EFFector Vol. 20, No. 9 February 28, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 415th Issue of EFFector:
- Action Alert - Support the FAIR USE Act!
- EFF Lawsuit Seeks Release of Secret Court Orders on Electronic Surveillance
- Fight Over Google's 'Sponsored Links' Threatens Internet Free Speech
- European Anti-Consumer Directive Delayed
- Progress on WIPO Development Agenda
- Fair Use Has a Posse - Now With Insurance!
- RIAA to Parents: Pop-Ups + Viruses = Piracy!
- Colleges Struggle to Cope With Flood of Copyright Complaints
- LA Times: Start Blanket Licensing, Stop Blanket Lawsuits
- miniLinks (12): Supreme Court Debates Patentability of Software
- Administrivia
For more information on EFF activities & alerts: http://www.eff.org/ Make a donation and become an EFF member today! http://eff.org/support/ Tell a friend about EFF: http://action.eff.org/site/Ecard?ecard_id=1061 effector: n, Computer Sci. A device for producing a desired change. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Action Alert - Support the FAIR USE Act! A critical copyright reform bill has just been introduced in the House, and we need your help to push it through. Reps. Rick Boucher and John Doolittle's FAIR Use Act would remove some of the entertainment industry's most draconian anti-innovation weapons and chip away at the Digital Millennium Copyright Act's (DMCA) broad restrictions on fair use. Take action now and tell Congress to help restore balance in copyright now: http://action.eff.org/site/Advocacy?id=271 Technology companies play a game of Russian roulette whenever they create products with both infringing and non- infringing uses. Current "secondary liability" standards don't provide enough certainty, and if innovators guess wrong, they can be hit with statutory damages as high as $30,000 per work infringed. When it comes to mass-market products like the iPod or TiVo, damages could run into the trillions of dollars -- more than enough to bankrupt anyone from the smallest start-ups to the biggest companies. Unlike in other areas, the private assets of corporate officers, directors and investors are not shielded from liability in copyright cases. The FAIR USE Act would limit the availability of statutory damages for secondary liability and allow innovators to make more reasonable business decisions about manageable levels of legal risk. Meanwhile, copyright owners could still get injunctions and actual damages for harm suffered, putting them in no worse a position than civil litigants in most other areas. The bill would also codify the Supreme Court's "Betamax doctrine" as it pertains to hardware devices, making clear that manufacturers cannot be held liable based on the design of technologies with substantial non-infringing uses. Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism. Broader DMCA and copyright reform remains absolutely necessary, but, if passed, this bill would be a big step in the right direction. Take action to support it now: http://action.eff.org/site/Advocacy?id=271 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF Lawsuit Seeks Release of Secret Court Orders on Electronic Surveillance Justice Department Withholds Records About Purported Changes to Program Washington, D.C. - The Electronic Frontier Foundation (EFF) filed suit against the Department of Justice, demanding records about secret new court orders that supposedly authorize the government's highly controversial electronic surveillance program that intercepts and analyzes millions of Americans' communications. When press reports forced the White House to acknowledge the program in December of 2005, the administration claimed that the massive program could be conducted without warrants or judicial authorization of any kind. However, in January of this year, Attorney General Alberto Gonzales announced that the Foreign Intelligence Surveillance Court (FISC) had authorized collection of some communications and that the surveillance program would now operate under its approval. EFF's suit comes after the Department of Justice failed to respond to a Freedom of Information Act (FOIA) request for records concerning the purported changes in the program. "While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications," said EFF Senior Counsel David Sobel. "The burden is on the Justice Department to justify its failure to disclose the information we've requested." EFF's suit demands the immediate release of the FISC orders regarding the surveillance program and any FISC rules and guidelines associated with such orders. This FOIA action is separate from EFF's lawsuit against AT&T for illegally collaborating with the government's surveillance program. That suit, Hepting v. AT&T, is proceeding in U.S. District Court in San Francisco despite the government's ongoing attempts to have the case dismissed. For the FOIA complaint filed against the Justice Department: http://www.eff.org/flag/oipr/oipr_complaint.pdf For more on EFF's FOIA Litigation for Accountable Government Project: http://www.eff.org/flag/ For this release: http://www.eff.org/news/archives/2007_02.php#005140 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Fight Over Google's 'Sponsored Links' Threatens Internet Free Speech EFF Asks Judge to Uphold Key Trademark Ruling San Francisco - The Electronic Frontier Foundation (EFF) asked the U.S. 2nd Circuit Court of Appeals last week to uphold an important ruling allowing anyone to purchase Google's "sponsored links" tied to trademarks, arguing that the practice is legal under trademark law and provides a vital means for online speakers to connect with audiences on the Internet. Google's "sponsored links" feature allows customers to buy advertisements attached to certain search terms. When a Google user types those terms into the search engine, the sponsored links appear along with the search results. However, a company named Rescuecom filed a lawsuit against Google over the program, claiming that selling sponsored links for the term "Rescuecom" infringed its trademark. In an amicus brief filed with the appeals court last week, EFF argues that the sponsored links are not an infringing