EFFector Vol. 20, No. 14  April 11, 2007  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 420th Issue of EFFector:

• Don't Let Europe Turn Its Citizens into Copycriminals!
• EMI Begins Licensing DRM-Free Music Downloads
• Taking Away Your Personal Use Rights, One Anti-Innovation Lawsuit at a Time
• Help Bust a Bogus VoIP Patent
• Court Clarifies Service Providers' Immunity From State IP Claims
• A Bad Idea From Utah: A Ban on Comparative Advertising
• PTO File Sharing Report Falls Short on Consumer Protection
• Myth v. Fact: Is MySpace Safe for Kids?
• Watch Mark Cuban Debate EFF's Fred von Lohmann About YouTube and the Future of Copyright
• miniLinks (10): Students Accuse Anti-Plagiarism Site of Copying
• Administrivia

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effector: n, Computer Sci. A device for producing a desired 
change.

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* Don't Let Europe Turn Its Citizens into Copycriminals!

Sign EFF's Petition Against IPRED2 at www.copycrime.eu

On April 24th, the European Parliament will vote on IPRED2, 
the Second Intellectual Property Enforcement Directive. 
With one stroke, they risk turning thousands of innocent EU 
citizens and businesses into copycriminals.  

If IPRED2 passes in its current form, "aiding, abetting, or 
inciting" copyright infringement on a "commercial scale" in 
the EU will become a crime.  

The entertainment industry has made it clear that it sees 
sites like YouTube, P2P software, and even ISPs as 
"inciting" infringement. With IPRED2, the industry is 
pressuring governments in Europe to use taxpayers' money to 
enforce these prohibitive ideas of intellectual property. 
If IPRED2 were to become law, entertainment companies would 
even be able assist police in an official role as part of 
transnational "joint investigation teams."

Even though this represents a huge change in how 
intellectual property will be treated under the law, many 
terms in IPRED2 are left unclear or undefined -- including 
"commercial scale" and "incitement." Companies or 
individuals crossing these fuzzy lines can face permanent 
bans on doing business, as well as seizure of assets, 
criminal records, and fines of up to 100,000 euros.  

EFF Europe, together with other European activist groups, 
is working hard in Brussels to fix IPRED2. Send a message 
to the European Parliament, and receive up-to-date 
information, by visiting the copycrime website and signing 
our petition now!  

More info:
http://www.copycrime.eu/

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* EMI Begins Licensing DRM-Free Music Downloads

Apple and EMI announced last week that the iTunes Music 
Store will begin offering DRM-free downloads from EMI's 
catalog.

EFF welcomes this development wholeheartedly. Of course, 
we've been saying for years that DRM is bad for consumers, 
innovators, and artists. DRM on music does nothing to slow 
"Internet piracy" and is single-handedly responsible for 
all the interoperability problems surrounding digital music 
today. We're glad that both major labels and service 
providers are gradually coming to their senses.

Unfortunately, the industry is still giving consumers a raw 
deal. Fans will be charged a 30% premium to avoid DRM 
($1.29 instead of 99 cents per track, or 30 cents to 
upgrade an old download) -- effectively a surcharge to buy 
back your rights.

This high price will push away many fans who would 
otherwise be willing to pay a subscription fee to license 
the file sharing they currently do. EFF has been advocating 
voluntary collective licensing as a better way forward, 
and, though the major record labels have eschewed this 
path, perhaps they might change their tune soon. After all, 
it wasn't long ago that the record labels were aghast at 
the mere idea of DRM-free music.

For this post and related links:
http://www.eff.org/deeplinks/archives/005186.php

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* Taking Away Your Personal Use Rights, One Anti-Innovation 
Lawsuit at a Time

A California Superior Court judge recently ruled that 
Kaleidescape did not violate its contract with the DVD DRM 
licensing authority by distributing a home media server 
that rips and plays DVDs. This is an important victory for 
consumers, but it's also a sad reminder of how your ability 
to make personal use of digital media is under attack.

