EFFector Vol. 21, No. 04 February 6, 2008 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 457th Issue of EFFector: * Action Alert: Support Senate Patent Reform and the EFF Patent Busting Project! * EFF Testifies Before House Committee in Support of State Secrets Privilege Reform * Savage v. CAIR: Another Year, Another Attempt to Misuse Copyright Law to Silence a Critic * Illegal Government Surveillance: It's Not Just For Foreigners * EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case * Update on Pro-IP Act: DC Roundtable on Statutory Damages * Barracuda Networks Asks for Help in Defending Free and Open Source Patent Claim * ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising * MPAA's Error Oops, College Students Aren't So Bad After All! * Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod * Come See EFF at the O'Reilly Emerging Technology Conference! * EFF Seeks Member Services Assistant * EFF's 17th Birthday Fundraiser a Success! * miniLinks (6): Bush order expands network monitoring * 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 Senate Patent Reform and the EFF Patent Busting Project! Encourage the Senate to take up the Patent Reform Act of 2007 and improve the state of invention and innovation in America! http://action.eff.org/site/Advocacy?id=361 The Senate is now deciding whether or not to take up S. 1145, the Patent Reform Act of 2007. This bill represents the best effort to promote meaningful patent reform, which is sorely needed. Among other things, the bill aims to reduce certain excessive patent infringement damages, allow third parties to file patent defeating documents before patents are issued, and create a new system for challenging bad patents. While not perfect, S. 1145 is an important step in the right direction. For years, EFF's Patent Busting Project has been a successful and important front in the fight against harmful patents and patent abuse. While S. 1145 is generally a good and important piece of legislation, dangerous language cropped up in a draft committee report about the bill -- language that threatens the efforts of advocacy groups to battle patents harmful to consumers, innovation, and the public interest. There's time yet to address this threat, so urge your Senators, when looking at S. 1145, to reevaluate and adjust the provisions in Section 5, titled "Post-grant Procedures." The House has already passed its version (H.R. 1908) -- let's keep the momentum for patent reform going strong in the Senate! For more information, check out: http://action.eff.org/site/Advocacy?id=361 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF Testifies Before House Committee in Support of State Secrets Privilege Reform EFF Senior Staff Attorney Kevin Bankston testified before the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties today, using EFF's case against AT&T as an example of the misuse of the State Secrets Privilege by the Administration. The hearing was the Oversight Hearing on Reform of the State Secrets Privilege. Bankston highlighted the fact that the Administration is attempting to use the state secrets privilege to shield itself and the telecommunications carriers from accountability for violating the rights of millions of Americans. He observed that the Administration is simultaneously claiming that no information can be presented to the court about the warrantless wiretapping without harming national security, while at the same time selectively providing information to Congress and the public when that information will further its political goals. Bankston said, "The Administration should not be allowed to share or withhold information for its own political advantage, or to avoid accountability." For the written testimony by EFF Senior Staff Attorney Kevin Bankston: http://www.eff.org/files/EFF_HJC_SSP_written_testimony_Final.pdf For the complete post by EFF Legal Director Cindy Cohn: http://www.eff.org/deeplinks/2008/01/eff-house-committee-let-our-cases-go : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Savage v. CAIR: Another Year, Another Attempt to Misuse Copyright Law to Silence a Critic Last week, along with our co-counsel, EFF filed a motion for judgment on the pleadings asking a U.S. District Court judge to throw out a copyright infringement suit brought by talk show host Michael Savage against the Council on American-Islamic Relations (CAIR). Savage sued CAIR in December, alleging that CAIR infringed the copyright in his show when it posted brief excerpts from Savage's radio program in order to criticize Savage's remarks. CAIR's use of the radio program excerpts is, of course, protected under the fair use doctrine. The Copyright Act specifically makes clear that third parties may utilize copyrighted works for purposes of commentary or criticism, as CAIR did in this case. This is not, however, the first time that a critic attempted to use copyright law to punish a vocal critic, and it won't be the last. EFF routinely defends online speakers faced with such abuses of copyright law. Our most analogous recent case was our representation of pseudonymous blogger "Spocko" who criticized the hosts of San Francisco-based KSFO-AM, utilizing clips from various KSFO talk shows. KSFO corporate parent ABC sent a threatening letter to Spocko's ISP which, unfortunately, pulled down Spocko's site before EFF stepped in and got Spocko back up and running. As we pointed out last January, while radio personalities certainly have a right to air their views, the First Amendment says nothing about a right to advertiser-subsidized speech. Even if advertisers choose to pull their ads because a critic has a more convincing argument -- even if advertiser revenue dries up completely and shows are canceled -- it doesn't necessarily follow that anyone's free speech rights have been violated. Using the legal process to silence critics, instead of participating further in the oftentimes rough-and-tumble "marketplace of ideas," is the antithesis of what the First Amendment and the Copyright Act stand for. Savage, with his own daily radio program, would certainly seem able to compete in that marketplace without the aid of the legal process. For more information about Spocko and ABC/KSFO: http://www.eff.org/cases/spocko-and-abc-ksfo For the complete post by EFF Senior Staff Attorney Matt Zimmerman: http://www.eff.org/deeplinks/2008/01/another-year-another-attempt-misuse-copyright-law-silence-critic : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Illegal Government Surveillance: It's Not Just For Foreigners Last week, Senator Feingold spoke with progressive bloggers about FISA, eloquently explaining part of what's so frightening about today's surveillance laws: "Do you folks realize that, if you make a phone call or an email, or do what I did yesterday, receive an email from my daughter who is in England, that that is no longer private? That the government can suck up all your emails and all your phone calls, whether it be to your son or daughter in Iraq, or your child who's a junior year abroad, or a reporter over there, and there's no court oversight of it at all? It's just 'trust us,' by the administration. That's what's going on in this legislation." These simple examples are true enough, but the reality is far worse than they convey. The surveillance devices used by the NSA copy all Internet traffic that passes through their cables, ones that carry what is known as "peered" traffic, or traffic between AT&T and other telecommunications carriers like Sprint. This is by no means limited to phone calls to England -- it includes domestic private communications. So, the government isn't only listening to phone calls with your child who's on her junior year abroad -- it's likely to be receiving phone calls with your child who's at her friend's house down the road. This distinction is an important part of the legal action being brought against AT&T and the other carriers, and something that's rarely conveyed by the media or understood by members of Congress. As telecommunications expert Brian Reid says: "This isn't a wiretap. It's a countrytap." For the complete statement by telecommunications expert Brian Reid: http://www.eff.org/files/nsa/reid.pdf For this complete post: http://www.eff.org/deeplinks/2008/01/illegal-government-surveillance-its-not-just-foreigners : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case Can a rightsholder force an ISP to hand over a subscriber's identity in a civil copyright infringement lawsuit? In the U.S., the answer is yes - as evidenced by the music industry's more than 20,000 lawsuits against alleged individual filesharers. In Spain (and perhaps other EU countries), the answer is no, at least for now. In a much-anticipated decision, the European Court of Justice ruled this week that European Community law does not require EU Member States to impose an obligation on ISPs to divulge customer data in response to a request from a copyright holder who alleges that copyright infringement has taken place. The decision in Promusicae v. Telefonica involved a request made by a Spanish music rightsholder association (Promusicae) to Spain's leading ISP (Telefonica) for personal data about Telefonica subscribers using particular dynamic IP addresses, which Promusicae alleged were engaged in filesharing. For legal documents related to Promusicae v. Telefonica: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-275/06 For the complete post by EFF International Policy Director Gwen Hinze: http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Update on Pro-IP Act: DC Roundtable on Statutory Damages Sherwin Siy, staff attorney with Public Knowledge, has posted an insightful first-person account of a recent "roundtable" held by the U.S. Copyright Office about the increase in statutory damages proposed in Section 104 of the recently-introduced PRO-IP Act. As we reported when the measure came out, there is precious little reason to think that copyright's statutory damages regime is too lenient. (With individuals being held liable for $220,000 for sharing 24 songs, the evidence indicates the opposite.) Having convened an all-day roundtable of "stakeholders," it sounds like the Copyright Office may be coming to the same conclusion. Read Sherwin's entire account for a vivid portrait of how copyright policy gets made in Washington. For Sherwin Siy's post about the roundtable on copyright damages: http://www.publicknowledge.org/node/1369 For this post: http://www.eff.org/deeplinks/2008/01/update-pro-ip-act-roundtable-statutory-damages : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Barracuda Networks Asks for Help in Defending Free and Open Source Patent Claim Barracuda Networks, Inc., recently announced that it plans "to defend itself, the open source community and the free and open source Clam AntiVirus software from a patent by Trend Micro." The patent at issue in the litigation is U.S. Patent Number 5,623,600 and is directed generally to virus detection and removal apparatus for computer networks. Essentially, Trend Micro's claim is that Barracuda infringed its patent by incorporating into its products the free and open source Clam AntiVirus software, which scans for viruses at the mail gateway. EFF has long worried that bogus patent claims could threaten the free and open source software