges. After months of legal wrangling, the RIAA finally dropped the case in December of 2006. But in the meantime, Leadbetter had incurred significant attorney's fees.

"Ms. Leadbetter isn't the only innocent Internet user that has been ensnared by the RIAA's litigation dragnet. But she is one of the few who have fought back, resisting RIAA pressure to pay settlement monies for something she did not do," said EFF Staff Attorney Jason Schultz. "The RIAA's settlement offers are usually less that what it would cost to defend yourself, so it's a big commitment to hire a lawyer to clear your name. Reimbursing Ms. Leadbetter's attorney's fees could encourage other innocent lawsuit targets to stand up for themselves."

Since 2003, the RIAA has sued over 20,000 people for allegedly sharing music over the Internet. The industry uses questionable investigative methods tactics to find its targets, and then often employs erroneous legal theories in its quest for settlement monies. In Ms. Leadbetter's case, the suit against her included accusations of "secondary liability" -- putting her on the hook for anything that happened on her Internet account, whether she knew about it or not.

"The RIAA knows that this legal theory is wrong. But if innocent victims are too scared to hire an attorney and fight back, the public could suffer under the misconception that these bogus theories are legitimate," Schultz said. "Awarding attorney's fees to Ms. Leadbetter helps protect everyone's rights under copyright law."

The amicus brief was filed in U.S. District Court in Seattle in conjunction with attorney Derek Newman of Newman & Newman LLP.

For the full amicus brief:
http://eff.org/legal/cases/interscope_v_leadbetter

For more on the RIAA lawsuit campaign:
http://www.eff.org/IP/P2P/?f=riaa-v-thepeople.html

Contact:

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

Related Issues:
June 25, 2007

Public Interest Groups Urge Court to Block Radical Expansion of Discovery Rules

San Francisco - The Electronic Frontier Foundation (EFF) and Center for Democracy and Technology (CDT) urged a California court Friday to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit.

The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios.

"This unprecedented ruling has implications well beyond the file sharing context," said EFF Staff Attorney Corynne McSherry. "Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users."

The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy's webservers, they are "electronically stored information" that must be collected and turned over to the studios under the rules of federal discovery.

This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.

"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," said EFF Senior Staff Attorney Fred von Lohmann. "There is no reason why the rules should be different simply because a company uses digital technologies."

The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent.

The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the U.S. District Court for the Central District of California before Judge Florence-Marie Cooper.

For the full amicus brief:
http://www.eff.org/legal/cases/torrentspy/EFF_CDT_amicus.pdf

Contacts:

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

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

Related Issues:
June 21, 2007

Vote to Authorize Subpoenas Sets Stage for Showdown Over Illegal Surveillance

San Francisco - The Senate Judiciary Committee voted today to authorize subpoenas related to the National Security Agency (NSA)'s domestic spying program, setting the stage for a Congressional showdown over the surveillance of millions of ordinary Americans. The subpoenas demand certain legal documents that the Administration has withheld despite Congress' repeated requests.

"This subpoena authorization is a critical first step toward uncovering the full extent of the NSA's illegal spying and the role that telecommunications companies like AT&T played in it," said EFF Staff Attorney Kevin Bankston. "Considering that it's been almost six years since the NSA started spying on Americans without warrants and over a year since that spying was revealed publicly, these subpoenas are long overdue. It's high time for Congress to get to the bottom of this mess."

The Electronic Frontier Foundation (EFF) is suing AT&T for illegally assisting in the NSA spying. The government has asked the 9th U.S. Circuit Court of Appeals to dismiss EFF's case, claiming that the lawsuit could expose state secrets.

"Our case against AT&T includes evidence from a former employee that points to a massive spying program impacting millions of people -- a program far broader than the government has admitted to," said Bankston. "Americans deserve to know the truth about the NSA program."

For more on the class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

Derek Slater
Acting Media Coordinator
Electronic Frontier Foundation
derek@eff.org

June 19, 2007

EFF Urges Court to Protect Privacy at Border Crossings

San Francisco - The government should not search travelers' computers at border crossings without suspicion, said the Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) in an amicus brief filed today in the 9th U.S. Circuit Court of Appeals.

Over the past several years, U.S. customs agents have been searching and even seizing travelers' laptops when they are entering or leaving the country if the traveler fits a profile, appears to be on a government watch list, or is chosen for a random inspection. The Supreme Court has ruled that customs and border agents may perform "routine" searches at the border without a warrant or even reasonable suspicion, but EFF and ACTE argue that inspections of computers are far more invasive than flipping through a briefcase.

"Our laptop computers contain vast amounts of personal information about our lives. You may do your banking on your computer, for example, or send email to your doctor about health concerns," said EFF Senior Staff Attorney Lee Tien. "Travelers should not be subjected to unconstitutionally invasive searches of their laptops and other electronic devices just because they are crossing the border."

The case in front of the 9th Circuit, United States v. Arnold, arose out of a suspicionless "profile" search of Michael Timothy Arnold's computer at Los Angeles International Airport. The search uncovered evidence of alleged child pornography, and Mr. Arnold moved to suppress the evidence as the product of an unconstitutional search. The district court ruled that the agents lacked a reasonable basis to suspect Mr. Arnold of having committed a crime, and the government appealed the ruling. Mr. Arnold is represented by the Pasadena law firm of Kaye, McLane & Bednarski, LLP. The EFF-ACTE amicus brief was prepared by Arent Fox LLP.

For the full amicus brief:
http://www.eff.org/legal/cases/US_v_arnold/arnold_amicus.pdf

Contact:

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

Related Issues:
June 18, 2007

Landmark Ruling Gives Email Same Constitutional Protections as Phone Calls

San Francisco - The government must have a search warrant before it can secretly seize and search emails stored by email service providers, according to a landmark ruling Monday in the 6th U.S. Circuit Court of Appeals. The court found that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls -- the first circuit court ever to make that finding.

Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But today's ruling -- closely following the reasoning in an amicus brief filed the by the Electronic Frontier Foundation (EFF) and other civil liberties groups -- found that the SCA violates the Fourth Amendment.

"Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," said EFF Staff Attorney Kevin Bankston. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your emails without a warrant."

Warshak v. United States was brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy & Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak's counsel Martin Weinberg.

For the full ruling in Warshak v. United States:
http://eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF's resources on the case, including its amicus brief:
http://www.eff.org/legal/cases/warshak_v_usa

Contacts:

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

Related Issues:
June 15, 2007

New Evidence of Misuse Prompts Immediate Response in EFF FOIA Lawsuit

Washington, D.C. - A judge ordered the FBI today to finally release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information. The ruling came just a day after the Electronic Frontier Foundation (EFF) urged the judge to immediately respond in its lawsuit over agency delays.

EFF sued the FBI in April for failing to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs as revealed in a Justice Department report. This week, more evidence of abuse was uncovered by the Washington Post, and EFF urged the judge Thursday to force the FBI to stop stalling the release of its records on the deeply flawed program.

"The reports we've seen so far about NSL abuse are just the tip of the iceberg," said EFF Staff Attorney Marcia Hofmann. "FBI officials told the Washington Post that there have likely been several thousand total instances of misuse. Americans deserve answers about this scandal and how the FBI has abused its power to spy on ordinary citizens."

Under the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. Without a judge's oversight, the law is ripe for the abuse that has been uncovered in these recent reports.

"The law itself is the source of the problem. It's time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority," said Hofmann.

The judge's order requires the FBI to process 2500 pages of NSL-related records by July 5, and then 2500 pages every 30 days thereafter.

For the judge's order:
http://www.eff.org/flag/nsl/bates_order.pdf

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html

Contacts:

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

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
June 14, 2007

More Questions About Misuse of Authority at the Justice Department

Washington, D.C. - The Electronic Frontier Foundation (EFF) urged a judge Thursday to force the FBI to finally release records about its now documented abuse of National Security Letters (NSLs) to collect Americans' personal information. EFF's filing comes as an internal FBI audit revealed that the bureau's misuse of surveillance authority has been more widespread then previously thought.

EFF sued the FBI in April after the agency failed to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs. EFF's FOIA request came after an initial Justice Department report indicated extensive abuse of the powerful NSL tools. Now, the Washington Post has reported that a new audit identified more than 1000 potential violations made while agents collected data about domestic phone calls, emails and financial transactions of thousands of Americans. FBI officials told Post that there have likely been several thousand instances of abuse in total. This week, the FBI also released new guidelines for the use of NSLs, but that won't fix the core problem -- a law that's ripe for abuse.

"Under the PATRIOT Act, the Bureau can use NSLs to get private records about anybody without any court approval, as long as it claims the information could be relevant to a terrorism or espionage investigation," said Marcia Hofmann, EFF Staff Attorney. "We have heard again and again about how the FBI has misused this new power to overreach into the lives of ordinary Americans. It's time for someone other than the Justice Department to assess the documented problems, and long past time for Congress to fix the mistake it made in the PATRIOT Act, including repealing the expanded NSL powers it gave the FBI."

EFF's supplemental memo to the court, filed Thursday, asked the judge to rule on a request for a preliminary injunction that would force the FBI to begin releasing information about NSL abuse to the public immediately.

For EFF's supplemental memo:
http://eff.org/flag/nsl/supplemental_memo.pdf

For the Washington Post article on NSLs:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453_pf.html


Contacts:

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

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
June 12, 2007

More Bogus Copyright Claims in Uri Geller's Frivolous Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) urged a judge Monday to dismiss a frivolous lawsuit filed by Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- because of its blatant attempt to silence critic Brian Sapient with bogus copyright claims.

Geller's quest to shut down Sapient's criticism started when Sapient uploaded video to YouTube challenging Geller's assertions about his mental powers. The 14-minute segment came from a NOVA television program, but Geller and his corporation Explorologist Ltd. claimed the video infringed its own copyrights and had the video removed from YouTube. Sapient filed a counter-notice under the Digital Millennium Copyright Act (DMCA), had the video restored to YouTube, and sued Geller for misrepresentation.