As the LA Times' Jon Healey nicely explains in a recent 
blog post, this suit had absolutely nothing to do with 
stopping "Internet piracy" and everything to do with 
controlling innovation:
http://opinion.latimes.com/bitplayer/2007/03/kaleidescape_es.html

In the DVD world, technology creators have to beg 
permission first from the DVD Copy Control Association, 
which is essentially controlled by the movie studios. 
That's why to this day there are still no mass market tools 
for backing up your DVDs or copying movies to portable 
devices, for instance.

Kaleidescape is a telling exception. To sell its expensive, 
niche market, thoroughly locked-down media server, it had 
had to go through years of costly litigation. DVD CCA still 
claims that the license forbids this technology and may 
appeal the decision; in other words, Kaleidescape is still 
having to defend itself in court in order to deliver its 
award-winning, innovative new product.

Of course, Kaleidescape isn't the only personal use 
technology under attack in court. Consider the lawsuits 
against Cablevision's remote DVR service and XM Radio's 
Inno portable player, which may become "victim[s] of the 
engineering police," as Public Knowledge's Art Brodsky puts 
it in an excellent column here:
http://www.tompaine.com/articles/2007/04/02/reclaiming_the_digital_frontier.php

Consumers have long used VCRs and audio tape decks to 
record off TV and radio, but the entertainment industry 
wants to decide if and how those abilities come into the 
digital age. Neither the Cablevision DVR nor XM's Inno is 
about "Internet piracy"; just like in the DVD context, the 
entertainment industry is simply aiming to force innovators 
to beg permission first.

You can help fight back against this assault on your 
digital media freedoms -- use our Action Center to support 
the FAIR USE Act:
http://action.eff.org/site/Advocacy?id=271

For this post and related links:
http://www.eff.org/deeplinks/archives/005187.php

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* Help Bust a Bogus VoIP Patent

EFF's Patent Busting Project fights back against bogus 
patents by filing requests for reexamination against the 
worst offenders. We've successfully pushed the Patent and 
Trademark Office to reexamine patents held by Clear Channel 
and Test.com. Now we need your help to bust another.

A company called Acceris claims patents on processes that 
implement voice-over-Internet protocol (VoIP) using analog 
phones as endpoints. Put simply, these patents cover 
telephone calls over the Internet.

Specifically, the claims describe a system that connects 
two parties where the receiving party does not need to have 
a computer or an Internet connection, but the call is 
routed in part through the Internet or any other "public 
computer network." The calls must also be "full duplex," 
meaning that both parties can listen and talk at the same 
time, like in an ordinary phone call.

We would like to prove that the method and system described 
in the patents are not novel. To bust these overly broad 
claims, we need "prior art" -- any publication, article, 
patent or other public writing that describes the same or 
similar ideas being implemented before September 20, 1995.

We have identified and listed below several products from 
the mid-1990s that might fit the above criteria. 
Information about these as well as any other products would 
be greatly appreciated:

* Net2Phone: According to its website, Net2Phone is a 
product that enables individuals with computers and 
Internet connections to place voice calls to anyone with an 
ordinary telephone. We are looking for documentation about 
Net2Phone that predates September 20, 1995 or evidence of 
Net2Phone's existence before September 20, 1995.

* Internet Phone by VocalTec: VocalTec's Internet Phone was 
one of the first commercial software products that enabled 
audio calls between computers on the Internet. We are 
looking for documentation about this gateway functionality 
that predates September 20, 1995 or evidence of such a 
product's existence before September 20, 1995.

