EFFector       Vol. 19, No. 13       April 7, 2006

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 374th Issue of EFFector:

• EFF Files Evidence to Stop AT&T's Dragnet Surveillance
• Bogus Clear Channel Patent May Be Revoked
• EFF Challenges Dangerous Patent on Internet Test-Taking
• Citizens Lobby Congress for Reliable Electronic Voting
• Smithsonian-Showtime: Why the Broadcasting Treaty Matters
• Copyright v. Indexing, Part 1: TorrentSpy
• You're Invited! "Email -- Should the Sender Pay?": EFF Fundraiser, Debate Between Esther Dyson and Danny O'Brien
• EFF PSAs for Your Podcast or Online Radio Show
• miniLinks (12): MAFIAA
• Administrivia

EFF Files Evidence to Stop AT&T's Dragnet Surveillance

Internal AT&T Documents Had Been Temporarily Held Back Due To Government's Concerns

San Francisco - The Electronic Frontier Foundation (EFF) this week filed the legal briefs and evidence supporting its motion for a preliminary injunction in its class-action lawsuit against AT&T. After asking EFF to hold back the documents so that it could review them, the Department of Justice consented to EFF's filing them under seal -- a well- established procedure that prohibits public access and permits only the judge and the litigants to see the evidence. While not a party to the case, the government was concerned that even this procedure would not provide sufficient security and has represented to the Court that it is "presently considering whether and, if so, how it will participate in this case."

"The evidence that we are filing supports our claim that AT&T is diverting Internet traffic into the hands of the NSA wholesale, in violation of federal wiretapping laws and the Fourth Amendment," said EFF Staff Attorney Kevin Bankston. "More than just threatening individuals' privacy, AT&T's apparent choice to give the government secret, direct access to millions of ordinary Americans' Internet communications is a threat to the Constitution itself. We are asking the Court to put a stop to it now."

EFF's evidence regarding AT&T's dragnet surveillance of its networks includes a declaration by Mark Klein, a retired AT&T telecommunications technician, and several internal AT&T documents. This evidence was bolstered and explained by the expert opinion of J. Scott Marcus, who served as Senior Technical Advisor for Internet Technology to the Federal Communications Commission from July 2001 until July 2005.

The internal AT&T documents and portions of the supporting declarations have been submitted to the Court under a tentative seal, a procedure that allows AT&T five court days to explain to the Court why the information should be kept from the public.

"The public deserves to know about AT&T's illegal program," said EFF Legal Director Cindy Cohn. "In an abundance of caution, we are providing AT&T with an opportunity to explain itself before this material goes on the public docket, but we believe that justice will ultimately require full disclosure."

The NSA program came to light in December, when the New York Times reported that the President had authorized the agency to intercept telephone and Internet communications inside the United States without the authorization of any court. Over the ensuing weeks, it became clear that the NSA program has been intercepting and analyzing millions of Americans' communications, with the help of the country's largest phone and Internet companies, including AT&T.

"Mark Klein is a true American hero," said EFF Staff Attorney Kurt Opsahl. "He has bravely come forward with information critical for proving AT&T's involvement with the government's invasive surveillance program."

In the lawsuit, EFF is representing the class of all AT&T residential customers nationwide. Working with EFF in the lawsuit are the law firms Traber & Voorhees, Lerach Coughlin Stoia Geller Rudman & Robbins LLP and the Law Office of Richard R. Wiebe.

For the notice of motion for preliminary injunction:
http://www.eff.org/legal/cases/att/NotMot.pdf

For the motion to lodge under temporary seal:
http://www.eff.org/legal/cases/att/MotionReSealing.pdf

For more on EFF's suit:
http://www.eff.org/legal/cases/att/

For this release:
http://www.eff.org/news/archives/2006_04.php#004538

Bogus Clear Channel Patent May Be Revoked

Patent Office Orders Reexamination at EFF's Request

San Francisco - At the request of the Electronic Frontier Foundation (EFF), the US Patent and Trademark Office (PTO) on Monday agreed to reexamine an illegitimate patent held by Clear Channel Communications. The patent -- for a system and method of creating digital recordings of live performances -- locks musical acts into using Clear Channel technology and blocks innovations by others.