use, and in fact promote a vibrant public sphere by helping online speakers reach a broader audience. An example cited in the brief is that of "The Coalition of Immokalee Farmworkers," a group critical of McDonald's business practices. The coalition bought sponsored links attached to searches for "McDonald's" in order to stimulate debate and mobilize support. "The Internet has brought together speakers of many kinds - - some competing with trademark owners, others criticizing them, still others simply referring to them while discussing other subjects or products," said EFF Staff Attorney Corynne McSherry. "Services like Google's 'sponsored links' help people with something to say reach those who might be interested in hearing it." Rescuecom has asked the court to hold that trademark law regulates virtually any use of search keywords that are also trademarks. This would give trademark holders a legal sword to wield against critics and competitors, as well as the intermediaries upon which those critics and competitors rely to spread their message. But courts have historically taken care to ensure that trademark restrictions do not allow markholders to interfere with Constitutionally- protected free speech. "On the Internet, trademarks aren't just identifiers. They are essential navigation tools and vehicles of expression," said EFF Staff Attorney Jason Schultz. "Quashing this speech goes against both the law and the public interest." A judge dismissed Rescuecom's case against Google last year, but the company is appealing the decision. For the full brief filed in Rescuecom v. Google: http://www.eff.org/legal/cases/rescuecom_v_google/EFF_amicus.pdf For this release: http://www.eff.org/news/archives/2007_02.php#005134 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * European Anti-Consumer Directive Delayed Call it the Universal Law of Bad Laws: the more problematic a proposed piece of legislation is, the keener its advocates are to rush it through. When that happens, it's often those in the system who call for delay that saves us all from its unintended consequences. Praise, then, is due then for Nicola Zingaretti, the Italian Member of European Parliament (MEP) responsible for guiding the dangerous Second Intellectual Property Enforcement Directive (IPRED2) through the European Parliament. Along with criminalizing all forms of intellectual property infringement, the proposed directive would impose criminal sanctions for those who aid, abet, and incite these intellectual property infringements. Zingaretti called last week for another delay in a key vote by the EU's Committee on Legal Affairs (JURI), originally scheduled for yesterday. Learn more about this directive and what's next: http://www.eff.org/deeplinks/archives/005139.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Progress on WIPO Development Agenda The WIPO Development Agenda offers the possibility of creating global intellectual property laws that balance rights holders' interests with the human rights of the world's citizens for access to medicine and knowledge. This last week of meetings at WIPO has brought a series of welcome surprises on this front. When the proceedings started on Monday, we had a Chairman who was new to both WIPO and the Development Agenda. The Member States faced a battery of 40 proposals that had to be reconciled into a unified document. To everyone's surprise, that happened by week's end. That WIPO was able to produce such a document is amazing. That the document is a powerful affirmation of many key parts of the original Development Agenda proposal is nothing short of astounding. Learn more about last week's meeting: http://www.eff.org/deeplinks/archives/005138.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Fair Use Has a Posse - Now With Insurance! Fantastic news from Stanford Law School's Fair Use Project: documentarians who follow the Center for Social Media's Documentary Filmmakers' Statement of Best Practices in Fair Use can now get "errors and omissions" insurance from Media/Professional Insurance. The key was cementing a promise of pro bono or reduced fee representation to documentaries that follow the Best Practices guidelines: "Working with Media/Professional, and Michael Donaldson, the Fair Use Project has now found a way to insure films that follow the Best Practices guidelines. For films that are certified to have followed the Best Practices guidelines, Media/Professional will provide a special (read: much lower cost) policy; Stanford's Fair Use Project will provide pro bono legal services to the film. If we can't provide pro bono services, then Michael Donaldson's firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon 'fair use' in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful." Generally, the biggest hurdle facing creators who rely on fair use is that they can't get insurance for their projects. And without insurance, almost no major TV network or film distributor will put your project on the air or into distribution. That's why this is such big news -- if this catches on, we can all expect to see much more of the fair use to which we are all entitled. For this post and related links: http://www.eff.org/deeplinks/archives/005137.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * RIAA to Parents: Pop-Ups + Viruses = Piracy! If a parent sees pop-up ads and viruses on her computer, she can be sued for copyright infringement by the RIAA. At least that's what the RIAA is arguing in a recent court filing in the Capitol v. Foster case, in which a federal judge made the RIAA cough up attorney's fees to a mother, Debra Foster, who had been sued because her daughter was file sharing. The RIAA lawyers had dawdled in dismissing their complaint against Foster, even after her child admitted to being the file-sharer in the house. (The RIAA went ahead and got a default judgment against the child.) This new filing marks the first time the RIAA has explained its claim that parents are liable for the infringements committed by their children (a theory that has never been accepted by any court, to the best of our knowledge). The argument is pretty remarkable, built on a house of cards including the notion that "everyone knows" pop-up ads and viruses signify piracy! Read more about the RIAA's bogus arguments: http://www.eff.org/deeplinks/archives/005135.