EFFector Vol. 20, No. 16 April 24, 2007 editor@eff.org
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 421th Issue of EFFector:
- Action Alert - Submit Comments to DHS and Help Stop the National ID Nightmare!
- Viacom Admits Error - Takes Steps to Protect Fair Use on YouTube
- Consumers, Librarians, and Innovators Tell EU 'We're Not Criminals'
- UK Government Supports Vital Amendments From EFF Europe & Co.
- EFF Challenges Bogus Patent Threatening Consumer Awareness Products
- Patent Reform Bill Introduced in Congress
- Sen. Specter: Telcos' Role in NSA Spying Program Must Be Exposed
- Sony's Latest DRM Backfire
- Consumer Groups to Utah AG: Don't Waste Taxpayer Money on Unconstitutional, Anti-Consumer Keyword Law
- EFF at Maker Faire, May 19-20
- miniLinks (12): French E-Voting Is a "Catastrophe"
- Administrivia
For more information on EFF activities & alerts:
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effector: n, Computer Sci. A device for producing a desired
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* Action Alert - Submit Comments to DHS and Help Stop the
National ID Nightmare!
The rebellion against the REAL ID Act keeps growing -- last
week, Montana became the fifth state to push back against
the federal government's national ID mandate. The
Department of Homeland Security (DHS) is currently taking
comment on its draft regulations for implementing REAL ID,
and the May 8 comment deadline is fast approaching. Don't
miss out on this critical opportunity to make a difference
and protect your privacy -- submit your comments now:
http://action.eff.org/site/Advocacy?id=287
The REAL ID Act makes states standardize drivers licenses
and create a vast national database linking all of the ID
records together. Once in place, uses of the IDs and
database will inevitably expand to facilitate a wide range
of tracking and surveillance activities. Worse still,
states and individual taxpayers will bear the estimated 23
billion dollar burden of implementing the law, and that
figure is probably low given that the necessary
verification systems don't exist yet.
Thankfully, the tide is turning against REAL ID in a big
way -- along with opposition building in the states,
Congress is considering a repeal.
By voicing your concerns to DHS now, you can help stop this
privacy-invasive, burdensome policy:
http://action.eff.org/site/Advocacy?id=287
DHS will also be holding a "town hall" meeting in
Sacramento, CA at UC Davis' Freeborn Hall from 10 AM to 2
PM on Tuesday, May 1, 2007. If you cannot attend in person,
you can still watch the webcast and participate in the
meeting by sending comments via this site (which is not
live yet):
http://www.realidtownhall.com
More information about the town hall meeting:
http://action.eff.org/site/DocServer/E7-7655.pdf?docID=481
Learn more about REAL ID:
http://www.eff.org/Privacy/ID/RealID/
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* Viacom Admits Error - Takes Steps to Protect Fair Use on
YouTube
MoveOn.org, Brave New Films Dismiss Lawsuit Over Colbert
Parody
Viacom Endorses Excerpting Video for "Creative, Newsworthy
or Transformative Use"
San Francisco - Responding to Viacom's willingness to take
steps to protect the free speech rights of those who post
videos to YouTube and similar video sharing sites, the
Electronic Frontier Foundation (EFF) and Stanford Law
School's Fair Use Project (FUP) yesterday dismissed a
lawsuit filed on behalf of MoveOn.org Civic Action and
Brave New Films (BNF).
The lawsuit was filed in federal court last month, after a
parody of "The Colbert Report" was removed from YouTube
following a meritless copyright complaint by Viacom. The
humorous video, called "Stop the Falsiness," was created by
MoveOn and BNF using clips from the Comedy Central
television series. It was a tongue-in-cheek commentary on
Colbert's portrayal of the right-wing media and parodied
MoveOn's own reputation for earnest political activism.
Viacom initially denied sending the Digital Millennium
Copyright Act (DMCA) takedown notice that resulted in the
removal of the video from YouTube, while saying it had no
objection to "Stop the Falsiness." However, Viacom later
conceded it was the source of the demand and admitted error
in taking action against the parody.
