EFFector       Vol. 15, No. 36      November 22, 2002     ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 235th Issue of EFFector:

    * "Visa" Torn From Dictionary by Credit Card Company
    * Hollywood Tries to Corner Kazaa
    * W3C Circulates RF-Only Patent Policy
    * EFF Releases Cybersecurity Comments
    * Justice Department Granted Broader Authority by Surveillance    
      Court
    * UK Considers "Entitlement Card," A.K.A. National ID
    * The Twelfth Annual International EFF Pioneer Awards - Call for 
      Nominations
    * EFF Hosts House-Warming Holiday Party!
    * EFF Needs Your Tax-Deductible Software Donations!
    * Deep Links (6): Retailers Swing DMCA To Stop "Black Friday" Sale 
      Info
    * Administrivia

For more information on EFF activities & alerts:
  http://www.eff.org/

To join EFF or make an additional donation:
  http://www.eff.org/support/

EFF is a member-supported nonprofit. Please sign up as a member today!
---------------------------------------------------------------------

* "Visa" Torn From Dictionary by Credit Card Company

Language and Travel Site Appeals Forced Name Change

Las Vegas - The Electronic Frontier Foundation (EFF) recently appealed
a court ruling stripping the name "visa" from the evisa.com website
and domain.

In October 2002, credit card giant Visa convinced a Las Vegas federal
court to prevent the small business JSL Corp. from using the term
"evisa" and the domain "evisa.com" for its website offering travel,
foreign language, and other multilingual applications and services.
The court ruled that the website--run by Joe Orr from his apartment--
"diluted" Visa's trademark, even though the site uses the word "visa"
in its ordinary dictionary definition, not in relation to credit card
services.

"Apple Computer, no matter how famous it becomes, cannot restrict
companies from using the word 'apple' to refer to the fruit," said EFF
Legal Director Cindy Cohn. "Yet the court held that the Visa credit
card company can restrict the ability of Americans to use the word
'visa' when they offer travel-related information and services."

Tom Moore of Tomlinson Zisko LLP will join EFF in representing Orr in
the case.

"The order simply doesn't address the fact that 'visa' is a common
English word," said Orr, who has moved the website to a new address
(www.3dtree.com). "My evisa.com site had 20,000-30,000 people visiting
for free travel visa information, computer training, and foreign
language learning. It has nothing to do with credit cards or financial
services."

"Having lifted its name from the dictionary, Visa cannot now claim
ownership of the word," added Cohn.

Evisa.com has been on the web since 1997. The name came from Orr's
English conversational school in Japan called Eikaiwa Visa ("Eikaiwa"
means "English conversation" in Japanese).

The 9th Circuit Court of Appeals will likely hear the case in Spring 2003.

Links:
For this release:
http://www.eff.org/Cases/Visa_v_JSL/20021121_eff_pr.html

For more information on Visa v. JSL case:
http://www.eff.org/Cases/Visa_v_JSL/

-=end=-----------------------------------------------------------

* Hollywood Tries to Corner Kazaa

Court Considers Global Jurisdiction Issue

Los Angeles - On Monday, November 24, a federal court in Los Angeles
will consider whether entertainment companies may sue Sharman
Networks, distributor of the Kazaa peer-to-peer file sharing software,
in U.S. courts.

Sharman is incorporated in the island-nation of Vanuatu, operates out
of Australia, and distributes the Kazaa software from servers located
outside the U.S. Attorneys for Sharman will argue that their client is
an off-shore corporation with no substantial contacts with the U.S.,
thus the company cannot be sued in U.S. courts. Sharman is represented
by the Los Angeles law firm of Hennigan, Bennett & Dorman.

The judge will also consider procedural motions brought by StreamCast
Networks, distributors of the Morpheus peer-to-peer software, in
preparation for a summary judgment hearing scheduled for December 2,
2002. StreamCast is represented by the Electronic Frontier Foundation
and the law firm of Brobeck, Phleger & Harrison.

The hearing will be held at 1:30pm on Monday, November 25, before U.S.
District Court Judge Stephen Wilson at the U.S. Federal Courthouse,
located at 312 North Spring Street in downtown Los Angeles.

Links:
For this advisory:
http://www.eff.org/IP/P2P/MGM_v_Grokster/20021121_eff_pr.html

Documents related to Metro-Goldwyn Mayer v. Grokster case:
http://www.eff.org/IP/P2P/MGM_v_Grokster/

-=end=-----------------------------------------------------------

* W3C Circulates RF-Only Patent Policy

The W3C Patent Policy Working Group has published a new (and likely
final) draft of the W3C's patent policy. This draft responds to the
public outcry which resulted when an initial draft of the policy
suggested that participants in a standards process could reserve the
right to collect royalties from the use of a patented process in a
standard.

