EFFector Vol. 20, No. 7  February 13, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 413th Issue of EFFector:

• Eli Lilly Loses Effort to Censor Zyprexa Documents off the Internet
• Unfairly Caught in Viacom's Takedown Dragnet?
• EFF Supports Reintroduction of Critical E-voting Bill
• Steve Jobs: DRM Is Bad for Consumers, Innovators, and Artists
• The Business of Threatening New Technologies
• Big Win for Innocent RIAA Defendant
• Awesome EFF Sticker Pack Now Available!
• miniLinks (11): Data Retention Bill Resurfaces in Congress
• Administrivia

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* Eli Lilly Loses Effort to Censor Zyprexa Documents off 
the Internet

Judge Rescinds Injunction Against Wiki, Other Websites

New York - A U.S. District Court judge today refused Eli
Lilly's request to ban a number of websites from publishing 
leaked documents relating to Zyprexa, Eli Lilly's top-
selling drug. Although the judge rejected the First 
Amendment arguments made by a variety of individuals eager 
to publish the documents, the court concluded that "it is 
unlikely that the court can now effectively enforce an 
injunction against the Internet in its various 
manifestations, and it would constitute a dubious 
manifestation of public policy were it to attempt to do
so." The order is a victory for the Electronic Frontier 
Foundation (EFF), which represents an anonymous individual 
who was previously barred by the court's earlier orders 
from posting links to the Zyprexa documents on the 
zyprexa.pbwiki.com wiki.

The Zyprexa documents were leaked from an ongoing product 
liability lawsuit against Eli Lilly. The internal documents 
allegedly show that Eli Lilly intentionally downplayed the 
drug's side effects, including weight gain, high blood 
sugar, and diabetes, and marketed the drug for "off-label" 
uses not approved by the Food and Drug Administration 
(FDA). The documents were the basis for a front-page story 
in the New York Times in December of last year, and 
electronic copies are readily available from a variety of 
Internet sources. EFF's client posted links to one set of 
copies on a wiki devoted to the controversy that were part 
of extensive, in-depth analysis from a number of citizen 
journalists.

"This ruling makes it clear that Eli Lilly cannot invoke 
any court orders in its futile efforts to censor these 
documents off the Internet," said EFF Staff Attorney Fred 
von Lohmann. "We are disappointed, however, that the judge 
failed to appreciate that its previous orders constituted 
prior restraints in violation of the First Amendment."

The court stayed its ruling for 10 days in order to permit 
an appeal. Zyprexa is Eli Lilly's best selling drug, used 
to treat schizophrenia and bipolar disorder. Eli Lilly has 
paid more than $1.2 billion to resolve lawsuits involving 
Zyprexa.

For the full order:
http://eff.org/legal/cases/zyprexa/zyprexa_judgement.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

For this release:
http://www.eff.org/news/archives/2007_02.php#005122

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* Unfairly Caught in Viacom's Dragnet? Let Us Know!

As an RIAA spokesperson famously put it when asked about 
the spectacle of file-sharing lawsuits against innocent 
grandparents, "When you go fishing with a driftnet, 
sometimes you catch a dolphin."

Well, with its 100,000 takedown notices aimed at YouTube 
users, now it's Viacom that is netting its share of 
dolphins. Among the 100,000 videos targeted for takedowns 
was a home movie shot in a BBQ joint, a film trailer by a 
documentarian, and a music video about karaoke in 
Singapore. None of these contained anything owned by 
Viacom. For its part, Viacom has admitted to "no more than" 
60 mistakes, so far. Yet each mistake impacts free speech, 
both of the author of the video and of the viewing public.

If Viacom is making these kinds of blatant mistakes, who 
can tell how many fair uses of Viacom content they also 
targeted? Hundreds? Thousands? 

Were you or someone you know unfairly caught in Viacom's 
dragnet? If your video was hit with a bogus takedown, 
contact information@eff.org -- we may be able to help you 
directly or help find another lawyer who can. In this 
situation, as in so many others, EFF will work to make sure 
that copyright claims don't squelch free speech.

Please help spread the word to others who might have been 
caught in Viacom's dragnet. We made a video version of this 
announcement, which you can embed in your website and send 
to your friends:
http://www.youtube.com/watch?v=OAd_vpsufRU

For the original version of this post and related links:
http://www.eff.org/deeplinks/archives/005109.php

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* EFF Supports Reintroduction of Critical E-voting Bill

In Washington, D.C., last Tuesday, EFF proudly supported 
the reintroduction of Rep. Rush Holt's (D-NJ) Voter 
Confidence and Increased Accessibility Act of 2007 (HR 
811). EFF released the following statement in conjunction 
with Holt's press conference:

"Paperless direct recording electronic ("DRE") voting 
machines have failed the American public. Instead of fixing 
the profound shortcomings in technology and procedures 
exposed during elections over the past decade, these 
unauditable, closed voting systems have introduced an 
unacceptable level of risk and doubt into voting -- a 
process that must be unassailable.

