EFFector Vol. 15, No. 6 Feb. 27, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
In the 206th Issue of EFFector:
* EFF and Law School Clinics Launch ChillingEffects.org
* Senate Hearings Set This Week on Dramatic New Digital Controls
* EFF Defends Shareholder Free Speech
* EFF Defends Internet Linking
* California DeCSS Case Before State Supreme Court
* Exchange Ideas with Larry Lessig at EFF Benefit Dinner
* Negativland Essay Supporting P2P
* Meet EFF Lawyers and Friends in LA on Monday, March 4
* 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!
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EFF AND LAW SCHOOL CLINICS LAUNCH CHILLINGEFFECTS.ORG
PROJECT AIMS TO EDUCATE INTERNET USERS ABOUT ONLINE RIGHTS
Electronic Frontier Foundation Media Release
San Francisco - The Electronic Frontier Foundation (EFF) and four major
law school legal clinics announced the launch today of a project and
website to empower Internet users with detailed information about their
legal rights in response to cease-and-desist letters designed to restrict
their online activities.
The project brings the EFF together with Internet law clinics at Harvard,
Stanford, the University of California at Berkeley, and the University of
San Francisco, and is expected to grow to include additional law schools.
Called Chilling Effects in reference to the way legal threats can freeze
out free expression, the project invites Internet users to add their
cease-and-desist letters to an online clearinghouse at
ChillingEffects.org. Students at the participating law school clinics
will review the letters and annotate them with links to explain
applicable legal rules.
"The Internet makes it easier for individuals to speak to a wide
audience, but it also makes it easier for other people and corporations
to silence that speech," said Berkman Center Fellow Wendy Seltzer, who
conceived the project and programmed the website. "Chilling Effects aims
to level the field by helping online speakers to understand their rights
in the face of legal threats."
The Chilling Effects project works by publishing cease-and-desist letters
received by Internet users and providing detailed information about the
relevant legal rules. For example, if an Internet user receives a letter
demanding that she remove a synopsis of a "Star Trek" episode from her
website, members of the Chilling Effects team would post the letter
online, embedding it with links to information about basic copyright
protections, the rules governing synopses, and the fair use doctrine.
"EFF receives hundreds of requests for help and information from
recipients of cease-and-desist letters," said EFF Legal Director Cindy
Cohn. "This project should help individuals gain access to greatly needed
information as well as allow us to track who is sending these letters and
research larger trends."
The project currently provides basic legal information on issues like fan
fiction, copyright and the Digital Millennium Copyright Act, trademark
and domain names, anonymous speech, and defamation. New topics will be
added as new issues arise. In addition to publishing cease-and-desist
letters, the Chilling Effects team will offer periodic "weather reports"
assessing the legal climate for Internet activity. The reports will seek
to answer such questions as what types of Internet activity are most
vulnerable to the chilling effects of legal threats.
Links:
The Chilling Effects project website:
http://www.chillingeffects.org/
About EFF:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to Web sites in the world:
http://www.eff.org/
About Berkman Center for Internet & Society:
The Berkman Center for Internet & Society is a research program founded
to explore cyberspace, share in its study, and help pioneer its
development:
http://cyber.law.harvard.edu/
About Samuelson Law, Technology and Public Policy Clinic:
The Samuelson Law, Technology and Public Policy Clinic at Boalt Hall was
the first clinic in the country to provide law students with the
opportunity to represent the public interest in cases and matters on the
cutting-edge of high technology law. Since January 2001, students
participating in the Clinic have worked with leading lawyers in nonprofit
organizations, government, private practice, and academia to represent
clients on a broad range of legal matters including Internet free speech
and online and wireless privacy.
http://www.law.berkeley.edu/news/releases/20000424Samuelson.shtml
About Stanford Law School's Center for Internet and Society:
The Center for Internet and Society (CIS) is a public interest technology
law and policy program at Stanford Law School. The CIS brings together
scholars, academics, legislators, students, hackers, and scientists to
study the interaction of new technologies and the law and to examine how
the synergy between the two can either promote or harm public goods like
free speech, privacy, public commons, diversity, and scientific inquiry.
The CIS strives as well to improve both technology and law, encouraging
decision makers to design both as a means to further democratic values.
http://cyberlaw.stanford.edu/
About University of San Francisco Internet and Intellectual Property
Justice Project:
This University of San Francisco School of Law program provides legal
services to parties who require help with intellectual property matters.
