Sadly, today the U.S. Supreme Court refused to review the Federal Circuit’s dangerous decision in Oracle v. Google. Oracle claims a copyright on the Java Application Programming Interface (API), and that Google infringed that copyright by using certain Java APIs in the Android OS. The Federal Circuit had ruled in Oracle’s favor, reversing a well-reasoned district court opinion holding that the APIs in question were not subject to copyright. Google had asked the Supreme Court to review the Federal Circuit decision. On behalf of 77 computer scientists, EFF had filed an amicus brief supporting Google’s petition.
The Federal Circuit’s decision has been harshly criticized for its misunderstanding of both computer science and copyright law. APIs are, generally speaking, specifications that allow programs to communicate with each other, and are different than the code that implements a program. Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation.
Today’s decision doesn’t mean that Oracle has won the lawsuit. The case will now return to the district court for a trial on Google’s fair use defense. Both the Federal Circuit opinion and a brief by the U.S. Solicitor General recognized that Google was entitled to a trial on that defense. However, fair use shouldn’t be the only defense to API copyrightability. Fair use is a complex and potentially expensive defense to develop and litigate. While Google has the financial resources to take that defense to trial, few start-ups have the ability to do so. The Federal Circuit’s decision thus could deter new companies from competing with a large, litigious competitor by using the latter’s APIs. Hopefully other courts will decline to follow the Federal Circuit’s unwise opinion, which fortunately isn’t binding on the other appeals courts.Related Issues: Fair Use and Intellectual Property: Defending the BalanceRelated Cases: Oracle v. Google
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Stupid Patent of the Month: Wetro Lan Sues Entire Network Security Industry With Expired Garbage Patent
Like all of the patents we highlight in our Stupid Patent of the Month series, this month’s winner, U.S. Patent No. 6,795,918, is a terrible patent. But it earns a special place in the Pantheon of stupid patents because it is being wielded in one of most outrageous trolling campaigns we have ever seen.
Patent No. 6,795,918 (the ’918 patent), issued from an application filed in March 2000, and is titled: “Service level computer security.” It claims a system of “filtering data packets” by “extracting the source, destination, and protocol information,” and “dropping the received data packet if the extracted information indicates a request for access to an unauthorized service.” You may think, wait a minute, that’s just a firewall. By the year 2000, firewalls had been around for a long time. So how on earth did this applicant get a patent? A good question.
Here’s how you get a patent on a firewall more than a decade after firewalls were invented. Step 1: File a description of your so-called invention that is nothing more than mundane details about how firewalls work. Step 2: Add some language saying this is totally not just a firewall. Step 3: Claim a firewall. With any luck, the Patent Office will just wave you through.
To be fair, the ’918 patent suggests a firewall system that is not “user configurable.” The idea is that unsophisticated home users might misconfigure their firewalls so it is better to give them a system they cannot mess up. Just like a real firewall, only dumber! The patent also hedges its bets by claiming a system that is “substantially free from user adjustment,” whatever that means. Even if that was a new idea in 2000, this is not actually a technological improvement. It’s kind of like putting a padlock on the front hood of a car and then saying you’ve invented a new kind of car.
The ’918 patent spent its entire life in well-deserved obscurity. Indeed, the original inventor chose to let the patent expire in September 2012 by not paying the maintenance fee. This is unsurprising. Why waste money keeping a terrible patent alive? Usually, that is where the story would end. Unfortunately, even an expired garbage patent can be useful in the hands of a patent troll.
In January of 2015, a newly-formed company called Wetro Lan, LLC, purchased the ’918 patent. Shortly after that, it began filing dozens of lawsuits in the Eastern District of Texas against companies that provide, you guessed it, firewall technology. The troll can do this because damages for patent infringement go back six years. So, technically, it can still demand damages for alleged infringement that took place from mid-2009 until the patent expired in September 2012 (though the defendants might have a good laches defense). Wetro Lan has sued just about everyone who sells a product relating to network security, from Avaya to ZyXEL.
To take one suit as an example, Wetro Lan has sued Hacom, LLC, a small company based in Santa Ana, California, that provides embedded hardware, software, and consulting for implementation of open-source applications. In its complaint, Wetro Lan says that Hacom’s Phoenix IT-100 Appliance and its other routers directly infringe the ‘918 patent. But Hacom doesn’t sell anything remotely like the dumb, non-configurable, firewall discussed in the ’918 patent. They sell advanced products which enable users to configure settings through a web-based interface or at the command line. In fact, since Hacom’s products incorporate free software (free as in freedom), they are configurable down to the source code level.
There’s no way that Hacom’s products infringe a patent that, even if it were valid, would cover only the dumbest of firewalls. But if Wetro Lan is like most trolls, that’s not the game here. The likely point of this litigation is to extract a nuisance settlement. We have significant doubts that Wetro Lan would ever litigate one of its cases on the merits, and win.
The attorneys behind the Wetro Lan campaign are the same lawyers who sued our client in the Garfum v. Reflections by Ruth case. We desperately need legislative reform to stop more abusive litigation from these trolls. Such reform should include fee shifting, heightened pleading requirements, and venue reform to stop shell company trolls dragging innovators to the Eastern District of Texas. Without help from Congress, trolls will keep shaking down small companies like Hacom.Related Issues: PatentsPatent TrollsInnovation
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EFF has long condemned the Vietnamese government's crackdown on bloggers, including the imprisonment of high-profile blogger and activist Le Quoc Quan. Our support for freedom of expression in Vietnam has even earned us the attention of the Vietnamese government, which attempted to compromise our employees' computers by sending them links to malware. We are pleased to anticipate Quan's imminent release from prison on June 27, though we are sad to note that Quan owes his release not to a change of heart on the part of the Vietnamese government, but the fact that he has served the full term of his 30-month prison sentence related to politically-motivated charges of tax evasion.
The Vietnamese government has a long history of persecuting Quan for his human rights work. In 2007, after representing numerous victims of human rights violations, he was disbarred from practicing as a lawyer on suspicion of engaging in “activities to overthrow the regime.” He has been arrested several times for continuing his human rights work. Following an attack by unknown assailants in August 2012, he was hospitalized and the attack was never investigated by the police. On December 27, 2012, Quan was arbitrarily arrested and detained while taking his daughter to school.
In 2013, the United Nations Working Group on Arbitrary Detention condemned Quan’s detention as violating his right to freedom of expression and his right to a fair trial. It found that Quan had been targeted for his work as an activist and blogger and called for his immediate release or for the charges against him to be determined by an independent and impartial tribunal in proceedings conducted in strict compliance with the provisions of the ICCPR. It found that he had been held incommunicado, refused access to his lawyer, and denied pre-trial release in violation of ICCPR fair trial rights. It also recommended that Viet Nam pay damages to Quan for his arbitrary detention. All of these recommendations were ignored by the Vietnamese government. In February 2014, Quan launched a hunger strike to protest the refusal by prison authorities to provide him with access to legal counsel, access to legal and religious books, and access to a priest for spiritual guidance ahead of his appeal trial. Weeks later, the Court of Appeal in Hanoi upheld Quan’s conviction.
EFF joins with a coalition of NGO's including Amnesty International, English PEN, and Frontline Defenders, urging the Vietnamese government to respect and protect Quan's rights in the wake of his release. Specifically, we call on the government to refrain from any further persecution or harassment and/or unlawful arrest, reinstate his license to work as a lawyer and undo his disbarment, and grant him reparations for the arbitrary detention he has suffered. The full text of the letter is available in the PDF below.Files: 20150624_ngo_letter_le_quoc_quan_released.pdfRelated Issues: Free SpeechInternational
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Trial Starts Tuesday for Diego Gomez, Colombian Student Facing Prison Time for Sharing a Paper Online
Colombian student Diego Gomez uploaded an academic paper to document-service Scribd a few years ago to share with his graduate school peers who, like him, studied biodiversity and amphibious animals.