As Sapient was challenging Geller's meritless claims, Explorologist filed a separate lawsuit against Sapient. The suit includes more bogus charges, with many of them based on the assertion that Explorologist has the copyright to eight seconds of the introductory footage in the NOVA video. EFF's motion to dismiss the case points out the numerous holes in this claim, arguing that even if it were true, eight seconds is a classic fair use -- especially given the critical purposes of the use. The brief also argues that Section 230 of the Communications Decency Act protects Sapient from infringement claims and other charges in Explorologist's complaint, immunizing Sapient as the publisher of third-party content.

"Copyright law is meant to protect creative artists, not hypersensitive public figures who don't like criticism," said EFF Senior Staff Attorney Jason Schultz. "The First Amendment does not allow Geller or his corporation to silence legitimate discussion of his abilities."

Meanwhile, Sapient's lawsuit against Geller is still pending before the Northern District of California. The suit asks for damages due to Geller's DMCA violation, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and Geller to be restrained from bringing any further legal action against Sapient in connection to the clip.

For the full motion to dismiss Geller's suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf

For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

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

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

Related Issues:
June 12, 2007

Whistleblower Declaration and Other Key Documents Released to Public

San Francisco - More documents detailing secret government surveillance of AT&T's Internet traffic have been released to the public as part of the Electronic Frontier Foundation's (EFF's) class-action lawsuit against the telecom giant.

Some of the unsealed information was previously made public in redacted form. But after negotiations with AT&T, EFF has filed newly unredacted documents describing a secret, secure room in AT&T's facilities that gave the National Security Agency (NSA) direct access to customers' emails and other Internet communications. These include several internal AT&T documents that have long been available on media websites, EFF's legal arguments to the 9th Circuit, and the full declarations of whistleblower Mark Klein and of J. Scott Marcus, the former Senior Advisor for Internet Technology to the Federal Communications Commission, who bolsters and explains EFF's evidence.

"This is critical evidence supporting our claim that AT&T is cooperating with the NSA in the illegal dragnet surveillance of millions of ordinary Americans," said EFF Legal Director Cindy Cohn. "This surveillance is under debate in Congress and across the nation, as well as in the courts. The public has a right to see these important documents, the declarations from our witnesses, and our legal arguments, and we are very pleased to release them."

EFF filed the class-action suit against AT&T last year, accusing the telecom giant of illegally assisting in the NSA's spying on millions of ordinary Americans. The lower court allowed the case to proceed and the government has now asked the 9th U.S. Circuit Court of Appeals to dismiss the case, claiming that the lawsuit could expose state secrets. EFF's newly released brief in response outlines how the case should go forward respecting both liberty and security.

"The District Court rejected the government's attempt to sweep this case under the rug," said EFF Senior Staff Attorney Kurt Opsahl. "This country has a long tradition of open court proceedings, and we're pleased that as we present our case to the Court of Appeals, the millions of affected AT&T customers will be able to see our arguments and evidence and judge for themselves."

Oral arguments in the 9th Circuit appeal are set for the week of August 13.

For the unredacted Klein declaration:
http://eff.org/legal/cases/att/SER_klein_decl.pdf

For the internal documents:
http://eff.org/legal/cases/att/SER_klein_exhibits.pdf

For the unredacted Marcus declaration:
http://eff.org/legal/cases/att/SER_marcus_decl.pdf

For EFF's 9th Circuit brief:
http://eff.org/legal/cases/att/9thanswerbrief.pdf

For more on the class-action lawsuit against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

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

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

Related Issues:
June 11, 2007

EFF Weighs in On Behalf of Innovators in Remote Computing

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups, trade associations, and businesses urged a federal appeals court Friday to overturn a damaging lower court ruling that puts companies that provide remote computing technologies at risk of copyright infringement liability.

The case involves a remote "digital video recorder" (DVR) developed by Cablevision -- the fifth largest cable television provider in the U.S. -- that allows customers to record programs provided through their Cablevision subscription for later viewing, much like many other DVR offerings. However, instead of storing the recorded programs using a DVR at home, Cablevision's remote DVR stores the recorded programs on equipment located on Cablevision's premises. Twentieth Century Fox, the Cartoon Network, and other television networks filed suit, and a district court in New York ruled against Cablevision, reasoning that Cablevision, not its customers, was making the copies. That ruling has now been appealed by Cablevision.

"The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows," said Fred von Lohmann, EFF Senior Intellectual Property Attorney. "It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters."

In an amicus brief filed the with 2nd U.S. Circuit Court of Appeals Friday, EFF and the coalition argued not only that the lower court ruling is at odds with copyright law, but also that it poses a threat to innovation in remote computing services more generally. Consumers often have remote access to digital services that provide better performance more conveniently than devices they could buy for their home, but this decision opens the door to more lawsuits that could shut these services down.

"Both consumers and the enterprise are increasingly enjoying the benefits of remote computing capabilities, relying on services like Amazon's EC2, Google Apps, and Apple's .Mac, for processing power, applications, and data hosting," said von Lohmann. "It can't be the case that these companies are automatically liable for every copyright infringement committed by every user, whether they know about it or not."

For the full amicus brief filed in the case:
http://eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf

For more on protecting technology innovations:
http://www.eff.org/innovate

Contact:

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

Related Issues:
May 23, 2007

Organizations Will Jointly Lobby Governments and International Organizations

Novell to Support EFF 'Patent Busting' Initiative

San Francisco (Open Source Business Conference) - Novell and the Electronic Frontier Foundation (EFF) today announced they are teaming up to work on reforms to software patents worldwide.

"It is increasingly obvious that software patents are not a meaningful measure of innovation," said Jeff Jaffe, executive vice president and chief technology officer at Novell. "As a long-time innovator in the industry and a holder of many significant patents, we understand the rationale behind the patent system in general. But we believe that software patent system reform is necessary to promote software innovation going forward."

Novell and EFF will work to lobby governments and national and international organizations to develop legislation and policies around patents designed to promote innovation. A key area of focus will be the World Intellectual Property Organization (WIPO), where member governments of the United Nations meet to coordinate positions on intellectual property issues. Given the ease with which software ideas and code cross borders, a global approach to the issue is required.

In addition, Novell will contribute significant resources to EFF's ongoing "Patent Busting" project. Launched in 2004, the project is designed to attack patents that impose particularly heavy burdens on software developers and Internet users by identifying prior art that can be used to invalidate those patents and by pursuing invalidation of those patents through re-examination efforts.

"EFF has long been at the forefront in addressing the key challenges of the digital age, including worldwide intellectual property issues," said EFF Executive Director Shari Steele. "The support of Novell -- a company founded on the proprietary software development model but now strongly embracing the open source approach -- will be a great boon to our efforts to rid the industry of innovation-killing patents. We hope Novell's example encourages other software vendors to join the effort."

An early innovator in networking, word processing and messaging technologies, Novell holds more than 500 patents, many of which are fundamental to technologies in the market today. Having shifted its business to focus more on open source and open standards-based solutions, Novell recognizes the new model for innovation is open source, and the existing patent system is detrimental to open source development. Novell has already taken several steps to promote the use of patents to protect open source, including a 2004 pledge to use its own patents to defend against patent attacks on open source, and the contribution of patents and significant financial resources to Open Invention Network, an intellectual property company Novell co-founded in 2005 to promote Linux by using patents to create a collaborative environment.

"Today's announcement is a logical next step for Novell in its efforts to make patents a non-issue for the software community," said Nat Friedman, chief strategy and technology officer for open source at Novell. "Software patents hobble open standards and interoperability, impede innovation and progress, threaten the development of free and open source software, and have a chilling effect on software development. Our partnership with EFF is about creating a world where software developers and users do not to have to worry about patents."

For more on EFF's Patent Busting project:
http://www.eff.org/patent

Contacts:

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

Bruce Lowry
Director, Global Public Relations
Novell, Inc.
blowry@novell.com

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 Novell, Inc.:

Novell, Inc. (Nasdaq: NOVL) delivers infrastructure software for the Open Enterprise. We are a leader in enterprise-wide operating systems based on Linux and open source and the security and systems management services required to operate mixed IT environments. We help our customers minimize cost, complexity and risk, allowing them to focus on innovation and growth. For more information, visit http://www.novell.com.

Novell is a registered trademark of Novell, Inc. in the United States and other countries. Linux is a registered trademark of Linus Torvalds. All other third-party trademarks are the property of their respective owners.

Related Issues:
May 22, 2007

Agreement Ends Copyright Threats Over Non-Commercial Use of Popular Dance

San Francisco - The man who claims to have created "The Electric Slide" has agreed to call off his online video takedown campaign and to stop threatening people using the popular line dance for non-commercial purposes. Instead, he's making the dance available for all noncommercial use.

The agreement settles a lawsuit filed by the Electronic Frontier Foundation (EFF) on behalf of videographer Kyle Machulis, who posted a concert video to YouTube that included a ten-second segment of audience members attempting to do the Electric Slide. Richard Silver sent a takedown demand to YouTube under the Digital Millennium Copyright Act (DMCA), alleging he owned the copyright to the Electric Slide and that the video infringed his rights. Machulis's video was removed from the site.

"Mr. Silver's misuse of the DMCA interfered with our client's free speech rights," said EFF Staff Attorney Corynne McSherry. "New technologies have opened multiple avenues for artists and their audiences to create, share and comment on new works. We cannot let absurd copyright claims squash this extraordinary growth."

Under the terms of the settlement, Silver will license the Electric Slide under a Creative Commons license -- allowing the performance, display, reproduction or distribution of any recorded performance of the dance in any medium for non-commercial purposes. Silver has agreed to post these terms on any of his current or future websites that mention the Electric Slide so that users are aware of the Creative Commons license.

"Often, 'all rights reserved' copyright is too restrictive and prevents people from being able to legally use and build upon other people's creativity in any reasonable way," said Eric Steuer, Creative Director of Creative Commons. "When that is the case, it makes sense to adopt a more flexible, 'some rights reserved' approach to copyright. We couldn't be happier that Mr. Silver is using a Creative Commons license to make the Electric Slide freely and legally available to anyone in the world to use for noncommercial purposes."