Submit prior art tips here:
http://www.eff.org/patent/wanted/contribute.php?p=acceris%3Cbr%20/%3E

For this post and related links:
http://www.eff.org/deeplinks/archives/005188.php

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* Court Clarifies Service Providers' Immunity From State IP 
Claims

Section 230 of the Communications Decency Act of 1996 is an 
amazingly powerful federal law, protecting interactive 
computer services by ensuring that the soapbox is not 
liable for what the speaker has said. Section 230's 
immunity to state law claims (typically defamation, but 
including all other lawsuits based on state laws) allows 
for many of the online services you know and love, 
including user product reviews, online auction feedback, 
internet dating services, message boards, classified ads, 
usenet -- the list goes on and on.

But Section 230 does not provide complete protection, 
exempting "intellectual property" law from its reach. The 
term "intellectual property" was not defined, leading to 
the question of whether state laws that are similar to 
traditional intellectual property are covered. Recently, 
the Ninth Circuit emphatically answered that question in 
Perfect 10, Inc. v. CCBill, LLC, "constru[ing] the term 
'intellectual property' to mean 'federal intellectual 
property,'" such as copyrights, patents and federal 
trademarks. The Ninth Circuit reversed the District Court's 
ruling on Perfect 10's right of publicity claims, reasoning 
that:

"Because material on a website may be viewed across the 
Internet, and thus in more than one state at a time, 
permitting the reach of any particular state's definition 
of intellectual property to dictate the contours of this 
federal immunity would be contrary to Congress's expressed 
goal of insulating the development of the Internet from the 
various state-law regimes."

This means that Section 230 can protect service providers 
from claims that the users of their services violated state 
laws, such as the right of publicity, trade secrets and 
state trademark laws. This is great news for service 
providers, and great news for free speech, since it allows 
service providers to provide the platform upon which others 
may speak, while leaving the responsibility for the content 
of the speech where it properly lies -- upon the author.

As for the federal intellectual property rights, the 
Digital Millennium Copyright Act provides a safe harbor for 
copyright claims. The Ninth Circuit decision clarified a 
number of factors of the DMCA safe harbor, importantly 
noting that "[t]he DMCA notification procedures place the 
burden of policing copyright infringement--identifying the 
potentially infringing material and adequately documenting 
infringement--squarely on the owners of the copyright." The 
Court of Appeals remanded the case back to the District 
Court to see whether CCBill qualified.

This is not going to be the last ruling on the subject. 
Perfect 10 has filed numerous lawsuits trying to hold 
everyone from search engines to credit card companies 
liable for other people's use of Perfect 10's pornographic 
photographs.

For this post and related links:
http://www.eff.org/deeplinks/archives/005184.php

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* A Bad Idea From Utah: A Ban on Comparative Advertising

The Utah legislature has quietly passed a dangerous law 
allowing trademark owners to prevent their marks from being 
used as keywords to generate comparative ads. If this law 
takes effect, a company like Chevrolet couldn't purchase 
"sponsored link" space on the Google results page when a 
user types "Toyota" as part of a search query -- at least 
if the latter term is registered in Utah as an "electronic 
registration mark."

As Martin Schwimmer notes, Utah's own general counsel 
warned the legislature that the law was likely to be found 
unconstitutional given the burden it would put on 
interstate commerce. To comply with the law, a search 
engine that received a search request would have to 
determine whether a user was located within Utah and, if 
so, check the search terms against Utah's registry of 
trademarks to prevent the unlawful triggering of 
advertising. The cost to search engines would be 
staggeringly high: "Literally millions of search requests 
from locations worldwide each day would be subject to 
verification of location."

Aside from its constitutional flaws, the law is just bad 
public policy. It undermines the fundamental purpose of 
trademarks: to improve consumer access to accurate 
information about goods and services. Trademarks are just 
shorthand terms that designate the origin of a product. 
Comparative advertising uses those shorthand terms to 
provide more information about the trademarked product and 
competitive products. That's why comparative trademark use 
is clearly protected under federal trademark law. If it 
weren't, Pepsi wouldn't be able to tell consumers that more 
people think Pepsi tastes better than Coke, and Apple 
wouldn't be able to make fun of Microsoft on national 
television every night.

