EFFector       Vol. 19, No.       March 3, 2006

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 370th Issue of EFFector:

• Tell AOL To Drop Its Pay-To-Send Email Plan
• New House Bill Would Cripple Digital Radio Devices
• EFF Files Brief in P2P File Sharing Case, Fights Expansion of Copyright Holders' Rights
• Support EFF: Fourth Amendment Shipping Tape and Mini- Flashlights now Available From the EFF Store
• Summer Legal Internships at EFF
• Come See EFF at eTech, March 7-9, and SXSW, March 12-14
• "Cultural Environmentalism at 10" Symposium at Stanford, March 11-12!
• miniLinks (15): DRM Down Under
• Administrivia

Tell AOL To Drop Its Pay-To-Send Email Plan

We're extremely troubled by AOL's plan to introduce a pay- to-send email system that will guarantee access to AOL customers' inboxes for senders who pay $0.0025 per mail to escape anti-spam filters. Last week, we helped assemble a coalition to persuade AOL to drop this misguided scheme.

Our worry is that AOL is trying to sell preferred access to something that it does not own -- its members inboxes -- and creating a delivery charge to email senders. The system creates a perverse incentive for AOL to lower the benefits of free email delivery and let its spam filters languish, encouraging senders to switch to the for-pay alternative. The company's first steps confirmed this, as they declared (then hurriedly denied) that they would be dropping their Enhanced Whitelist, a free service for trusted email senders.

One might trust that the market will eventually sort this out: rewarding ISPs that do not sell access to their users' inboxes and that work to improve deliverability for everyone, not just senders who pay. But the market speaks slowly -- in the meantime, this system will push small speakers into a choice of paying or not being sure that their messages are getting through to their members. And recipients often won't know what mail they are not receiving, making it difficult for the market to work.

Many AOL users have significant impediments to moving away from their provider, with its proprietary and closed software. Meanwhile, other mail providers, like Yahoo!, are already eyeing the revenue opportunities of pay-to-send. Microsoft's Bonded Sender is actually worse in many ways.

Since AOL's members are also the members of the nonprofits and other groups that would be hurt by this program, we thought it should hear from them. That's why we pulled together a diverse coalition of email senders to oppose AOL's pay-to-send system. Over fifty groups with nearly 15 million members joined with us, including Free Press, the U.S. Humane Society, the Gun Owners of America, MoveOn.org, RightMarch.com, the AFL-CIO, and Computer Professionals for Social Responsibility. Around 30,000 individuals have signed our petition, including Tim O'Reilly, Michael Geist and Chris Pirillo.

Earlier today, AOL made its first concessions in this battle. We're sure that, with your support, it will make more. If you'd like to help, visit Dear AOL, and help us help AOL avoid making a terrible mistake.

Take Action, and Sign our Letter:
http://www.dearaol.com/

AOL Announces it is Dropping its Whitelist:
http://www.the-dma.org/cgi/dispnewsstand?article=4405+++++

Our Deep Link on AOL's system:
http://www.eff.org/deeplinks/archives/004398.php

New House Bill Would Cripple Digital Radio Devices

Yesterday, Rep. Mike Ferguson (R-N.J.) introduced the "Audio Broadcast Flag Licensing Act of 2006," H.R. 4861, a House companion bill to the Senate's broadcast flag bill.

This bill would require that all future digital radios (both terrestrial, like HD Radio, and satellite, like XM and Sirius) "include prohibitions on unauthorized copying and redistribution of transmitted content." The FCC would be tasked with working out the details.

This is the culmination of months of lobbying by the RIAA to lock down the "record" button on your next radio. Despite the fact that, under existing copyright law, building and using digital radio recorders is clearly legal, thanks to the Audio Home Recording Act.

H.R. 4861 is chilling in at least three ways. First, the bill forces technology creators to get a license from the FCC to build a radio receiver and incorporate DRM if the receiver has a record button. In other words, satisfying the Code of Federal Regulations would come before satisfying customers.