"We are pleased that Mr. Silver has stepped up and recognized fair uses of the Electric Slide," said EFF Staff Attorney Jason Schultz. "Copyright law is meant to encourage creativity. It must not be used to chill free expression."

For more on the Electric Slide lawsuit:
http://www.eff.org/legal/cases/electricslide/

For more on Creative Commons:
http://creativecommons.org/about/licenses

Contacts:

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

Eric Steuer
Creative Director
Creative Commons
eric@creativecommons.org

Related Issues:
May 14, 2007

Online Criticism of Hip Hop Artist Akon Drew Baseless Copyright Allegations from UMG

San Francisco - Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin's online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air." In the video posted on YouTube, Malkin called Universal hip hop artist Akon a "misogynist," supporting her criticism with excerpts from Akon's music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.

Despite Malkin's legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF's assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.

"We're pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin's video criticism," said EFF Senior Staff Attorney Kurt Opsahl. "However, it remains inexcusable. UMG's misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube's extensive audience during a time when the controversy about Akon's behavior was all over the news."

After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a "terms of use" violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.

"My Hot Air staff and I are grateful for EFF's invaluable aid in forcing UMG to retreat," said Malkin. "Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use."

Reposted episode of "Vent with Michelle Malkin":
http://www.youtube.com/watch?v=YZL1IHw6ea8

More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

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

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

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/

Related Issues:
May 10, 2007

Internet Forum Shielded by Federal Law Protecting Free Speech

Washington, D.C. - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) of the National Capital Area has asked a Washington, D.C., court to dismiss claims against a nonprofit watchdog organization and its operators, arguing that federal law and the First Amendment protect them from liability in a defamation lawsuit.

DCWatch is a government watchdog organization run by Dorothy Brizill and Gary Imhoff to monitor Washington, D.C., city politics and public affairs. DCWatch's website, www.dcwatch.com, publishes articles and columns on local politics. Themail@dcwatch.com is an online newsletter and discussion forum devoted to reporting, analysis and commentary on local issues, past editions of which are archived on the DCWatch site.

In articles printed in themail@dcwatch.com, Washington journalist Jonetta Rose Barras reported that Roslyn Johnson, then Deputy Director of Programs for the D.C. Department of Parks and Recreation, had inflated her employment and salary history to secure her position. A subsequent formal investigation by the D.C. Inspector General concluded that Johnson did in fact submit an inflated resume and was improperly hired for her position. But in a lawsuit filed earlier this year, Johnson claims that these articles were defamatory, placed her in a false light, and resulted in the termination of her employment with the city. In addition to suing reporter Barras, she also sued DCWatch and its operators, claiming that their Internet publication of these articles made them responsible for their content.

EFF and the ACLU of the National Capital Area filed a motion to dismiss the lawsuit, pointing out that DCWatch and its operators are shielded by Section 230 of the Communications Decency Act, which expressly protects providers or users of interactive computer services from liability in order to encourage robust debate in online discussions. The motion also urged the court to dismiss Johnson's claims, because the First Amendment protects statements about public officials that are substantially true.

"The Internet has played host to a renaissance of political speech, facilitating discussion on issues of local, national, and international importance," said EFF Staff Attorney Marcia Hofmann. "It's important that judges resist attempts by public officials to shut down online debate just because they don't like the speech."

Courts throughout the country have recognized the critical role Section 230 plays in enabling open discourse on the Internet and have shielded website operators from liability for comments made by others.

"The case against DCWatch must be dismissed. Congress has given online publications absolute immunity for claims based on third-party articles," said EFF Senior Staff Attorney Kurt Opsahl. "An Internet intermediary should not be liable for what the speaker has said."

"This is a concept that should be expanded into all media: books, newspapers, radio and television," said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area. "A speaker or writer should be responsible for his or her words. A bookstore or newsstand should not be responsible for the content of what it distributes."

For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras

For more on DCWatch:
http://www.dcwatch.com

For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org

Contacts:

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

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

Related Issues:
May 9, 2007

EFF Supports Conservative Columnist Who Criticized Controversial Hip Hop Artist Akon

San Francisco - With the legal backing of the Electronic Frontier Foundation (EFF), nationally syndicated columnist and prominent blogger Michelle Malkin has contested music giant Universal Music Group's (UMG's) improper attempt to silence her online criticism of one of its artists.

In a recent episode of "Vent with Michelle Malkin" -- an irreverent daily video podcast produced by Malkin's conservative Internet broadcast network "Hot Air" -- Malkin criticized Universal hip hop artist Akon, calling him a "misogynist" and his antics "vulgar and degrading." She supported her criticism with excerpts from Akon's music videos as well as controversial onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad. Malkin's accompanying commentary condemned both Akon's lyrics and his behavior.

On Thursday, May 3 -- after Malkin appeared on a nationally syndicated talk radio show to put pressure on Akon's sponsors -- UMG claimed the podcast infringed its copyrights and submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing online video hosting site YouTube to pull the episode down. Yesterday, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. Under the DMCA, YouTube can repost Malkin's video ten days after receiving her counter-notice.

"It is impermissible and irresponsible for copyright holders to use the DMCA as a pretext to squelch criticism," said EFF Senior Staff Attorney Kurt Opsahl. "Ms. Malkin had every right under copyright law to criticize UMG and Akon, and to use footage of Akon to emphasize her point. Criticism and commentary are not only the core of fair use, but vital to our traditions of free speech."

"We believe this is a clear attempt by UMG to hide the truth about Akon and intimidate critics," said Malkin. "The Hot Air staff and I are grateful for EFF's willingness to challenge a corporate bully wrapped in the DMCA cloak."

YouTube's message explaining the UMG takedown:
http://www.youtube.com/watch?v=YZL1IHw6ea8

"Vent" podcast (on hotair.com) that was removed from YouTube:
http://hotair.com/archives/2007/05/03/akon-story-gaining-steam

Michellemalkin.com post discussing the takedown:
http://www.michellemalkin.com/archives/007446.htm

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

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

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

Related Issues:
May 9, 2007

Uri Geller Makes Bogus Copyright Claims to Silence YouTube Critic

San Francisco - The Electronic Frontier Foundation (EFF) filed suit Tuesday against Uri Geller -- the "paranormalist" famous for seemingly bending spoons with his mind -- on behalf of a YouTube critic who was silenced by Geller's baseless copyright claims.

EFF's client, Brian Sapient, belongs to a group called the "Rational Response Squad," which is dedicated to debunking what it calls irrational beliefs. As part of their mission, Sapient and others post videos to YouTube that they say demonstrate this irrationality. One of the videos that Sapient uploaded came from a NOVA program called "Secrets of the Psychics," which challenges the performance techniques of Geller.

Despite the fact that only three seconds of the over thirteen-minute video contain footage allegedly under copyright owned by Geller's corporation Explorogist Ltd. -- a classic fair use of the material for criticism purposes -- Geller filed a takedown demand with YouTube under the Digital Millennium Copyright Act (DMCA). That violates the DMCA requirement that copyright holders only send takedown notices for infringing content.

"Uri Geller may not like it when people question his paranormal abilities. However, he is not allowed to stifle public criticism by misusing the law," said EFF Staff Attorney Marcia Hoffman. "If the publication of a video does not infringe his copyright, then he cannot block its use -- it's as simple as that."

Because of Geller's unlawful DMCA notice, Sapient's YouTube account was suspended, and his videos were not available for over two weeks. In the lawsuit filed Tuesday, EFF asks for damages due to Geller's violation of the DMCA, a declaratory judgment that the NOVA video does not infringe Geller's copyrights, and that Geller be restrained from bringing any further legal action against Sapient in connection to the clip.

"We've seen a rash of people abusing the DMCA lately, attempting to take down legitimate criticism and commentary online," said EFF Staff Attorney Jason Schultz. "To allow thin-skinned public figures like Uri Geller to abuse this system forces critics to remain silent and creates unfair hurdles for free speech to thrive online."

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper DMCA takedowns. At EFF's suggestion, media giant Viacom set up an email "hotline" to help users who believe their videos have been improperly ensnared in a takedown campaign.

For the full complaint against Uri Geller and Explorogist Ltd.:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

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

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

Brian Sapient
Rational Response Squad
infidelsapient@hotmail.com

May 3, 2007

Alameda County May Face Sanctions for Failure to Preserve E-Voting Data

Oakland, Calif. - On Friday, May 4, at 9 a.m., a California judge will consider potential sanctions against Alameda County for failing to preserve critical voting machine-related data in a lawsuit challenging the county's recount procedures following a close race conducted on Diebold electronic voting machines in the 2004 general election.

Superior Court Judge Winifred Smith ruled last month that county officials violated both the Elections Code and the California Constitution when they refused to make audit logs and other relevant data available for a recount. The county also returned voting machines to Diebold Election Systems without preserving the corresponding data, despite the ongoing the legal battle over the recount for Measure R.

Measure R, a citizens' initiative, would have addressed the operation of medical marijuana dispensaries in Berkeley. The measure lost by under 200 votes. Americans for Safe Access, a medical marijuana group, and three Berkeley voters asked to see the copies of the votes stored in the voting units, the audit logs from those machines, the results of Logic & Accuracy system tests, and the chain-of-custody records for system components. Although California Elections Code provides that a voter may examine "all ballots ... and any other relevant material as part of any recount," former Alameda County Registrar Bradley Clark refused to provide any of this "relevant material." Americans for Safe Access and the Berkeley voters filed suit.

"Judge Smith's decision is potent vindication of the people's right to control their elections and a firm rebuke of the culture of secrecy surrounding electronic voting," said Gregory Luke of Strumwasser & Woocher LLP, attorney for Americans for Safe Access and the suit's three other plaintiffs. "Having found that the county violated the voters' right to a recount, the court must now address the shocking fact that the county disposed of the electronic copies of the votes while this lawsuit was still pending."

The voter-plaintiffs have asked the court to order the county to return the $22,000 they were required to pay for the recount and, if the county is unable to locate the electronic copies of the votes, to place Measure R back on the ballot.