When the author of the paper later found out about this, he decided to press criminal charges against Gomez last year. Due to Colombia's heavy-handed copyright laws (which are called rights of the author, or derecho de autor in Spanish), he could go to prison for up to eight years as well as face crippling monetary fines.
We first wrote about this case about a year ago, and now, following a series of delays, Gomez begins his trial this coming Tuesday, June 30.
Gomez wrote about his upcoming trial on Colombian digital rights organization, Fundación Karisma's, website:
[Last year] I wanted to bring attention upon the case I was facing. A year has passed and because of your support, there are more of us who think that sharing can’t be considered a crime in Colombia, nor anywhere else in the world. In this time, the support received from different people and organizations has opened the debate about how the lack of balance in copyright laws may affect anybody, and thus is a matter that concerns everybody.
Fundación Karisma is continuing to support Gomez in his case to fight against these excessive criminal charges. The organization says that he has good standing for a strong legal defense for two reasons. First, there was no malicious intent behind his sharing the paper online. Second, there was no actual harm to the author's economic interests as Gomez made no profit off of the paper.1 Under Colombian criminal law, the court must weigh both of these factors, and it would take a significant misrepresentation of facts to paint Gomez as a criminal who posted the paper online for private profit.
What remains disturbing is that Colombia has such extreme copyright laws in the first place—which directly resulted from the country's trade agreement with the United States. The government reformed its criminal laws in 2006, in order to fulfill the trade deal's restrictive copyright standards. It expanded criminal penalties for copyright infringement as it increased possible prison sentences and monetary fines.
Moreover, Colombia does not have a flexible fair use system like in the United States. It has a closed list of exceptions and limitations to the rights of authors. This list was issued more than 20 years ago and are so narrowly tailored that they don't account for all kinds of new digital tools and content uses. Instead of obligating Colombia to enact more safeguards for users, students, and innovators by including fair use in the trade agreement, the United States instead forced its trading partner to enact even harsher criminal penalties.
This is the same problem we're confronting with the Trans-Pacific Partnership (TPP). The U.S. is continuing to negotiate deals where they are fighting for excessive criminal provisions that uphold the interests of Big Content at the expense of everyone else, by failing to encourage its trading partners to adopt crucial public safeguards like fair use.
Gomez's case is one that demonstrates the terrible costs of secretive copyright policy laundering. He posted the paper online because he was excited that he found it, because he wanted to share that knowledge with others who shared his passion. Copyright should not turn students like Gomez into criminals for reveling in their quest for knowledge nor for helping others to do the same. We will be monitoring the case closely, as we continue to call on the Colombian government to drop all charges against him. Let's
If you haven't yet already, sign the global declaration of support for open access which has been signed by over 10,000 individuals.
Are you in the United States? Then send a message to your lawmakers to secure open access to taxpayer-funded research and support the FASTR bill.
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UPDATE: June 29, 2015
According to Iranian news sources, the Supreme Court reviewed Soheil Arabi's death sentence and decided to cancel it. While Arabi remains in prison, his successful challenge of the death penalty is cause for celebration.
Iran’s President Hassan Rouhani and a number of members of his cabinet, including foreign minister Javad Zarif and oil minister Bijan Zanganeh, are well-known for using popular social media networks—like Facebook—despite bans on their use in Iran. The moderate positions of many members of Rouhani’s administration have led to speculation over the past few years that the ban on many social media platforms may eventually be lifted.
Yet as Hassan Rouhani approaches the second anniversary of his election to the presidency on August 4, the promise of future reform remains unfulfilled.
Iran’s recent treatment of average citizens who use social media suggests an alternative vision. In February, twelve Iranian Facebook users were arrested on charges of “spreading corruption, and [carrying out a] mission to change family lifestyles." Eight more Facebook users were arrested last year on a variety of charges, including blasphemy, propaganda against the ruling system, and insulting the country’s supreme leader, and given sentences of between seven and 20 years in prison.
This crackdown on social media use over the past several years has been accompanied by some experiments in more targeted censorship online. Iran has begun testing methods of “intelligent” filtering of specific content on Instagram, which would allow broad use of the platform while filtering the pages and accounts deemed undesirable by the Iranian Revolutionary Guard. Such strategies would lead, in theory, to wider access to some services. It would also provide the regime with a potential mechanism to monitor Iranians' behavior on those platforms. Iran could roll out this program to include other social media platforms—though as noted by researchers Frederic Jacobs and Mahsa Alimardani, such filters rely on platforms’ lack of transport encryption and will not work on any services that protect their users' communications with HTTPS.
But even if blanket bans are relaxed in favor of more fine-grained blocking, a slightly more open Iranian network is of little benefit when Iranian net users continue to receive arbitrary and draconian punishments for expressing themselves online. Here are just few of the bloggers, technologists, and journalists in Iran whose cases remain deeply troubling, even after two years of a reformist presidency:
- Mehdi Alizadeh Fakhrabadi, a satirical blogger, was arrested on his wedding day in 2011 and condemned to nine years imprisonment, two years in exile, seven years deprivation of social rights, and a fine of almost US$4000 for “immorality,” offending the Supreme Leader, and several other charges. After receiving this already-severe sentence, a judge sentenced him to death in November 2013, labeling him an “enemy of God on earth.” Fakhrabadi successfully challenged this sentence, but it nonetheless took an emotional toll on his family, leading both his parents to be hospitalized for severe stress.
- Another blogger, Soheil Arabi, was sentenced to death in 2014 for “insulting the prophet of Islam” on Facebook. He similarly plans to appeal the decision, though at the moment his case has not been heard.
- Iranian cartoonist Atena Faraghdani was sentenced to 12.5 years in prison for posting drawings and content critical of the government to her Facebook page—a charge that exceeds the maximum sentence allowed under Article 134 of the Islamic Penal Code. She also plans to appeal the sentence, but the outcome remains unclear.
- Children’s rights and civil activist Atena Daimi was sentenced to 14 years in prison on charges based on posts she wrote on Facebook and information found on her cell phone. She was convicted of “assembly and collusion and propaganda against the state,” “insulting the Supreme Leader and the sacred,” and “concealing crime evidence.”
- Open source software programmer Saeed Malekhpour, website administrator Ahmad Reza Hashempour, and IT student Vahid Asghari were all arrested in 2008. Like the others, both Malekhpour and Asghari were given death sentences that were reversed on appeal, and all of them have survived deplorable conditions, including torture, while in prison.
The voices of these netizens have largely remained unheard since their arrests. There is clearly a broad range of views within the Iranian state about how to respond to the Internet. Rouhani's administration may still be on the reformist side of that spectrum, and still has two more years to make positive changes. But any reform that unblocks Iran's Internet also needs to defend the free speech rights of those speaking online—including the rights of those already imprisoned for their online expression.
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Great news for open data advocates in California: Attorney General Kamala Harris' office has reversed a recent policy decision that would have locked down data collected by California Department of Justice (CADOJ).
Back in May, we wrote about how the CADOJ had denied our request for machine-readable, alternative versions of the California Electronic Interceptions Report, an enormous dataset detailing the costs and effectiveness of wiretaps across the state. The version exclusively available online was an unwieldy PDF that made it difficult to breakdown and analyze. But a CADOJ lawyer explained that, under new security protocols, the office would only provide copies in a "locked PDF" format in order to preserve the "integrity of the data." With this new policy, the office was essentially slapping digital rights management (DRM) on public records.
