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Press Room

October 12, 2004

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

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

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

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

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

Contacts:

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

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

Related Issues:
October 12, 2004

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

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

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

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

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

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


Contact:

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

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

For inquiries about Indymedia:

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

October 8, 2004

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

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

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

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

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

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

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

Contacts:


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

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

Related Issues:
October 8, 2004

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

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

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

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

Contacts:

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

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

October 5, 2004

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

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

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

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

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

Contact:

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

Related Issues:
October 5, 2004

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

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

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

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

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

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

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

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

Contacts:

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

Art Brodsky
Communications Director
Public Knowledge
abrodsky@publicknowledge.org

October 4, 2004

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

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

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

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

Contact:

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

October 4, 2004

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

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

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

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

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

Contact:

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

Related Issues:
September 30, 2004

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
September 30, 2004

Contract and Copyright Trump Fair Use and Competition in BnetD Case

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

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

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

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

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

Contact:

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

Related Issues:
September 29, 2004

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

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

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

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

Contact:

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

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

Related Issues:
September 27, 2004

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

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

Contact:

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

September 27, 2004

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

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

Contact:

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

Related Issues:
September 22, 2004

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

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

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

Contacts:

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

Related Issues:
September 22, 2004

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

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

Contact:

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

Related Issues:
September 20, 2004

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

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

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

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

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

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

Contacts:

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

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

Related Issues:
September 16, 2004

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

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

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

Contacts:

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

Related Issues:
September 13, 2004

Electronic Frontier Foundation Supports BBC's "Creative Archive"

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

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

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

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

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

September 13, 2004

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

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

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

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

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

Contacts:

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

September 10, 2004

Law "Blacked Out" More than a Million Legitimate Websites

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

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

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

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September 10, 2004

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

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

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

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

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

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September 8, 2004

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

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

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

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

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

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September 3, 2004

Councilman Case Should Be Heard Before Full Court

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

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

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

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

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

Links:

Amicus brief in US v. Councilman

Wired: E-Mail Snooping Ruled Permissible

Washington Post: Court Limits Privacy of E-Mail Messages

Contacts:

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

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September 1, 2004

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

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

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

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

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

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

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

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

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

Chamberlain v. Skylink decision (PDF).

Consumers Union brief (PDF).

More information about the case.

Contacts:

Kenneth DeGraff
Consumers Union
degrke@consumer.org

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

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

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

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August 24, 2004

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

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

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

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

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

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

Contacts:

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

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

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August 20, 2004

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

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

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

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

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

Contacts:

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

Related Issues:
August 19, 2004

Ninth Circuit Declares Grokster, Morpheus Not Liable for Infringement

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

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

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

The court's decision was unanimous.

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

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

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

Contact:

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


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

August 13, 2004

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

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

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

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

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

You can find more information at Texas Safe Voting.

Contacts:

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

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

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August 12, 2004

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

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

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

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

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

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

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

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

Contact:

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

August 12, 2004

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

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

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

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

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

Contacts:

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

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

Related Issues:
August 10, 2004

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

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

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

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

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

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

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

The Complaint is available here.

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

Contacts:

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

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

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August 9, 2004

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

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

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

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

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

Friend of the court brief:

http://www.eff.org/Activism/E-voting/20040809_MD_Amicus.pdf

Documents in Schade v. Lamone:

http://www.truevotemd.org/petition.pdf
http://www.truevotemd.org/mandamus.pdf

Contact:

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

Related Issues:
July 27, 2004

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

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

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

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

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

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

Freedom Fest website.

Contacts:

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

July 27, 2004

Lawsuit Remedy Should Permit Secure, Accessible Voting Systems

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

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

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

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

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

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

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

Contacts:

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

Will Doherty
Executive Director
VerifiedVoting.org
press@verifiedvoting.org

About Verified Voting Foundation

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

About VotersUnite!

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

About CASE Ohio

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

Related Issues:
July 16, 2004

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

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

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

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

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

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

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

Contacts:

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

July 15, 2004

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

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

Asked Wednesday whether the program could be considered dead, Ridge jokingly gestured as if he were driving a stake through its heart and said, "Yes."
EFF Senior Staff Attorney Lee Tien said, "Finally, the Department of Homeland Security has recognized what EFF has been saying all along: the proposed CAPPS II system would be an ineffective, expensive, and unnecessary invasion of travelers' privacy."
Related Issues:
July 6, 2004

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

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

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

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

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

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

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

The decision is posted on EFF's website:
http://www.eff.org/Activism/E-voting/Benavidez/20040706-Order_re_TRO.pdf.

Contacts:

Kim Alexander
President
California Voter Foundation
kimalex@calvoter.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@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 the California Voter Foundation:
The California Voter Foundation is a nonprofit, nonpartisan organization
dedicated to promoting and applying the responsible use of technology to
improve the democratic process. For more information about the California Voter Foundation, please visit http://www.calvoter.org

About Verified Voting
Verified Voting champions reliable and publicly-verifiable elections in the United States. Please visit http://www.verifiedvoting.org.

About Voters Unite!
Voters Unite is a non-partisan grassroots network for fair and accurate elections. Please visit http://www.votersunite.org.

Related Issues:
July 1, 2004

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

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

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

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

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

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

Contact:

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

June 30, 2004

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

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

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

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

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

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

Ten "most wanted" patents.

Contacts:

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

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

Related Issues:
June 29, 2004

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

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

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

June 29, 2004

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

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

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

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

Related Issues:
June 24, 2004

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

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

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

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

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

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

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

EFF Action Alert on Inducing Infringement Act

Contacts:

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

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
+1 415 436-9333 x108

Related Issues:
June 23, 2004

Civil Liberties Group and Technical Publisher Work Toward a Common Goal


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

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

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

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

Contacts:

Kevin McLaughlin
Membership Coordinator
Electronic Frontier Foundation
kevin@eff.org

Leigh Sacks
Marketing Coordinator
No Starch Press
leigh@nostarch.com

June 23, 2004

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

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

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

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

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

The Coalition upholds the following principles:

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

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

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

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

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


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

Contacts:

Art Brodsky
Public Knowledge
202-518-0020
abrodsky@publicknowledge.org

Jeff Joseph
Consumer Electronics Association
703-907-7664
jjoseph@ce.org


June 16, 2004

EFF, Brennan Center Argue Against Restrictions on Future Technologies

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

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

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

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

The EFF/Brennan Center comments .

Contacts:

Natalia Kennedy
Media Relations Manager
Brennan Center for Justice
natalia.kennedy@nyu.edu

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

Related Issues:
June 15, 2004

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

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

June 14, 2004

Satellite TV Giant Will No Longer Prosecute Users for Mere Possession

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

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

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

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

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

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

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

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


Contact:

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

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

June 10, 2004

Organization Seeking Ten Patents to Challenge

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

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

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

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

Check out the Patent Busting Contest.

Contact:

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

Related Issues:
June 10, 2004

Idaho Student Acquitted of Terrorism Charges

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

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

Contact:

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

June 8, 2004

EFF Backs California Senate Bill Protecting Anonymous Speech Online

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

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

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

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

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

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

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

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

Contact:

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

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


About EFF

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

About Samuelson Law Clinic

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

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