"Requirements to preserve the transparency of the electoral process are especially important when electronic voting systems are used," said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. "Aside from the widespread problems that have been documented with these types of machines in the past, without the ability to review even the limited evidence that these machines generate, the public would lose further confidence in the process. The court has flatly rejected the shortsighted arguments of the county about its election-related obligations. The county should further be held accountable for any failures to safeguard the digital record of the 2004 election."

What:
Americans for Safe Access v. County of Alameda

When:
9 a.m.
Friday, May 4

Where:
Alameda County Superior Court Department 31
201 13th St.
Oakland, CA

Contacts:

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

Gregory G. Luke
Attorney
Strumwasser & Woocher LLP
gluke@strumwooch.com

Kris Hermes
Legal Campaign Director
Americans for Safe Access
kris@safeaccessnow.org


Related Issues:
May 3, 2007

Chemical Company on Quest to Identify Online Speaker

San Francisco - The Electronic Frontier Foundation (EFF) and the California First Amendment Coalition (CFAC) have asked a California appeals court to scrutinize a chemical company's attempt to strip the anonymity from a participant in an online message board.

The participant posted information that H.B. Fuller Co. claims could only have been obtained through a company "town hall meeting," in violation of an employee confidentiality agreement. However, the poster has submitted a declaration to the court swearing that he or she is not an employee and that the information posted on the message board could have been gleaned from any follower of Fuller's business practices.

A lower court ruled the message board poster should be identified to Fuller. In an amicus brief filed Wednesday, however, EFF and CFAC argue that the lower court undervalued the right to anonymity and set a dangerously low threshold for stripping Internet users of its protection.

"Liberal protection for the right to engage in anonymous communication – to speak, read, listen, and associate anonymously – is fundamental to a free society," said EFF Staff Attorney Corynne McSherry. "That is why courts must strike the appropriate balance between the competing interests of subpoenaing parties and the anonymous speakers they seek to unmask, recognizing that once an online user's anonymity and privacy have been eviscerated, they cannot be repaired."

EFF and CFAC urged the appeals court to adopt a test for this case and others that would protect the rights of Internet critics. That test should include notice to the anonymous speaker, an assessment of the merits of the legal claims and other alternatives for finding the source of harm, and careful consideration of the balance of harms.

For the full amicus brief in Fuller v. Doe:
http://www.eff.org/legal/cases/fuller_v_doe/fuller_v_doe_amicus.pdf

For more on anonymity on the Internet:
http://www.eff.org/Privacy/Anonymity

Contacts:

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

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@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/

Related Issues:
April 24, 2007

Illegitimate Patent Inhibits Innovation in Market for Mobile Information Access

San Francisco - The Electronic Frontier Foundation (EFF) took aim today at a bogus patent threatening innovative technologies that enhance consumer awareness, requesting a reexamination by the United States Patent and Trademark Office (PTO).

NeoMedia Technologies, Inc., claims to own rights to all systems that provide information over computer networks using database-like lookup procedures that rely on scanned inputs, such as a barcode. NeoMedia has used these claims not only to threaten and sue innovators in the mobile information space, but also to intimidate projects focused on increasing awareness among consumers about the social and environmental impact of the products they buy. For example, the Consumer Information Lab at the College of Natural Resources at the University of California at Berkeley uses such technology to examine how health, environmental, and social information affects consumers' shopping behavior and decision-making. Were NeoMedia to control the patent rights to this technology, such projects could be severely limited and potentially shut down.

"NeoMedia should not be allowed to use this bogus patent to inhibit consumer awareness, education, or research into the impact of information on consumer choice," said EFF Staff Attorney Jason Schultz. "This is the opposite of 'progress,' something the patent laws are supposed to promote."

EFF's reexamination request shows that the functionality covered by NeoMedia's bad patent was repeatedly included as part of prior patent applications from other companies -- demonstrating that the idea of forming a network connection from scanned items was well-known before NeoMedia made its claim. EFF, in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, ask the PTO to revoke the patent based on this and other evidence.

"Our patent system is supposed to protect innovation, not block it. Everyone loses if the Patent Office allows these kinds of abuses to continue," said Grewal, a partner at the Day Casebeer firm.

The challenge to the NeoMedia patent is part of EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has helped kill a bogus patent covering a system and method of creating digital recordings of live performances. The PTO has also granted another EFF reexamination request for an illegitimate patent for online test-taking.

For the full NeoMedia patent reexamination request:
https://www.eff.org/patent/wanted/patent.php?p=neomedia

For more on EFF's Patent Busting Project:
https://www.eff.org/patent/

For more on Day Casebeer Madrid & Batchelder:
http://www.daycasebeer.com

For more information on the Consumer Information Lab at UC Berkeley's College of Natural Resources:
http://nature.berkeley.edu/infolab/projects/informationtoolsdevelopmentproject

Contacts:

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

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

Related Issues:
April 23, 2007

MoveOn.org, Brave New Films Dismiss Lawsuit Over Colbert Parody

Viacom Endorses Excerpting Video for "Creative, Newsworthy or Transformative Use"

San Francisco - Responding to Viacom's willingness to take steps to protect the free speech rights of those who post videos to YouTube and similar video sharing sites, the Electronic Frontier Foundation (EFF) and Stanford Law School's Fair Use Project (FUP) today dismissed a lawsuit filed on behalf of MoveOn.org Civic Action and Brave New Films (BNF).

The lawsuit was filed in federal court last month, after a parody of "The Colbert Report" was removed from YouTube following a meritless copyright complaint by Viacom. The humorous video, called "Stop the Falsiness," was created by MoveOn and BNF using clips from the Comedy Central television series. It was a tongue-in-cheek commentary on Colbert's portrayal of the right-wing media and parodied MoveOn's own reputation for earnest political activism.

Viacom initially denied sending the Digital Millennium Copyright Act (DMCA) takedown notice that resulted in the removal of the video from YouTube, while saying it had no objection to "Stop the Falsiness." However, Viacom later conceded it was the source of the demand and admitted error in taking action against the parody.

In the course of discussions with EFF and FUP, Viacom described the steps it endorses for protecting fair use and free expression as it targets copyright infringement on Internet video sites. This includes: manual review of every video that is a potential DMCA takedown target, training reviewers to avoid issuing takedown requests for fair use, and publicly stating that it does not challenge use of Viacom materials that are "creative, newsworthy or transformative" and are "a limited excerpt for non commercial purposes."

Furthermore, in reaction to the MoveOn/BNF suit, Viacom moved the ball forward for Internet users' rights. In order to address any similarly erroneous takedown notices in the future, Viacom has agreed to set up a website and email "hotline," promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.

In light of these disclosures and commitments -- designed to protect the fair use and free speech rights of Internet users who rely on video sharing sites like YouTube -- MoveOn and BNF have dismissed their claims against Viacom.

"If copyright owners are going to be sending hundreds of thousands of DMCA takedown notices, they also have a responsibility to protect the legitimate free speech rights of the citizen creators who rely on platforms like YouTube," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "By choosing to respect newsworthy and transformative uses of their materials -- and establishing a simple process that lets improperly targeted users get their material back up quickly -- Viacom has taken important steps toward meeting that responsibility. We hope other media companies will follow Viacom's lead."

"This new endorsement of Internet users' rights is a victory for the little guy," said Eli Pariser, Executive Director of MoveOn.org Civic Action. "Online sites like YouTube have revolutionized political expression and can give the little guy an audience of millions for a political point of view. A corporate powerhouse like Viacom must not be allowed to erase political content or muzzle political expression."

"Following these practices will not curb all DMCA copyright abuse," said EFF Staff Attorney Corynne McSherry. "But they are several much-needed steps in the right direction. If a major content owner like Viacom can recognize this, other content owners should be able to do the same."

For Viacom's letters outlining its policies:
https://www.eff.org/legal/cases/moveon_v_viacom/falsiness_letter_032707.pdf
https://www.eff.org/legal/cases/moveon_v_viacom/0411_letter_fvl.pdf"
https://www.eff.org/legal/cases/moveon_v_viacom/0417_letter_fvl.pdf

Contacts:

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

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

Anthony Falzone
Executive Director, Fair Use Project
Stanford Law School
anthony.falzone@stanford.edu

Adam Green
MoveOn.org Civic Action
adamgreen@moveon.org

Related Issues:
April 18, 2007

Coalition Submits Fixes to European Parliament to Prevent Vague New Copyright Crimes

Brussels - The Electronic Frontier Foundation's (EFF's) European Office today announced a broad coalition aimed at fixing a poorly drafted intellectual property enforcement proposal that could make criminals of thousands of people in the European Union.

The Second Intellectual Property Rights Enforcement Directive (IPRED2) -- set for vote in the European Parliament early next week -- makes "aiding, abetting, or inciting" intellectual property infringement on a "commercial scale" a criminal offence. However, IPRED2 defines criminal offences so vaguely that creators of legitimate websites, Internet service providers, and even librarians could be investigated by the police and face criminal records as well as fines of hundreds of thousands of euros.

The coalition battling against IPRED2 includes the Brussels-based European Consumers Organisation (BEUC), the European Bureau of Library, Information and Documentation Associations (EBLIDA), the Free Software Foundation Europe (FSFE), and the Foundation for a Free Information Infrastructure (FFII). The group sent an open letter to the European Parliament today, urging members to support amendments that would protect consumers, innovators, and researchers.

"Criminal law needs to be clear to be fair. IPRED2 as it is currently drafted is neither," said Erik Josefsson, European Affairs Coordinator for EFF. "These amendments clarify that criminal sanctions should be saved for true trademark counterfeiters."

IPRED2 also proposes allowing entertainment company representatives to join police in investigating businesses that they claim infringe -- or even "incite" infringement -- of their intellectual property.

"Such secondary liability is a major threat for software developers and Internet service providers," said Ante Wessels of FFII.

"The current draft of IPRED2 creates legal uncertainty and confusion, which will act as a barrier for libraries and archives in their efforts to digitize and bring digital information to end users," said Andrew Cranfield, Director of EBLIDA.