The project is currently available to help parties in domain name
disputes under ICANN online dispute resolution proceedings as well as
with other trademark and copyright work that the faculty supervisors feel
is appropriate. Legal work is performed free of charge by students under
the direction of faculty members.
http://www.usfca.edu/law/html/iipjp.html
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SENATE HEARINGS THIS WEEK ON DRAMATIC NEW DIGITAL CONTROLS
SSSCA HEARING, THU. FEB. 28
Electronic Frontier Foundation Media Advisory
For Immediate Release: Wednesday, February 27, 2002
Washington, DC - This Thursday, February 28th, the U.S. Senate Committee
on Commerce, Science and Transportation will hold hearings on draft
legislation, the Security Systems Standards and Certification Act
(SSSCA). Sponsored by U.S. Senator Fritz Hollings (D-SC) and Ted Stevens
(R-AK), SSSCA would require government mandated copy prevention
technology in future digital devices that would give Hollywood control
over how consumers can use digital content. Senate hearings had
originally been scheduled for October 25, 2001, but were indefinitely
postponed after much public opposition to the proposed legislation.
Thursday's re-scheduled hearing will allow testimony only from major
copyright holders and electronics companies; no public interest or
consumer rights groups have been invited to provide input on the draft
legislation on how information may be used in a digital environment.
Witness List:
Panel I:
Mr. Michael D. Eisner, Chairman and CEO, The Walt Disney Company
Mr. Peter Chernin, President and Chief Operating Officer, News
Corporation
Mr. Leslie L. Vadasz, Executive Vice President, Intel Corporation
Panel II:
Mr. Andreas Bechtolsheim, General Manager/Vice President of the Gigabit
Systems Business Unit, Cisco Systems Inc.
Mr. James E. Meyer, Special Advisor to the Chairman and formerly Senior
Vice President and Chief Operating Officer, Thomson Multimedia
Mr. Robert Perry, Vice President, Marketing, Mitsubishi Digital
Electronics America, Inc.
Info on hearings:
Chair: Sen. Hollings to preside Feb. 28, 2002, 9:30 a.m. ET.
Title: "Protecting Content in the Digital Age"
Location: Hearings will be held in Room 253, Russell Senate Office
Building (unless otherwise noted), Delaware and Constitution Avenues,
North East District, Washington, DC 20510
Links
U.S. Senate Committee on Commerce, Science & Transportation announcement
of hearings:
http://commerce.senate.gov/press/107-159.html
Contacts:
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-436-9333 x112
Fred von Lohmann, EFF Senior Intellectual Property Attorney
fred@eff.org
+1 415-436-9333 x123
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EFF DEFENDS SHAREHOLDER FREE SPEECH
URGES COURT TO REVERSE DECISION AGAINST MESSAGE BOARD SPEAKER
Electronic Frontier Foundation Media Release
For Immediate Release: Wednesday, February 27, 2002
San Francisco - Seeking to protect the free speech rights of an online
corporate critic, the Electronic Frontier Foundation (EFF) today filed a
"friend of the court" brief in a California appeals court. A lower court
ruled that critic Michael Wells's speech was not protected because, as a
corporate shareholder, he had a "pecuniary" interest in the
publicly-traded company.
After Hollis-Eden Pharmaceuticals sued Wells and over 50 other defendants
who posted criticisms of the company on a Yahoo! message board, Wells
requested dismissal of the case under California's Strategic Lawsuits
Against Public Participation (SLAPP) statute. The lower court denied
Wells's request for dismissal under the statute, which allows the target
of an intimidation lawsuit to quickly and inexpensively halt such
lawsuits.
"Michael Wells exercised his right to criticize company policies on an
online message board," said EFF Legal Director Cindy Cohn. "Even as a
shareholder, he should not face legal action for expressing his opinions
online."
The EFF brief, also signed by the First Amendment Project and the
California First Amendment Coalition, states: "It simply cannot be the
case that the First Amendment or California's SLAPP statute protect only
those who speak about issues in which they have no personal financial
interest. To the contrary, it is often precisely this interest that
motivates citizens to join public debates. The protection of these
debates is the heart of the statute's goal of encouraging 'continued
participation in matters of public significance.'"
Several other people have successfully challenged Hollis-Eden's lawsuit.
The appellate court is expected to consider Wells's case late this
spring.