In the course of discussions with EFF and FUP, Viacom
described the steps it endorses for protecting fair use and
free expression as it targets copyright infringement on
Internet video sites. This includes: manual review of every
video that is a potential DMCA takedown target, training
reviewers to avoid issuing takedown requests for fair use,
and publicly stating that it does not challenge use of
Viacom materials that are "creative, newsworthy or
transformative" and are "a limited excerpt for non
commercial purposes."
Furthermore, in reaction to the MoveOn/BNF suit, Viacom
moved the ball forward for Internet users' rights. In order
to address any similarly erroneous takedown notices in the
future, Viacom has agreed to set up a website and email
"hotline," promising a review of any complaint within one
business day and a reinstatement if the takedown request
was in error.
In light of these disclosures and commitments -- designed
to protect the fair use and free speech rights of Internet
users who rely on video sharing sites like YouTube --
MoveOn and BNF have dismissed their claims against Viacom.
"If copyright owners are going to be sending hundreds of
thousands of DMCA takedown notices, they also have a
responsibility to protect the legitimate free speech rights
of the citizen creators who rely on platforms like
YouTube," said EFF Senior Intellectual Property Attorney
Fred von Lohmann. "By choosing to respect newsworthy and
transformative uses of their materials -- and establishing
a simple process that lets improperly targeted users get
their material back up quickly -- Viacom has taken
important steps toward meeting that responsibility. We hope
other media companies will follow Viacom's lead."
"This new endorsement of Internet users' rights is a
victory for the little guy," said Eli Pariser, Executive
Director of MoveOn.org Civic Action. "Online sites like
YouTube have revolutionized political expression and can
give the little guy an audience of millions for a political
point of view. A corporate powerhouse like Viacom must not
be allowed to erase political content or muzzle political
expression."
"Following these practices will not curb all DMCA copyright
abuse," said EFF Staff Attorney Corynne McSherry. "But they
are several much-needed steps in the right direction. If a
major content owner like Viacom can recognize this, other
content owners should be able to do the same."
For Viacom's letters outlining its policies:
http://www.eff.org/legal/cases/moveon_v_viacom/falsiness_letter_032707.pdf
http://www.eff.org/legal/cases/moveon_v_viacom/0411_letter_fvl.pdf
http://www.eff.org/legal/cases/moveon_v_viacom/0417_letter_fvl.pdf
For this release:
http://www.eff.org/news/archives/2007_04.php#005212
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* Consumers, Librarians, and Innovators Tell EU 'We're Not
Criminals'
Coalition Submits Fixes to European Parliament to Prevent
Vague New Copyright Crimes
Brussels - The Electronic Frontier Foundation's European
Office last week announced a broad coalition aimed at
fixing a poorly drafted intellectual property enforcement
proposal that could make criminals of thousands of people
in the European Union.
The Second Intellectual Property Rights Enforcement
Directive (IPRED2) -- set for vote in the European
Parliament this week -- makes "aiding, abetting, or
inciting" intellectual property infringement on a
"commercial scale" a criminal offence. However, IPRED2
defines criminal offences so vaguely that creators of
legitimate websites, Internet service providers, and even
librarians could be investigated by the police and face
criminal records as well as fines of hundreds of thousands
of euros.
The coalition battling against IPRED2 includes the
Brussels-based European Consumers Organisation (BEUC), the
European Bureau of Library, Information and Documentation
Associations (EBLIDA), the Free Software Foundation Europe
(FSFE), and the Foundation for a Free Information
Infrastructure (FFII). The group sent an open letter to the
European Parliament, urging members to support amendments
that would protect consumers, innovators, and researchers.
"Criminal law needs to be clear to be fair. IPRED2 as it is
currently drafted is neither," said Erik Josefsson,
European Affairs Coordinator for EFF. "These amendments
clarify that criminal sanctions should be saved for true
trademark counterfeiters."
IPRED2 also proposes allowing entertainment company
representatives to join police in investigating businesses
that they claim infringe -- or even "incite" infringement -
- of their intellectual property.