The next vote on IPRED2 is scheduled for April 25 in Strasbourg, France.

For the open letter to the European Parliament:
http://www.copycrime.eu/files/openletter-ipred.pdf

For more on IPRED2:
http://www.copycrime.eu

To take action and tell your MEP to support these amendments:
http://www.copycrime.eu/petition

For more on EFF Europe:
https://www.eff.org/global/europe

Contacts:

Erik Josefsson
European Affairs Coordinator
Electronic Frontier Foundation
erik@eff.org

Danny O'Brien
International Outreach Coordinator
Electronic Frontier Foundation
danny@eff.org

Related Issues:
April 11, 2007

Public Needs Critical Information About FBI's Abuse of Surveillance Power

Washington, D.C. - The Electronic Frontier Foundation (EFF) has asked a judge to issue an emergency order requiring the FBI to immediately release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information.

Congressional hearings and a storm of media coverage followed a recent Justice Department report detailing the FBI's extensive misuse of NSLs -- requests through which federal agents may collect telephone, Internet, financial, credit, and other personal records about Americans without judicial approval. The report and the ensuing uproar also sparked the introduction of a bill in the House of Representatives to curb the Bureau's NSL authority. In a lawsuit filed under the Freedom of Information Act (FOIA), EFF demands that the FBI release all information about NSL abuse without delay, so that the records can be part of the national debate about domestic surveillance.

"Congress has already dedicated several hearings to the FBI's abuse of investigative power and is thinking about how to prevent such abuses in the future," said EFF Staff Attorney Marcia Hofmann. "But if there is going to be meaningful debate about this issue, we need more information than what the Administration chooses to make public, and we need it now."

The Department of Justice has already agreed that the records should be disclosed quickly due to the exceptional media attention and the questions the NSL report has raised about the government's integrity. However, despite this recognition, the Bureau has failed to meet the 20-day time limit that Congress set for requests that do not merit fast processing.

EFF's FOIA request asks for all FBI records discussing or reporting violations of current law, guidelines, or policies, as well as any communications discussing various potential interpretations of current federal investigative power. EFF also demands copies of the contracts between the FBI and three telephone companies, which were intended to allow the FBI to get rapid access to telephone records.

"There are a lot of questions right now about the government's integrity when it comes to domestic surveillance. The FBI must follow the law and release these records to the public," said EFF Senior Counsel David Sobel.

For the FOIA complaint:
https://www.eff.org/flag/nsl/nsl_complaint.pdf

For the motion for a preliminary injunction:
https://www.eff.org/flag/nsl/pi_final.pdf

For more on EFF's FLAG Project:
https://www.eff.org/flag/

Contacts:

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

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

April 11, 2007

RIAA Must Face Consequences of Meritless File-Sharing Lawsuits

San Francisco - The Electronic Frontier Foundation (EFF) has filed a brief with a New York district court, urging a judge to allow the target of a recording industry lawsuit to fight back with counterclaims of his own.

The Recording Industry Association of America (RIAA) has already moved to dismiss copyright infringement claims against Rolando Amurao. However, Amurao alleges that the RIAA's case is meritless and intended to harass him, so he has countersued for a declaration of non-infringement and a finding of RIAA copyright misuse. In its amicus brief, EFF argues that giving Amurao his day in court increases RIAA accountability in the industry's broad lawsuit campaign against file-sharing.

"If Amurao's allegations are true, then he has the right to clear his name," said EFF Staff Attorney Corynne McSherry. "It's simply unfair to shield copyright owners from the consequences of careless lawsuits. Counterclaims like Amurao's help make sure that the RIAA can't simply dismiss its case and walk away when an innocent target fights back."

The RIAA has sued thousands of individuals for allegedly sharing music over the Internet since its campaign began in 2003. But sloppy investigative methods have left innocent people entangled in expensive and draining legal proceedings. When the RIAA threatens someone with a lawsuit, it offers to settle the case for a carefully chosen sum that is smaller than the legal fees required to fight the accusations. Faced with this choice, some innocent people settle simply because it's the most affordable option. However, a few individuals like Amurao have decided to battle the RIAA in court. In one Oklahoma case, EFF provided amicus support to an innocent target of a file-sharing lawsuit who is fighting to have the RIAA reimburse her attorneys' fees.

For the full amicus brief:
https://www.eff.org/legal/cases/lava_v_amurao/lava_amicus.pdf

For more on the RIAA's lawsuit campaign:
https://www.eff.org/IP/P2P/riaa-v-thepeople.php

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

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

Related Issues:
March 22, 2007

MoveOn, Brave New Films Sue Viacom For Illegal Takedown of YouTube Video

San Francisco - The Electronic Frontier Foundation (EFF) asked a federal court today to protect the free speech rights of MoveOn.org Civic Action and Brave New Films after their satirical send-up of "The Colbert Report" was removed from YouTube following a baseless copyright complaint from media giant Viacom.

The video, called "Stop the Falsiness," was created by MoveOn and Brave New Films as a tongue-in-cheek commentary on Colbert's portrayal of the right-wing media and parodying MoveOn's own reputation for earnest political activism. The short film, uploaded to YouTube in August 2006, includes clips from "The Colbert Report" as well as humorous original interviews about show host Stephen Colbert. In March of this year, Viacom -- the parent company of Comedy Central -- demanded that YouTube take "Stop the Falsiness" down, claiming the video infringed its copyrights.

"Our clients' video is an act of free speech and a fair use of 'Colbert Report' clips," said EFF Staff Attorney Corynne McSherry. "Viacom knows this -- it's the same kind of fair use that 'The Colbert Report' and 'The Daily Show' rely upon every night as they parody other channels' news coverage."

Under the Digital Millennium Copyright Act (DMCA), a mere allegation of copyright infringement on the Internet can result in content removal, silencing a creator before any misuse is proven. This "shoot first, ask questions later" system can silence online artists and critics, creating unfair hurdles to free speech.

"Online sites like YouTube have revolutionized political expression and can give the little guy an audience of millions for a political point of view. An entertainment powerhouse like Viacom must not be allowed to muzzle independent video creators and their free speech," said Eli Pariser, Executive Director of MoveOn.org Civic Action. "Copyright owners need to double-check their claims and think about free speech rights before erasing political content from sites like YouTube and misusing the DMCA."

The lawsuit asks for a declaratory judgment that "Stop the Falsiness" does not infringe any Viacom copyright, as well as damages and injunctive relief restraining Viacom from bringing any more copyright claims in connection with the video. EFF is working with Stanford's Center for Internet and Society in this case.

For more on the lawsuit:
http://www.eff.org/legal/cases/moveon_v_viacom

To watch "Stop the Falsiness":
http://falsiness.org/

Contacts:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Trevor Fitzgibbon or Alex Howe
Fenton Communications
alex@fenton.com

Related Issues:
March 20, 2007

Ceremony in San Diego Features Debate Between Mark Cuban, Fred von Lohmann

San Diego - Please join the Electronic Frontier Foundation (EFF) for the 16th Annual Pioneer Awards, presented in conjunction with the O'Reilly Emerging Technology Conference in San Diego. The ceremony will be held at 7:30pm, March 27th, in the Douglas Room of the Manchester Grand Hyatt.

The 2007 winners of EFF's Pioneer Awards are Professor Yochai Benkler of Yale Law School, writer and Boing Boing co-editor Cory Doctorow, and security technologist Bruce Schneier. Mark Cuban, HDNet Chairman and NBA Dallas Mavericks owner, and EFF's Fred von Lohmann will debate copyright, YouTube, and the future of Web 2.0 at the award ceremony.

To get on the press list for this event, email press@eff.org.

WHAT:
16th Annual Pioneer Awards

WHEN:
7:30 p.m.
Tuesday, March 27

WHERE:
Manchester Grand Hyatt
Douglas Room
1 Market Place
San Diego, CA

For more on EFF's Pioneer Awards:
http://www.eff.org/awards/pioneer

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

March 14, 2007

Michael Crook Agrees to Stop Attacks on Free Speech

Michael Crook Agrees to Stop Attacks on Free Speech

San Francisco - Michael Crook, the man behind a string of meritless online copyright complaints, has agreed to withdraw those complaints, take a copyright law course, and apologize for interfering with the free speech rights of his targets.

The agreement settles a lawsuit against Crook filed by the Electronic Frontier Foundation (EFF) on behalf of Jeff Diehl, the editor of the Internet magazine 10 Zen Monkeys. Diehl was forced to modify an article posted about Crook's behavior in a fake sex-ad scheme after Crook sent baseless Digital Millennium Copyright Act (DMCA) takedown notices, claiming to be the copyright holder of an image used in the story. In fact, the image was from a Fox News program and legally used as part of commentary on Crook. But Crook repeated his claims and then attempted to use the same process to get the image removed from other websites reporting on his takedown campaign.

"Crook's legal threats interfered with legitimate debate about his controversial online behavior," said EFF Staff Attorney Jason Schultz. "Public figures must not be allowed to use bogus copyright claims to squelch speech."

In addition to withdrawing current complaints against Diehl and every other target of his takedown campaign and taking a copyright law course, Crook has also agreed to limit any future DMCA notices to works authored or photographed by himself or his wife, or where the copyright was specifically assigned to him. All future notices must also include a link to EFF information on his case, as well as the settlement agreement. Crook has also recorded a video statement to apologize and publicize the dangers of abusing copyright law.

"We're pleased that Crook has taken responsibility for his egregious behavior," said EFF Staff Attorney Corynne McSherry. "Hopefully, this will set a precedent to prevent future abuse of the law by those who dislike online news-reporting and criticism."

The settlement with Michael Crook is part of EFF's ongoing campaign to protect online free speech from the chilling effects of bogus intellectual property claims. EFF recently filed suit against the man who claims to have created the popular line dance "The Electric Slide" for misusing copyright law to remove an online documentary video that included footage of people trying to do the dance.

