EFFector Vol. 20, No. 19 May 16, 2007 editor@eff.org
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 423rd Issue of EFFector:
- Action Alert: Electronic Voting Reform Bill Headed to House Floor!
- Universal Music Group Backs Off Claims to Michelle Malkin Video
- Watchdog Organization Battles Bogus Online Defamation Case
- Big Victory: House Affirms Limits on Warrantless Spying
- AP: Acting AG Refused to Reauthorize Spying Program in 2004
- Music Webcasting Bill Gains Momentum
- CA Governor Shrinking From REAL ID?
- Help Protect Free Speech and Bust Bogus Acacia Patent
- Giveline: A New Way to Support EFF
- EFF at Maker Faire, May 19-20
- miniLinks (9): White House Edits to Privacy Board's Report Spur Resignation
- 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_id=1061
effector: n, Computer Sci. A device for producing a desired
change.
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Action Alert: Electronic Voting Reform Bill Headed to
House Floor!
A bipartisan bill requiring paper trails for electronic
voting machines just cleared a major hurdle and could be
taken up by the House of Representatives next week. Defend
your right to vote and support H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007:
http://action.eff.org/site/Advocacy?id=109
E-voting machines have wreaked havoc and undermined
confidence in our election system. Despite demonstrated
technical failures -- including the loss of thousands of
votes -- nearly half of all states still do not require a
voter-verified paper ballot. Most of the voting machines in
operation today haven't been sufficiently reviewed for
security, and pollworkers frequently do not receive
adequate training to deal with machine problems.
Along with requiring machines to produce a voter-verified
paper ballot, H.R. 811 mandates random audits, the
mandatory availability of voting machine computer code for
review by experts and litigants, and many other critical
reforms. The House Administration Committee passed the bill
last week and approved amendments that further improve it,
including a requirement that voters be allowed to use paper
ballots upon request and a more robust ban on connecting
voting equipment to the Internet.
For over three years, EFF has been helping Rep. Rush Holt
move this legislation forward, and support from individuals
like you has been crucial in garnering an astounding 215
cosponsors. Hundreds of activists joined EFF for
Washington, D.C., lobby days in 2005 and 2006, and
thousands of letter have poured in to Congress.
Now those efforts are paying off, and victory in the House
is within reach -- take action now and fight for fair,
transparent elections:
http://action.eff.org/site/Advocacy?id=109
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Universal Music Group Backs Off Claims to Michelle Malkin
Video
Online Criticism of Hip Hop Artist Akon Drew Baseless
Copyright Allegations from UMG
San Francisco - Universal Music Group (UMG) has backed off
of its attempt to silence nationally syndicated columnist
Michelle Malkin's online criticism of one of its
controversial artists after Malkin fought back with the
help of the Electronic Frontier Foundation (EFF).
Earlier this month, UMG filed a baseless copyright notice
regarding a recent episode of "Vent with Michelle Malkin" -
- an irreverent daily video podcast produced by Malkin's
conservative Internet broadcast network "Hot Air." In the
video posted on YouTube, Malkin called Universal hip hop
artist Akon a "misogynist," supporting her criticism with
excerpts from Akon's music videos as well as onstage video
footage showing Akon with a teenage girl at a nightclub in
Trinidad.
Despite Malkin's legally protected fair use of the Akon
footage to support her criticism, UMG claimed that the
podcast infringed its copyright. UMG submitted a takedown
notice under the Digital Millennium Copyright Act (DMCA),
forcing YouTube to pull the episode down. However, with
EFF's assistance, Malkin filed a counter-notice with
YouTube, informing the company that she was legally
entitled to distribute her video. As a result, the video is
back up on the site, one that has become an important forum
for political speech of all kinds.
"We're pleased that UMG has backed off its bogus copyright
claim and stopped squelching Michelle Malkin's video
criticism," said EFF Senior Staff Attorney Kurt Opsahl.
"However, it remains inexcusable. UMG's misuse of federal
law made the video unavailable on YouTube for a full week,
denying the Hot Air podcast access to YouTube's extensive
audience during a time when the controversy about Akon's
behavior was all over the news."
