Aggregated News

Students Re-Launch Open Access Button App to Find Free Access to Scientific and Scholarly Research - Thu, 23/10/2014 - 09:29

Millions of people use research everyday. From students, medical professionals, to curious hobbyists, we all benefit from being able to access, read, and cite reliable, tested information. But getting the research we need can be hard and costly when it's locked up behind expensive paywalls. Two university students, David Carroll and Joseph McArthur, were finally fed up with being denied access to online journals and articles that were necessary to continue their studies—so they decided to take matters into their own hands. The result was Open Access Button, a browser-based tool that records users’ collisions with paywalls and aids them in finding freely accessible copies of those research articles. The previous version had over 5,000 users and mapped nearly 10,000 encounters with paywalled research.

This week they have re-launched the tool as an updated, more powerful app suite. If a user hits a paywall to an article or paper, the tool will automatically notify its author on the user's behalf to let them know that someone has been blocked from accessing their work, and ask them to submit a link to a freely accessible version. If the author responds with a link, the app will not only provide that link to the original user but will also display the alternative link to anyone who tried to views the research in the future. In practice, this could incentivize authors to deposit their work into open research repositories.

Users also have the option to share why they are seeking a particular article, which creates an interactive map of stories by people who need research around the world. The hope is that this new Open Access Button will not only help users get better, quicker access to inaccessible research, but will further transform the experience of hitting a paywall to research from being a disempowering denial of access to an explicit call to action.

*** Please note that the Open Access Button will NOT keep your use of the app private. It will publish information collected from its users on a dedicated data platform under a Creative Commons 0 license—including the metadata of the research papers, usernames, professions, and your approximate location. Their stated purpose for making this data public is to enable open access advocates to map and point to the prevalence of academics, students, and Internet users who face paywalls when accessing research. This is their privacy policy. ***

The new apps are available both for mobile phones and web browsers, and can be downloaded at


Between October 20 and 26, EFF is celebrating Open Access Week alongside dozens of organizations from around the world. This is a week to acknowledge the wide-ranging benefits of enabling open access to information and research—as well as exploring the dangerous costs of keeping knowledge locked behind publisher paywalls. We'll be posting on our blog every day about various aspects of the open access movement. Go here to find out how you can take part and to read the other Deeplinks published this week.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceOpen Access
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International Copyright Policy Laundering and the Ongoing War on Access to Knowledge - Thu, 23/10/2014 - 04:15

How is it possible that someone could face years in prison for sharing an academic paper online? How did we arrive at such extreme criminal punishments for accessing knowledge and information? Well, this has been long in the making. We got here because Big Content interests have dominated secretive, back-room copyright negotiations over several decades, resulting in laws that are increasingly restricting our speech, and our ability to comment, control, re-use, and access knowledge, culture, and the devices that we own.

This is especially relevant for Open Access Week, which is all about making publicly-funded information and knowledge available free of licensing restrictions. Although some forward-thinking governments and publishers are helping to realize this dream, in a majority of cases the full force of copyright law still applies to constrain access to knowledge, with dire consequences for those like Diego Gomez.

The Colombian law that is being used to prosecute Diego for sharing an article online was passed following the conclusion of the US trade agreement with Colombia completed in 2006. The law was designed to fulfill the trade agreement's restrictive copyright standards, and it expanded criminal penalties for copyright infringement—increasing possible prison sentences and monetary fines.

Although we have not seen a case like Diego's before, such extreme criminal provisions are not unique to Colombia, nor are the provisions in the trade agreement they signed with the US. There are close to a dozen bilateral US trade deals that contain copyright provisions that echo US law. For the most part though, they are actually worse because they do not contain many of the public interest protections that are built into US law, such as fair use.

But these bilateral agreements are just one part of a longer story. They followed a series of international agreements from the World Trade Organization and the UN World Intellectual Property Organization that initially bound its signatory nations to more stringent digital copyright enforcement provisions, and which in turn led to the US passing the Digital Millennium Copyright Act. Now, we are in a post-bilateral copyright agreement phase, where nations are entering (or at least trying to enter) into massive plurilateral agreements that also contain stronger copyright enforcement measures, such as the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP) agreement.