For the video statement from Michael Crook:
http://blip.tv/file/169553

For more on Diehl v. Crook:
http://www.eff.org/legal/cases/diehl_v_crook/

Contacts:

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

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

Related Issues:
March 13, 2007

EFF Exposes Standards Jeopardizing Innovation and Consumer Rights

EFF Exposes Standards Jeopardizing Innovation and Consumer Rights

San Francisco - An international consortium of television and technology companies is devising draconian anti-consumer restrictions for the next generation of TVs in Europe and beyond, at the behest of American entertainment giants.

The Electronic Frontier Foundation (EFF) is the only public interest group to have gained entrance into the secretive meetings of the Digital Video Broadcasting Project (DVB), a group that creates the television and video specifications used in Europe, Australia, and much of Asia and Africa. In a report released today, EFF shows how U.S. movie and television companies have convinced DVB to create new technical specifications that would build digital rights management technologies into televisions. These specifications are likely to take away consumers' rights, which will subsequently be sold back to them piecemeal -- so entertainment fans will have to pay again and again for legitimate uses of lawfully acquired digital television content.

"DVB is abetting a massive power grab by the content industry, and many of the world's largest technology companies are simply watching," said Ren Bucholz, EFF Policy Coordinator, Americas. "This regime was concocted without input from consumer rights organizations or public interest groups, and it shows."

Despite recent record profits, American movie and television studios insist that new technologies could ruin their industry. In past battles against innovation, these same studios sued to block the sale of the VCR and the first mass-marketed digital video recorder in the U.S. Having failed in those efforts, they have now turned to creating technical standards that, when backed by law, are likely to restrict consumers' existing rights and threaten the future of technological innovation.

With DVB, the plan begun by entertainment companies in the U.S. has now gone global. EFF's report is aimed at alerting European consumer groups and consumers about the dangers posed by the proposed standards and providing informational resources for European regulators.

"DVB members' active indifference, even hostility, to user rights is shameful," said EFF Staff Technologist Seth Schoen. "When American studios ask for regulatory support for restrictions pushed through the DVB Project, public officials must stand up for consumer rights, sustain competition and innovation, and tell Hollywood to back off."

For the full report:
http://www.eff.org/IP/DVB/dvb_briefing_paper.php

EFF's 2005 Submission to the U.K. Department of Media, Sports and Culture:
http://www.eff.org/IP/DVB/dvb_critique.php

Contacts:

Ren Bucholz
Policy Coordinator, Americas
Electronic Frontier Foundation
ren@eff.org

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

Related Issues:
March 12, 2007

Patent Busting Project Wins Victory for Artists and Innovators

San Francisco - The U.S. Patent and Trademark Office (PTO) has announced it will revoke an illegitimate patent held by Clear Channel Communications after a campaign by the Electronic Frontier Foundation (EFF).

The patent -- owned by Instant Live, a company formerly owned by Clear Channel, and now owned by Live Nation -- covered a system and method of creating digital recordings of live performances. Clear Channel claimed the bogus patent created a monopoly on all-in-one technologies that produce post-concert digital recordings and threatened to sue those who made such recordings. This locked musical acts into using Clear Channel technology and blocked innovations by others.

However, EFF's investigation found that a company named Telex had in fact developed similar technology more than a year before Clear Channel filed its patent request. EFF -- in conjunction with patent attorney Theodore C. McCullough and with the help of Lori President and Ashley Bollinger, students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law -- asked the PTO to revoke the patent based on this and other extensive evidence.

"Bogus patents like this one are good examples of what's wrong with the current patent system," said EFF Staff Attorney Jason Schultz. "We're glad that the Patent Office was willing to help artists and innovators out from under its shadow."

The Clear Channel patent challenge was part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

"The patent system plays a critical role in business and the economy," said McCullough. "Everyone loses if we allow overreaching patent claims to restrict the tremendous benefits of new software and technology development."

For the notice from the Patent Office:
http://www.eff.org/patent/wanted/clearchannel/notice_of_intent_to_cancel.pdf

For more on EFF's Patent Busting Project:
http://www.eff.org/patent

Contacts:

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

Theodore C. McCullough
Registered Patent Attorney
theo702000@yahoo.com

[Updated: 3/13/07]

Related Issues:
March 9, 2007

Report Says FBI Stepped Over the Legal Line in Searches for Personal Information

Washington, D.C. - The Electronic Frontier Foundation (EFF) is calling for Congress to hold aggressive hearings on the FBI's domestic intelligence authority after the release of a Justice Department report showing the Bureau abusing its power to collect telephone, Internet, financial, credit, and other personal records about Americans without judicial approval.

Sen. Patrick J. Leahy, D-Vermont, has said the Senate Judiciary Committee will hold hearings into the report's findings. But the widespread abuse detailed in the report requires more than just a cursory examination.

"The Bureau's misuse of its intelligence authority is an ongoing critical problem," said EFF Staff Attorney Marcia Hofmann. "Congress must use its investigative power to find out what's really going on at the FBI -- and then rein in the Bureau's investigative authority to where is was before the USA PATRIOT Act."

In the report, the Justice Department's inspector general identifies four dozen instances in which demands for personal information -- known as National Security Letters -- may have violated laws and agency regulations. The report also found that the Bureau lied to Congress about its use of the letters.

The FBI has had limited authority to issue National Security Letters for many years. However, a controversial provision of the PATRIOT Act greatly expanded the Bureau's ability to use them to gather information about anyone, as long as the agency believes the information could be relevant to a terrorism or espionage investigation.

Today's report follows the inspector general's findings last year that the Bureau had disclosed more than 100 instances of possible intelligence misconduct to the Intelligence Oversight Board in the preceding two years, a number of which were "significant."

In 2005, EFF argued in a friend of the court brief that the FBI's "unfettered authority" to issue National Security Letters "is ripe for abuse." The danger of such abuse has now been documented.

"This is not simply about errors in 'oversight,'" said EFF Senior Staff Attorney Lee Tien. "This is about disregard for the law. For example, FBI terrorism investigators ignored their own lawyers' advice to stop using so-called 'exigent' letters for about two years."

For the full report from the Justice Department:
http://www.usdoj.gov/oig/special/s0703b/final.pdf

For more on National Security Letters:
http://www.eff.org/patriot/sunset/505.php

Contacts:

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

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

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

Related Issues:
March 8, 2007

Mark Cuban, Fred von Lohmann to Square Off at Award Ceremony in San Diego

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce the winners of its 2007 Pioneer Awards: Professor Yochai Benkler of Yale Law School, writer and Boing Boing co-editor Cory Doctorow, and security technologist Bruce Schneier. Mark Cuban -- HDNet Chairman and NBA Dallas Mavericks owner -- and EFF's Fred von Lohmann will debate copyright, YouTube and the future of Web 2.0 at the award ceremony.

The 16th annual Pioneer Awards will be held at 7:30pm, March 27th at the Manchester Grand Hyatt in San Diego in conjunction with the O'Reilly Emerging Technology Conference.

Professor Yochai Benkler of Yale Law School researches the effects of laws on information, knowledge, and culture in the digital world. Benkler's important contributions include a theoretical explanation of how the Internet has allowed decentralized groups to produce things like technologies and bodies of knowledge more efficiently than any centrally organized corporation or trade-based marketplace could. After the publication of Benkler's most recent book, "The Wealth of Networks," Lawrence Lessig called him "the leading intellectual of the information age."

Cory Doctorow is an activist, writer, blogger, and public speaker about copyright, digital rights management, and electronic freedom. As a co-editor of the Boing Boing blog, he highlights critical technology issues for more than a million readers a day. Doctorow has lectured around the globe and has been nominated for Hugo and Nebula Awards for his science fiction. Doctorow is currently the Canadian Fulbright Chair at the USC Center on Public Diplomacy. He was EFF's European Affairs Coordinator until December of 2005.

Bruce Schneier is an internationally renowned security technologist acclaimed for his criticism and commentary on everything from network security to national security. His books -- including the highly influential "Secrets and Lies" and "Applied Cryptography" -- his monthly newsletter, and his security blog have reached hundreds of thousands of people with candid and lucid analysis of security issues. Schneier has often testified before Congress on security policy.

"This year's award winners have all provided important analysis and criticism of our digital world, educating the public on how electronic systems really work and what it means to us and our future," said EFF Executive Director Shari Steele. "I'm thrilled to honor Yochai, Cory, and Bruce. They are truly pioneers of the electronic frontier."

Since 1991, the EFF Pioneer Awards have recognized individuals and organizations that have made significant and influential contributions to the development of computer-mediated communications and to the empowerment of individuals in using computers and the Internet. Past winners include World Wide Web inventor Tim Berners-Lee, Linux creator Linus Torvalds, science fiction writer Bruce Sterling, and Wikipedia founder Jimmy Wales, among many others.

Benkler, Doctorow, and Schneier were nominated by the public and then chosen by a panel of judges. This year's panel includes Kim Alexander (President and founder, California Voter Foundation), Esther Dyson (Internet court jester and blogger, Release 0.9 founding chairman of ICANN former chairman of EFF), Mitch Kapor (Chair, Open Source Applications Foundation co-founder and former chairman EFF), Drazen Pantic (Co-director, Location One), Barbara Simons (IBM Research [Retired] and former president ACM), James Tyre, (Co-founder, The Censorware Project EFF policy fellow) and Jimmy Wales, (Founder, Wikipedia co-founder, Wikia chair emeritus of the Wikimedia Foundation).

The Pioneer Awards are sponsored by Sling Media, the world's leading digital lifestyle company offering consumer services and products. Sling Media's product family includes the internationally acclaimed Slingbox that allows consumers to watch and control their living room television at any time, from any location, using PCs, Macs, PDAs and smartphones. For more information on Sling Media or the Slingbox, visit www.slingmedia.com.

The Pioneer Awards are also sponsored by bronze sponsors JibJab, (www.jibjab.com) MOG, (www.mog.com) and Six Apart (www.sixapart.com)

Tickets to the Pioneer Awards ceremony and Mark Cuban's keynote address are $35. If you plan to attend, RSVP to events@eff.org. You can also pay for your tickets in advance at http://secure.eff.org/pioneerfundraiser. Members of the media interested in attending the event should email press@eff.org.