After UMG rescinded its takedown request, YouTube briefly
continued to block access to the video podcast, claiming it
included a "terms of use" violation. However, after EFF
contacted YouTube to discuss the alleged violation, the
video was quickly returned to public view.
"My Hot Air staff and I are grateful for EFF's invaluable
aid in forcing UMG to retreat," said Malkin. "Shame on any
copyright holder who would attempt to use the DMCA to
intimidate and silence critics. We hope YouTube and its
corporate partners, like UMG, will think twice next time
before yanking video commentary and criticism that clearly
falls under fair use."
Reposted episode of "Vent with Michelle Malkin":
http://www.youtube.com/watch?v=YZL1IHw6ea8
More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg
More on intellectual property and free speech:
http://www.eff.org/IP/freespeech
Information about Hot Air:
http://hotair.com/about
For this release:
http://www.eff.org/news/archives/2007_05.php#005251
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Watchdog Organization Battles Bogus Online Defamation
Case
Internet Forum Shielded by Federal Law Protecting Free
Speech
Washington, D.C. - The Electronic Frontier Foundation (EFF)
and the American Civil Liberties Union (ACLU) of the
National Capital Area has asked a Washington, D.C., court
to dismiss claims against a nonprofit watchdog organization
and its operators, arguing that federal law and the First
Amendment protect them from liability in a defamation
lawsuit.
DCWatch is a government watchdog organization run by
Dorothy Brizill and Gary Imhoff to monitor Washington,
D.C., city politics and public affairs. DCWatch's website,
www.dcwatch.com, publishes articles and columns on local
politics. Themail@dcwatch.com is an online newsletter and
discussion forum devoted to reporting, analysis and
commentary on local issues, past editions of which are
archived on the DCWatch site.
In articles printed in themail@dcwatch.com, Washington
journalist Jonetta Rose Barras reported that Roslyn
Johnson, then Deputy Director of Programs for the D.C.
Department of Parks and Recreation, had inflated her
employment and salary history to secure her position. A
subsequent formal investigation by the D.C. Inspector
General concluded that Johnson did in fact submit an
inflated resume and was improperly hired for her position.
But in a lawsuit filed earlier this year, Johnson claims
that these articles were defamatory, placed her in a false
light, and resulted in the termination of her employment
with the city. In addition to suing reporter Barras, she
also sued DCWatch and its operators, claiming that their
Internet publication of these articles made them
responsible for their content.
EFF and the ACLU of the National Capital Area filed a
motion to dismiss the lawsuit, pointing out that DCWatch
and its operators are shielded by Section 230 of the
Communications Decency Act, which expressly protects
providers or users of interactive computer services from
liability in order to encourage robust debate in online
discussions. The motion also urged the court to dismiss
Johnson's claims, because the First Amendment protects
statements about public officials that are substantially
true.
"The Internet has played host to a renaissance of political
speech, facilitating discussion on issues of local,
national, and international importance," said EFF Staff
Attorney Marcia Hofmann. "It's important that judges resist
attempts by public officials to shut down online debate
just because they don't like the speech."
Courts throughout the country have recognized the critical
role Section 230 plays in enabling open discourse on the
Internet and have shielded website operators from liability
for comments made by others.
"The case against DCWatch must be dismissed. Congress has
given online publications absolute immunity for claims
based on third-party articles," said EFF Senior Staff
Attorney Kurt Opsahl. "An Internet intermediary should not
be liable for what the speaker has said."
"This is a concept that should be expanded into all media:
books, newspapers, radio and television," said Arthur
Spitzer, Legal Director of the ACLU of the National Capital
Area. "A speaker or writer should be responsible for his or
her words. A bookstore or newsstand should not be
responsible for the content of what it distributes."
For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras
For more on DCWatch:
http://www.dcwatch.com
For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org
For this release:
http://www.eff.org/news/archives/2007_05.php#005246
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Big Victory: House Affirms Limits on Warrantless Spying
Last week, the House passed legislation aimed at preventing
illegal government spying. Attached as an amendment to the
intelligence budget authorization bill, the legislation
reaffirms that the NSA's domestic surveillance program must
comply with Congress' laws.