Notice that "unauthorized" copying and redistribution will be prohibited, rather than unlawful copying and redistribution. Translation: unless you get permission, it's forbidden, even if it would be a fair use or perfectly legal under the AHRA.

The bill also says that the restrictions "shall not be inconsistent with the customary use of broadcast content by consumers to the extent such use is consistent with the purposes of this act and other applicable law." This freezes fair use based on yesterday's "customary uses," rather than leaving room for tomorrow's innovators. Remember, time shifting with your VCR was not "customary" in 1976, nor was platform-shifting CDs to your iPod in 1997.

The RIAA's filings with the FCC on this topic back in 2004 are suggestive of what it considers permissible. Among the many restrictions they've asked for:

preprogrammed recordings must be for no less than 30 minutes; recordings cannot be divided into individual songs, nor will you be allowed to jump between songs; recordings must be encrypted and locked to the individual recording device (no transfers to your iPod!); * recordings can only be triggered by a human pressing a "record" button or by pre-programmed date-and-time (like your old VCR!), which means no smart metadata driven features like TiVo's "Wishlist."

"RIAA believes that these rules appropriately balance the interests of users in recording material off-the-air while protecting the interests of the music industry...."

Neither EFF nor the Copyright Act agrees.

For the House bill:
http://eff.org/IP/Video/HDTV/fergus_bill.pdf

To voice your opposition to the Senate companion bill:
http://action.eff.org/site/Advocacy?id=205

For more on the RIAA's attempts to cripple digital radio:
http://www.eff.org/IP/Video/HDTV/?f=digitalradioflag.html

EFF Files Brief in P2P File Sharing Case, Fights Expansion of Copyright Holders' Rights

Last week, EFF filed an amicus brief on behalf of Denise Barker, one of the more than 19,000 Americans who have been sued by the record labels for file sharing. Ms. Barker, represented by Ray Beckerman, is fighting back in court.

EFF's brief makes one narrow but important point: P2P file sharing does not infringe a copyright owner's "distribution right."

The major record labels have been suing file-sharers for infringing both the reproduction right (for downloading) and the distribution right (for uploading). Because most of these lawsuits settle or go undefended, simply alleging infringing copying should be enough. So why sue on both grounds?

Answer: the record labels are hoping to quietly expand the "distribution right" to include Internet transmissions. In other words, the major labels are trying to rewrite the rules on the backs of people like Denise Barker, hoping to get new leverage in other contexts.

The labels are aiming to stretch the distribution right in two ways. First, they are claiming that "merely offering" to upload a file infringes the distribution right, even if no one ever takes you up on the offer. In other words, the labels are hoping to fool a court into conjuring a brand new beast: attempted copyright infringement. Judge Patel rejected exactly this notion in the Napster case.

But even more importantly, the labels are hoping that the courts will extend the distribution right to include transmissions over the Internet. When a file-sharer uploads a file, the file is transmitted and a copy retained at the other end. While that may look like a "distribution," the Copyright Act does not give a copyright owner control over all distributions, but rather only distributions of physical, material objects ("copies and phonorecords"). So, unless a file-sharer has unscrewed her hard drive and handed it to another person, she is not infringing the distribution right, because that right only extends to distributions of physical objects.

Why does it matter? If transmission plus reproduction equals distribution, then suddenly lots of people start looking like distributors. When XM and Sirius sell you a receiver that can record their broadcasts, or Comcast provides DVRs to subscribers, they might find themselves running afoul of this new, expanded "distribution right." This, in turn, would give the movie and music industries another weapon in their fight against new technologies.

After decades of lobbying in Congress, the entertainment industries already have plenty of weapons at their disposal. Bullying individual file-sharers shouldn't get them new ones.

For EFF's brief:
http://eff.org/IP/P2P/RIAA_v_ThePeople/elektra_v_barker/elektra-amicus-efiled.pdf

For more on the RIAA's lawsuits:

http://www.eff.org/IP/P2P/riaa-v-thepeople.php

Support EFF: Fourth Amendment Shipping Tape and Mini- Flashlights now Available From the EFF Store

Grab some all new swag from the EFF Store!

