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June 30, 2004

Online Privacy "Eviscerated" by First Circuit Decision

The First Circuit Court of Appeals dealt a grave blow to the privacy of Internet communications with its http://www.ca1.uscourts.gov/pdf.opinions/03-1383-01A.pdf">decision today... [EFF: Press]

June 26, 2004

Congress Looks Out for Hollywood

It was a good week for Hollywood and record companies. Allies in Congress passed or advanced a slew of legislation that could outlaw a range of devices and software, and impose severe penalties on anyone caught trading files. By Katie Dean. [Wired News]

Congress Looks Out for Hollywood

It was a good week for Hollywood and record companies. Allies in Congress passed or advanced a slew of legislation that could outlaw a range of devices and software, and impose severe penalties on anyone caught trading files. By Katie Dean. [Wired News]

How Copyright Policy Gets Twisted

The Register's Andrew Orlowski analyzes the latest, and perhaps most serious, threat from the copyright cartel. The legislation, sponsored by senators from both major U.S. political parties (here's my previous posting about this horrid bill), is aimed at peer to peer technology but has a much wider application.

As Andrew notes, citing warnings from critics of this legislation, "It may soon be possible to carry around an AK-47 assault rifle and an iPod with you down the street - and be arrested for carrying the iPod."

He asks how this could be happening, given that Orrin Hatch, the key sponsor, once seemed to be on the side of fair use and other users' rights. Part of it is money, no doubt.

Andrew aims a well-deserved barb at the technology community for not taking its case to Congress in a more organized way, and this is also true. But I think he underestimates two things.

First, the tech industry's leaders have not just stopped fighting Hollywood and the record companies. They've embraced the cartel. This spectacular piece of cowardice, driven by a warped sense of what's in the tech moguls' best business interests, means that technology innovation must essentially be approved by the cartel or modified so as not to annoy the copyright industry.

Second, technologists have a remarkably short attention span. They flit from idea to idea, changing products and business models at the drop of a hat because they live in an ever-morphing universe where rapid change is the norm.

The copyright cartel has, if nothing else, a deep and abiding motivation to maintain control. It is relentless. It has basically one issue, and pockets deep enough to stay with the fight.

I tend to respect Hollywood and the music companies for their single-mindedness, even though I have little respect for their position on this matter. I have growing distaste for the technology industry, which seems to have few principles of any kind.

And the public interest gets squashed.

[Dan Gillmor's eJournal]

June 25, 2004

Playing RIAA Attorney for a Day (Jason Schultz)

With the growing concern over Senator Hatch's Inducing Infringement of Copyrights Act introduced this week, EFF decided to take the debate up a notch today by drafting a mock complaint against one of the most egregious "inducers" -- Apple's iPod music player.

The Complaint, alleged inducement against Apple, Toshina (who supplied the iPod's hard drive), and CNET (who provided a review of the iPod including instructions on how to move musc files between it and multiple computers), lays out exactly how easy it would be to sue a company for inducement on any of their flagship computer products. We tried to make the complaint as simple as possible but at the same time, substantive enough that it would be difficiult for Apple or any other company to dismiss the case before trial. [For all you lawyers out there, try to think of how you could succeed on a 12(b)(6) or Rule 56 motion].

It's often hard to conceive the potential damage Congress can inflict upon us until too long after the fact (e.g. DMCA), so we hope this will help focus the issue.

[Copyfight]

June 24, 2004

Mobilize against INDUCE

So here's a fantastic (although visceral) view of the new "INDUCE" act, that could make just about every consumer a "criminal." Well worth the read. Check the "$" links in the original story.

The Obsessively Annotated Introduction to the INDUCE Act

Yesterday, as C|Net News reported, Senator Orrin Hatch (R-UT) officially introduced the INDUCE Act to the public (Senate bill bans P2P networks). See also, Susan Crawford (INDUCE Act introduced) and Larry Lessig (even I canít believe this). Read the bill here: Inducing Infringement of Copyrights Act of 2004 [PDF].

See this handy link for more.

June 22, 2004

Boucher's Anti-DMCA Bill Gets High Profile Allies

Landaras writes "News.com is reporting that a newly-formed alliance called the Personal Technology Freedom Coalition is throwing their support and lobbying ... (usa, timothy) [Slashdot.org]

Syrian jailed for internet usage

And they tell us that anonymity is a bad thing and that there are no real uses for it other than to defraud.
A man who distributed material from an emigre website gets two-and-a-half years, as others await trial. [BBC News | TECHNOLOGY]

4th Circuit Takes ISP out of the Direct Infringement Loop(Net)

Good decision today in CoStar v. LoopNet. The 4th Circuit affirms that even in the age of DMCA, liability for direct copyright infringement requires "volitional conduct" and "meaningful causation" by the alleged infringer.

LoopNet allowed subscribers to post real estate photographs on its website. CoStar claimed that some of these photographs infringed its copyrights, and sued LoopNet as the direct infringer. The court held that even though LoopNet reviewed the images before posting them, the ISP was not the one actually engaged in the infringing reproduction.