Meanwhile, the House did not pass a Bush Administration
proposal that would radically expand the government's
ability to spy without warrants while also threatening to
let telecom providers off the hook for assisting in the
illegal NSA program.
Aggressive Congressional action to stop the illegal spying
is long overdue, and this is an important first step in the
right direction.
To learn about EFF's case against AT&T for illegally
assisting the NSA:
http://www.eff.org/legal/cases/att
Tell Congress to not let the telcos off the hook:
http://action.eff.org/fisa
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AP: Acting AG Refused to Reauthorize Spying Program in
2004
The AP reports:
"President Bush's warrantless wiretapping program was so
questionable that a top Justice Department official refused
for a time to reauthorize it, sparking a battle with top
White House officials at the bedside of an ailing attorney
general, a Senate panel was told Tuesday.
"Former Deputy Attorney General James Comey told the Senate
Judiciary Committee on Tuesday that he refused to recertify
the program because Attorney General John Ashcroft had
reservations about its legality just before falling ill
with pancreatitis in March 2004."
For the whole article:
http://www.abcnews.go.com/Politics/wireStory?id=3175945
On January 1, 2006, the NY Times recounted a similar set of
events, though Mr. Comey declined to comment on the story:
http://www.nytimes.com/2006/01/01/politics/01spy.html?ex=1179374400&en=cb8221ee6567f18f&ei=5070
During his testimony Tuesday, Comey stated "The program was
reauthorized without us and without a signature from the
Department of Justice attesting as to its legality." You
can read the full transcript of Comey's testimony here:
http://gulcfac.typepad.com/georgetown_university_law/files/comey.transcript.pdf
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Music Webcasting Bill Gains Momentum
A Senate companion to the "Internet Radio Equality Act" has
now been introduced and could help save music webcasting.
Due to a recent ruling by the Copyright Royalty Board, the
government-set rates that most Net radio providers pay to
license sound recordings will radically increase. This
ruling threatens small and non-commercial webcasters as
well as commercial services like Pandora, and it could take
away the broad diversity of stations that exists online but
never has been available through traditional broadcasters.
If passed, the "Internet Radio Equality Act" would nullify
the royalty ruling and bring some sensible changes to the
standards used to set rates in the future. The House
version was introduced last month.
This bill's introduction has been driven by the massive
grassroots outrage among webcasters and listeners, and you
can help keep that momentum going. SaveNetRadio.org is
among the many great sites that have helped spearhead this
activism -- go there to learn more and take action now:
http://www.savenetradio.org/
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CA Governor Shrinking From REAL ID?
While other states are courageously standing up to
Congress' misguided national ID mandate, California's
Governor Arnold Schwarzenegger is giving his constituents a
rather indifferent message.
In response to a constituent's letter (sent through our
Action Center) urging California to reject implementation
of the REAL ID Act, the Governor's office simply replied:
"The issue you have written about is federal in nature and
not under state jurisdiction. We suggest that you contact
your United States Senator...."
REAL ID is a federal mandate, but states and ultimately
each state's residents bear the burden of putting this
privacy-invasive system into place, including its more than
23 billion dollar price tag. REAL ID forces states to
standardize drivers licenses and create massive,
interlinked databases of your personal information.
The Governor's response seems to suggest that California's
hands are tied, but that's clearly not the case. Just last
week, Colorado became the eighth state to officially refuse
implementation. From Alaska, to Texas, to Pennsylvania,
states throughout the country are considering similar
resolutions.
California ought to be leading this rebellion and standing
up for its residents' privacy. State pushback is already
forcing Congress to reconsider REAL ID, and if California
were to refuse implementation, that could be a fatal blow
to the law.
