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October 29, 2004

EFF Challenges Secret Government Order to Shut Down Media Websites

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

San Francisco, CA -- The Electronic Frontier Foundation (EFF) is representing a coalition of independent Internet journalists whose websites were shut down on Thursday, October 7, when their servers were seized by the FBI. The two servers, which were located in the United Kingdom and managed by San Antonio-based Rackspace Managed Hosting, hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists.

The seizure was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Citing a gag order, Rackspace has provided no further details. An FBI spokesperson has confirmed that the subpoena was issued at the request of Italian and Swiss authorities. Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia's illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government's illegal seizure. "If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers, it will go to bat for Indymedia--one of its biggest customers--and demand that the FBI return the seized Internet servers," said Kurt Opsahl, EFF staff attorney. "Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story." A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU's challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

"The FBI can't pull the plug on more than 20 news websites -- our modern printing presses -- based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times, and it can't shut down Indymedia."

The Indymedia seizure bears a striking resemblance to EFF's very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher's business, was found to be an illegal violation of the publisher's rights.


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

For inquiries about Indymedia:

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend

[EFF: Press]

Court Orders New Protections for People Targeted by RIAA

Public Interest Groups Help Protect Anonymity of Accused Infringers

Pennsylvania - A district court in eastern Pennsylvania has issued an order that will force the Recording Industry Association of America (RIAA) to better respect the privacy and due process rights of people it has accused of copyright infringement. After RIAA members asked the court to issue subpoenas to Internet Service Providers (ISPs) for the names and addresses of people they suspect of infringement, the court issued an order that the ISPs must first send their customers detailed notices about the subpoenas, including information about how the accused suspects can contest the subpoenas.

The controversy arose after the music industry filed a flood of lawsuits against anonymous individuals whom the industry claimed were sharing copyrighted music. Because the industry did not know the identities of the individuals, it served subpoenas to the individuals' ISPs seeking their names. The court held that before the ISPs turn over these names, they must send notices to the individuals advising them of their rights. This allows a targeted individual to make an intelligent decision about what steps to take before his or her identity is disclosed.

The Electronic Frontier Foundation (EFF), Public Citizen, the national American Civil Liberties Union (ACLU), and the ACLU's Pennsylvania affiliate participated in the case as friends of the court. The organizations have been heavily involved in protecting the right to anonymous speech and ensuring that people sued for copyright violations are made aware of their rights.

"The constitutional right of individuals to anonymous speech is just as important on the Internet as it was when the Federalist Papers were published," said Chris Hansen, an attorney for the ACLU. "The court has properly found that before someone's identity is disclosed, that person should at least have a right to be heard and to raise certain defenses."

"Judge Rufe has required the recording industry to meet the same standards of proof that are required when other plaintiffs seek to identify anonymous Internet users," said Public Citizen attorney Paul Levy. "We can only hope that judges throughout the country will follow this example."

EFF legal director Cindy Cohn added, "Receiving notice from your ISP that you are being sued by the record companies is a terrifying experience for the grandmas, students, and working mothers who have been caught up in the RIAA's lawsuit crusade. By requiring ISPs to include basic information such as the right to challenge lawsuits and where to go for help, the court took a big step toward helping people understand their options."


Cindy Cohn
Legal Director
Electronic Frontier Foundation

Paul Alan Levy
Public Citizen Litigation Group

Paul Silva
Media Relations Associate
American Civil Liberties Union

[EFF: Press]

INDUCE's biggest threat: Me2Me apps (Jason Schultz)

During the CATO Institute panel on INDUCE last week Markham Erickson of NetCoalition made an interesting point. While discussing the various flaws in the INDUCE drafts, he noted that several versions attempted to outlaw P2P appliations based on language prohibitng specific technological architectures. For example, some of the drafts from the Copyright Office specifically targeted technologies that were "capable of widespread distribution of copyrighted materials."

Markham noted that when he talked to engineers in tech companies about this particular aspect of INDUCE, their main concern was that the direction that P2P architecture is headed (decentralized services vs. central server intermediaries) is the same direction that all network technologies are headed. Today's cutting edge markets -- Wifi, WiMax, Camera Phones, MP3 players, etc. -- are all trending toward flexible decentralized distribution mechanisms, just as P2P does. Therefore, any approach to INDUCE that targets a specific or general architecture threatens not only legitimate innovation in principle but also legitimate innovation in practice, at least according to the engineers on the ground.

This got me to thinking. Why were the RIAA and MPAA so insistent during the negotiations on a broad technological definition? Why not just write a bill that narrowly targets P2P companies by name and be done with it? (For example, one could simply make it illegal to write a software program that utilizes the GiFT, FastTrack, Gnutella, Bittorrent, or OpenFt protocols and that would effectively ban most current P2P apps).

The reason, of course, is that INDUCE is not really just about P2P apps. It's about the future of all distribution technologies and in particular, about what I like to call "Me2Me" apps. As network and distribution technologies evolve, they offer consumers and computer users more and more control over their own media. P2P technology broke into the mainstream as a mechanism for distributing files amongst different people, but the same architecture is becoming popular among technologies designed to distribute one person's content amongst his or her various platforms.

For example, consider iTunes and the iPod. iTunes allows one to stream music to any computer on your local area network. It also allows you to transfer files to any number of iPods. It also allows you to rip, mix, and burn CDs. In essence, it allows massive distribution of content, albeit primarily to one's self, family, and friends.