"The Voter Confidence and Increased Accessibility Act of 
2007 would restore transparency and auditability as the 
cornerstones to our electoral process. The Act would 
require that all voting technologies use voter-verified 
paper ballots that can be re-counted and audited, provide 
that regular audits actually be performed to confirm the 
accuracy of elections and uncover problems, and ensure that 
the computer code used in voting machines is made available 
for independent scrutiny. These and other reforms would 
dramatically improve the accuracy and reliability of 
American elections and take major steps toward restoring 
voter confidence in elections.

"The Electronic Frontier Foundation comes to support this 
Act through hard experience. Over the past three years, we 
have led or participated in DRE-related litigation 
throughout the country. In each instance, we've found a 
disturbing combination of unauditable machines, closed 
systems that even election officials sometimes do not 
understand, and technical complexity that frequently 
frustrates our dedicated legion of volunteer pollworkers.

"As a result, candidates and voters have been forced to 
take it on faith that apparent technology malfunctions did 
not in fact occur, even as their votes jumped on the screen 
or the voting machine otherwise failed to reflect the 
choices they made. Election officials have been forced to 
seek the permission of equipment vendors before 
investigating problems that their voters encountered. 
Recounts have moved from a fundamental check on our 
elections to a nearly empty charade.

"Election integrity is not a Democratic or Republican 
issue. It is something that we all agree on, regardless of 
political stripe. The Voter Confidence and Increased 
Accessibility Act of 2007 provides crucial tools we need to 
restore that integrity. EFF strongly urges Congress to pass 
it into law."

Take action now and tell your representatives to support 
this bill:
http://www.eff.org/deeplinks/archives/005116.php

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* Steve Jobs: DRM Is Bad for Consumers, Innovators, *and* 
Artists

Earlier this week, Apple's Steve Jobs publicly threw down 
this gauntlet: "If the big four music companies would 
license Apple their music without the requirement that it 
be protected with [digital rights mangement (DRM)], we 
would switch to selling only DRM-free music on our iTunes 
store.... Apple will embrace this wholeheartedly."

Why should the labels listen?

* DRM is bad for consumers: "[A] world where every online 
store sells DRM-free music encoded in open licensable 
formats ... is clearly the best alternative for consumers."
* DRM is bad for innovation: "If [DRM] requirements were 
removed, the music industry might experience an influx of 
new companies willing to invest in innovative new stores 
and players."
* DRM is bad for artists: "So if the music companies are 
selling over 90 percent of their music DRM-free [as audio 
CDs], what benefits do they get from selling the remaining 
small percentage of their music encumbered with a DRM 
system? There appear to be none.... [More innovation in 
stores and players spurred by DRM-free downloads] can only 
be seen as a positive by the music companies."

Jobs isn't the only music service provider to invite an end 
to music download DRM -- Yahoo!'s Dave Goldberg has long 
urged the labels to remove the restrictions, and Real's Rob 
Glaser said last month that "DRM-free purchases is an idea 
in ascendance and whose time has come."

We agree wholeheartedly with Jobs, since EFF has been 
making exactly the same points for several years now. As a 
first step in putting his music store where his mouth is, 
we urge him to take immediate steps to remove the DRM on 
the independent label content in the iTunes Store. Why wait 
for the major record labels? Many independent labels and 
artists already recognize that DRM is a dumb idea for 
digital music, as demonstrated by the availability of their 
music on eMusic. Apple should let them make that music 
available without DRM in the iTunes Store now.

There are also bigger lessons here for policymakers. The 
harm done by DRM could be reduced by reforming the Digital 
Millennium Copyright Act (DMCA) to allow the evasion of DRM 
for lawful purposes. Moreover, Jobs' remarks are another 
reason for policymakers to reject proposed government DRM 
mandates, which would only serve to further harm 
innovation, consumers, and artists. Clearly what's needed 
in the digital music world is less, not more, DRM.

Make your voice heard in Congress now by opposing mandatory 
digital and satellite radio restrictions:
http://action.eff.org/site/Advocacy?id=221

For this post and related links:
http://www.eff.org/deeplinks/archives/005115.php

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* The Business of Threatening New Technologies

Last week, Hollywood started to ramp up its lobbying 
efforts by holding a symposium in D.C. called "The Business 
of Show Business." During a luncheon speech, Warner Bros 
Chairman and CEO Barry Meyer took some shots at Consumer 
Electronics Association President and CEO Gary Shapiro and 
stated, "History shows that [the major movies studios] are 
often adapters and embracers of new technologies."

...except for all those times when they've tried to crush 
innovation instead. In response, CEA has published an open 
letter from Shapiro that makes the historical record plain
http://www.cesweb.org/shared_files/edm/2007/lettertomeyer.doc

For this post and related links:
http://www.eff.org/deeplinks/archives/005120.php

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* Big Win for Innocent RIAA Defendant

Debbie Foster, a single mom who was improperly sued by the 
RIAA back in 2004 for file sharing, has won back her 
attorneys' fees. The decision last week is one of the first 
in the country to award attorneys fees to a defendant in an 
RIAA case over music sharing on the Internet.