One journalist who read our post pointed out that it would be relatively easy to bypass the lock through software freely available on the Internet. While that is certainly true, we were a little concerned about the potential legal ramifications. The attorney general's website, where the California Electronic Interceptions Report is published each year, contains this language in its conditions of use:
Unauthorized attempts to modify any information stored on this system, to defeat or circumvent security features, or to utilize this system for other than its intended purposes are prohibited and may result in criminal prosecution.
While we believe there might not be much legal basis to support such a prosecution (after all, when you download the document, it is no longer stored on their system), we know all too well that overzealous prosecutors have often stretched the interpretation of hacking laws.
A few days after our post went live, we were happy to receive an email from the attorney general's office containing an unlocked version of the report [DOC] with a letter explaining that it was all an internal "misunderstanding." Although we've sought further explanations for a month now, CADOJ representatives have provided only vague answers. However, since the unlocked document is titled "ADA compliant," we can only assume that upon further review the office realized that locking down PDFs could have serious ramifications not only under the California Public Records Act (CPRA), but the federal Americans with Disabilities Act and related California laws.
This is a small but important victory, since the attorney general currently writes CPRA guidelines for the rest of the state. That could change soon: we're closely watching state-level legislation such as S.B. 573 that would create statewide rules for open data, including the creation of a formal Chief Data Officer position that would write formal open data guidelines in consultation with the attorney general.
If we've learned anything from this debacle, it's that the California Attorney General shouldn't be the state's sole authority on transparency.Files: annual-rpt-legislature-2014_ada_compliant.docx
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The best legal minds in the Bay Area gathered to participate in EFF's 8th Annual Cyberlaw Trivia Night last Thursday. Over 120 lawyers and friends from 20 technology law firms and Internet companies attended, making this our largest trivia night to date. EFF's staff joined forces to pull trivial details from the rich canon of privacy, free speech, and intellectual property law, creating seven rounds about privacy and speech, the NSA, fair use in music, and more.
Competition was especially fierce this year as several teams traded the lead back and forth throughout the evening. Our judges discovered that very few cyberlawyers were good at identifying NBA team owners or presidential candidates, though those that were good were very good. A surprising number of teams could properly spell "Wassenaar." And a mirthful contestant ended the evening with a legendarily low score of zero in order to treat our judges to only wrong and humorous answers, like "subpoena blooper" and "can't answer in mixed company."
Please join us in congratulating this year's trivia masterminds:1st Place: Durie Tangri 2nd Place: Keker and Van Nest LLP 3nd Place: Quantum Squirrel (Lila Bailey, Emily Berger, Cathy Gellis, Marcia Hofmann, Natalie Nicol, Derek Slater, Colette Vogele, and Ridder, Costa, and Johnstone LLP)
EFF hosts the Cyberlaw Trivia Night to gather our friends in the legal community who help protect online freedom in the courts. Among the many firms that continue to dedicate their time, talent, and resources to the cause, we would especially like to thank Durie Tangri and Ridder, Costa, and Johnstone LLP for sponsoring this year’s Bay Area event.
If you're interested in attending or sponsoring an upcoming Cyberlaw Trivia Night event, please email email@example.com for more information.
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San Francisco - Online news publisher Respublika has asked a federal judge in New York to clarify that officials in Kazakhstan can’t use a U.S. court order in a battle over leaked emails to censor news stories that are critical of the Kazakhstan government. The Electronic Frontier Foundation (EFF) is representing Respublika, a longtime target of Kazakhstan intimidation and persecution because of its investigative reporting on President Nursultan Nazarbayev’s regime.
“An American court order is being misused to silence worldwide discussion and debate over a foreign government’s actions,” said EFF Civil Liberties Director David Greene. “For years, Kazakhstan has tried to shut down Respublika and harassed its founders, and we’re asking the judge to put a stop to Kazakhstan’s use of the court’s ruling as another tool in this censorship campaign.”
The case began in March, when Kazakhstan sued dozens of unnamed individuals in a New York district court for allegedly breaking into government computers and stealing thousands of messages sent from Gmail accounts. The judge in the case issued a preliminary injunction, forbidding these unnamed individuals from disseminating, using, or viewing the material.
Respublika, like many news outlets around the world, reported on the emails after others had posted them publicly. But Kazakhstan government attorneys have since sent multiple letters to the newspaper’s web host, demanding the removal of dozens of articles. Earlier this month, Kazakhstan went further, claiming that the court order required that Respublika’s entire site be disabled. The government also subpoenaed Facebook as well as the newspaper’s web host and domain registrar to obtain personal identifying information about the authors and readers of Respublika’s articles. To date, 47 articles have been removed and are no longer available to readers in the United States, Kazakhstan, and around the world.
This abuse and misuse of the court’s order is just the latest in Kazakhstan’s decade-long persecution of Respublika and those associated with it. Respublika has been driven out of Kazakhstan and subjected to an almost constant stream of coordinated DDoS attacks, and its founders have been subject to extreme harassment and intimidation.
Kazakstan is one of two countries still in the running to host the 2022 Winter Olympics. Earlier this week, the New York Times reported on how concerns about free expression and human rights might affect the country’s bid.
“Kazakhstan came to a U.S. court—where the First Amendment protects the publication of material even if a source obtained that material illegally—but it’s flouting our law. Kazakhstan officials are unilaterally deciding to whom the order applies and what the consequences are,” said Jamie Lee Williams, EFF Frank Stanton Legal Fellow. “The Respublika journalists simply did what they are supposed to do: report on information and events that affect people’s lives. Kazakhstan must not be allowed to censor their speech in this way.”
For the full letter to the judge:
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Americans won big on net neutrality in February, when the FCC voted to adopt new rules that would allow it to rein in the abusive and discriminatory practices of big telecommunications operators, such as blocking or throttling of Internet data, and charging content providers for access to an Internet “fast lane.”
Four months later, while the dust hasn't quite settled here in the United States (due to court challenges and a defunding bill), across the Atlantic the fight is still hotting up. The European Commission (the unelected executive body of the European Union) kicked things off in 2013 with a proposal to cover net neutrality, along with other telecommunications topics such as mobile phone roaming charges, in a new Telecommunications Single Market Regulation.
The European Parliament (which Europeans directly elect) responded by laying down its tough demands on net neutrality back in April 2014, in a document that improved on the Commission's weak proposal [PDF]. The Council of the European Union (a smaller body comprised of European ministers), responded to the Parliament's proposal with its own proposal [PDF] in February of this year, which rejected many of the Parliament's amendments and hedged on some key priniciples.
One of the key areas of difference between the Council and Parliament proposals is that the Council wants to allow net neutrality rules to be suspended for specialized services, such as e-health, even if the provision of these specialized services materially impairs the speed and reliability of general, non-specialized Internet access. The Parliament considers this a loophole, and would like to see specialized services confined to separate communications channels that don't interfere at all with regular Internet access services.
The Council text also includes irrelevant provisions that carve out space from the net neutrality rules to allow for content blocking laws—child pornography is called out as an example—as well as parental controls and spam filters controlled by the end user. As neither of these are net neutrality issues and deserve to be debated separately, the European Parliament has rightly resisted their inclusion as a digression from the core issues at hand.
All three bodies—the Commission, the Parliament and the Council—need to agree on a common position before the final text goes to the vote and becomes a European Regulation. This takes place in a series of “trialogues”, of which three have taken place so far, the most recent on June 2. With the delivery by the Parliament of a second revised compromise proposal last week, the stage is set for a fourth and final trialogue, probably next week. (For more of the procedural nitty-gritty, you can consult the infographic below from our friends at EDRI.)