EFF and other organizations expressed dismay at this prospect and
encouraged the public to comment to the W3C. The resulting comments
prompted the W3C Patent Policy Working Group's year-long effort to
re-examine the policy and to consider whether W3C would permit
royalty-bearing "RAND licensing" for technologies used in standards,
or require only "Royalty-Free (RF) licensing."

The working group invited three experts to give advice on behalf of
the free software/open source software community, which is
particularly likely to be adversely affected by patents in
communications standards. The invited experts were Eben Moglen (Free
Software Foundation), Bruce Perens (Software in the Public Interest),
and Larry Rosen (Open Source Initiative). After significant
deliberation, and informed by public comment, the working group
adopted a "Royalty-Free Only" policy, which is now proposed for
official adoption by the W3C.

The new draft policy is available at:
http://www.w3.org/TR/2002/WD-patent-policy-20021114/

It provides that:

    In order to promote the widest adoption of Web standards, W3C
seeks to issue Recommendations that can be implemented on a
Royalty-Free (RF) basis. Under this policy, W3C will not approve a
Recommendation if it is aware that Essential Claims exist which are
not available on Royalty-Free terms.

    To this end, Working Group charters will include W3C RF licensing
requirements that specifications produced by the Working Group will be
implementable on an RF basis, to the best ability of the Working Group
and the Consortium. 

It also includes disclosure obligations for organizations which
participate in standards-development working groups of the W3C.

W3C invites the public to continue to comment on this draft, which is
likely to be officially adopted as W3C policy next year.

Links:
Comments may be sent to:
www-patentpolicy-comment@w3.org

A record of earlier public comments (and Patent Policy Working Group
meetings) is available at:
http://lists.w3.org/Archives/Public/www-patentpolicy-comment/

Old EFF alert (not applicable to the current draft):
http://www.eff.org/alerts/20011004_eff_w3c_patent_alert.html

-=end=-----------------------------------------------------------

* EFF Releases Cybersecurity Comments

EFF recently submitted its comments on the U.S. government's
cybersecurity strategy document, The National Strategy to Secure
Cyberspace, noting three main criticisms. First, the Strategy is so
broad that it fails to set any clear priorities for action. What are
the weakest links in cybersecurity? What are the most important
threats? What are the most important actions needed to improve
security? This failure was especially disappointing in light of the
much more concrete discussion of security issues in an earlier draft
(http://www.seul.org/~gabe/cybersecurity/)

Second, the Strategy is silent on oversight mechanisms for protecting
privacy and civil liberties, such as a privacy office with meaningful
authority, funding, staffing, and technical expertise.

Third, the Strategy relies primarily on exhortation and public-private
partnerships between government and industry. EFF is skeptical that
this approach will lead vendors to improve security to any meaningful
degree. EFF is also concerned that such partnerships signal a
"closed-door" approach to cybersecurity that will prevent the public
from learning about vulnerabilities, security breaches, and corrective
action (and may harm competition and innovation).

    Other points:
    - The problem of "buggy code" needs to be openly confronted.
    - Encryption played only a small part in the recommendations.
    - Unrealistic assumptions were made about the ability of home and 
      small business users to improve security.
    - Free software's potential for enhancing security was ignored.
    - The Strategy endorsed the Council of Europe Convention on 
      Cybercrime, which poses serious privacy and civil liberties 
      issues.
    - Legislation like the DMCA, CBDTPA, and the Berman P2P "hacking" 
      bill are not good for cybersecurity. 

Many of these themes were highlighted in a 2002 National Research
Council report, Cybersecurity Today and Tomorrow: Pay Now or Pay
Later, available at:

http://www.nap.edu/html/cybersecurity/

-=end=-----------------------------------------------------------

* Justice Department Granted Broader Authority by Surveillance Court

The U.S. Foreign Intelligence Surveillance Court of Review (FISCR)
this week gave the Justice Department (DOJ) broad authority to conduct
wiretaps and other surveillance on terrorism suspects within the
United States.

Earlier this year, the Foreign Intelligence Surveillance Court (FISC)
made public a unanimous decision rejecting the government's bid for
expanded spying powers under the Patriot Act's amendments to the
Foreign Intelligence Surveillance Act (FISA).

Citing numerous errors in past applications for FISA court orders, the
FISC had held that DOJ's proposal to involve criminal prosecutors in
the FISA surveillance process violated the traditional line between
criminal and counter-intelligence surveillance.