The good news is that, given the constitutional problems, 
the law is likely to be challenged in court. But it's too 
bad the Utah legislature didn't heed its own counsel's 
advice and save Utah taxpayers the cost of defending this 
anti-consumer legislation.

For this post and related links:
http://www.eff.org/deeplinks/archives/005185.php

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* PTO File Sharing Report Falls Short on Consumer 
Protection

In a little-noticed report entitled "Filesharing Programs 
and 'Technological Features to Induce Users to Share,'" the 
U.S. Patent and Trademark Office (PTO) has decided to 
attack several leading P2P software applications for making 
user interface decisions that allegedly "dupe" users into 
sharing files unintentionally. In hyperbole that is all too 
familiar in Washington, D.C., these days, the authors claim 
that P2P therefore contributes to terrorism, child 
pornography, identity theft, and (of course) copyright 
infringement. Its authors include Tom Sydnor, who while an 
aide to Sen. Orrin Hatch was widely credited with the 
Senator's infamous "blow up their computers" solution to 
P2P file-sharing, and Lee Hollaar, a professor who was a 
motive force behind the ill-fated INDUCE Act. So it's fair 
to say these gentlemen have an anti-P2P agenda and a rather 
one-sided view of copyright law.

But the real problem with the report is that the invective, 
innuendo, and misguided legal analysis obscures interesting 
and worthwhile empirical research about the interface 
decisions made by various P2P vendors at various times. 
There is, at the heart of the report, quite a bit that 
makes sense.

Read on for more: 
http://www.eff.org/deeplinks/archives/005180.php

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* Myth v. Fact: Is MySpace Safe for Kids?

Does the increased use of social networking sites by 
children lead to increased risk? Concern about online 
predators and pornography has led some politicians and law 
enforcement officials to call for unreasonable restrictions 
on public access to these sites.

But is the perception of increased risk accurate? How much 
of the public discussion of these trends is myth, and how 
much is fact? Two recent studies suggest that many fears 
are overblown.

The Crimes Against Children Research Center at the 
University of New Hampshire recently released a study that 
found that unwanted online solicitations are down from 19% 
in 1999 to 13% today -- a decline that is taking place 
despite the rising popularity of social networking sites.

Of the unwanted solicitations that were received, a 
significant number (43%) came from other minors, not from 
adults.

A separate study of MySpace by Dr. Larry D. Rosen at Cal 
State found that only 7% of those teens interviewed were 
ever approached by anyone on MySpace with a sexual intent. 
Nearly all of them simply ignored the person and blocked 
him from their page.

But in the face of this tempered analysis, legislators are 
still pushing for unreasonable restrictions. The Deleting 
Online Predators Act (DOPA), which has been re-introduced 
in the House and Senate, would cut funding to public 
schools and libraries unless they block access to social 
networking sites. Meanwhile, some state Attorneys General 
have been pushing for stricter age verification that will 
in all likelihood have little or no effect.

Adam Thierer, a senior fellow at the Progress and Freedom 
Foundation, says that attempts to block all social 
networking sites are likewise unworkable and undesirable, 
since under the current definition, sites as useful and 
diverse as Wikipedia, CBSNews, and Flickr would fall into 
that category.

Age verification is another unworkable solution, according 
to Thierer. As he points out in a recent paper, all the 
existing methods for verifying age are unreliable and 
easily circumvented. The danger with age verification 
solutions is that they may lead parents to a false sense of 
security.

The solution, says Thierer, is not stricter controls, but 
the same things that have helped defend children in the 
offline world: education, effective law enforcement, and 
healthy adult supervision.

