———- Forwarded message ———-
From: EFFector list <[email protected]>
Date: Feb 28, 2007 11:30 AM
Subject: EFFector 20.09: Action Alert - Support the FAIR USE Act!
To: [email protected]
EFFector Vol. 20, No. 9 February 28, 2007 [email protected]
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 415th Issue of EFFector:
* Action Alert - Support the FAIR USE Act!
* EFF Lawsuit Seeks Release of Secret Court Orders on
Electronic Surveillance
* Fight Over Google's 'Sponsored Links' Threatens Internet
Free Speech
* European Anti-Consumer Directive Delayed
* Progress on WIPO Development Agenda
* Fair Use Has a Posse - Now With Insurance!
* RIAA to Parents: Pop-Ups + Viruses = Piracy!
* Colleges Struggle to Cope With Flood of Copyright
Complaints
* LA Times: Start Blanket Licensing, Stop Blanket Lawsuits
* miniLinks (12): Supreme Court Debates Patentability of
Software
* 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_id61
effector: n, Computer Sci. A device for producing a desired
change.
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* Action Alert - Support the FAIR USE Act!
A critical copyright reform bill has just been introduced
in the House, and we need your help to push it through.
Reps. Rick Boucher and John Doolittle's FAIR Use Act would
remove some of the entertainment industry's most draconian
anti-innovation weapons and chip away at the Digital
Millennium Copyright Act's (DMCA) broad restrictions on
fair use. Take action now and tell Congress to help restore
balance in copyright now:
<http://action.eff.org/site/Advocacy?id'1>
Technology companies play a game of Russian roulette
whenever they create products with both infringing and non-
infringing uses. Current "secondary liability" standards
don't provide enough certainty, and if innovators guess
wrong, they can be hit with statutory damages as high as
$30,000 per work infringed. When it comes to mass-market
products like the iPod or TiVo, damages could run into the
trillions of dollars – more than enough to bankrupt anyone
from the smallest start-ups to the biggest companies.
Unlike in other areas, the private assets of corporate
officers, directors and investors are not shielded from
liability in copyright cases.
The FAIR USE Act would limit the availability of statutory
damages for secondary liability and allow innovators to
make more reasonable business decisions about manageable
levels of legal risk. Meanwhile, copyright owners could
still get injunctions and actual damages for harm suffered,
putting them in no worse a position than civil litigants in
most other areas.
The bill would also codify the Supreme Court's "Betamax
doctrine" as it pertains to hardware devices, making clear
that manufacturers cannot be held liable based on the
design of technologies with substantial non-infringing
uses.
Finally, the bill would loosen the grip of the DMCA, which
restricts circumvention of digital rights management (DRM)
restrictions even for lawful uses. The FAIR Use Act adds 12
exemptions, including the ability to circumvent for classic
fair use purposes like news reporting, research,
commentary, and criticism.
Broader DMCA and copyright reform remains absolutely
necessary, but, if passed, this bill would be a big step in
the right direction. Take action to support it now:
<http://action.eff.org/site/Advocacy?id'1>
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* EFF Lawsuit Seeks Release of Secret Court Orders on
Electronic Surveillance
Justice Department Withholds Records About Purported
Changes to Program
Washington, D.C. - The Electronic Frontier Foundation (EFF)
filed suit against the Department of Justice, demanding
records about secret new court orders that supposedly
authorize the government's highly controversial electronic
surveillance program that intercepts and analyzes millions
of Americans' communications.
When press reports forced the White House to acknowledge
the program in December of 2005, the administration claimed
that the massive program could be conducted without
warrants or judicial authorization of any kind. However, in
January of this year, Attorney General Alberto Gonzales
announced that the Foreign Intelligence Surveillance Court
(FISC) had authorized collection of some communications and
that the surveillance program would now operate under its
approval. EFF's suit comes after the Department of Justice
failed to respond to a Freedom of Information Act (FOIA)
request for records concerning the purported changes in the
program.