The FISCR reversed, rejecting past cases holding that the Fourth
Amendment requires a traditional Fourth Amendment warrant where the
purpose of the surveillance is primarily criminal. Indeed, the FISCR
held that FISA contained no "primary purpose" requirement until
amended by the Patriot Act. The FISCR also found that FISA as amended
by the Patriot Act "is constitutional because the surveillances it
authorizes are reasonable," but it also said that the constitutional
question "has no definitive jurisprudential answer."

Rep. John Conyers (D-Mich.), ranking member of the House Judiciary
Committee, said of the FISCR decision: "The Administration's race down
the slippery slope of eroding constitutional safeguards seems to have
no end in sight. Today's disappointing decision constitutes an
embarrassing step backwards for civil liberties in this country. Piece
by piece, this Administration is dismantling the basic rights afforded
to every American under the Constitution."

The FISA authorizes government wiretap requests in foreign
intelligence investigations. Under these procedures, all hearings and
decisions are conducted in secret. Yesterday's decision was public
only because the FISC allowed its May decision to be published by
Congress.

Links:
The court's decision is online at:
http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf

-=end=-----------------------------------------------------------

* UK Considers "Entitlement Card," A.K.A. National ID

London - Privacy International, in response to the UK Home Office's
consultation paper on their proposed national entitlement card, is
hosting a public meeting on the proposal on December 11th, 2002, at
the London School of Economics. At issue is the Home Office's plan to
implement a national ID system under the guise of an entitlement
registration card.

The proposed entitlement card differs from a national ID in name only.
David Blunkett, the UK Home Secretary, admitted as much in his July
3rd speech, saying "the focus should therefore be on whether
entitlement cards would generally be useful to people in their daily
lives and in affirming their identity." The entitlement card would not
be a national ID per se, but it would function in all aspects as one.

While the proposed entitlement card would not be compulsory, its
designers envision it being used in a variety of ways, including
commercial uses and, as quoted from the Home Office's consultation
paper, "establish(ing) for official purposes a person's identity so
that there is one definitive record of an identity which all
government departments can use if they wish." And while an individual
could potentially opt out of such a system, Secretary Blunkett
affirmed that "if services, whether public or private, required some
proof of identity, I doubt whether non-use of it would last very long."

Links:
Homepage for the initiative:
http://www.homeoffice.gov.uk/dob/ecu.htm

-=end=-----------------------------------------------------------

* The Twelfth Annual International EFF Pioneer Awards - Call for
Nominations

In every field of human endeavor, there are those dedicated to
expanding knowledge, freedom, efficiency, and utility. Many of today's
brightest innovators are working along the electronic frontier. To
recognize these leaders, the Electronic Frontier Foundation
established the Pioneer Awards for deserving individuals and
organizations. The Pioneer Awards are international and nominations
are open to all. The deadline for nominations this year is Feb. 1,
2003 (see nomination criteria and instructions below).

How to Nominate Someone
You may send as many nominations as you wish, but please use one
e-mail per nomination. You may submit your entries to us via e-mail
to: pioneer@eff.org

Just tell us:

1. The name of the nominee;
2. The phone number or e-mail address at which the nominee can be
reached; and, most importantly
3. Why you feel the nominee deserves the award.

You may attach supporting documentation as RTF files, Microsoft Word
documents, or other common binary formats, or as plain text.
Individuals, or representatives of organizations, receiving an EFF
Pioneer Award will be invited to attend the ceremony at the
Foundation's expense.

Nominee Criteria
There are no specific categories for the EFF Pioneer Awards, but the
following guidelines apply:

    1. The nominees must have made a substantial contribution to the
health, growth, accessibility, or freedom of computer-based
communications.
    2. The contribution may be technical, social, economic, or cultural.
    3. Nominations may be of individuals, systems, or organizations in
the private or public sectors.
    4. Nominations are open to all (other than EFF staff & board and
this year's award judges), and you may nominate more than one
recipient. You may nominate yourself or your organization.
    5. All nominations, to be valid, must contain your reasons,
however brief, for nominating the individual or organization, along
with a means of contacting the nominee (or heirs, if posthumous), and
your own contact number. Anonymous nominations will be allowed, but we
prefer to be able to contact the nominating parties in the event that
we need further information. 

The 2003 Awards
The 12th annual EFF Pioneer Awards will be presented in New York, NY,
in conjunction with the 13th Conference on Computers, Freedom, and
Privacy (CFP2003). All nominations will be reviewed by a panel of
judges chosen for their knowledge of the technical, legal, and social
issues associated with information technology.