"The Patent Office agrees that there are serious questions about the patent's validity," said EFF Staff Attorney Jason Schultz. "This is a significant victory for artists and innovators harmed by Clear Channel's patent and for anyone concerned about overreaching, illegitimate patents."

Clear Channel now has two months to file comments defending its patent, to which EFF will get to respond. The PTO will then determine whether to invalidate the patent. In roughly 70% of instances like this one in which a request for reexamination is granted, the patent is narrowed or completely revoked.

"Patents serve an important role in our economy," said Schultz. "Keeping illegitimate patents out of that system benefits all of us, helping up-and-coming artists and entrepreneurs."

EFF filed the request for reexamination in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm and with the help of students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law. The Clear Channel patent challenge is part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

For more information about EFF's request and Clear Channel's patent:
http://www.eff.org/patent/wanted/patent.php?p=clearchannel

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

For this release:
http://www.eff.org/news/archives/2006_04.php#004519

EFF Challenges Dangerous Patent on Internet Test-Taking

Illegitimate Patent Chills Distance Learning and University Education

San Francisco - An extremely broad patent claiming to cover almost all methods of online testing is coming under fire this week.

Test.com has used this illegitimate patent to demand payments from universities with distance education programs that give tests online. However, a patent reexamination application filed by the Electronic Frontier Foundation (EFF) on Wednesday shows that Test.com wasn't the first to come up with this testing method.

"Bogus patents like this one highlight the problems with the current patent system. This is a good example of exactly what needs to be fixed to make patents useful to innovators and educators alike," Schultz said.

In conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm, EFF filed a request for reexamination with the United States Patent and Trademark Office showing that IntraLearn Software Corporation had been marketing an online test-taking system long before Test.com filed its patent request. But Test.com claims that its patent allows it to collect license fees for virtually all online testing methods, preventing educators from developing online coursework and communicating with students over the Internet. As online testing is critical to Internet education, the enforcement of this patent threats academic speech and academic freedom.

"Our nation's education system already faces severe budget constraints and a shortage of resources," said EFF Staff Attorney Jason Schultz. "We shouldn't be diverting resources away from teaching to pay off bogus patent threats."

The challenge to the Test.com patent is the second filing from EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. The first reexamination request was granted on Monday and involves a Clear Channel patent for a system and method of creating recordings of live performances, locking musical acts into using Clear Channel technology and blocking innovations by others.

Just last week, the United States Supreme Court heard arguments in the eBay v. MercExchange patent case, signaling how important patent issues are in today's economy. EFF filed an amicus brief in that case, asking justices to consider the critical free speech implications in its ruling.

For the full Test.com patent reexamination request:
http://www.eff.org/patent/wanted/test/testcom_reexam.pdf

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

For more on IntraLearn Software:
http://www.intralearn.com/

For more on eBay v. MercExchange:
http://www.eff.org/legal/cases/ebay_v_mercexchange/

For this release:
http://www.eff.org/news/archives/2006_04.php#004530

Smithsonian-Showtime: Why the Broadcasting Treaty Matters

EFF has long been a critic of the proposed WIPO Broadcasting Treaty, and now we have a particularly vivid example of how the treaty imperils the public domain.

The Smithsonian Institution recently announced a joint venture with Showtime Networks, Inc., that gives the cable TV network exclusive commercial access to the Smithsonian's archival materials (much of which consists of public domain materials). According to a report from the Washington Post, filmmakers wishing to use Smithsonian archives will "first have to offer the idea to Smithsonian/Showtime. Otherwise, the archives could not be used outside the realm of news programs (such as '60 Minutes' and 'Dateline') in most cases."

This arrangement is troubling for many reasons. In the words of Ken Burns, one of America's most accomplished documentarians, "It feels like the Smithsonian has essentially optioned America's attic to one company." (For a stark contrast to the Smithsonian approach, take a look at the BBC's Creative Archive.)

Now consider just how much worse this arrangement might become if the WIPO Broadcasting Treaty comes into force. Under current copyright law, Showtime has no exclusive rights over any public domain materials that it broadcasts on its "Smithsonian on Demand" channel. Subsequent creators remain free to record the programs, extract the public domain elements, and re-use them.