A complicating factor in this negotiation is that the Regulation attempts to cover both roaming charges and net neutrality in the same instrument. The extortionate mobile phone roaming charges that Europeans pay are universally disliked, and with good reason. Therefore if the Parliament stands its ground on net neutrality and the entire regulation is held up as a result, it will likely take political heat for blocking needed action on these roaming charges. On the other hand, for as long as the Parliament can take that heat, the linkage of the two issues puts it in a strong position to hold out for the strong rules that it wants, and that European users support.
A campaign website by European digital rights groups at https://www.savetheinternet.eu allows Europeans to contact Members of the European Parliament (MEPs) by phone, e-mail or Twitter for free, to encourage them to stand firm on net neutrality, and insist on a strong regulation rather than a loophole-ridden compromise.Related Issues: Net Neutrality
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The U.S. Senate has paved the way for the passage of Fast Track legislation, to give the White House and the U.S. Trade Representative almost unilateral power to negotiate and finalize secret anti-user trade deals like the Trans-Pacific Partnership (TPP). Yesterday a “cloture” vote was held—this was a vote to end debate on Fast Track and break any possibility for a filibuster, and it passed by the minimum votes needed—60 to 37. Today, the Senate voted to pass the legislation itself. TPP proponents only needed 51 votes, a simple majority, to actually pass the bill, and they got it in a 60 to 38 vote. Following months and months of campaigning, Congress has ultimately caved to corporate demands to hand away its own constitutional mandate over trade, and the President is expected to the sign the bill into law as early as tonight or later this week.
Despite this defeat, our fight against undemocratic, corporate-driven trade agreements should not be counted as a failure.
This campaign has reaffirmed the power of Internet users to make lawmakers more accountable to the people. We effectively threw a wrench into the mechanics of Washington, proven yesterday by TPP supporters' razor thin victory in the Senate cloture vote, not to mention the series of stops and starts that delayed the passage of this bill for so many months. We put the White House on the defensive like never before, as President Obama scrambled to win enough support for his trade agenda to pass the bill. All of our calls, emails, tweets, and visits to our lawmakers made a big difference.
Even more stunning is how we have managed to delay the official TPP talks. During the recent kerfuffle over Fast Track, negotiations over TPP have effectively been stalled. The United States' trading partners were not willing to continue talks and concede to worse digital regulations as long as it seemed that the U.S. Congress had the opportunity to second-guess the agreed language later. Now that Fast Track will be passed, TPP negotiations will likely resume in the coming weeks.
That means that we too must keep on fighting on. We'll be laser-focused on building more momentum to defeat the TPP, as well as the Trans-Atlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TISA), which also contain harmful digital regulations. There's one silver lining to the Fast Track legislation, which is that it will force the White House to release the final trade texts for 60 days before Congress votes to ratify the agreements. Those two months will be critical to convince our lawmakers not to ratify the TPP. At that point, we'll have the official text to analyze and dissect, so we can better understand how the agreement will affect the Internet and demand that Congress reject the deal based on specific threats to users and innovators.
When the veil of secrecy is finally lifted, the President, the U.S. Trade Representative, and all other TPP proponents will no longer have anything to hide behind as they make sweeping claims about the deal's benefit to the "free and open Internet." We will then be able to show that international agreements negotiated in secret only lead to rotten digital policies.Related Issues: Fair Use and Intellectual Property: Defending the BalanceInternationalTrade Agreements and Digital RightsTrans-Pacific Partnership Agreement
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TG Storytime is a free community website for transgender authors, operated by Joe Six-Pack, himself a transgender author and publisher. If you look up the registration details of Joe's domain tgstorytime.com using the WHOIS application, you get this result:
Registrant Name: Registration Private
Registrant Organization: Domains By Proxy, LLC
Registrant Street: DomainsByProxy.com
Registrant Street: 14747 N Northsight Blvd Suite 111, PMB 309
Registrant City: Scottsdale
Registrant State/Province: Arizona
Registrant Postal Code: 85260
Registrant Country: United States
Registrant Phone: +1.4806242599
Of course, these aren't Joe's actual contact details, since there are many reasons why Joe may not want those private details to be made freely available. Instead, Joe uses a proxy registration service that fulfils the rules of ICANN (the global domain name authority) that contact information be available for all domains, while keeping his actual details private. If anyone really needs to know Joe's physical address or telephone number, they can apply for a court order or subpoena requiring his privacy service to disclose them.
At least, that is how it works now. But under a proposal [PDF] currently being considered by ICANN, that may all change. It is proposed that domains used for commercial purposes might no longer be eligible to use proxy registration services. Is TG Storytime used for commercial purposes? Well, Joe currently covers the site's expenses, but also notes that “ads and donations may be used in the future to cover costs”, and sites that run ads have been judged as commercial in domain name disputes. If a similar broad definition is adopted by ICANN, Joe might well be forced to give up his privacy if he begins to run ads on his site.
Joe is far from alone. Thousands of responses have already been received by ICANN on this topic from others who are concerned about how the proposed policy change will affect them. Amongst them is a message from one user who wrote:
I'm a single female and live alone. I don't want my personal address available to every pervert/troll/angered citizen that wants it after visiting my small website. Seemingly innocent topics, like vegan cooking, can spark outrage in certain individuals.
This change is being pushed by US entertainment companies, who told Congress in March that privacy for domain registration should be allowed only in “limited circumstances.” These and other companies want new tools to discover the identities of website owners whom they want to accuse of copyright and trademark infringement, preferably without a court order. They don't need a new mechanism for this—subpoenas for discovery of the identities of website owners do regularly issue [PDF]. The limited value of this change is manifestly outweighed by the risks to website owners who will suffer a higher risk of harassment, intimidation and identity theft. The ability to speak anonymously protects people with unpopular or marginalized opinions, allowing them to speak and be heard without fear of harm. It also protects whistleblowers who expose crime, waste, and corruption. That's why EFF opposes the new proposal to roll back anonymity.
If you agree, there are many ways in which you can let ICANN know your views. Between now and July 7th, you can send your comments by email to firstname.lastname@example.org. You can also support a petition that a coalition of companies and concerned individuals have established at savedomainprivacy.org, or use the phone and email tool of another coalition at respectourprivacy.com, both of which EFF supports.Related Issues: AnonymityInternational
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Since our report last week on Australia's Internet censorship bill, the bill did indeed pass the Senate yesterday, and will become the Copyright Amendment (Online Infringement) Act 2015. The new law provides an accelerated process for rightsholders to obtain court orders for ISPs to block sites that have the primary purpose of infringing copyright, or “facilitating” its infringement—a term that the law does not define.
During debate the government rejected a series of safeguards that the Australian Greens attempted to introduce to mitigate the risk of abuse of the new law. Besides tightening the definitions, these amendments would have provided affected parties with a right of appeal, and explicitly protected providers of Virtual Private Networks (VPNs), who now may face claims that their services are designed to facilitate copyright infringement.
What were some of the arguments in favor of the censorship law that came up in debate? They range from less than compelling, to flat-out wrong. Paul Fletcher, Parliamentary Secretary to the Minister for Communications, stated that "provisions of the kind contained in the bill have been used in other jurisdictions, including the UK, Ireland and Singapore, and in these jurisdictions an injunction is often ordered without any opposition from the internet service provider concerned."