"While national security and law enforcement demand a
limited amount of secrecy, Americans have the right to know
the government's basic guidelines for this kind of invasive
electronic surveillance of their personal communications,"
said EFF Senior Counsel David Sobel. "The burden is on the
Justice Department to justify its failure to disclose the
information we've requested."
EFF's suit demands the immediate release of the FISC orders
regarding the surveillance program and any FISC rules and
guidelines associated with such orders.
This FOIA action is separate from EFF's lawsuit against
AT&T for illegally collaborating with the government's
surveillance program. That suit, Hepting v. AT&T, is
proceeding in U.S. District Court in San Francisco despite
the government's ongoing attempts to have the case
dismissed.
For the FOIA complaint filed against the Justice
Department:
<http://www.eff.org/flag/oipr/oipr_complaint.pdf>
For more on EFF's FOIA Litigation for Accountable
Government Project:
<http://www.eff.org/flag/>
For this release:
<http://www.eff.org/news/archives/2007_02.php#005140>
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* Fight Over Google's 'Sponsored Links' Threatens Internet
Free Speech
EFF Asks Judge to Uphold Key Trademark Ruling
San Francisco - The Electronic Frontier Foundation (EFF)
asked the U.S. 2nd Circuit Court of Appeals last week to
uphold an important ruling allowing anyone to purchase
Google's "sponsored links" tied to trademarks, arguing that
the practice is legal under trademark law and provides a
vital means for online speakers to connect with audiences
on the Internet.
Google's "sponsored links" feature allows customers to buy
advertisements attached to certain search terms. When a
Google user types those terms into the search engine, the
sponsored links appear along with the search results.
However, a company named Rescuecom filed a lawsuit against
Google over the program, claiming that selling sponsored
links for the term "Rescuecom" infringed its trademark.
In an amicus brief filed with the appeals court last week,
EFF argues that the sponsored links are not an infringing
use, and in fact promote a vibrant public sphere by helping
online speakers reach a broader audience. An example cited
in the brief is that of "The Coalition of Immokalee
Farmworkers," a group critical of McDonald's business
practices. The coalition bought sponsored links attached to
searches for "McDonald's" in order to stimulate debate and
mobilize support.
"The Internet has brought together speakers of many kinds -
- some competing with trademark owners, others criticizing
them, still others simply referring to them while
discussing other subjects or products," said EFF Staff
Attorney Corynne McSherry. "Services like Google's
'sponsored links' help people with something to say reach
those who might be interested in hearing it."
Rescuecom has asked the court to hold that trademark law
regulates virtually any use of search keywords that are
also trademarks. This would give trademark holders a legal
sword to wield against critics and competitors, as well as
the intermediaries upon which those critics and competitors
rely to spread their message. But courts have historically
taken care to ensure that trademark restrictions do not
allow markholders to interfere with Constitutionally-
protected free speech.
"On the Internet, trademarks aren't just identifiers. They
are essential navigation tools and vehicles of expression,"
said EFF Staff Attorney Jason Schultz. "Quashing this
speech goes against both the law and the public interest."
A judge dismissed Rescuecom's case against Google last
year, but the company is appealing the decision.
For the full brief filed in Rescuecom v. Google:
<http://www.eff.org/legal/cases/rescuecom_v_google/EFF_amicus.pdf>
For this release:
<http://www.eff.org/news/archives/2007_02.php#005134>
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* European Anti-Consumer Directive Delayed
Call it the Universal Law of Bad Laws: the more problematic
a proposed piece of legislation is, the keener its
advocates are to rush it through. When that happens, it's
often those in the system who call for delay that saves us
all from its unintended consequences.
Praise, then, is due then for Nicola Zingaretti, the
Italian Member of European Parliament (MEP) responsible for
guiding the dangerous Second Intellectual Property
Enforcement Directive (IPRED2) through the European
Parliament. Along with criminalizing all forms of
intellectual property infringement, the proposed directive
would impose criminal sanctions for those who aid, abet,
and incite these intellectual property infringements.