Or consider the Media Package on Tivo via Wifi. I use my Tivo Media package to listen to music streamed from my computer over my home wireless network. I also use it to view photos. Both of these mechanisms are "Me2Me" distribution technologies which allow me to shuffle my content from one platform to another. Technologies like the Airport Express and SlingBox further extend this capability by allowing you to shift content from your computer to stereo or from your Tivo to your laptop or PDA. And finally, don't forget cell phones. More and more, they are becoming dissemination technologies for audio, video, photos, and music.

The next generation will go even further. Imagine a wireless iPod that can synch with any iTunes application within 75 feet. Or a MP3 player for your car that automatically syncs with your home computer when you pull into the driveway. Or a media player on your laptop that automatically syncs with your TiVo to download the latest episode of your favorite Prime Time addiction.

This is, of course, the RIAA and MPAA's worst nightmare. Both industries have based their business models on controlling each and every permutation of playback for their content. The RIAA wants to make you pay when you buy the CD, when you download the iTune, when you listen to an Internet webcast, etc. The MPAA wants to charge you at the theater, for every copy of a DVD you buy, and (via advertising) for every show you watch on TV. Yet the more and more we as users and consumers are allowed to control and choose our own form of playback, the less Hollywood can justify charging us for each one. The more utility we get out of Me2Me apps, the less we're willing to pay someone for an extra copy or delivery mechanism. In the end, Me2Me technology may pose a larger threat to Big Cotent's bottom line than P2P ever did.

So how does this play into the politics of INDUCE? Well, P2P has been an easy political target for the RIAA and MPAA. Its an easy case of massive unauthorized distribution. In the Grokster case, they were able to show that over 90% of P2P is used for infringement of copyright. Its transfers take place outside the privacy of one's home and often include socially-stigmatized content like pornography, spam, spyware, and viruses.

Me2Me technology, however, would be much much harder to outlaw. Many Me2Me uses would arguably be fair or non-infringing uses. For instance, they tend to be private uses involving only family or friends. Many would involve use of media legitimately purchased by both the sender and recipient of the content (i.e. oneself). Thus, under current copyright law, it would very difficult to outlaw any of them. It would also be difficult to chastize them politically in front of Congress.

This is why the battle over DRM, the Broadcast flag, and now INDUCE has become so important for them. If the RIAA/MPAA wait too long, more and more platform distribution technologies with primarily legal uses will come to market and undermine their case for outlawing specific architectures. As these technologies take hold, public and political sentiment will continue to grow against harsher restrictions and enforcement and more toward allowing and embracing such technologies. Thus, the window of opportunity for the content industry to pass a restrictive law like INDUCE is very short. They must act now (dare I say pre-emptively strike?) while they can to frame the targets as a bunch of "bad" actors (i.e. the P2P companies) before too many "good" actors (i.e. Me2Me products and services) infiltrate the market and obfuscate the ability to outlaw one architecture without threatening the others.


Driving Blind

It appears that the IPv6 AAAA "glue" records for .com and .net are now in the root zone. This means that for the average name query there will be two fewer IPv4 A "glue" records records than before, in other words about 15% fewer than previously.

It appears that neither NTIA, ICANN, nor IANA has made any inquiry regarding the safety of this change, particularly during the kinds of partial net connectivity situations that occur during natural and human disasters.

The reckless unconcern for net reliability and for the consequences of a change stands in stark contrast to ICANN's use of any exuse, no matter how irrelevant (such as the pronounceability of the name). to block new top level domains (TLDs.)

What makes this more ironic is that many who are testing this new change are finding that the new IPv6 servers are not reachable.

There is no stronger reason to pull the domain name system management role from NTIA, ICANN, and IANA and vest it in the ITU (or similar body) than the simple fact that neither NTIA, ICANN, nor IANA is actually doing that job.

For more background see my prior notes at: Something's Happening But We Don't Know What It Is, Do We Mr. Jones?, Follow-up on my note: An Open Letter to NTIA, ICANN, and IANA, and An Open Letter to NTIA, ICANN, and IANA.

[CaveBear Blog]

October 13, 2004

Supreme Court Denies RIAA's Cert. Petition: DMCA not a fishing license

The Supreme Court today denied cert. to the RIAA in RIAA v. Verizon, leaving the D.C. Circuit's opinion as law. Good. Bad as much of the DMCA is, it was never meant to give the RIAA blank fishing licenses to issue subpoenas for Internet users' identities. As we've been establishing in this case and in subsequent "Doe" suits, it takes more than a bare allegation of copyright infringement to overcome Internet users' privacy and First Amendment rights.

[Wendy: The Blog]

October 11, 2004

An Open Letter to NTIA, ICANN, and IANA

DNRC's Karl Auerbach has an excellent point about the "stability of the Internet" that is not being addressed by ICANN or others.

I am writing this note in order to express my concern about an impending change in the root of the Domain Name System (DNS) and two of the largest Top Level Domains (TLDs). I am concerned that there is a risk of disruption to the net that has not been adequately evaluated and I am concerned that this change is being deployed without adequate monitoring or safeguards. [CircleID]

October 01, 2004

Dangerous Ruling Menaces Rights of Free Software Programmers

Contract and Copyright Trump Fair Use and Competition in BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision that held that programmers are not allowed to create free software designed to work with commercial products. At issue in the case was whether three software programmers who created the BnetD game server -- which interoperates with Blizzard video games online -- were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD is an open source program that lets gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered Battle.net purely to make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to choose where and when they want to use the products they buy. This ruling gives Blizzard the ability to force you to use their servers whether you want to or not. Copyright law was meant to promote competition and creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling that creating alternative platforms for legitimately purchased content can be outlawed.


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

[EFF: Press]