The Governor is certainly right that you should contact
your Congressional representatives and make your voice
heard:
http://action.eff.org/site/Advocacy?id=275
But Californians and residents of all states deserve better
than a "no comment" from their state officials when it
comes to an issue of such great importance. Californians
can tell the Governor to say no to REAL ID by calling his
office at 916-445-2841 or sending a letter through our
Action Center:
http://action.eff.org/site/Advocacy?id=290
For this post and related links:
http://www.eff.org/deeplinks/archives/005249.php
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Help Protect Free Speech and Bust Bogus Acacia Patent
EFF's Patent Busting Project fights back against bogus
patents by filing requests for reexamination against the
worst offenders. We've busted a patent held by Clear
Channel and Live Nation on producing post-concert digital
recordings, and we've successfully pushed the Patent and
Trademark Office to reexamine Test.com's ridiculous
Internet test-taking patent. Now we need your help to
assist a private law firm in busting one more.
A company called Acacia has claimed a patent on an
"information distribution system" that amounts to the idea
of shipping a CD-ROM that contains hyperlinks to online
resources. (EFF is currently working on busting another
Acacia patent that covers streaming audio and video over
the Internet.)
We are looking for prior art that shows the use of this
technology before 1994. Specifically, we are seeking the
following items:
1. NetNews CD-ROMs, sold by Sterling Software, preferably
volumes #1 through #35. These CDs may have been also
available through CD Publishing Corporation.
or
2. Other CD-ROMs that were distributed in 1993 or earlier
that contained hypertext content or were installation disks
for applications that linked to Internet content.
Information about these or similar items is greatly
appreciated. Submit tips to Philip H. Albert with Townsend
and Townsend and Crew LLP:
phalbert AT townsend.com
For more on EFF's patent busting project:
http://www.eff.org/patent
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Giveline: A New Way to Support EFF
Turn everyday purchases into donations for EFF when you
shop at Giveline. Giveline offers a variety of music,
movies, electronics, and other items, and gives on average
15% of products' prices to nonprofits.
Shop at Giveline and donate to EFF:
<http://www.giveline.com/default.asp?v=V072456867>
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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.
~ White House Edits to Privacy Board's Report Spur
Resignation
The toothless civil liberties oversight board turns out to
leave a nasty suck.
http://www.tpmmuckraker.com/archives/003217.php
~ Is Copyright the Administration's Next Domestic Spying
Tool?
Harold Feld conducts a thought-experiment about how far-
reaching new IP criminalization laws in the US are.
http://www.wetmachine.com/totsf/item/797
~ Gonzales Proposes New Crime: "Attempted" Criminal
Copyright Infringement
New criminal IP act trumps even Europe's current ramping up
of the law.
http://news.com.com/8301-10784_3-9719339-7.html?part=rss&subj=news&tag=2547-1_3-0-20
~ Monday Was Wiretap the Net Day
The FCC's over-extension of CALEA to cover the Net kicked
in this Monday.
http://blog.wired.com/27bstroke6/2007/05/reminder_monday.html
~ New Digital Copyright in Hong Kong
Peter Yu leads the battle to truly reform copyright law in
Hong Kong.
http://jmsc.hku.hk/cms/content/view/242/
~ Copyright Damages Should Not Be Punitive, Says UK
Government
The rebellion against statutory damages grows.
http://www.out-law.com//default.aspx?page=8044
~ Microsoft Claims Software Like Linux Violates its Patents
"I have in my hand a list of 615 -- no, 616! -- software
patents!" says the gently FUDding software giant.
http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/
~ Jonathan Coulton: Music Making the Man
The geek troubadour explains how free distribution makes
his living.
http://www.nytimes.com/2007/05/13/magazine/13audience-t.html?ex=1336708800&en=1d5b4728dc04dc8d&ei=5090&partner=rssuserland&emc=rss
~ Making All the Right Connections in the IPRED2 Fight
A great story about how activism campaigns make a
difference.
http://pxfconlanyvette.wordpress.com/2007/05/12/making-all-the-right-connections/
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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, Activism Coordinator
derek@eff.org
Membership & donation queries:
membership@eff.org
General EFF, legal, policy, or online resources queries:
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Reproduction of this publication in electronic media is
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Current and back issues of EFFector are available via the
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