The ISP in this case is an analogue to the owner of a traditional copying machine whose customers pay a fixed amount per copy and operate the machine themselves to make copies. When a customer duplicates an infringing work, the owner of the copy machine is not considered a direct infringer. Similarly, an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer. If the Copyright Act does not hold the owner of the copying machine liable as a direct infringer when its customer copies infringing material without knowledge of the owner, the ISP should not be found liable as a direct infringer when its facility is used by a subscriber to violate a copyright without intervening conduct of the ISP.

Direct copyright infringement is still a strict liability offense, but it's good to be reminded that you have to do something to trigger that liability.

[Wendy: The Blog]

Domain Name Proxy Service Not Inherently Evil

In the recent court decision of CyBerCorp Holding v. Allman case, although the registrant of the domain name 'cybertraderlive.com' did lose the Uniform Domain Name Dispute Resolution Policy (UDRP) case and was found to have acted in bad faith (having been a former customer of complainant), the decision is noteworthy as it finds that registrant's use of proxy service to keep contact information private, in and of itself is not evidence of bad faith... [CircleID]

June 18, 2004

Declan on INDUCE Act (Ernest Miller)

C|Net News's Declan McCullagh is the first big J journalist to report on the INDUCE Act (Antipiracy bill targets technology). He explains why the bill wasn't introduced today (it will be introduced next week) and gets confirmation that the bill was approved by the big C copyright industries: "One prominent lawyer for the music industry, who spoke on condition of anonymity, said he had reviewed and approved of an earlier draft of the Induce Act." Several critics of the bill are cited and McCullagh concludes:

Foes of the Induce Act said it would effectively overturn the Supreme Court's 1984 decision in the Sony Corp. v. Universal City Studios case, often referred to as "Betamax." In that 5-4 opinion, the majority said VCRs were legal to sell because they were "capable of substantial noninfringing uses." But the majority stressed that Congress always has the power to enact a law that would lead to a different outcome.

Previous Copyfight coverage here:
INDUCE Act = Son of Hollings?
INDUCE Act is Free Speech Killer
Should Have Seen the INDUCE Act Coming

[Copyfight]

Some Good News - Support for Anti-DMCA Increasing (Ernest Miller)

WIRED reports that there are some significant signs of support for an anti-DMCA bill introduced in the House (DMCA Foes Find Allies in House).

A bill in the House of Representatives, HR107, would overturn a major provision of the controversial Digital Millennium Copyright Act of 1998 (PDF), which bars consumers from circumventing encryption on digital media products, even if they only intend to make copies for personal use.

The bill's sponsor, Rep. Rick Boucher (D-Virginia), already has 19 co-sponsors, including powerful House Commerce Committee Chairman Joe Barton (R-Texas). It's unlikely the bill will become law this year, but its proponents see the backing as a good sign.

Of course, the MPAA is still claiming that there is no need for changes to the DMCA as it has no effect on fair use:

"That's just not true," said David Green, vice president and counsel for technology and new media at the Motion Picture Association of America. "The DMCA retains fair use. It doesn't change fair use in any way."

You could ban the printing press and the MPAA would claim there was no effect on free speech.

[Copyfight]

June 17, 2004

Balance in Copyright Reform?

Check out this great article from Michael Geist.

Should Have Seen the INDUCE Act Coming (Ernest Miller)

Senator Orrin Hatch (R - UT) is threatening to introduce a new copyright bill that would punish anyone who "intentionally aids, abets, induces, counsels, or procures" copyright infringement (INDUCE Act is Free Speech Killer). Two months ago, the Senator also introduced another copyright bill that would give the DoJ power to enforce civil copyright infringement (PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry and PIRATE Act - Wiretaps for Civil Copyright Infringement?). Here is a press release about the PIRATE Act ... we should have seen the INDUCE bill coming (Judiciary Committee Reports Four Intellectual Property Rights Bills):

The Protecting Intellectual Rights Against Theft and Expropriation Act of 2004, the PIRATE Act, S. 2237, is an important legislative effort I joined Senator Leahy in sponsoring. This bill will give the Department of Justice the flexible enforcement powers needed to deal with the challenges posed by so-called peer-to-peer filesharing software. The design of this software seems to induce otherwise law-abiding people to violate federal laws relating to copyrights and distribution of pornography. As a result, it has been difficult for the Department to bring the moral force of the government to bear against the widespread piracy induced by this software. The PIRATE Act will ensure that the Department will have the option to impose civil penalties against users of filesharing software who are breaking federal laws, but may not warrant criminal prosecution. [emphasis added]

It's that evil software, seducing law-abiding citizens into degraded lives of pornography and copyright violations. It is criminals like Seth Finkelstein, who induces the otherwise law-abiding to violate the copyrights of censorware producers (INDUCE Act).

What's that old saying? "Give a man a book and he reads for a day. Teach a man to publish and he infringes copyright for a lifetime."