For more on attending the Pioneer Awards:
http://www.eff.org/awards/pioneer

Contact:

Katina Bishop
Associate Director of Development
Electronic Frontier Foundation
katina@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/

About ETech and O'Reilly Media

For the past five years, the O'Reilly Emerging Technology Conference has found new networked innovations before they hit the mainstream. ETech balances pie-in-the-sky theorizing with practical, real-world information and conversation. O'Reilly Media spreads the knowledge of innovators through its books, online services, magazines, and conferences. Since 1978, O'Reilly has been a chronicler and catalyst of leading-edge development, homing in on the technology trends that really matter. For more information: http://www.oreilly.com.

March 1, 2007

EFF Lawsuit Battles Bogus Copyright Claims

San Francisco - The Electronic Frontier Foundation (EFF) filed suit today against the man who claims to have created the popular line dance "The Electric Slide," asking the court to protect the free speech rights of a videographer who captured a few steps of the dance in a documentary video he posted to the Internet.

EFF's client, Kyle Machulis, shot the video at a concert last month. In one ten-second segment, a group of fans in the audience attempts to dance part of the Electric Slide. Machulis later uploaded the video to YouTube. Within just a few days, Richard Silver, owner of www.the-electricslidedance.com, filed a takedown demand under the Digital Millennium Copyright Act (DMCA). Silver claimed he owned the copyright to the Electric Slide and that Machulis' video infringed his rights. The removal appears to be part of a broad campaign by Silver to misuse copyright allegations to prevent dancers from performing the dance "incorrectly."

"Silver's claim of copyright infringement is absurd and is a classic example of the kind of DMCA abuse that can chill Internet speech," said EFF Staff Attorney Corynne McSherry. "Even if Silver had a valid copyright in the dance--which is not at all clear--this is a fair use and not infringing."

EFF's complaint asks that the judge immediately rule that the video does not infringe any copyright owned by Silver, and that Silver cease his meritless claims towards Machulis.

"We spend a lot of time fighting the misuse of copyright law on the Internet, but this situation is particularly outrageous," said EFF Staff Attorney Jason Schultz. "With thousands of videos being uploaded to sites like YouTube every day, free speech is on the line and needs to be protected."

For the full complaint:
http://www.eff.org/legal/cases/electricslide/complaint.pdf

Contacts:

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

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

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February 27, 2007

Justice Department Withholds Records About Purported Changes to Program

Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice today, demanding records about secret new court orders that supposedly authorize the government's highly controversial electronic surveillance program that intercepts and analyzes millions of Americans' communications.

When press reports forced the White House to acknowledge the program in December of 2005, the administration claimed that the massive program could be conducted without warrants or judicial authorization of any kind. However, in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF's suit comes after the Department of Justice failed to respond to a Freedom of Information Act (FOIA) request for records concerning the purported changes in the program.

"While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications," said EFF Senior Counsel David Sobel. "The burden is on the Justice Department to justify its failure to disclose the information we've requested."

EFF's suit demands the immediate release of the FISC orders regarding the surveillance program and any FISC rules and guidelines associated with such orders.

Today's FOIA action is separate from EFF's lawsuit against AT&T for illegally collaborating with the government's surveillance program. That suit, Hepting v. AT&T, is proceeding in U.S. District Court in San Francisco despite the government's ongoing attempts to have the case dismissed.

For the FOIA complaint filed against the Justice Department:
http://www.eff.org/flag/oipr/oipr_complaint.pdf

For more on EFF's FOIA Litigation for Accountable Government Project:
http://www.eff.org/flag/

Contact:

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

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February 22, 2007

EFF Asks Judge to Uphold Key Trademark Ruling

San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. 2nd Circuit Court of Appeals today to uphold an important ruling allowing anyone to purchase Google's "sponsored links" tied to trademarks, arguing that the practice is legal under trademark law and provides a vital means for online speakers to connect with audiences on the Internet.

Google's "sponsored links" feature allows customers to buy advertisements attached to certain search terms. When a Google user types those terms into the search engine, the sponsored links appear along with the search results. However, a company named Rescuecom filed a lawsuit against Google over the program, claiming that selling sponsored links for the term "Rescuecom" infringed its trademark.

In an amicus brief filed with the appeals court today, EFF argues that the sponsored links are not an infringing use, and in fact promote a vibrant public sphere by helping online speakers reach a broader audience. An example cited in the brief is that of "The Coalition of Immokalee Farmworkers," a group critical of McDonald's business practices. The coalition bought sponsored links attached to searches for "McDonald's" in order to stimulate debate and mobilize support.

"The Internet has brought together speakers of many kinds -- some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products," said EFF Staff Attorney Corynne McSherry. "Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it."

Rescuecom has asked the court to hold that trademark law regulates virtually any use of search keywords that are also trademarks. This would give trademark holders a legal sword to wield against critics and competitors, as well as the intermediaries upon which those critics and competitors rely to spread their message. But courts have historically taken care to ensure that trademark restrictions do not allow markholders to interfere with Constitutionally-protected free speech.

"On the Internet, trademarks aren't just identifiers. They are essential navigation tools and vehicles of expression," said EFF Staff Attorney Jason Schultz. "Quashing this speech goes against both the law and the public interest."

A judge dismissed Rescuecom's case against Google last year, but the company is appealing the decision.

For the full brief filed in Rescuecom v. Google:
http://www.eff.org/legal/cases/rescuecom_v_google/EFF_amicus.pdf

Contacts:

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

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

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February 20, 2007

Government and AT&T Cannot Freeze Proceedings During Appeal

San Francisco - A federal judge today ruled that the Electronic Frontier Foundation (EFF) can go forward with elements of its class action lawsuit against AT&T for collaborating with the government on illegal spying in ordinary Americans -- despite the government and AT&T's request to freeze proceedings during an appeal.

In his ruling, U.S. District Court Judge Vaughn Walker opened the door to beginning the discovery process, allowing EFF to ask "limited and targeted" questions as long as those questions do not overlap with the issues under consideration in the 9th U.S. Circuit Court of Appeals.

"The government wanted to put this case in the deep freeze," said EFF Staff Attorney Kurt Opsahl. "Instead, the court has invited us to move forward with some targeted questions. We're glad to accept that invitation, which will allow progress while respecting the government's national security concerns."

Judge Walker also refused to implement a blanket stay on the other telecommunications surveillance cases transferred to his court. He ruled that unless the parties stipulate to a stay, then "defendants will answer or otherwise respond to the complaint" by March 29. Earlier today, Judge Walker denied requests from media groups to unseal critical evidence in the AT&T case.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&T's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Judge Walker did grant the media groups' request to intervene, and said he might revisit the unsealing issue at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/stayorder220.pdf

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

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

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

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February 20, 2007

Klein Declaration and Other Internal Documents to Stay Sealed for Now

San Francisco - A federal judge in San Francisco today denied requests from media groups to unseal critical evidence in the Electronic Frontier Foundation's (EFF's) class-action lawsuit against AT&T.

EFF's suit accuses the telecom giant of collaborating with the National Security Agency (NSA) in illegal spying on millions of ordinary Americans. The sealed evidence includes a declaration by Mark Klein, a retired AT&T telecommunications technician, as well as several internal AT&T documents and portions of a declaration from EFF's expert witness. Some of the evidence was previously released in redacted form, while other evidence is still completely unavailable to the media and the public.

"We're disappointed that the court did not choose to unseal all of the documents that include or refer to the evidence presented by Mark Klein and our expert, J. Scott Marcus. The government has already agreed that the evidence is neither classified nor a state secret, and is only being held under seal because of AT&T's weak trade secrecy claims," said Cindy Cohn, EFF's Legal Director. "Given that the privacy of millions of Americans is at stake, we strongly believe that the public would benefit from seeing this evidence for themselves."

Today's order is in response to a December hearing on the sealing issue. U.S. District Court Judge Vaughn Walker granted the media groups' request to intervene in the case, and said that he might revisit the unsealing motion at a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/order_media_unsealing.pdf

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att/

Contacts:

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

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

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February 15, 2007

Discovery Communications Tries to Chill Speech with Baseless Legal Claims

San Francisco - The Electronic Frontier Foundation (EFF) warned Discovery Communications, Inc., today to cease its demands for the removal of an online template that uses humor to help people criticize the media company.

The "SpankMaker," located at http://www.spankmymarketer.com/, helps users create parodies of a controversial marketing campaign in connection with a Discovery television production. The online tool provides images from the marketing campaign and Discovery's corporate websites, and allows users to modify them with commentary.

A lawyer for Discovery has demanded that the website operator remove the template, claiming it infringes Discovery's copyright and is used to defame the company. But in a letter sent in response today, EFF outlines how the use of the images in the template is clearly a non-infringing parody. EFF also explains that the comments that offended Discovery are not libelous and that, in any event, Section 230 of the Communications Decency Act protects the creator of the SpankMaker from liability for comments written by others.

"Once again, a business is trying to use false legal claims to chill criticism," said Staff Attorney Corynne McSherry. "Fortunately, more and more, the targets of these kinds of threats are fighting back."

EFF's letter is part of its ongoing campaign to protect online free speech. Earlier this month, EFF provided legal support for environmental activists who were threatened by the Chicago Auto Show after posting an Internet parody. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For EFF's response letter:
http://eff.org/legal/cases/discoverycom_v_rubinstein/response_letter.pdf

Contact:

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

February 13, 2007

Judge Rescinds Injunction Against Wiki, Other Websites

New York - A U.S. District Court judge today refused Eli Lilly's request to ban a number of websites from publishing leaked documents relating to Zyprexa, Eli Lilly's top-selling drug. Although the judge rejected the First Amendment arguments made by a variety of individuals eager to publish the documents, the court concluded that "it is unlikely that the court can now effectively enforce an injunction against the Internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so." The order is a victory for the Electronic Frontier Foundation (EFF), which represents an anonymous individual who was previously barred by the court's earlier orders from posting links to the Zyprexa documents on the zyprexa.pbwiki.com wiki.