Last year, Judge Lee R. West dismissed the case against her 
with prejudice after it became clear that Ms. Foster was 
simply the Internet access account holder in her home and 
had no knowledge or experience with file sharing software. 
EFF, Public Citizen, the ACLU, and the American Association 
of Law Libraries filed an amicus brief in the case, 
supporting Ms. Foster's motion for fees.

In his ruling, Judge West found that the RIAA had asserted 
an untested and marginal theory that veered toward 
"frivolous and unreasonable" by suing Foster for 
contributory and vicarious copyright infringement when the 
only evidence against her was her name on the household 
Internet account. Much like the judge in Elektra v. 
Santangelo, West expressed skepticism that "an Internet-
illiterate parent, who does not know Kazaa from a kazoo" 
could be held liable for children in her home downloading 
music illegally unless the parent had knowledge of the 
conduct or had given her permission to do so. West also 
hinted that the RIAA might have pursued the secondary 
liability claims "to press Ms. Foster into settlement after 
they ceased to believe she was a direct or 'primary' 
infringer."

Finding that in the face of these claims, "her only 
alternative to litigating ... was to capitulate to a 
settlement for a violation she insists she did not commit" 
and that "[s]uch capitulation would not advance the aims of 
the Copyright Act," the Court awarded Ms. Foster her 
attorneys fees and costs.

We applaud Judge West for standing up to the RIAA and 
recognizing the importance of helping people like Debbie 
Foster push back against their overzealous litigation 
campaign.

For this post and related links:
http://www.eff.org/deeplinks/archives/005114.php

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* Awesome EFF Sticker Pack Now Available!

Our new sticker pack will set you up with a selection of 
awesome EFF stickers. Spice up your laptop with our  logo,, 
our icon for free speech, or slogans like "Come Back With a 
Warrant," and help spread the word about EFF.

See the stickers at the EFF store:


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* miniLinks
The week's noteworthy news, compressed.

~ Data Retention Bill Resurfaces in Congress 
Europe's data-hoarding regulations slide west.
http://www.politechbot.com/2007/02/06/data-retention-bill/

~ EMI Considers Dropping DRM
If true, Steve Jobs may get his dream.
http://www.lsj.com/apps/pbcs.dll/article?AID=/20070212/NEWS03/702120352/1001/news

~ Warner: Dropping DRM Is "Without Logic or Merit"
The majors remain stubbornly attached to the DRM status 
quo.
http://www.vnunet.com/personal-computer-world/news/2174550/warner-copyright-free-music

~ DVD Jon's Thoughts On Jobs' DRM Memo
DVD Jon takes a closer look at Steve Job's anti-DRM 
positions.
http://nanocrew.net/2007/02/06/steves-thoughts-on-music/

~ Internet Speakeasies Bypass Chinese Cyber-Cafe Ban
Chinese youth interpret prohibition as damage and route 
around it.
http://www.washingtonpost.com/wp-dyn/content/article/2007/02/08/AR2007020802389_pf.html

~ Skype Snoops Your BIOS as Part of DRM License Enforcement
"It is quite normal to look at indicators that uniquely 
identify the platform." Not when you're using a supposedly 
secure VoIP program, it's not.
http://share.skype.com/sites/security/2007/02/skype_extras_plugin_manager.html

~ File Sharing Has Negligible Effect on Album Sales 
The lifestyles of German uploaders ingeniously used to 
examine the buying patterns of U.S. file-sharers in this 
Journal of Political Economy paper.
http://arstechnica.com/news.ars/post/20070212-8813.html

~ Tor: When Network Administrators Come Knocking
A professor stands his ground for Internet anonymity.
http://chronicle.com/temp/email2.php?id=zht45qPrsddjvvgfcjwWPjxhFwqxyfVX

~ The Worst Consumer Privacy Infringers
A Bottom Ten of companies with the worst privacy policies.
http://www.businessintelligencelowdown.com/2007/02/the_top_ten_pri.html

~ Captain Copyright Says Goodbye
Vanquished with radioactive controversium.
http://www.captaincopyright.ca/

~ Dancing Your Rights Away
A New York choreographer sends DMCA takedowns over the 
Electric Slide.
http://news.com.com/2100-1030_3-6156021.html?part=rss&tag=2547-1_3-0-20&

~ Towards Better International IP Laws
Coalition launches, invites participation in Internet Governance Forum (IGF) 
Dynamic Coalition on Access to Knowledge and Freedom of Expression.
http://ipjustice.org/wp/2007/02/13/a2kigf-dynamic-coalition-at-igf-open-consultations/

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* Administrivia

EFFector is published by:

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Editor:
Derek Slater, Activist
 derek@eff.org	

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