"Such secondary liability is a major threat for software
developers and Internet service providers," said Ante
Wessels of FFII.
"The current draft of IPRED2 creates legal uncertainty and
confusion, which will act as a barrier for libraries and
archives in their efforts to digitize and bring digital
information to end users," said Andrew Cranfield, Director
of EBLIDA.
The next vote on IPRED2 is scheduled for April 25 in
Strasbourg, France.
For the open letter to the European Parliament:
http://www.copycrime.eu/files/openletter-ipred.pdf
For more on IPRED2:
http://www.copycrime.eu
To take action and tell your MEP to support these
amendments:
http://www.copycrime.eu/action
For more on EFF Europe:
http://www.eff.org/global/Europe
For this release:
http://www.eff.org/news/archives/2007_04.php#005206
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* UK Government Supports Vital Amendments From EFF Europe &
Co.
Last week, Members of European Parliament (MEPs) Eva
Lichtenberger and David Hammerstein Mintz submitted
amendments to IPRED2 based on our coalition's suggestions.
We're pleased to note that the UK government gave its
support to perhaps the best of our recommendations: to
throw the directive out entirely. The UK government also
came out in support of our amendments to limit IPRED2's
reach, to define "commercial scale" and "intentional
infringement" more precisely, and to remove rights holders'
abilities to take part in investigations of their own
commercial rivals in "joint investigation teams."
If you're a resident of the EU, tell your MEP to support
our coalition's amendments now!
http://www.copycrime.eu/action
For this post and related links:
http://www.eff.org/deeplinks/archives/005210.php
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* EFF Challenges Bogus Patent Threatening Consumer
Awareness Products
Illegitimate Patent Inhibits Innovation in Market for
Mobile Information Access
San Francisco - The Electronic Frontier Foundation (EFF)
took aim today at a bogus patent threatening innovative
technologies that enhance consumer awareness, requesting a
reexamination by the United States Patent and Trademark
Office (PTO).
NeoMedia Technologies, Inc., claims to own rights to all
systems that provide information over computer networks
using database-like lookup procedures that rely on scanned
inputs, such as a barcode. NeoMedia has used these claims
not only to threaten and sue innovators in the mobile
information space, but also to intimidate projects focused
on increasing awareness among consumers about the social
and environmental impact of the products they buy. For
example, the Consumer Information Lab at the College of
Natural Resources at the University of California at
Berkeley uses such technology to examine how health,
environmental, and social information affects consumers'
shopping behavior and decision-making. Were NeoMedia to
control the patent rights to this technology, such projects
could be severely limited and potentially shut down.
"NeoMedia should not be allowed to use this bogus patent to
inhibit consumer awareness, education, or research into the
impact of information on consumer choice," said EFF Staff
Attorney Jason Schultz. "This is the opposite of
'progress,' something the patent laws are supposed to
promote."
EFF's reexamination request shows that the functionality
covered by NeoMedia's bad patent was repeatedly included as
part of prior patent applications from other companies --
demonstrating that the idea of forming a network connection
from scanned items was well-known before NeoMedia made its
claim. EFF, in conjunction with Paul Grewal and James Czaja
of Day Casebeer Madrid & Batchelder, ask the PTO to revoke
the patent based on this and other evidence.
"Our patent system is supposed to protect innovation, not
block it. Everyone loses if the Patent Office allows these
kinds of abuses to continue," said Grewal, a partner at the
Day Casebeer firm.
The challenge to the NeoMedia patent is part of EFF's
Patent Busting Project, which combats the chilling effects
bad patents have on public and consumer interests. So far,
the project has helped kill a bogus patent covering a
system and method of creating digital recordings of live
performances. The PTO has also granted another EFF
reexamination request for an illegitimate patent for online
test-taking.