Links:
For documents related to the Hollis-Eden case:
http://www.eff.org/Censorship/SLAPP/Hollis-Eden_v_Wells/
For the story of the victory of several other individuals sued by
Hollis-Eden:
http://www.publiccitizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801
About EFF:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to Web sites in the world:
http://www.eff.org/
About First Amendment Project:
The First Amendment Project (FAP) is a nonprofit, public interest law
firm and advocacy organization dedicated to protecting and promoting
freedom of information, expression, and petition. FAP provides advice,
educational materials, and legal representation to its core constituency
of activists, journalists, and artists in service of these fundamental
liberties.
http://www.thefirstamendment.org/
About California First Amendment Coalition:
The California First Amendment Coalition (CFAC) is a nonprofit public
benefit corporation organized under the laws of California. Its more than
500 members comprise news organizations, journalists, attorneys, citizen
activists, public officials, students and teachers, whose common concern
is protecting the free flow of information on matters of public
significance.
http://www.cfac.org/
Contact:
Cindy Cohn, EFF Legal Director
cindy@eff.org
+1 415-436-9333 x108
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EFF DEFENDS INTERNET LINKING
ASKS COURT TO REHEAR DITTO.COM CASE
Electronic Frontier Foundation Media Release
For Immediate Release: Wednesday, February 27, 2002
San Francisco - The Electronic Frontier Foundation (EFF) today filed a
brief on behalf of Ditto.com, urging the U.S. Ninth Circuit Court of
Appeals to reconsider a ruling that threatens to make all linking on the
World Wide Web a copyright infringement.
In order to hold Ditto.com liable for copyright infringement, the Ninth
Circuit Court of Appeals created a novel legal rationale. It found that
linking to a website without permission infringes the public display
rights of the website owner.
"Extending copyright law to all linking on the Web would be a nightmare,"
said EFF Senior Intellectual Policy Attorney Fred von Lohmann. "A whole
new flurry of lawyer letters would chill linking on the Web, striking at
the heart of free expression on the Internet."
Ditto.com is a search engine that helps people find publicly available
image files on the Web. So, for example, by entering "sailboat" into the
Ditto website, the searcher would be shown a selection of images of
sailboats from around the Web. Ditto both presented the images in reduced
form, known as thumbnails, and also provided links that would allow the
searcher to open the full-size image in a new web browser window.
Ditto was sued by Les Kelly, a photographer, after Kelly discovered that
Ditto had indexed his website and the images found there. Ditto.com
prevailed before the trial court, but suffered a defeat on appeal before
the Ninth Circuit in San Francisco. Although the Ninth Circuit found that
Ditto.com's use of thumbnail images was allowed under the copyright law
doctrine of "fair use," it held Ditto.com liable for copyright
infringement for opening a new window to display the image. This
technique is known as "in-line linking" or "framing" and is commonly used
by numerous other Web search engines, including Lycos, Google, and
Altavista. By concluding that these common linking techniques infringe
copyright law, the Ninth Circuit has seriously threatened linking on the
Web.
EFF filed an amicus brief on Ditto.com's behalf, asking the Ninth Circuit
to reconsider its decision. The case title is Kelly v. Arriba Soft Corp.,
No. 00-55521, decided on February 6, 2002. [Arriba Soft is the former
name of Ditto.com.]
Links:
For documents related to the Ditto.com case:
http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/
Contacts:
Cindy Cohn, EFF Legal Director
cindy@eff.org
+1 415-436-9333 x108
Fred von Lohmann, EFF Senior Intellectual Property Attorney
fred@eff.org
+1 415-436-9333 x123
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CALIFORNIA DECSS CASE BEFORE STATE SUPREME COURT
The California Supreme Court has agreed to review the decision by a state
appeals court that overturned an injunction last fall against Web
publishers of DeCSS software. On November 1, 2001, the California 6th
Appellate District unanimously ruled that the lower court's issuance of a
preliminary injunction against Andrew Bunner and other Web publishers
violated the First Amendment since they were merely republishers of
information obtained in the public domain.
DVD-CCA claims that DeCSS contains its trade secrets and filed a
complaint to ban its publication in December 1999 in San Jose, California
on trade secret misappropriation grounds. After the appeals court lifted
the injunction, DVD-CCA filed a petition to the California Supreme Court
requesting it review the appellate court's decision. On February 21,
2002, the California Supreme Court agreed to review the appellate
decision and could uphold, overturn, or modify the ruling. DVD-CCA's
opening brief is due to be filed with the court on March 22, 2002.
Bunner's response will be due April 22, 2002 and oral argument is
expected late this summer before the state supreme court in Sacramento.
For more background information on the case see:
http://www.eff.org/IP/Video/DVDCCA_case/
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EXCHANGE IDEAS WITH LARRY LESSIG AT EFF BENEFIT DINNER
As the first benefit dinner was a great success, we have decided repeat
the experience to accommodate those who couldn't make it the first time
around.
You are invited to join Stanford University Law Professor and Electronic
Frontier Foundation (EFF) Board Member Larry Lessig for an intimate
conversation regarding his new book over dinner and drinks. This exchange
of ideas will take place on Tuesday, March 5th, at 7:30 p.m. and will
benefit EFF's work to protect rights in the digital age.