Zingaretti called last week for another delay in a key vote
by the EU's Committee on Legal Affairs (JURI), originally
scheduled for yesterday.
Learn more about this directive and what's next:
<http://www.eff.org/deeplinks/archives/005139.php>
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* Progress on WIPO Development Agenda
The WIPO Development Agenda offers the possibility of
creating global intellectual property laws that balance
rights holders' interests with the human rights of the
world's citizens for access to medicine and knowledge. This
last week of meetings at WIPO has brought a series of
welcome surprises on this front. When the proceedings
started on Monday, we had a Chairman who was new to both
WIPO and the Development Agenda. The Member States faced a
battery of 40 proposals that had to be reconciled into a
unified document. To everyone's surprise, that happened by
week's end. That WIPO was able to produce such a document
is amazing. That the document is a powerful affirmation of
many key parts of the original Development Agenda proposal
is nothing short of astounding.
Learn more about last week's meeting:
<http://www.eff.org/deeplinks/archives/005138.php>
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* Fair Use Has a Posse - Now With Insurance!
Fantastic news from Stanford Law School's Fair Use Project:
documentarians who follow the Center for Social Media's
Documentary Filmmakers' Statement of Best Practices in Fair
Use can now get "errors and omissions" insurance from
Media/Professional Insurance. The key was cementing a
promise of pro bono or reduced fee representation to
documentaries that follow the Best Practices guidelines:
"Working with Media/Professional, and Michael Donaldson,
the Fair Use Project has now found a way to insure films
that follow the Best Practices guidelines. For films that
are certified to have followed the Best Practices
guidelines, Media/Professional will provide a special
(read: much lower cost) policy; Stanford's Fair Use Project
will provide pro bono legal services to the film. If we
can't provide pro bono services, then Michael Donaldson's
firm will provide referrals to a number of media lawyers
who will provide representation at a reduced rate. Either
way, filmmakers will be able to rely upon 'fair use' in the
making of their film. The Fair Use Project and Donaldson
will defend the filmmakers if their use is challenged.
Media/Professional will cover liability if the defense is
not successful."
Generally, the biggest hurdle facing creators who rely on
fair use is that they can't get insurance for their
projects. And without insurance, almost no major TV network
or film distributor will put your project on the air or
into distribution. That's why this is such big news – if
this catches on, we can all expect to see much more of the
fair use to which we are all entitled.
For this post and related links:
<http://www.eff.org/deeplinks/archives/005137.php>
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* RIAA to Parents: Pop-Ups + Viruses = Piracy!
If a parent sees pop-up ads and viruses on her computer,
she can be sued for copyright infringement by the RIAA.
At least that's what the RIAA is arguing in a recent court
filing in the Capitol v. Foster case, in which a federal
judge made the RIAA cough up attorney's fees to a mother,
Debra Foster, who had been sued because her daughter was
file sharing. The RIAA lawyers had dawdled in dismissing
their complaint against Foster, even after her child
admitted to being the file-sharer in the house. (The RIAA
went ahead and got a default judgment against the child.)
This new filing marks the first time the RIAA has explained
its claim that parents are liable for the infringements
committed by their children (a theory that has never been
accepted by any court, to the best of our knowledge). The
argument is pretty remarkable, built on a house of cards
including the notion that "everyone knows" pop-up ads and
viruses signify piracy!
Read more about the RIAA's bogus arguments:
<http://www.eff.org/deeplinks/archives/005135.php>
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* Colleges Struggle to Cope With Flood of Copyright
Complaints
The major record labels are sending thousands more
copyright nastygrams to colleges regarding student file
sharing this year. Of course, file sharing continues
unabated, and these P2P-related notices will simply push
fans to use other readily-accessible technologies that the
RIAA can't easily monitor – copying music through iTunes
over the campus LAN, swapping hard drives and USB flash
drives, burning recordable DVDs, and forming ad hoc
wireless networks.
