EFFector Vol. 17, No. 38 October 13, 2004
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 309th Issue of EFFector:
- Indymedia Servers Mysteriously Reappear, But Questions Remain
- In File-Sharing Witchhunts, RIAA Is Foiled Again
- Entertainment Giants Push Supreme Court to Rewrite Copyright Law
- MiniLinks (12): DoJ Report Endorses PDEA, Induce Act
- Administrivia
Indymedia Servers Mysteriously Reappear, But Questions Remain
San Francisco, CA - Computer servers seized by the US government last week have now been returned to Rackspace Managed Hosting, but questions remain about why and under what authority this outrageous incident occured. EFF, which is representing a coalition of independent Internet journalists whose websites were shut down by the seizure, will examine the servers to make sure that they are secure and to preserve evidence for future legal action.
The seizure, which took place on October 7, was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Although initial reports suggested that the FBI had taken the servers, the FBI has since denied any involvement. Citing a gag order, Rackspace continues to decline to comment on what happened.
The servers hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists. When they were seized, it silenced numerous political news websites for several days - a clear violation of the First Amendment.
"Secret orders silencing US media should be beyond the realm of possibility in a country that believes in freedom of speech," said EFF Staff Attorney Kurt Opsahl. "EFF was founded with the Steve Jackson Games case 14 years ago, and at that time we established that seizing entire servers because of a claim about some pieces of information on them is blatantly illegal and improper. It appears the government forgot this basic rule, and we will need to remind them."
EFF will take legal action to find out what really happened to the servers and ensure that the media are protected from this kind of egregious First Amendment violation in the future.
For the breaking news item:
http://www.eff.org/news/archives/2004_10.php#002006
For the previous press release: "EFF Challenges Secret
Government Order to Shut Down Media Websites:
http://www.eff.org/news/archives/2004_10.php#001992
In File-Sharing Witchhunts, RIAA Is Foiled Again
Washington, DC - The Supreme Court on Tuesday denied a request by the Recording Industry Association of America (RIAA) to hear its appeal of a lower court decision that under some circumstances 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. EFF led a coalition of public interest groups and ISPs that filed friend-of-the court briefs in support of Verizon, arguing that the RIAA's subpoenas failed to respect the privacy and First Amendment rights of Internet users. The DC Circuit Court agreed, finding that 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 and was denied. 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.
For this release:
http://www.eff.org/news/archives/2004_10.php#001991
Entertainment Giants Push Supreme Court to Rewrite Copyright Law
Washington, DC - A group of 25 entertainment companies last week filed a petition for certiorari with the Supreme Court, 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. 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 the petition for certiorari, 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-UT) 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.
For this release:
http://www.eff.org/news/archives/2004_10.php#001988
miniLinks
miniLinks features noteworthy news items from around the Internet.
Employers Monitor "Cyberslacking"
This article looks at the emergence of employers who spy on
workers to keep them from - heaven forbid - using eBay on
company time:
http://www.eff.org/cgi/tiny?urlID=283
(SF Chronicle)
Monsanto Busted for Patenting Indian Wheat
By Greenpeace, no less:
http://sify.com/finance/fullstory.php?id=13582831
DoJ Report Endorses PDEA, Induce Act
Meaning that you, the taxpayer, could soon find yourself
paying for the entertainment industry's war on
filesharing - while watching innovators pack up shop and
head overseas:
http://www.eff.org/cgi/tiny?urlID=282
(CNet)
P2P Lawsuits Hit Europe
The recording industry is takes its sue-the-fans act on
a world tour:
http://uk.news.yahoo.com/041007/80/f433e.html
BusinessWeek on Copyright v. Innovation
Heather Green on the chilling effects of copyright
maximalism and abuse:
http://www.eff.org/cgi/tiny?urlID=289
Diebold Cuts Financial Forecast
The company is learning the hard way that fixing a machine
*after* you sell it is more expensive than doing it right
the first time:
http://www.eff.org/cgi/tiny?urlID=284
(Computerworld)
eDonkey Beats KaZaA
eDonkey bested KaZaA in the latest rating from BayTSP,
making it the world's most popular file-sharing
application. John Borland suggests that KaZaA
lost the top spot because it's been too busy fighting
off lawsuits to keep its technology up-to-date:
http://www.eff.org/cgi/tiny?urlID=285
(CNet)
JibJab Releases Another Animation
And we don't see any copyright lawyers hovering:
http://www.eff.org/cgi/tiny?urlID=286
Hollywood Pushes Supreme Court to Consider P2P
One day after failing to push the Induce Act past the
goal line, Hollywood predictably put in its bid an
end-run around Congress by filing a petition for cert
in the Grokster case. Here's the bizarre twist: its
legal team includes both Kenneth Starr (President
Clinton's prosecutor during his impeachment scandal)
and David Kendall (Clinton's personal lawyer during
the scandal):
http://www.wired.com/news/digiwood/0,1412,65290,00.html
Gov't Funds Yearlong Chat Room Surveillance Study
Privacy implications aside, we've been in a few chat
rooms in our day, and we're pretty sure that the findings
will be hilarious:
http://www.eff.org/cgi/tiny?urlID=288
(AP)
"No-Fly List" Has "No Rules, Procedures"
According to CNN.com, "The 'no-fly' watch list - billed
as a post-9/11 weapon in the United States' war on terror
- lacks guidance on adding and deleting names and a method
of consolidating more than a dozen lists maintained
by various government agencies."
http://www.cnn.com/2004/US/10/10/terror.watch.list/
More Mainstream Coverage for "Some Rights Reserved"
Creative Commons is all over the place!
http://www.eff.org/cgi/tiny?urlID=287
(AP)
Administrivia
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