Links:
Pioneer Awards webpage:
http://www.eff.org/awards/pioneer.html

CFP site:
http://www.cfp.org/

-=end=-----------------------------------------------------------

* EFF Hosts Housewarming Holiday Party!

WHEN: Tuesday, December 10th, 2002, at 7:00 PM Pacific Time
WHERE: Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110

No, we're not moving! But we are expanding to include the space next
door. It is now the newest addition to EFF Headquarters. Come
celebrate our new digs and the spirit of the holiday season with us.
We'll have great food, beer, musical madness from the Funkmonsters,
and the latest news on EFF from the ever-compelling John Perry Barlow
and Shari Steele.

This event is free and open to the general public. The Electronic
Frontier Foundation (http://www.eff.org) is the leading civil
liberties organization working to protect rights in the digital world.
For more information, please see EFF's website.

An RSVP is appreciated. Please contact:
katina@eff.org

Let us know you're coming so we don't run out of food and holiday
libations.

-=end=-----------------------------------------------------------

* EFF Needs Your Tax-Deductible Software Donations!

The hardest part of holiday giving is the guessing. "Will he like this
sweater?" "Didn't we give her a chimpanzee *last* year?" In the spirit
of making your world a better place, EFF is saving you the headache of
worrying what to get us. It's your lucky day, 'cause we made a list:

    ~ Adobe Illustrator 10
    ~ Adobe Photoshop 7
    ~ Macromedia Flash MX
    ~ Final Cut Pro 3
    ~ Extensis Suitcase
    ~ BBEdit 7.0

And to avoid any confusion, we can only accept legitimate,
non-academic editions of this stuff. Mac software is preferred, and we
can provide tax-deductible receipts for any donations. Thanks in advance!

Email ren@eff.org with any inquiries or offers.

-=end=-----------------------------------------------------------

Deep Links
Deep Links features noteworthy news items, victories, and threats from
around the Internet.

~ Retailers Swing DMCA to Stop "Black Friday" Sale Info
Sale prices are copyrighted? The DMCA inspires another round of
attacks that would be funny if they weren't so scary.
http://www.theregister.co.uk/content/6/28223.html

And here's the Chilling Effects Weather Report:
http://www.chillingeffects.org/weather.cgi?WeatherID=280

~ The Awful Truth About the Decline of Radio
The Future of Music Coalition releases report on how deregulation made
radio a wasteland.
http://www.futureofmusic.org/research/radiostudy.cfm

~ DMCA Overview
Adam "TidBits" Engst gives a great retrospective on the DMCA.
http://db.tidbits.com/getbits.acgi?tbart=06997

~ You're Grounded!
ACLU Washington has set up a form for people who are kicked off
airplanes because they're on the no-fly list to report their experiences.
http://www.aclu-wa.org/take_action/NoFlyList.html

~ Terms of Art (Prison Terms, of Course)
This is a *great* exhibit running through Dec. 6 at the legendary
CBGB, highly recommended for those in NYC. Web site includes
downloadable mp3 versions of music that has previously been suppressed
for fear of copyright liability.
http://www.illegal-art.org/

~ Public Documents in Danger
The Executive Branch is trying to disperse the General Printing
Office, which puts most government docs into your local library and
onto the Internet. EFF Action Alert forthcoming.
http://www.latimes.com/la-ed-info8nov08,0,7711960.story

-=end=-----------------------------------------------------------

Administrivia

EFFector is published by:

The Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
  http://www.eff.org/

Editor:
Ren Bucholz, Activist
  ren@eff.org

To Join EFF online, or make an additional donation, go to:
  http://www.eff.org/support/

Membership & donation queries: membership@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org

Reproduction of this publication in electronic media is encouraged.
Signed articles do not necessarily represent the views of EFF. To
reproduce signed articles individually, please contact the authors for
their express permission. Press releases and EFF announcements &
articles may be reproduced individually at will.

To change your address, please visit http://action.eff.org/subscribe/.
From there, you can update all your information. If you have already
subscribed to the EFF Action Center, please visit
http://action.eff.org/action/login.asp.

To unsubscribe from the EFFector mailing list, send an email to
alerts@action.eff.org with the word "Remove" in the subject.

(Please ask ren@eff.org to manually remove you from the list if this
does not work for you for some reason.)

Back issues are available at:
  http://www.eff.org/effector

To get the latest issue, send any message to
effector-reflector@eff.org (or er@eff.org), and it will be mailed to
you automatically. You can also get it via the Web at:
  http://www.eff.org/effector/current.html