community, and we'll be watching this case closely. While this claim was made against a company using the tool, if it's successful, the same argument could be targeted at a university or even an individual, so it's important to pay attention at the early stages. Barracuda has asked for help from the community in seeking prior art for the patent, much as EFF does in our Patent Busting Project. As FSF's Eben Moglen says, "Collective defense from software patents is a shared responsibility for everyone in the free software ecosystem." For the Barracuda Networks page about their patent defense: http://www.barracudanetworks.com/ns/legal/ For this post by EFF Intellectual Property Fellow Emily Berger: http://www.eff.org/deeplinks/2008/01/barracuda-networks-defends-open-source-community : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * ABA Quietly Considers Anti-Consumer Proposals to Impede Keyword Advertising When you type a word like "Chevrolet" into an Internet search engine, you aren't necessarily looking for the nearest dealership. You might be looking for independent information about Chevy's business practices, quality, compliance with emissions standards, or even information about how Chevrolets match up against their competitors. One of the best ways for competitors, critics and others to get that information to you is to place ads that use Chevrolet's trademarks as keywords, so that this information pops up when you run the search. That's why EFF has worked hard to stop efforts to use trademark law to impede keyword advertising. Through lawsuits and legislation -- like a law that was proposed in Utah -- trademark owners have tried to limit consumer access to information and block the ability of critics from using keywords to advertise their point of view, stimulate debate and mobilize support. Now there is a quiet move in the American Bar Association's Intellectual Property Section to make the legal defense of such keyword advertising more difficult. An ABA committee is currently debating four resolutions on the issue, all of which have serious flaws, at best, and anti-consumer slants, at worst. And some members of the committee are trying to keep this discussion from public view. The full analysis by Eric Goldman and EFF Staff Attorney Corynne McSherry shows why these efforts -- not to mention the committee's attempts to prevent public scrutiny of those efforts -- are deeply misguided and could help undermine the very purpose of trademarks: to improve consumer access to accurate information about goods and services. For the full report by Eric Goldman and Corynne McSherry: http://www.eff.org/pages/aba-keyword-advertising For this post by EFF Staff Attorney Corynne McSherry: http://www.eff.org/deeplinks/2008/01/aba-quietly-considers-anti-consumer-proposals-impede-keyword-advertising : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * MPAA's Error Oops, College Students Aren't So Bad After All! When the Motion Picture Association of America (MPAA) began their campaign against piracy on college campuses, they waved a study that purported to show that 44% of the film industry's losses were the direct result of illegal downloading and filesharing by college students on US campuses. The MPAA used that number to ramp up the pressure on Congress to pass legislation that would force colleges to eavesdrop on their networks and crack down on filesharing on campus. 44% is a high number, and many were justifiably skeptical. Now, it seems the MPAA has been forced to admit that its numbers were not exactly accurate. After diligently re-checking its math, it has admitted that the 44% figure was really more like 15%. And because only 20% of college students live on campus, then campus networks are responsible for something like 3%. These "restated" MPAA numbers suggest that the MPAA is targeting universities not because college kids are a serious threat to the movie industry's bottom line, but because the studios hope to set a precedent on campus that can be used to force filtering on larger commercial ISPs. It's bad enough that the government is eavesdropping on our Internet activities without having Hollywood joining in! For this complete post: http://www.eff.org/deeplinks/2008/01/mpaa-s-error-oops-college-students-aren-t-so-bad-after-all : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod Warner Music Group has sued SeeqPod, a "Web 2.0" music search engine that has been gaining popularity in recent months. This is the latest in a string of lawsuits against Web 2.0 companies, like YouTube, MP3Tunes.com, Veoh, PornoTube, and Divx/Stage 6. Together, the suits represent an attack by the entertainment industry on the DMCA safe harbors that protect hosting services and search engines from copyright claims. As search engines become more specialized and capable, certain copyright owners have become increasingly dissatisfied with the notice-and-takedown bargain struck in the DMCA. That's what these lawsuits are really about -- the defendants are complying with the letter of the law, but copyright owners are now trying to change the rules in court. Of course, the SeeqPod case may settle, but the copyright issues will not be going away anytime soon. For Warner Music Group's full complaint against SeeqPod: http://www.eff.org/files/Warner%20v%20SeeqPod%20complaint.pdf For the complete post by EFF Senior Staff Attorney Fred Von Lohmann: http://www.eff.org/deeplinks/2008/01/latest-test-dmca-safe-harbors-warner-sues-seeqpod : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Come See EFF at the O'Reilly Emerging Technology Conference! Heading to San Diego for the O'Reilly Emerging Technology Conference (ETech) in March? Plan to catch EFF's "On A Brighter Note..." panel, where EFF lawyers and activists will put on their rose-tinted spectacles and describe our best case scenarios: near-future technology that will help you defend your rights, real world policy initiatives that could help save the Net, and techniques and tricks that you can bake into your work now that will help preserve all our freedoms, for now and for good. Also, don't forget to come to EFF's Pioneer Awards ceremony on March 4. And be sure to visit our booth and grab some EFF schwag during exhibit hours. The O'Reilly Emerging Technology Conference (ETech) takes place March 3-6 in San Diego, CA. ETech hones in on the ideas, projects, and technologies that the alpha geeks are thinking about, hacking on, and inventing right now. From robotics, health care, and space travel to gaming, finance, and art, ETech explores promising technologies that are influencing everyday life and inspiring the future. The good folks at O'Reilly are offering a discount to EFFector readers; enter code "et08eff" when you register online to save 20%! http://www.oreilly.com/go/et3cheff For more about ETech: http://conferences.oreillynet.com/ For more information about O'Reilly: http://www.oreilly.com : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF Seeks Member Services Assistant The Electronic Frontier Foundation (EFF), a nonprofit civil liberties organization based in San Francisco, is seeking an energetic, enthusiastic, Member Services Assistant for supporting EFF's Membership Coordinator and current 12,500+ members. The job includes, but is not limited to, assisting with the donor and membership database, processing donations, sending out thank-you letters and renewal notices, ordering member premiums, managing the donation pages of the website, responding to any issues members may have, and helping to develop strategies to grow the membership. The Member Services Assistant also assists with EFF's online shop, including order fulfillment. The job may include running the EFF booth at a number of conferences each year and assistance in planning other EFF events, so some travel is required. The Member Services Assistant reports to the Membership Coordinator and is a key member of EFF's fundraising team. The ideal candidate will have some experience in working with a membership program. We're looking for someone who has a proven track record of customer service, database management, and working with a team. We're also looking for someone who is independent and resourceful. Knowledge of digital civil liberties issues would be helpful. Excellent interpersonal, written, oral and organizational skills are also required. This is a fulltime, hands-on position working with a dedicated staff in a friendly work environment. EFF is a 501(c)(3) organization. Salary in the low $30s with a comprehensive benefits package. To apply, please send a cover letter and your resume to memjob@eff.org. No phone calls please. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * EFF's 17th Birthday Fundraiser a Success! Thanks to everyone who came and celebrated with EFF at our 17th Birthday Party at 111 Minna on January 15. The place was packed with friends and supporters, and EFF raised over $8,000 to help us keep fighting for your digital rights. EFF would also like to thank our sponsor, TCHO, "a new chocolate company for a new generation of chocolate enthusiasts." TCHO featured an exclusive chocolate sampling at the party, and TCHO would like to thank EFF supporters for providing great feedback on their beta chocolate. More than 300 chocolate fans did a side-by-side comparison of two slightly different recipes. Both chocolates were enthusiastically received and each had its ardent supporters, causing much debate at the sampling table. (For the curious, the winner by only 17 votes was Sample A!) EFF would also like to thank 111 Minna for their enthusiastic support of our work, and for being excellent hosts. A big thank you as well to the supremely talented musicians who donated their talents to the party: Adrian & the Mysterious D (A+D), Ripley, Kid Kameleon, J Tones, and Qubitsu. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Bush order expands network monitoring The President has given the NSA more power to monitor computer networks of federal agencies. (log-in may be required) http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503261.html ~ Is retroactive immunity unconstitutional? If Congress does pass immunity for telecom lawbreakers, that law may violate the Constitution. http://writ.news.findlaw.com/sebok/20080129.html ~ The dangers of "locking down" the Internet Digital locks on content no longer work. Michael Geist argues that industry is now shifting towards network filtering to reassert control. http://www.thestar.com/columnists/article/297938 ~ Partner offers $10K bounty for blogger's identity A lawyer is trying to unmask an anonymous blogger who has criticized him. http://www.abajournal.com/weekly/partner_offers_10k_bounty_for_bloggers_identity ~ Are Super Bowl parties copyright infringement? The NFL is reminding people that showing the "Big Game" on a large screen may constitute a public performance. http://techdirt.com/articles/20070201/140812.shtml ~ Copyright law for individuals? EFF fellow Cory Doctorow says copyright law should distinguish between commercial and cultural uses. http://www.guardian.co.uk/technology/2008/jan/29/copyright.law : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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: Richard Esguerra, EFF Activist richard@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/