That's not quite true—for example, there has not been a single concluded case yet in Singapore (a country that also bans unlicensed public assemblies, and chewing gum). We can also add a couple of other entries to Fletcher's list—Russia also recently introduced copyright censorship laws, shortly after its laws banning LGBT “propaganda”, and Turkey has had a similar provision in its copyright law since 2004, which it exercises regularly, besides also blocking social media sites such as Twitter and Facebook. Australia can now be proud to join that illustrious club.
Giving a hint of the future direction of Web blocking in Australia, Government Senator Nola Marino, made the following ominous remarks in the course of a rightsholder-inspired “won't somebody think of the children” spiel:
There are 3.4 billion people plus in the world using the Internet. At least 1.3 billion people use Facebook. There are tens of thousands of websites, many with absolutely no encryption and no protection of any sort. That is the environment people are in. The 3.4 billion people using the Internet often have no idea what they are exposing themselves or their systems to when they engage in this space.
Imagine that—tens of thousands of websites! This makes it all the more impressive that the Australian Securities and Investments Commission (ASIC) accidentally blocked up to a quarter of a million of them at once when applying another web-blocking law.
Even more worrying, Senator David Coleman foreshadowed the movement of web blocking outside of the legal regime established by the new censorship law, and into the darkness of informal backroom arrangements:
I concur with others in this debate in saying that I think the way that this will play out is that in the early days you will probably see a number of court actions initiated. You will see some court orders issued for take-down notices for infringing material. But then what will happen, logically, over time, is that ISPs and content providers will work together in a sensible way. No doubt they will circumvent much of that court formality and work together in a constructive fashion to take down offending material, and that is as it should be.
On the other hand, opposition Senator Ed Husic (who spoke against the bill, notwithstanding that his party voted for it anyway) pointed out the obvious:
You have not once heard a rights holder say that if they get major gains in reducing piracy this will flow through to better prices and better accessible content. I dare them to actually say it. They will not do it. They will not respond to consumers. They will spend their time lobbying for legal responses to market failure, and the legislation reflects a government attitude and an attitude of extreme rights holder attitudes that will not respect that consumers, when they are given choice with content, will pay for content and will pay for better content.
Amongst the minority of Senators who not only spoke against the law, but also voted against it, was David Leyonhjelm who labelled it “bad law” and said:
Website blocking is a drastic remedy and a blunt tool. The bill has the potential to be used against a range of legitimate sites and has inadequate protections for non-party interests. Meanwhile, placing increased emphasis on enforcement without addressing the other overdue reforms of the Copyright Act risks a ridiculously unbalanced copyright regime.
Similar criticisms were made by Senator Scott Ludlam, who did at least manage to successfully introduce one amendment requiring the government to finally respond to the Australian Law Reform Committee's (ALRC) report on Copyright and the Digital Economy, which had recommended that Australia adopt a fair use exception in its copyright law. The government has repeatedly brushed off this recommendation while pursing its own copyright enforcement agenda, but will now at least be required to provide the ALRC with the courtesy of a formal response by September 17—almost two years after the report was issued.
After bombarding Australians with one heavy-handed enforcement measure after another over the past twelve months—including mandatory data retention and a co-regulatory graduated response code (which is pending registration), the very least that Australian users deserve in return is for fair use to be given a fair hearing.
Correction: the title MP was incorrectly used in an earlier version of this post when referring to Senators.Related Issues: SOPA/PIPA: Internet Blacklist LegislationInternational
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Earlier this year, together with Durie Tangri, EFF stepped in to defend a photo hobbyist facing a patent suit. The patent owner, Garfum.com Corporation, claimed to have invented competitions on social networks where users vote for the winner. Garfum recently abandoned its lawsuit. Yesterday, we filed a motion asking the court to declare the case ‘exceptional’ and award our client attorneys’ fees.
Back in February, we filed a motion to dismiss Garfum’s claims, arguing that its patent was invalid because it claimed an abstract idea implemented on conventional computers and networks. Garfum responded with an opposition brief arguing that its so-called invention could not be implemented with “conventional database” technology. This supremely silly argument (databases have been used to count votes for decades), was explicitly contradicted by Garfum’s own patent. The patent itself states, twice, that “conventional database packages” could be used.
Little wonder then, that after the court scheduled a hearing date for our motion, Garfum quickly dismissed its claims rather than defend its patent before a judge. The idea that you could patent an abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play.
We hope that the court awards attorneys’ fees. Fee awards will encourage other defendants to stand up to weak patent suits instead of paying nuisance settlements. As many others have observed, this is one of the key ways that courts can deter abusive patent litigation.Related Issues: PatentsPatent TrollsInnovationRelated Cases: Garfum v. Reflections By Ruth
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Digital liberties groups across the country have both celebrated and criticized the recent passage of the USA Freedom Act. Here at EFF, we did a little bit of both. While USA Freedom will undoubtedly impact the court cases challenging the NSA’s mass surveillance, the full scope of this law and how the courts and even the government will interpret it remains unclear.
However, we do know that the government believes it can renew its daily bulk collection of telephone records during the 180-day “transition period” in which USA Freedom’s amendments to the phone records authority goes into effect. This is particularly troubling given the Second Circuit’s ruling in ACLU v. Clapper that this sort of dragnet surveillance is illegal.
NSA Cases: Smith, First Unitarian, Jewel, Klayman and Clapper
EFF along with the ACLU had the opportunity to discuss the government’s contentions in Smith v. Obama. This past December, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on the Smith appeal. After the passage of USA Freedom, the Ninth Circuit quickly requested a briefing by the parties on the impact of USA Freedom on the telephone records program at issue in Smith. These briefs were submitted on Friday, June 19.
Meanwhile, the United States District Court for the Northern District of California has yet to request briefing on USA Freedom in EFF’s two other cases challenging the bulk collection of telephone records— First Unitarian v. NSA and Jewel v. NSA
First Unitarian v. NSA solely targets the NSA’s bulk collection of telephone records. In First Unitarian, EFF is pursuing First Amendment, Fourth Amendment, and statutory challenges to this program, so the passage of USA Freedom will have an impact on our claims. While the court denied EFF’s most recent request for a hearing, EFF will continue to pursue these claims to ensure that the court fully considers the issues raised by the NSA’s phone records program.
Jewel v. NSA is EFF’s longest-standing case against the NSA’s dragnet surveillance. Jewel challenges the NSA’s bulk collection of telephony metadata, the collection of Internet metadata, and Internet content surveillance. USA Freedom addresses the bulk collection of telephony metadata, but it notably neglects the collection of Internet communications under Section 702 of the FISA Amendment Act. The court ruled for the government on EFF’s Fourth Amendment challenge to the collection of Internet content (and EFF is appealing this decision in the Ninth Circuit), but the court has yet to rule on the constitutionality or permissibility of the mass surveillance of telephone records. In addition to pursuing our appeal in the Ninth Circuit, EFF will continue to push forward on our other claims in the district court.
Expect similar issues to arise in other NSA spying cases that EFF has supported as an amicus— Klayman v. Obama and ACLU v. Clapper. Currently, Klayman is under review following oral argument in the D.C. Circuit, which is considering the district court’s ruling that the bulk collection of telephone records is likely unconstitutional. Klayman recently filed a supplemental brief stressing the importance of the appeal continuing despite USA Freedom given the NSA’s “pattern of illegal and unconstitutional acts for an extended period of time.” Meanwhile, the Second Circuit’s historic ruling in Clapper not only held the bulk collection of telephone records exceeded congressional authorization, it also directly raised the possibility of Congress addressing the NSA’s reliance on Section 215 of the Patriot Act for its telephone records program. Congress has since spoken with the passage of USA Freedom, so the extent of the Second Circuit’s deference to Congress relating to the 180-day transition period will be a significant issue as it considers supplemental briefing from the parties on whether the ACLU’s claim is moot.