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Colleges Struggle to Cope With Flood of Copyright Complaints The major record labels are sending thousands more copyright nastygrams to colleges regarding student file sharing this year. Of course, file sharing continues unabated, and these P2P-related notices will simply push fans to use other readily-accessible technologies that the RIAA can't easily monitor -- copying music through iTunes over the campus LAN, swapping hard drives and USB flash drives, burning recordable DVDs, and forming ad hoc wireless networks. So the RIAA's strategy still won't stop file sharing, but it certainly will cause collateral damage to academic freedom, free speech, and privacy. In a recently released report, the Brennan Center lays out what that cost looks like today based on interviews with representatives from 25 service providers including 10 from universities. Universities are already being forced to waste substantial resources on doing the RIAA's dirty work. Flooded with machine-generated complaints, schools are unable to evaluate the merits of particular complaints. While lacking procedural safeguards to make sure students wrongly accused of infringement are not penalized, many schools have adopted stricter penalties than the law requires. Schools have also adopted network monitoring and filtering tools that interfere with legitimate expression. The increase in P2P-related notices stands only to make matters worse. The RIAA's Cary Sherman states that the increase in the notices is "something we feel we have to do," but blanket licensing provides a clear alternative to blanket lawsuits. Read the Brennan Center's report: http://fairusenetwork.org/resources/OSPreport-2007.pdf Take action now to help stop the lawsuit campaign: http://www.eff.org/share/petition For this post and related links: http://www.eff.org/deeplinks/archives/005133.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * LA Times: Start Blanket Licensing, Stop Blanket Lawsuits The major record labels have stayed the course for the last five years with predictable results -- they've stuck by DRM, ratcheted up their file sharing lawsuit campaign, and let revenues continue to slide. Last week, the LA Times suggested some reasons to think the labels may finally be coming around to a sensible solution that EFF has long advocated -- blanket licenses for music fans to share as much music as they like for a flat monthly fee. Unfortunately, the record labels haven't done a complete 180 from their backward-thinking ways. But, as the LA Times puts it, "You have to wonder how low [major label revenues] have to go before blanket licenses look like a better approach than blanket lawsuits." Read the editorial: http://www.latimes.com/news/opinion/la-oew-healey19feb19,0,5551102.story?coll=la-opinion-center For this post and related links: http://www.eff.org/deeplinks/archives/005132.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Supreme Court Debates Patentability of Software Justices look skeptically at the details of software's protection. http://www.eff.org/cgi/tiny?urlID=597 ~ Toward an Ethical Patent System European citizens unite against over-broad patents.... http://www.ethipat.org/ ~ Bad Patents Are Bad for Business ... as does the European business community to go with it. http://www.esoma.org/ ~ Canada Turns Away Americans for Past Misdemeanors Thanks to DHS data mining, Canada turned away a visitor who shop-lifted during a fraternity prank 20 years ago and others with minor criminal records. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/02/23/NEVIUS.TMP ~ Has the Media Center Moved to Silicon Valley? On the day of the Oscars, Tom Forenski thinks that films have lost their magic, and Net technology has seized it. http://www.ipdemocracy.com/archives/2007/02/25/#002355 ~ Whit Diffie Warns Of Overbroad Privacy Laws "I am, on balance, more pleased with the fact that I can learn lots of information about people in minutes by using the Web than I am concerned about the fact that people can learn lots of information about me that way. And I would not like to see laws that restrict people's ability to go investigate things. " http://www2.csoonline.com/blog_view.html?CID=29005 ~ Protect Your Users' Data With a Privacy Wall How one company works to protect its users' financial information. http://www.eff.org/cgi/tiny?urlID=596 ~ SF Chronicle: Reverse Real ID "Congress must take a hard look at whether it makes sense to proceed with an expansive law that would be more appropriately called the National ID Act." http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2007/02/23/EDGRJN77SG1.DTL ~ North Korea and the Internet North Korea's strange, inward-looking national intranet. http://www.economist.com/world/asia/displaystory.cfm?story_id=8640881 ~ Did WIPO's Director-General Lie About his age? Confidential report suggests that he was 28 when he first took the job, not 37, and has repeatedly given the wrong age on official documents for 24 years. http://www.stuff.co.nz/stuff/3971717a4560.html ~ The "Crime" of Blogging in Egypt Abdelkareem Nabil Soliman is sentenced to four years for free speech. http://www.cato.org/pub_display.php?pub_id=8013 ~ Recording Industry Targets Colleges Administrators get caught in the crossfire: "[The complaint] is asking us to pursue an investigation and as the service provider we don't see that as our role", says Purdue spokesman. http://www.eff.org/cgi/tiny?urlID=598 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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: Derek Slater, Activist derek@eff.org Membership & donation queries: membership@eff.org General EFF, legal, policy, or online resources queries: information@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. Current and back issues of EFFector are available via the Web at: http://www.eff.org/effector/ This newsletter is printed on 100% recycled electrons.