[Copyfight]

All Your Public Domain Are Belong to Us (Ernest Miller)

Disappointing, but not unexpected news about the ability of the government to restore copyright to public domain works. In Luck's Music Library v. Ashcroft [PDF] (21 pages), the United States District Court for the District of Columbia upheld the ability of the government to restore copyright for foreign works that had entered the public domain in the US, but were copyrighted in their home country. The case challenged the constitutionality of Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a. The case had been held up until after the Eldred decision. The plaintiffs were a sheet music company and a film restoration company.

[Copyfight]

Wiretap Design Mandates Do No Apply to Internet, CDT Argues

In testimony to the Senate Commerce Committee, CDT will argue that the controversial tech mandates of the 1994 Communications Assistance for Law Enforcement Act (CALEA) do not apply to the Internet or Internet applications like Voice over Internet Protocol (VoIP). The FBI has urged the Federal Communications Commission to extend CALEA to broadband Internet access and broadband telephony. Bills introduced in the House and Senate take divergent attitudes on the issue, with the House bill explicitly proposing to extend CALEA to the Internet. June 16, 2004 [Center for Democracy and Technology]

Recent WHOIS Report Overlooking Fundamental Issue?

Each Task Force recently published a report posted on ICANN's website on recommendations for modifications or improvements to WHOIS. The Task Force recommendations include proposals ranging from a recommendation to notify those who may be included in the database of the possible uses of WHOIS data to one that recommends ICANN offer the Internet community "tiered access" to serve as a vague mechanism to balance privacy against the needs of public access. Too many of the... [CircleID]

June 13, 2004

Let Small FM Stations Bloom

For the sake of stronger communities, Congress should allow more nonprofit groups to run low-power FM stations. [Christian Science Monitor: All Stories]

Being a Webmaster for Controversial Islamic Websites Not a Crime

Idaho Student Acquitted of Terrorism Charges In a victory for the First Amendment rights of Internet users, jurors returned a... [EFF: Press]

EFF at DMCA Reform Hearing

After Daylong Debate, the Future of H.R. 107 Looks Bright Washington, D.C. - Today at 10:00 AM., the House Energy... [EFF: Press]

June 07, 2004

Another Win for Speech

Could it be that the tide is finally turning from draconian trademark rights to a more healthy balance for all?

WASHINGTON, D.C. - A dissatisfied customer of a California hair
restoration company has a right to use the company's name in an Internet
site he established to criticize the company, a federal judge has
decided.

In a ruling issued Monday, U.S. District Judge William Q. Hayes
of the Southern District of California tossed out the lawsuit filed by
Bosley Medical Institute against former customer Michael Kremer, a
California resident. In it, Bosley alleged that Kremer violated
trademark laws by using the company's name in his Web sites,
www.bosleymedical.com and www.bosleymedicalviolations.com.

"This is a tremendous victory and once again affirms that people
have the right to air their views on the Web," said Paul Alan Levy, the
Public Citizen attorney who represented Kremer. "Mr. Kremer has every
right to post his views about Bosley on the Internet for all to see."

Kremer set up the site after becoming dissatisfied with hair
restoration services he paid Bosley Medical to provide to him in 1991.
Bosley Medical is based in California and has additional offices in
Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Kansas, Louisiana, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska, Nevada, New York, North Carolina, Iowa, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas,
Tennessee, Utah, Virginia, Washington, and the District of Columbia, as
well as British Columbia and Mexico.

In January 2000, Kremer registered www.bosleymedical.com, then
notified the company of his plans, to give it a chance to object. The
company responded by filing a complaint for arbitration with World
Intellectual Property Organization (WIPO), a group in Switzerland.
Meanwhile, Kremer refrained from posting any material on his site.

After the WIPO arbitrator ruled in Kremer's favor and
reprimanded Bosley for attempting to stifle critical speech, Kremer
registered the domain name www.bosleymedicalviolations.com and began to
post complaints about the company.

Bosley then sued Kremer in Illinois on the grounds that one of
its offices was located there. The case was transferred to San Diego
because Kremer could not be sued so far from home.

In the most recent suit, Bosley contended that Kremer was
violating the company's trademark. But to prove that, Bosley had to show
that Kremer was using the company's name for commercial gain. Kremer was
not; Kremer's sites are purely informational and Kremer receives no
income from them, the judge decided. Further, there is no way a visitor
to one of Kremer's sites could mistake it for Bosley's site.

Bosley Medical has been disciplined in the past for a variety of
practices. It was fined $644,724 in 1996 over its medical and
advertising practices, and its medical license was suspended and placed
on probation for five years by the California medical board in 1999.
Bosley also has faced discipline charges in 20 other states. Bosley
currently is facing probation revocation hearings in California.

"For four years, Bosley Medical has relentlessly pursued Mr. Kremer on
what we knew all along were bogus claims," Levy said. "Bosley owes
Kremer a gigantic apology for dragging him through these court
proceedings for so long. We hope that other companies take note of this
case and conclude that going after their customers simply doesn't pay."

Charles Bird of Luce, Forward, Hamilton & Scripps LLP, www.luce.com,
participated as San Diego counsel in defending Kremer.

###
Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C. For more information, please visit
www.citizen.org.