National Security Letters
In addition to modifying the requirements for the collection of call detail records and other tangible things, USA Freedom also amends the statutes governing national security letters (NSLs). In particular, the NSL amendments attempt to address the constitutional concerns raised in our victory in In re NSL by amending the process by which NSL recipients can challenge non-disclosure orders, but they don’t to go far enough. These amendments will certainly be relevant to our work on the appeal of In re NSL, which was argued in the Ninth Circuit in October, and as amicus in Twitter v. Holder. In fact, the court in the Twitter suit has requested additional briefing by the parties on how USA Freedom would impact the case.
While the short- and long-term implications of USA Freedom may not be as clear as we would like, there is hope. In First Unitarian, Smith, and Jewel, EFF will continue to pursue our challenges to the government’s bulk collection of telephone records as well as our other claims before these courts. The Clapper decision certainly provides a great starting point. The next step will be a decision holding bulk collection to be unconstitutional under both the First and Fourth Amendments. Until then, EFF will continue our fight to ensure an end to mass surveillance.Related Issues: TransparencyRelated Cases: Smith v. ObamaNational Security Letters (NSLs)Klayman v. ObamaJewel v. NSAFirst Unitarian Church of Los Angeles v. NSAACLU v. Clapper
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It has now been just over a year since the Supreme Court issued its opinion in Alice v. CLS Bank. Since then, over 100 cases have looked at whether granted patents meet the standards set in Alice. The result has been overwhelmingly on the side of finding patents invalid. Alice has become a crucial tool for those fighting against overbroad patents on abstract ideas.
EFF, along with Public Knowledge, filed an amicus brief on Friday asking the Federal Circuit to apply Alice in the latest in a slew of cases on appeal after a district court invalidated a patent.
The case is McRO v. Bandai, or more appropriately, McRO v. anyone who animates faces, since McRO seems to have sued pretty much the entire animation industry. The patent owner lost in the district court, when Judge Wu, in a very thorough and thoughtful opinion, held that the patent was on nothing more than the abstract idea of “automated rules-based use of morph targets and delta sets for lip-synchronized three-dimensional animation.”
At first blush, that may seem like it’s not an abstract idea. But as we explain in our brief, the Supreme Court has long rejected patenting this type of innovation. Why? Because at most, what McRO is trying to patent is the idea of using mathematical rules about how our mouths move. Not only that, even if particular rules were in the claims (they’re not), that too would not be patentable. The Supreme Court long ago made clear that Pythagoras could not have patented the Pythagorean theorem just by saying that it could be used in surveying. Similarly, mathematically describing how our mouths may be a scientific breakthrough. But just like the Pythagorean theorem, it is not patentable.
The patent owner is supported on appeal by the BSA, a trade group made up of some of the biggest software companies in the country. Companies, for example like IBM, that sometimes engage in their own troll-like behavior. The BSA argued that McRO’s patent should not be invalidated, as doing otherwise takes the Alice decision too far.
But despite what the BSA claims, this case is not an over-application of Alice, and more importantly is not the death knell for the software industry. McRO’s patent is invalid under Alice and the case law that came before it. In addition, as we discuss in our brief, the software industry is simply not an industry that significantly relies on the patent incentive to innovate. So even if this case meant the end of all software patents (though it doesn’t), the software industry would continue to be just as innovative as before.
Certain patent owners are doing their best to limit the Supreme Court’s Alice decision. We hope the Federal Circuit rejects the BSA’s fear mongering and faithfully applies Alice to invalidate a patent that should never have been granted.Files: mcro_v_bandai_dist_ct_opinion.pdf mcro-v-bandai_-_pk_and_eff_amicus.pdf mcro-v-bandai_bsa_amicus.pdfRelated Issues: PatentsInnovation
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Supreme Court Strikes Down Warrantless Searches of Hotel Records, Reaffirms Fourth Amendment Facial Challenges
The Fourth Amendment is one of the most powerful protections against intrusions into individuals' private lives, and the Supreme Court’s decision this week in City of Los Angeles v. Patel is a reassuring sign that citizens’ ability to rebuff overzealous searches using the Fourth Amendment remains alive and well.
In Patel, the Supreme Court considered a Los Angeles city ordinance that allowed police to walk into a hotel, request a copy of the guest registry, and look through the names of everyone who had checked in—all without a warrant. Naranjibhai and Ramilaben Patel, two Los Angeles hotel owners, challenged the law as authorizing a regime of unconstitutional searches. After considering arguments from the city, the Patels, the Solicitor General, and amici including EFF, the Supreme Court struck down the law as an unconstitutional invasion on the rights of the hotel owners because “it penalizes them for declining to turn over their records without affording them any opportunity for pre-compliance review.”
Hotel searches don’t fall under the “pervasively regulated” exception to the warrant requirement
Under current Fourth Amendment doctrine, most searches require a warrant. If a law authorizes a warrantless search, that search is unreasonable (and therefore unconstitutional) unless it falls into one of a few narrow exceptions. One of those exceptions is for “highly regulated” businesses like alcohol distributors and gun sellers, where the Supreme Court has previously found that the operators have no expectation of privacy and therefore receive less Fourth Amendment protection.
The majority wrote that classifying hotels “as pervasively regulated would permit what has always been a narrow exception to swallow the rule” and refused to do so. Citing the fact that the Court had only found four such industries in the past 45 years, the majority wrote that “[s]imply listing” the industries—distributing alcohol, selling guns, mining, and running an automobile junkyard—effectively “refutes petitioner’s argument” that hotels belonged in the same group. Finding no other justification to allow the Los Angeles system of warrantless records searches, the Court emphasized the lack of “an opportunity to obtain precompliance review before a neutral decisionmaker” and affirmed the Ninth Circuit’s decision to rule in favor of the Patels.
Facial challenges to laws that violate the Fourth Amendment are permitted
Striking down the specific Los Angeles law at issue was important, but the majority also used Patel to answer a much broader question, one that EFF discussed in its amicus brief. When a law violates the Constitution, challengers have two options when they go to convince a court to strike it down. First, they can launch a “facial challenge” to the law as a whole, arguing that it will always be unconstitutional, regardless of how enforcement plays out in practice. Alternatively, challengers can wait and opt for an “as-applied challenge,” arguing that the law is unconstitutional as it relates to their specific situation.
In Patel, the city attempted to convince the Court not only that the Los Angeles law should stand but also that facial challenges on Fourth Amendment grounds should never be allowed. Based largely on some language from Sibron v. New York, a 1968 case where the Court referenced the “concrete factual context of the individual case,” the city took the extreme position that the every challenge to a law on Fourth Amendment grounds had to come with a concrete set of facts.
As EFF pointed out in its amicus brief, however, the Supreme Court has always allowed Fourth Amendment facial challenges. Not only that, but facial challenges have served to protect individual liberty in countless First Amendment, Due Process, and Equal Protection Clause cases as well. EFF argued that as-applied challenges are an inadequate substitute because they are both more expensive and less impactful than the option of launching a facial challenge and striking down a bad law in one fell swoop.
The Court adopted EFF’s position, writing that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.” This means that moving forward, individuals like the Patels can continue to identify laws that infringe on their constitutional rights and challenge them in court. It's also good news for EFF's cases about unconstitutional surveillance, since these often take the form of Fourth Amendment facial challenges.
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Printers aren’t all that expensive. Ink for the printers, on the other hand, can cost more than fine Champagne and tends to be far less delicious. Lexmark, in yet another attempt in a long line of schemes, is trying to use patent law to make sure it stays that way.