So the RIAA's strategy still won't stop file sharing, but
it certainly will cause collateral damage to academic
freedom, free speech, and privacy. In a recently released
report, the Brennan Center lays out what that cost looks
like today based on interviews with representatives from 25
service providers including 10 from universities.
Universities are already being forced to waste substantial
resources on doing the RIAA's dirty work. Flooded with
machine-generated complaints, schools are unable to
evaluate the merits of particular complaints. While lacking
procedural safeguards to make sure students wrongly accused
of infringement are not penalized, many schools have
adopted stricter penalties than the law requires. Schools
have also adopted network monitoring and filtering tools
that interfere with legitimate expression.
The increase in P2P-related notices stands only to make
matters worse. The RIAA's Cary Sherman states that the
increase in the notices is "something we feel we have to
do," but blanket licensing provides a clear alternative to
blanket lawsuits.
Read the Brennan Center's report:
<http://fairusenetwork.org/resources/OSPreport-2007.pdf>
Take action now to help stop the lawsuit campaign:
<http://www.eff.org/share/petition>
For this post and related links:
<http://www.eff.org/deeplinks/archives/005133.php>
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* LA Times: Start Blanket Licensing, Stop Blanket Lawsuits
The major record labels have stayed the course for the last
five years with predictable results – they've stuck by
DRM, ratcheted up their file sharing lawsuit campaign, and
let revenues continue to slide. Last week, the LA Times
suggested some reasons to think the labels may finally be
coming around to a sensible solution that EFF has long
advocated – blanket licenses for music fans to share as
much music as they like for a flat monthly fee.
Unfortunately, the record labels haven't done a complete
180 from their backward-thinking ways. But, as the LA Times
puts it, "You have to wonder how low [major label revenues]
have to go before blanket licenses look like a better
approach than blanket lawsuits."
Read the editorial:
<
http://www.latimes.com/news/opinion/la-oew-healey19feb19,0,5551102.story?coll=la-opinion-center
>
For this post and related links:
<http://www.eff.org/deeplinks/archives/005132.php>
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* miniLinks
The week's noteworthy news, compressed.
~ Supreme Court Debates Patentability of Software
Justices look skeptically at the details of software's
protection.
<http://www.eff.org/cgi/tiny?urlIDY7>
~ Toward an Ethical Patent System
European citizens unite against over-broad patents….
<http://www.ethipat.org/>
~ Bad Patents Are Bad for Business
… as does the European business community to go with it.
<http://www.esoma.org/>
~ Canada Turns Away Americans for Past Misdemeanors
Thanks to DHS data mining, Canada turned away a visitor who
shop-lifted during a fraternity prank 20 years ago and
others with minor criminal records.
<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/02/23/NEVIUS.TMP>
~ Has the Media Center Moved to Silicon Valley?
On the day of the Oscars, Tom Forenski thinks that films
have lost their magic, and Net technology has seized it.
<http://www.ipdemocracy.com/archives/2007/02/25/#002355>
~ Whit Diffie Warns Of Overbroad Privacy Laws
"I am, on balance, more pleased with the fact that I can
learn lots of information about people in minutes by using
the Web than I am concerned about the fact that people can
learn lots of information about me that way. And I would
not like to see laws that restrict people's ability to go
investigate things. "
<http://www2.csoonline.com/blog_view.html?CID)005>
~ Protect Your Users' Data With a Privacy Wall
How one company works to protect its users' financial
information.
<http://www.eff.org/cgi/tiny?urlIDY6>
~ SF Chronicle: Reverse Real ID
"Congress must take a hard look at whether it makes sense
to proceed with an expansive law that would be more
appropriately called the National ID Act."
<
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2007/02/23/EDGRJN77SG1.DTL
>
~ North Korea and the Internet
North Korea's strange, inward-looking national intranet.
<http://www.economist.com/world/asia/displaystory.cfm?story_id
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