For this post and related links:
http://www.eff.org/deeplinks/archives/005190.php 

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* Watch Mark Cuban Debate EFF's Fred von Lohmann About 
YouTube and the Future of Copyright

For those who missed EFF's Pioneer Awards, held at the 
Emerging Technology Conference (ETech) on March 27th, you 
can still get in on the fun. Videos of the lively debate 
between our own Fred von Lohmann and HDNet Chairman Mark 
Cuban, along with the acceptance speeches of our 2007 
Pioneer Winners, are now available here thanks to Divx's 
Stage6:
http://stage6.divx.com/EFF

We've also uploaded the videos to YouTube: 
http://youtube.com/profile?user=EFForg

You can find out more about the event here:
http://www.eff.org/awards/pioneer

EFF would like to thank the generous sponsors of the 16th 
Annual Pioneer Awards:

Gold sponsor: Sling Media (www.slingmedia.com)

Silver sponsor: Three Rings (www.threerings.com)

Bronze sponsors: Six Apart(www.sixapart.com), JibJab 
(www.jibjab.com), MOG (www.mog.com), and Stamen Design 
(www.stamen.com).

Many thanks also to the ETech organizers and O'Reilly Media 
for being wonderful hosts.

A giant thanks to Mark Cuban for donating his time and 
energy.

And of course a big thank you to the 2007 Pioneer Awards 
Judging Panel:

Kim Alexander: President and founder, California Voter 
Foundation

Esther Dyson: Internet court jester and blogger, Release 
0.9; founding chairman of ICANN; former chairman of EFF

Mitch Kapor: Chair, Open Source Applications Foundation; 
co-founder and former chairman EFF

Drazen Pantic: Co-director, Location One

Barbara Simons: IBM Research [Retired] and former president 
ACM

James Tyre: Co-founder, The Censorware Project; EFF policy 
fellow

Jimmy Wales: Founder, Wikipedia; co-founder, Wikia; chair 
emeritus of the Wikimedia Foundation

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* miniLinks
The week's noteworthy news, compressed.

~ Students Accuse Anti-Plagiarism Site of Copying
Some high school students sue to stop commercial site from 
taking their essays and looking over their shoulders.
http://www.csmonitor.com/2007/0410/p01s04-legn.html

~ Copyright Utopia?
EFF's Fred von Lohmann keynotes at the University of 
Maryland's conference on alternate IP futures.
http://www.umuc.edu/mkting/cip/

~ YouTube: They're Not Watching You; They're Watching Each 
Other
YouTube's most popular videos are created by its users, not 
big media.
http://www.nytimes.com/2007/04/07/technology/07online.html

~ Guitar Notations Get a Single Provider
Publishers finally seeing tablature as an opportunity, 
instead of just a threat.
http://www.nytimes.com/2007/04/02/technology/02ecom.html?ex=1333166400&en=5704391c3cb37117&ei=5090&partner=rssuserland&emc=rss

~ EU Court of Human Rights Protects Private Net Use
Your employer can't watch your personal life, just because 
it can.
http://www.heise.de/english/newsticker/news/87867

~ Vorratsdatenspeicherung!
German activists fight the European data retention regime 
with protests in Frankfurt, April 14.
http://www.vorratsdatenspeicherung.de/index.php?option=com_content&task=view&id=92&Itemid=77

~ Microsoft Sees DRM-Free Music in Zune's Future
Oh sure, *now* they do.
http://news.com.com/2100-1041_3-6173307.html

~ Consumer Advocates Welcome DRM-Free Music
Meanwhile, the pressure recedes from Apple in Europe.
http://www.heise.de/english/newsticker/news/87820

~ Financial Times: A Broadcast Flag for Europe?
The FT examines the threat posed by DVB's digital video 
standards.
http://blogs.ft.com/techblog/2007/03/the_electronic_.html

~ RIAA Wins Worst Company In America 2007
Beats Halliburton, Exxon, and U-Haul.
http://consumerist.com/consumer/worst-company-in-america/riaa-wins-worst-company-in-america-2007-245235.php

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation
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  http://www.eff.org/	

Editor:
Derek Slater, Activism Coordinator
 derek@eff.org	       

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