In a case called Lexmark v. Impression Products, Lexmark is trying to use patent law to prevent customers from lawfully getting cheaper ink. Lexmark argues that by slapping a “notice” on the side of a patented ink cartridge, they can limit consumers to using the cartridges only once under the threat of patent infringement.
EFF, together with Public Knowledge, the Open Source Hardware Association, the Digital Right to Repair Coalition, and Public Citizen filed an amicus brief at the Federal Circuit arguing that Lexmark should not be allowed to distort patent law in order to prevent people from lawfully reusing what they already own. Once Lexmark sells its cartridge, it should not be able to use patent law to further control the market.
The issue is one of “patent exhaustion.” This is the patent law version of “first sale,” the doctrine in copyright law that says that once a consumer buys a copy of a work, she owns it, and can do what she wants with that copy. Patent law is similar. Once a patent owner sells a product, it cannot later claim its use is infringing.
In our brief, we argue that patent law doesn’t allow Lexmark to control its products through a “single use” notice after making an authorized sale. We argue this is true whether the product was originally sold abroad or whether it was originally sold in the United States. Unfortunately, case law from the Federal Circuit holds the exact opposite. But we believe, as do many others, that more recent Supreme Court decisions have overruled the previous, anti-consumer Federal Circuit decisions.
This is not the first time Lexmark has tried to use intellectual property laws to unfairly harm consumers. In a case called Lexmark v. Static Control, the Sixth Circuit rejected Lexmark’s attempts to use copyright and the DMCA to control the reuse of its printer cartridges. As we argue in our brief, the Federal Circuit shouldn't allow Lexmark to do with patent law what has already been rejected in copyright law.
The Constitution grants Congress the power to enact copyright and patent laws in order to “promote the progress” of science and art. We hope the Federal Circuit confirms that patents are not granted to allow patent owners to control what a consumer decides to do with their lawfully purchased ink cartridge.Files: eff_amicus_-_lexmark_v_impression_prods.pdfRelated Issues: Defend Your Right to Repair!PatentsInnovation
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Today the High Court of the United Kingdom handed down an excellent decision—excellent because the result is so unreasonable, so out of touch with reality, and so divorced from the needs and expectations of ordinary users, that it provides a textbook illustration of the need for urgent reform of the outdated and unbalanced European Copyright Directive.
In a nutshell, the court struck down the UK government's decision to allow users to lawfully make copies of content that they have purchased for personal use, given the absence of a compulsory levy to compensate copyright owners for the “harm” that they suffer from such copying. The government's choices are now to remove the private copying exception—making personal copying illegal again, or to supply additional evidence that copyright owners suffer no or minimal “harm” from personal copying, or else to begin imposing a new tax on users to compensate the industry for that “harm”.
The notion that every use of copyright works by users (which for digital works, generally involves a technical act of copying) is a use that rightsholders must be compensated for, is not a notion with any historical foundation in copyright law. Copyright law is a limited monopoly right that is bestowed by statute, and therefore it can be limited or taken away by statute just as easily. Thus, the limitations and exceptions to copyright law are as much an integral part of it as the exclusive rights of copyright owners are.
However, in May 2001, with the adoption of European Union Copyright Directive (2001/29), what had been a well-settled principle of British copyright law was suddenly made subject to a new restriction: that no new copyright limitations and exceptions could be introduced without compensation to rightsholders, unless its introduction would cause them minimal or no harm.
Seizing on the opportunity to use this supranational directive to overturn a democratically-enacted law, music industry groups (the Musicians' Union, UK Music, and the British Academy of Songwriters, Composers and Authors) sued the UK government arguing that yes, by making a copy of content that you have purchased, in your own home and for your own use, you are indeed causing them to suffer harm.
In a 107-page judgment [PDF] that is long on economic theory and short on common sense, the High Court examined the industry's assertion that because content that can be copied has more value than content that can't—we agree with that part—the rightsholder ought to be able to capture that added value—a far more dubious claim, but one to which the unbalanced European Copyright Directive gives some credence.
The government's response was that the added value that consumers receive from being able to make personal copies is already being captured, because it is built in to the purchase price of the original works, resulting in no or minimal loss to rightsholders. The problem, as found by the court, was that the government hadn't actually done its homework to demonstrate that this was indeed the case.
Whilst accepting that the Copyright Directive does not require “that sellers must be able to extract the very last gram of value from the copyright,” the court found that the personal copying exception might have resulted in some loss of sales (for example, some hypothetical consumer might have refrained from buying an extra copy of their favorite CD for their car, in reliance on the new exception), and that the government had failed to present any evidence that these lost sales were zero or minimal.
This decision is so bad, that it isn't even wrong. Not because we think that the government did produce the economic evidence that the court was looking for, but because the fact the government should even be required to produce that sort of evidence before allowing users to make personal copies of purchased works shows how completely detached copyright law has become from the real world.
In the digital age, the ability for copyright works to be legally copied is not something that can be characterized in any sensible way as an additional value, over and above the value that those works possess in splendid, uncopiable isolation. For many digital works, it is impossible to make use of copyright works at all without making copies; perhaps many times over, and it is absolutely right and proper that the making of those copies ought to be permitted by the law, without relying on a levy or on a license from the copyright owner.
Demanding that each such lawfully-made copy be somehow carved into its own sliver of value, and ensuring that rightholders have been afforded the maximum opportunity to extract rents from that value, is nonsense on every level: it is administratively unworkable, acts as a barrier to fair use and innovation, and has no justifiable legal or moral basis as a matter of copyright policy.
Whilst we therefore think that the court got it wrong by buying into the industry's argument that it was entitled to share in the value of personal copying, the court is not alone in carrying the blame for this momentously bad precedent. As suggested above, the fault must also be shared by the inflexible and one-sided European Copyright Directive.
Neither can we fully absolve the rightsholders from blame; although a stupid law is an open invitation for anyone to take advantage of it, it still takes a special kind of mercenary greed to use it to strike down an exception that allows people to freely make personal copies of CDs, videos and personal photographs in the privacy of their own homes. (And let's not kid ourselves that the recording industry in the United States wouldn't pull the same stunt if they thought they could.)
Today's decision puts the very worst features of copyright law on full display, and to that extent is an excellent illustration of the need for change. It bolsters the argument that thousands of European citizens have made that the Copyright Directive must be urgently reviewed, though measures such as the introduction of a fair use-style exception. Unfortunately this week's refusal by the European Parliament's Legal Affairs Committee to recommend just such an exception as proposed by Member of Parliament (MEP) Julia Reda does not bode well for the success of the pending review.
But perhaps a stupid decision like this is just what is needed to turn the temperature up a notch, and place more British users on the offensive. After years of lobbying for a free personal copying exception, its loss at the hands of the music industry clearly outlines the incursions that unbalanced copyright law makes upon users' freedom to make reasonable, private (and public) uses of copyright works. It's high time to bring European copyright law back into line with reality.Related Issues: Fair Use and Intellectual Property: Defending the BalanceInternational
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EFF, CloudFlare Ask Federal Court Not To Force Internet Companies To Enforce Music Labels’ Trademarks
This month, CloudFlare and EFF pushed back against major music labels’ latest strategy to force Internet infrastructure companies like CloudFlare to become trademark and copyright enforcers, by challenging a broad court order that the labels obtained in secret. Unfortunately, the court denied CloudFlare’s challenge and ruled that the secretly-obtained order applied to CloudFlare. This decision, and the strategy that led to it, present a serious problem for Internet infrastructure companies of all sorts, and for Internet users, because they lay out a blueprint for quick, easy, potentially long-lasting censorship of expressive websites with little or no court review. The fight’s not over for CloudFlare, though. Yesterday, CloudFlare filed a motion with the federal court in Manhattan, asking Judge Alison J. Nathan to modify the order and put the responsibility of identifying infringing domain names back on the music labels.