In his book, "The Future of Ideas," Larry warns of the dangers of
corporate power strangling public interest online. He argues that these
powerful forces could usher in a new "Dark Age" in which ideas are more
strictly monitored and filtered than at any time in our history.
Larry will engage a dozen interested people at the upscale new Japanese
restaurant Ozumo for a meal in the Sunken Kotatsu room.
Seated on cushions around a low wooden table, you will have the chance to
discuss Larry's book and ideas with him in an intimate personal setting
while enjoying excellent food. You will also be contributing to an
important cause, as the money raised from this unusual evening will go to
furthering the work of the Electronic Frontier Foundation.
The evening includes the opportunity to talk with Larry about his
thoughts for the future and how we can affect it, your dinner and drinks,
and a signed copy of "The Future of Ideas."
The cost is $500. As there are only 12 available seats, space will fill
up quickly.
Please contact Katina Bishop for more information and to RSVP at +1
415-436-9333 x101
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NEGATIVLAND ESSAY SUPPORTING P2P
The members of the musical group Negativland have released a statement
supporting Peer-to-Peer (P2P) file sharing and software provider Music
City in its legal battles against the recording industry. An excerpt of
the essay follows:
As musicians, we are happy to support peer to peer (P2P) music
sharing technology on the web as facilitated by such programs as
Morpheus. As artists, we support and actively promote the right of
such file sharing software and networks to exist and to operate in
the uniquely new digital domain of non-material cultural exchange
that is the World Wide Web.
Besides selling our work in the form of compact discs, we encourage
and promote the free exchange of our own music on the Internet using
file sharing programs and P2P networks. We consider this new
opportunity to share our music and ideas with others, and for others
to share our music and ideas with each other, to be good for us, good
for society, and good for art. We find it over-reaching when the
mainstream music industry attempts to determine whether or not we can
share whatever we come into digital possession of when there are so
many non-infringing uses of this technology. And we find it curious
that large corporations get the benefit of the doubt in this brand
new context that is so alien to copyright's own brick and mortar
premise, namely, that supply is always limited.
On the Net, supply is irrelevant, there is only demand. The fact that
this plays havoc with copyright "protection" assumptions is not
necessarily the best reason to suppress something entirely new and
useful to everyone else - free and open P2P activity. The question
should be: Should our unbendable copyright laws apply the same on the
Net if it's going to also suppress P2P exchanges of all kinds there?
What about the benefits of preserving THAT before it's too late?
As musicians who make a living selling our music, we believe in the
spirit of copyright as set forth by our founding fathers who designed
copyright to be a limited right, seeking to balance private profit
and personal possessiveness with the greater public good inherent in
free and open access to all ideas. Corporate America has ignored this
original mandate and now seeks to re-make copyright into an endless
and exclusive private property right through lawsuits such as this
one. The Sonny Bono Copyright Term Extension Act's extension of
copyright to 75 years plus the life of the creator means that NOTHING
created in our lifetime will ever reach the public domain. Lobbied
into existence by Disney and the RIAA, this new law betrays the
original intent of this nation's copyright laws and is a disturbing
preview of the direction our society is heading in. It ignores a
basic human fact: Culture healthily evolves when it is shared. And we
consider P2P systems to be a new and unexpected part of that sharing.
We also consider P2P to be very useful free advertising for the music
we do sell as hard goods. And despite the plaintiff's claims of lost
profits from the advent of P2P systems, independent musicians have
far more to gain by its development. For thousands and thousands of
musicians in the world, sharing their music via MP3 files is the ONLY
way they share what they do with others. Society, and particularly
artistic creativity, benefit dramatically from the Net's free and
open exchange environment and we see no viable reason or way to stop
it with any of the recently proposed legal and technological
constraints that seek to criminalize and prevent unauthorized free
exchange on the web.
For Negativland's complete essay, see:
http://www.eff.org/IP/P2P/MGM_v_Grokster/20020121_negativland_essay.html
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MEET EFF LAWYERS AND FRIENDS IN LA ON MONDAY, MARCH 4
Join EFF lawyers Cindy Cohn and Fred Von Lohmann in a casual gathering in
Los Angeles at 8pm on Monday, March 4th. After a long day in court for
the Morpheus hearing, local EFF friends and supporters will be gathering
at the Hotel Figueroa lounge for hors d'oeuvres and drinks. If you are in
the area, please join us!
Hotel Figueroa is at 939 South Figueroa St., Los Angeles, CA 90015
http://www.figueroahotel.com
For more information, or to RSVP, call Katie at 415-436-9333 x104 or
email katie@eff.org
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Editors:
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Stanton McCandlish, EFF Technical Director/Webmaster
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