But by creating new exclusive rights for broadcasters, the proposed Broadcasting Treaty could block subsequent creators from using that public domain material. They would have to independently obtain access to the original materials instead. However, Showtime has already locked up a deal that gives its people exclusive access to the originals. Catch-22!

We don't know whether the WIPO Broadcasting Treaty would necessarily lead to exactly this result, as those who are supporting it (including the US Patent and Trademark Office) have refused to "speculate" on what US implementing legislation might look likeor whether they would support parallel exceptions to copyright law. However, unless and until the treaty specifically precludes a public domain land grab like this one, it's hard to see how any friend of the public domain can support it.

To learn more about the Broadcasting Treaty:
http://www.eff.org/IP/WIPO/broadcasting_treaty/

For the Washington Post story on the Smithsonian-Showtime deal:
http://www.washingtonpost.com/wp-dyn/content/article/2006/04/03/AR2006040301699.html

For the original version of this post:
http://www.eff.org/deeplinks/archives/004531.php

To learn about how Bit Torrent works:
http://en.wikipedia.org/wiki/Bit_torrent

For TorrentSpy's motion to dismiss:
http://techfirm.com/mtdtorrentspy.pdf

For the movie studios' complaint:
http://eff.org/IP/P2P/RIAA_v_ThePeople/torrentspy_complaint.pdf

For the original version of this post:
http://www.eff.org/deeplinks/archives/004518.php

Adaptive Path is the generous sponsor of this fundraising event. Founded in 2001, Adaptive Path is a leading user experience consulting, research, and training firm that has provided services to a range of clients, including Fortune 100 corporations, pure-Web startups, and established nonprofit organizations. The company is headquartered in San Francisco. To learn more about Adaptive Path, visit the company website at: http://www.adaptivepath.com

To learn more about the DearAOL campaign against AOL's planned sender-pay system:
http://www.dearaol.com

For Esther Dyson's editorial, "You've Got Goodmail":
http://www.nytimes.com/2006/03/17/opinion/17dyson.html

Download EFF PSAs here:
http://www.eff.org/press/PSA/

miniLinks

miniLinks features noteworthy news items from around the Internet.

MAFIAA
At last, the RIAA and MPA combine forces!
http://www.mafiaa.org/

Mitch Kapor's New Blog
Founder of EFF posts commentary and news about his Open Source Applications Foundation.
http://blog.kapor.com/?p=10#respond

Mono's Ring of Patent Fire
Greg from Redhat's Fedora project explains how Mono is protected by Novell's armory of ex-Commerce One patents.
http://gregdek.livejournal.com/4008.html

Historical Precedent for EFF vs AT&T
Shayana Kadidal points to two landmark 18th century cases that mirror our wiretapping case.
http://jurist.law.pitt.edu/forumy/2006/04/suing-ma-bell-to-stop-nsa-wiretapping.php

MythTV Invades Realm of Cable and TiVo
A nice, if cursory, look at the freeing power of MythTV from the Washington Post.
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/25/AR2006032500115_pf.html

Who's in Control?
Mark Fleischmann, author of Practical Home Theater, gives a stirring call to arms over control of your media.
http://news.designtechnica.com/talkback108.html

Pay-per-email and the "Market Myth"
Peacefire's Bennett Hasselton writes on the problems of Goodmail.
http://it.slashdot.org/article.pl?sid=06/03/29/1411221

Beware Zombies Bearing EULAs
Video store customer inadvertently hands over soul, becomes undead.
http://technollama.blogspot.com/2006/03/zombie-clause.html

How AACS Works
An overview from one of the creators.
http://www.lotspiech.com/AACS/

Michigan Video Game Law Declared Unconstitutional
Video games are protected free speech.
http://news.com.com/Judge+nixes+Michigan+law+aimed+at+violent+games/2100-1043_3-6057287.html

Sour Peas Taste Sweet Victory
The sweet pea serial trademark litigant drops its cases against 52 online defendants.
http://www.sourpeas.org/

Music Industry: Is Digital Making Up the Difference?
Wired's Chris Anderson takes a hard look at latest "OMG! Sky is falling!" music industry stats.
http://www.thelongtail.com/the_long_tail/2006/04/music_industry_.html

Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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 http://www.eff.org/

Editor:
Derek Slater, Activist
derek@eff.org

General EFF, legal, policy, or online resources queries:
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