We’ve reported recently about major entertainment companies’ quest to make websites disappear from the Internet at their say-so. The Internet blacklist bills SOPA and PIPA were part of that strategy, along with the Department of Homeland Security’s project of seizing websites based on unverified accusations of copyright infringement by entertainment companies. Entertainment distributors are also lobbying ICANN, the nonprofit organization that oversees the Internet’s domain name system, to gain the power to censor and de-anonymize Internet users without court review. (Fortunately, it looks like ICANN is pushing back)
The order that CloudFlare received in May is an example of another facet of the site-blocking strategy. It works like this: entertainment companies file a lawsuit in federal court against the (possibly anonymous) owners of a website they want to make disappear. The website owners typically don’t show up in court to defend themselves, so the court issues an order to the website to stop infringing some copyright or trademark. (Often this order is initially drafted by the entertainment companies.) The entertainment companies then send a copy of the order to service providers like domain name registrars, Web hosting providers, ISPs, and content delivery networks like CloudFlare, and demand that the service providers block the targeted website or domain name, as well as other websites and domains that the entertainment companies want gone.
This month’s case involved a website that called itself Grooveshark, and appeared to be a clone of the site by that name that shut down in April after settling a copyright lawsuit to the record labels. That settlement left the labels in control of Grooveshark’s trademarks, which they proceeded to use as a weapon against the copycat site. The labels applied to the U.S. District Court for the Southern District of New York for a secret order to shut down the site, which was then located at grooveshark.io. Judge Deborah A. Batts granted the order in secret. The order covered the site’s anonymous owners, and anyone “in active concert or participation” with them. The order also listed “domain name registrars . . . and Internet service providers” among those who have to comply with it. The labels sent a copy of the order to several companies, including CloudFlare.
When a federal court issues an order (called an injunction), court rules say it can apply to a party in the case or to anyone in “active concert or participation” with them. But the courts haven’t clarified what “active concert or participation” means in the Internet context. Communication over the Internet can involve dozens of service and infrastructure providers, from hosts to domain name registrars to ISPs, backbone providers, network exchanges, and CDN services. Under a broad reading, even an electric utility or a landlord that leases space for equipment could conceivably be in “active concert or participation” with a website.
CloudFlare decided to take a stand against the overbroad order, asking the court to clarify that the order did not apply to CloudFlare. As a CDN and reverse proxy service, CloudFlare makes websites faster and more secure, but can’t suspend a site’s domain name or render it unreachable. So even if making Internet intermediaries responsible for enforcing copyright and trademark laws was a good idea (it’s not), CloudFlare is not the right one to do it. And even if the mysterious owners of the “new Grooveshark” site are bad actors, CloudFlare wanted to protect its law-abiding customers by insisting on a correct and thorough court process before cutting off any customer.
Unfortunately, the court concluded that the initial order applied to CloudFlare. And even worse, the court said that CloudFlare has to block every user with a domain name that contains “grooveshark,” no matter who owns the site. That means that CloudFlare, or any Internet infrastructure company that gets served with a copy of the court order, would have to filter and ban sites called “groovesharknews,” “grooveshark-commentary,” or “grooveshark-sucks,” no matter who runs them or what they contain.
That’s a big deal. Laws like Section 512 of the Digital Millennium Copyright Act, Section 230 of the Communications Decency Act, and court decisions on trademark law, protect Internet intermediaries from legal responsibility for the actions of their users, including the responsibility to proactively block or filter users. That protection has been vital to the growth of the Internet as a medium for communication, innovation, and learning. Those laws help keep Internet companies and entertainment conglomerates from becoming the gatekeepers of speech with the power to decide what we can and can’t communicate. The record labels didn’t accuse CloudFlare of any copyright or trademark violation—nor could they, in part because of laws like the DMCA. Yet the order against CloudFlare might force CloudFlare, and other service providers, to filter its service for terms like “grooveshark”—and other words that might appear in future court orders. Service providers like CloudFlare could find themselves in the uncomfortable position of having to figure out who’s allowed to use “grooveshark” and who isn’t—or of having to block them all. Turning Internet companies into enforcers of who can say what on the Internet is exactly what laws like the DMCA were meant to avoid.
And CloudFlare is far from the only Internet company to be hit with an order like this. Many, including some domain name registrars, simply comply with overbroad court orders, asking no questions, instead of sticking up for their users.
Yesterday, CloudFlare took a new step. Represented by EFF and Goodwin Procter, CloudFlare asked the court to change the order so that in the future, CloudFlare will only be responsible for taking down user accounts that use variations on “grooveshark” if the music labels notify CloudFlare that a site is infringing. That change will put the job of enforcing trademarks back on the trademark holders, and preserve the balance created by laws like the DMCA. CloudFlare supports smart, effective, and careful trademark enforcement and wants to see it done right – not through broad orders that can impact free speech.
Other Internet companies that care about their users, and would rather not become unwilling trademark and copyright enforcers and arbiters of speech, should follow CloudFlare’s lead and push back against orders like this one.Related Issues: DMCA
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If you're finding it hard to follow the machinations over the Fast Track bill, you're not alone—even Washington insiders are finding it hard to predict the administration's next move, as it changes from day to day. As of this morning, the House of Representatives has passed the Fast Track or Trade Promotion Authority (TPA) bill—but not the associated Trade Adjustment Assistance (TAA) bill that is a precondition of accepting Fast Track for pro-trade Democrats. This means that it's now up to the Senate to pass both bills if they can, and then to send TAA back to the House, on the strength of the assurance of Republican leaders that they will pass it there too—and that President Obama will wait to see both bills on his desk before he signs either.
There are a few sizable problems with this. One is the assumption that Republicans won't break ranks and refuse to pass TAA, a program that supports workers who are displaced by the effects of trade agreements, and that many Republicans oppose as inefficient. Another is that House Democrats won't block it when it returns to the House, as they already have once before. But the more fundamental issue is that TAA doesn't solve the problems that we have with Fast Track, or with the trade treaties such as the Trans-Pacific Partnership (TPP) that it enables.
TAA will not prevent the TPP from extending the term of copyright protection to a uniform life plus 70 years throughout the Pacific Rim, and simultaneously locking in that term at home. It won't stop the imposition of DMCA-like laws that prevent users from bypassing DRM simply in order to view or make fair use copies of their media. It will not prevent foreign corporations from suing the American government to stop it from adopting pro-user laws or policies, for example on orphan works (or, conversely, American corporations from suing our trading partners for introducing such laws or policies).
Despite the fact that it's a red-line for Democrats to accept Fast Track, make no mistake that TAA does not fix any of the problems that users are concerned with in the TPP or the other secretive trade agreements that Fast Track will enable. So the message from us to the Senate remains that despite the passage of Fast Track through the House, nothing fundamental has changed—the bill must still be blocked. This means our call to action remains live—and that your support is as crucial as ever.
Read about all of our concerns with the TPP:
- Anti-Circumvention of Digital Rights Management (DRM)
- Criminalization of Investigative Journalism, Security Research, and Whistleblowing
- ISP Liability: Internet Intermediaries as Copyright Cops
- Criminal Copyright Enforcement
- Expansion of Copyright Terms
- "Investor-State" Provisions Could Undermine User Protections in Copyright
- Restrictions on Fair Use
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