*Fourth Amendment Shipping Tape* Declare your right to privacy with new EFF shipping tape, and remind prying eyes to stay out of your packages, presents, suitcases, and more.

*Mini-Flashlights* Last year, EFF exposed how many popular laser printers embed tiny tracking dots on printouts. Using EFF pocket-sized mini-flashlights, you can see these normally invisible dots for yourself.

T-shirts, hats, and more are also available. All proceeds go to support EFF.

To visit the store:

http://secure.eff.org/shop

For details:

http://www.eff.org/about/opportunities/legalinterns/

For more information about eTech:

http://conferences.oreillynet.com/etech/

For more information about SXSW:

http://2006.sxsw.com/

miniLinks

miniLinks features noteworthy news items from around the Internet.

DRM Down Under
Australian report examines flaws in America's DMCA, hoping to implement less misguided anti-circumvention law.
http://www.aph.gov.au/house/committee/laca/protection/report.htm

Poll: Americans Reject Government Spying on Searches
Though split about Google turning over search data to the feds, 65% of Americans oppose government monitoring.
http://www.uconn.edu/newsmedia/2006/February/rel06011.html

How Will the Chinese Remember America?
Journalist Rebecca Mackinnon considers how Internet companies' (in)action today will impact tomorrow's Chinese citizens.
http://www.thenation.com/doc/20060313/mackinnon

Yahoo! Music Exec: Dump the DRM!
Refreshing common sense from David Goldberg at the Music 2.0 conference.
http://news.com.com/2061-10799_3-6042756.html

TIA Data Mining Program Proceeds in Secret
Item number 437 on the laundry list of surreptitious government privacy invasions.
http://nationaljournal.com/about/njweekly/stories/2006/0223nj1.htm

Center for Democracy and Technology Releases Report on Digital Surveillance
Proposes stronger privacy protections in light of new technology.
http://www.cdt.org/press/20060222press.php

RIAA and Broadcasters to Huddle on Audio Broadcast Flag
Nothing like negotiating about the future of digital radio devices without a technology company or consumer advocate in the room.
http://billboardradiomonitor.com/radiomonitor/news/business/digital/article_display.jsp?vnu_content_id=1002034785

The Benefits of MySpace
While the media panics about the site's dangers, danah boyd takes a much-needed look at social networking's value.
http://www.danah.org/papers/AAAS2006.html

Reflections on "Cultural Environmentalism"
James Boyle reflects on his seminal article about extreme intellectual property laws, ten years after its publication.
http://news.ft.com/cms/s/cc8e24ce-a242-11da-9096-0000779e2340,s01=3D1.html

Copyright, a new Open Access Journal
"Peer-reviewed journal ... seeks papers on all aspects of copyright in the Internet age."
http://www.copyrightjournal.org/index.php/Copyright

Shareholder Value and Human Rights Aren't Mutually Exclusive
Boston Common Asset Management pushes companies to improve conduct in China.
http://www.socialfunds.com/news/article.cgi/article1931.html

The Illustrious Employment of "Sue Hollywood"
She's EFF's Fifth Beatle, but with more office chairs. At least that's what Zoominfo told us.
http://www.zoominfo.com/Search/PersonDetail.aspx?PersonID=231235436

Tormap: A View Into Your Privacy Protection
Tormap is a visual representation of the Tor network.
http://www.0x2a.at/projects/tormap/

U.C. Berkeley Deems Google Desktop 3 Unsafe
Campus security warns that "Search Across Computers" could put private data on Google's servers.
http://istpub.berkeley.edu:4201/bcc/Fall2006/905.html

The Power of the Playlist
WashingtonPost.com highlights the cultural benefits of allowing music fans to share their tastes.
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/01/AR2006030100635.html?referrer=emailarticle

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:
Derek Slater, Activist
derek@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/