The Zyprexa documents were leaked from an ongoing product liability lawsuit against Eli Lilly. The internal documents allegedly show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were the basis for a front-page story in the New York Times in December of last year, and electronic copies are readily available from a variety of Internet sources. EFF's client posted links to one set of copies on a wiki devoted to the controversy that were part of extensive, in-depth analysis from a number of citizen journalists.

"This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet," said EFF Staff Attorney Fred von Lohmann. "We are disappointed, however, that the judge failed to appreciate that its previous orders constituted prior restraints in violation of the First Amendment."

The court stayed its ruling for 10 days in order to permit an appeal. Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

For the full order:
http://eff.org/legal/cases/zyprexa/zyprexa_judgement.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

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

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February 8, 2007

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

New York - The Electronic Frontier Foundation (EFF) told a judge Wednesday to remove the legal muzzle on citizen journalists caught up in a court battle over documents relating to the controversial prescription drug Zyprexa. EFF argues that the injunction against publication of the documents online is prior restraint on their free speech and a violation of First Amendment rights.

EFF's client posted links on a "wiki" to electronic copies of damaging internal Eli Lilly documents about Zyprexa. The documents leaked from an ongoing product liability lawsuit against Eli Lilly over Zyprexa and were the basis for a front-page story in the New York Times in December of 2006. Eli Lilly has since obtained an injunction that forbids 11 individuals and five websites from posting or linking to the documents. In a brief filed with the court Wednesday, EFF explains that this is the digital equivalent of a "stop the presses" order on individuals who were not involved in the leak. The documents remain readily available on the Internet from a variety of sources.

"The millions of patients who use Zyprexa, and their doctors, deserve access to these documents," said EFF Staff Attorney Fred von Lohmann. "The First Amendment guarantees citizen-journalists the right to publish truthful information on matters of public concern, just as it does for newspapers."

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. According to news reports, the internal documents show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

The matter has been submitted to U.S. District Court Judge Jack B. Weinstein in the Eastern District of New York. A decision is expected shortly.

For the full brief:
http://eff.org/legal/cases/zyprexa/brief_opposing_injunction.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

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

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February 5, 2007

EFF Europe Office Opens in Brussels

San Francisco - The Electronic Frontier Foundation (EFF) opened a new office in Brussels today to work with various institutions of the European Union (EU) on innovation and digital rights, acting as a watchdog for the public interest in intellectual property and civil liberties policy initiatives that impact the European digital environment.

The new EFF Europe office, made possible by the generous support of the Open Society Institute and Mr. Mark Shuttleworth of the Shuttleworth Foundation, will allow EFF to have an increased focus on the development of EU law. EFF also plans to expand its efforts in European digital activism and looks forward to working with many groups and organizations to fight effectively for consumers' and technologists' interests. EFF's new European Affairs Coordinator, Erik Josefsson, will be an on-the-ground analyst, activist, and educator about critical intellectual property and civil liberties issues.

"In a networked world, protecting innovation and digital rights must be a global effort," Josefsson said. "We hope this new office in Brussels will increase awareness of European developments and enrich the policy debate."

Josefsson was previously the president of the Swedish chapter of Foundation for a Free Information Infrastructure (FFII.se). FFII was instrumental in defeating the proposed Software Patents Directive, which would have brought an expanded software patent scheme to Europe. Josefsson has also worked with European Digital Rights (EDRI) and other European groups in fighting against the European Parliament's adoption of the Data Retention Directive, which threatens to undo the existing pro-consumer privacy protections in Europe. In recent months, Josefsson has been part of a team of committed FFII activists opposing the proposed second Intellectual Property Rights Enforcement Directive (IPRED2), which will impose harsh criminal sanctions and prison terms for violation of intellectual property rights, stifling technical innovation and imperiling consumers if not amended.

"Europe is at the forefront of policy developments that threaten Internet users' freedom, from unwarranted copyright term extension to mandatory data retention," said EFF International Affairs Director Gwen Hinze. "We welcome the valuable European educational and activism expertise that Erik brings to EFF Europe, and we are excited about this new opportunity to represent the public interest in the formative stages of European policy development."

Josefsson will be supported in EFF's San Francisco office by Danny O'Brien, EFF's Activism Coordinator, whose past experience includes digital rights work in the United Kingdom. Josefsson will be succeeded as president of FFII Sweden by Jonas Bosson, who was one of the founders of the organization and will continue to fight new attempts to make software patents enforceable in Europe.

For more on EFF Europe:
http://www.eff.org/global/europe/

Contacts:

Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation
danny@eff.org

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation
gwen@eff.org

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February 5, 2007

Friday Hearing on Motion to Stay Proceedings During Appeal

San Francisco - On Friday, February 9, at 2 p.m., the Electronic Frontier Foundation (EFF) will argue that lawsuits against a number of major telecommunications companies for illegally assisting the National Security Agency (NSA) in spying on millions of ordinary Americans should go forward, regardless of the government's attempt to overturn the judge's previous ruling in the 9th U.S. Circuit Court of Appeals.

The government is appealing U.S. District Court Judge Vaughn Walker's decision not to dismiss Hepting v. AT&T, EFF's case accusing AT&T of collaborating with the NSA in the illegal electronic surveillance. The government has argued that all proceedings before Judge Walker in Hepting -- and in more than 40 other NSA-related cases against additional telecommunications companies transferred to Walker's court -- should be stayed pending the outcome of that appeal.

Also Friday, the judge will hear arguments on whether motions to dismiss should be re-litigated in all of the remaining telecom surveillance cases against Verizon, MCI, Sprint, BellSouth and others, or if the Hepting v. AT&T Order should apply to those as well.

For more information about attending the hearing, contact press@eff.org.

WHAT:
NSA telecommunications records lawsuits

WHEN:
2 p.m.
Friday, February 9

WHERE:
450 Golden Gate Ave.
Courtroom 6
San Francisco, CA 94102

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att/

Contact:

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

Related Issues:
February 1, 2007

EFF Backs Parody Protest Site of Chicago Auto Show

Chicago - The Electronic Frontier Foundation (EFF) warned the Chicago Auto Show today to back off attempts to muzzle protestors who posted a parody of the show's website.

The parody site, autoshowshutdown.org, is a clearinghouse for information about the "Auto Show SHUTDOWN Festival" -- an annual event where hundreds of cyclists parade through Chicago to raise awareness about global warming and to promote sustainable transportation. The ride culminates in a rally at the entrance to the show. But this week, a lawyer for the auto show sent a threatening letter to the protestors, claiming that the website amounted to trademark infringement and that it would seek damages if the parody was not taken down.

In a letter sent in response today, EFF reminded the auto show that trademark infringement must involve some commercial use, which is clearly not the case in this non-profit, community-organized protest.

"Auto show organizers can't stop thousands of citizens from attending the SHUTDOWN Festival. Instead, they have resorted to baseless trademark claims to silence critics and interfere with planning for an event that embarrasses them," said EFF Staff Attorney Jason Schultz. "Both trademark law and the First Amendment won't allow for that."

In addition, an EFF investigation found that the auto show does not actually own the trademark it is claiming was infringed. Records show that the Chicago Auto Show abandoned the mark by neglecting to respond to correspondence from the U.S. Patent and Trademark Office, as required by law.

"The auto show seems so scared of fair competition in the marketplace of ideas that they aren't playing clean," said protest organizer Dan Korn. "Fortunately, we know our free speech rights, and we will be exercising them during the SHUTDOWN Festival, despite their threats."

EFF's letter to the Chicago Auto Show is part of its ongoing campaign to protect online free speech from the chilling effects of bogus intellectual property claims. EFF is currently representing a blogger threatened with copyright infringement by ABC after criticizing talk radio hosts. In November, EFF reached an agreement with the corporate owners of the popular children's television character Barney the Purple Dinosaur to withdraw meritless legal threats against a website publisher who parodied the character.

For the full response sent to the Chicago Auto Show:
http://www.eff.org/legal/cases/chicagoautoshow/response_letter.pdf

For more on the threat to the SHUTDOWN Festival:
http://www.eff.org/legal/cases/chicagoautoshow/

Contacts:

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

Dan Korn
Organizer
Chicago Auto Show SHUTDOWN Festival
dan@dankorn.com

January 31, 2007

Defense Department Withholds Records About Army Blog Monitoring Program

Washington, D.C. - The FLAG Project at the Electronic Frontier Foundation (EFF) filed suit against the Department of Defense today, demanding expedited information on how the Army monitors soldiers' blogs.

According to news reports, an Army unit called the Army Web Risk Assessment Cell (AWRAC) reviews hundreds of thousands of websites every month, notifying webmasters and bloggers when it sees information it finds inappropriate. Some bloggers have told reporters that they have cut back on their posts or shut down their sites altogether because of the activities of the AWRAC. EFF filed its suit after the Department of Defense and Army failed to respond to Freedom of Information Act (FOIA) requests about the blog monitoring program.

"Soldiers should be free to blog their thoughts at this critical point in the national debate on the war in Iraq," said EFF Staff Attorney Marcia Hofmann. "If the Army is coloring or curtailing soldiers' published opinions, Americans need to know about that interference."

EFF's suit demands records on how the AWRAC conducts its monitoring, as well as any orders to soldiers about revision or deletion of web posts. It also demands expedited processing, as the information is urgently needed by the public.

"Of course, a military effort requires some level of secrecy. But the public has a right to know if the Army is silencing soldiers' opinions as well. That's why the Department of Defense must release information on how this program works without delay," Hofmann said.

EFF's FLAG Project uses FOIA requests and litigation to expose the government's expanding use of technologies that invade privacy. Previous lawsuits have demanded information about the FBI's huge database of personal information and the Department of Homeland Security's program to assign secret "risk assessment" scores to American travelers.

For the FOIA complaint filed against the Department of Defense:
http://www.eff.org/flag/awrac/awrac_complaint.pdf

For more on the FLAG Project:
http://www.eff.org/flag/

Contact:

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

Related Issues:

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