For the full NeoMedia patent reexamination request:
http://www.eff.org/patent/wanted/patent.php?p=neomedia
For more on EFF's Patent Busting Project:
http://www.eff.org/patent/
For more on Day Casebeer Madrid & Batchelder:
http://www.daycasebeer.com
For more information on the Consumer Information Lab at UC
Berkeley's College of Natural Resources:
http://nature.berkeley.edu/infolab/projects/informationtoolsdevelopmentproject
For this release:
http://www.eff.org/news/archives/2007_04.php#005214
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* Patent Reform Bill Introduced in Congress
Public Knowledge has posted a great summary of the new
Patent Reform Act of 2007, introduced in both the House and
Senate this week:
http://www.publicknowledge.org/node/915
The bill is going to be one of the key intellectual
property issues in Congress this year, and, though this
bill doesn't fix all current problems with the patent
system, it is a good step in the right direction. Among
other things, the bill would reduce certain excessive
patent infringement damages, allow third parties to file
patent defeating documents before patents are issued, and
create a new system for challenging bad patents.
Stay tuned for more news and analysis regarding this bill,
and learn more about our Patent Busting Project here:
http://www.eff.org/patent
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* Sen. Specter: Telcos' Role in NSA Spying Program Must Be
Exposed
As we noted last week, the Bush Administration is pushing a
dangerous new spying bill. Among other things, the bill
could threaten cases like EFF's against AT&T by giving
blanket immunity to companies for illegally assisting the
NSA spying program.
We're glad to hear that Senators are already pushing back
against this proposal. As the NY Times reports:
"[Senator Arlen] Specter said he opposed the proposed
immunity for telecommunications companies because the White
House had never provided Congress with enough information
about the role of the companies in the program.
"'That provision is a pig in the poke,' Mr. Specter
said. 'There has never been a statement from the
administration as to what these companies have done. That's
been an intolerable situation.'"
The rest of Congress should heed those words. It would be
highly irresponsible of Congress to legislate in the dark,
before the past and present abuse of surveillance powers
has been thoroughly investigated.
Visit stopillegalspying.org and take action to demand
investigations into the NSA spying program now:
http://www.stopillegalspying.org
For this post and related links:
http://www.eff.org/deeplinks/archives/005205.php
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* Sony's Latest DRM Backfire
Sony, one of the companies that brought you the Sony-BMG
"rootkit" copy protection system for CDs, has once again
used DRM to inflict inconvenience on its legitimate
customers.
New Sony DVD releases like "Stranger Than Fiction" and
"Casino Royale" come with copy protection technologies that
makes the movies unplayable on some DVD players -- including
reportedly at least one Sony machine!
Along with the DRM locks typically used on DVDs, Sony is
using a system called ARccOS that is supposed to make
copying more difficult by hiding corrupted data on the
disc. But while plenty of DVD copying software is
sophisticated enough to bypass the corrupt data, many
players are not.
It's bad enough that content providers like Sony use DRM to
intentionally limit legitimate uses. These sort of
arbitrary, bizarre compatibility problems make matters even
worse, and they're becoming more and more common
consequences of DRM. After initially reacting to complaints
by telling customers to update the firmware on their
devices, Sony is now promising to send a replacement DVD to
any unsatisfied customers.
This is yet another example of the ways in which DRM is not
only useless against "piracy" (DVD ripping software defeats
ARccOS), but actually works against the interests of
content owners. After all, if a movie fan has legitimately
purchased a DVD, only to find it unplayable on her DVD
player, she now has yet another reason to go looking to The
Pirate Bay for a copy that works.
For this post and related links:
http://www.eff.org/deeplinks/archives/005208.php
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* Consumer Groups to Utah AG: Don't Waste Taxpayer Money on
Unconstitutional, Anti-Consumer Keyword Law
Now we've heard everything. Utah State Senator Dan Eastman
-- who quietly ushered a ban on online comparative
advertising through the state senate -- has taken to
calling sponsored links to such advertising "identity
theft." If the comparative advertising 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."
Does that sound like "identity theft" to you? As Santa
Clara University School of Law Professor Eric Goldman puts
it: "Identity theft occurs when someone makes a false
representation, but this law bans competitive keyword
advertising that is completely truthful and does not
confuse anyone." Deceptive advertisers, of course, can
already be held liable under trademark and consumer
protection law.
Eastman seems to be hoping that if he insists often enough
that the bill is "pro-business," Utah citizens will forget
that it seems primarily designed to impede their access to
accurate information about goods and services and waste
taxpayer dollars on defending an anti-consumer law that
will never pass First Amendment muster.
But while those flaws don't worry Eastman, they should put
Utah Attorney General Mark Shurtleff on alert. EFF, along
with Public Citizen, Public Knowledge and Professor
Goldman, have sent a public letter to Shurtleff asking him
to stay implementation of the law due to its harmful
effects on consumers as well as its numerous constitutional
problems. It's Shurtleff's job to protect his office's time
-- and taxpayer money -- from poor legislation like this.
For this post and related links:
http://www.eff.org/deeplinks/archives/005204.php
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* EFF at Maker Faire, May 19-20
If you're going to O'Reilly's Maker Faire on May 19-20 in
San Mateo, California, be sure to stop by EFF's booth. Grab
some schwag and chat with us about all things digital
rights -- we look forward to seeing you!
For more on the Maker Faire:
http://www.makezine.com/faire/
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* miniLinks
The week's noteworthy news, compressed.
~ French E-Voting Is a "Catastrophe"
Widespread complaints after the first use of electronic
voting machines in the country's presidential election.
http://newsinfo.inquirer.net/breakingnews/infotech/view_article.php?article_id=61906
~ Pandora Chief Mourns Loss of Internet Radio
Copyright royalty board is out-of-touch and has destroyed
90% of Internet radio without understanding what it is,
says Joe Kennedy, CEO of pandora.com
http://www.out-law.com//default.aspx?page=7975
~ Chinese Dissident, Wife Sue Yahoo for Complicity
Foreign tort act suit alleges that Yahoo voluntarily
allowed Chinese government to track and arrest 57-year-old
Wang Xiaoning.
http://www.washingtonpost.com/wp-dyn/content/article/2007/04/18/AR2007041802510.html?nav=rss_technology
~ Google, Wikipedia Sued By Politician Trying to Silence
Critics
Canadian public figure tries to stop a story by pouring
censorship gasoline on it.
http://techdirt.com/articles/20070420/010122.shtml
~ No Cookie For You: Government Asked to Halt Google-
Doubleclick Deal
Electronic Privacy Information Center expresses concern
about the size and reach of the database created by the
acquisition.
http://blog.wired.com/27bstroke6/2007/04/consumer_privac.html
~ RIAA Balks at Judge Hearing EFF's Silver Tongue
RIAA's lawyers are aghast that a judge might consider
reading an EFF amicus brief in their case.
http://p2pnet.net/story/12025
~ Orphan Works in Europe
Google, the British Library, and others give their views on
copyrights versus unclaimed works.
http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=3366
~ The .ca in Broadcast Treaty
The Canadian view of WIPO's Broadcast Treaty: "We haven't
been able to identify a lot of benefit to Canadian
broadcasters from the treaty."
http://www.thehilltimes.ca/html/cover_index.php?display=story&full_path=/2007/april/23/broadcasters/&c=1
~ Online Journalists: Protected by Law or Fair Game?
Susan Crawford documents a lively debate at Cardozo on a
topic close to EFF's heart.
http://scrawford.blogware.com/blog/_archives/2007/4/23/2901067.html
~ Digital Freedom University
Boston Herald writes about college students' work in
digital rights.
http://business.bostonherald.com/businessNews/view.bg?articleid=194996&srvc=biz
~ Canadian ISP Throttling All Encrypted Traffic?
Please submit your packet in plaintext for better
surveillance services: thank you.
http://www.michaelgeist.ca/content/view/1879/135/
~ Bloggers' Search for Anonymity
The BBC puts the case for the untraceable voice.
http://news.bbc.co.uk/2/hi/programmes/click_online/6548555.stm
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* Administrivia
EFFector is published by:
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Editor:
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derek@eff.org
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