Copyright Policy Laundering

This method of venue shifting is called policy laundering. That's when policymakers, at the behest of content industry interests, cycle unpopular policies through international negotiations that would otherwise fail if directly introduced back at home. These international law making bodies do not have the same standard of democratic oversight or transparency as many domestic-level rulemaking systems, and there is no single governing body that regulates these policies. So these venues have become a moving target, circumventing accountability while raising the global standards of copyright enforcement before our eyes.

Last week, there was another leak of the TPP's Intellectual Property chapter and it confirmed once again that the US Trade Representative (USTR) is pushing extreme copyright proposals in the trade agreement. In it, there are all kinds of limitations on users that could lead to greater restrictions on people's ability to access and share research and information. For instance, the USTR is proposing increased criminalization of copyright on multiple fronts, such as including acts that are not commercially motivated and situations where people may not even know, but may have "reasonable grounds to know", that what they are doing is illegal. Such broad, ambiguous definitions of what is a criminal copyright violation will continue to have a huge chilling effect for users who only seek to access works that may already be openly licensed or are in the public domain.

Ideally, countries forced to adopt these draconian policies would also enact a flexible system of exceptions and limitations to balance copyright's restrictions. But the language on exceptions and limitations in these trade deals are never robust enough to properly balance the interests of rightsholders with the public interest. They prescribe something called the "three-step" test, which is essentially a standard that countries must reach when passing a new exception and limitation to their copyright law. Colombia has a fair dealing system, a closed list of exceptions to copyright that must be passed legislatively, rather than the open-ended, flexible exceptions permitted by a fair use system (like in the US). Colombia's list of exceptions was issued more than 20 years ago, and are so narrowly tailored to some specific situations that they are not at all applicable to the digital age. Thus none of them are sufficient to apply to Diego's case, even if it was done for educational purposes.

The three-step test has previously been used to strike down new exceptions to copyright law at the national level. In the infamous Fairness in Music case, an international tribunal ruled US law in breach of the three-step test, by allowing music to be played in restaurants and retail stores without payment of royalties. The fact that these agreements do not have a robust requirement that signatory nations enact strong rights for users, but rather, includes terms that only seem to limit the kinds of rights that nations can adopt, speaks volumes.

While customs and practices around academic publishing will undoubtedly shift towards becoming more and more open, there's still a long way to go to fix state policies to enable and promote access to research and information. It does not help that many countries, like Colombia, are bound to international deals that oblige them to enact restrictive copyright laws that may undermine domestic efforts to improve access to knowledge. Unfortunately, that means that Diego is unlikely to be the last academic who faces imprisonment for simply sharing an article.

Between October 20 and 26, EFF is celebrating Open Access Week alongside dozens of organizations from around the world. This is a week to acknowledge the wide-ranging benefits of enabling open access to information and research—as well as exploring the dangerous costs of keeping knowledge locked behind publisher paywalls. We'll be posting on our blog every day about various aspects of the open access movement. Go here to find out how you can take part and to read the other Deeplinks published this week.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceOpen AccessInternationalTrans-Pacific Partnership Agreement
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EFF, Internet Archive, and reddit Oppose New York’s BitLicense Proposal - Wed, 22/10/2014 - 07:18
Privacy, Economic and Free Speech Flaws in Proposed Bitcoin Regulatory Scheme

San Francisco - The Electronic Frontier Foundation (EFF), along with reddit and the Internet Archive, today filed formal comments with the New York State Department of Financial Services opposing the state's proposed regulations for digital currencies such as Bitcoin. In the letter, EFF argues that on top of damaging privacy and harming innovation, New York's "BitLicense" regulatory scheme also risks infringing on First Amendment rights to freedom of expression and association.

The State of New York is currently considering BitLicense, a sprawling regulatory framework that would mandate licenses for a wide range of companies in the digital currency space. The regulations would force applicants to submit significant personal information to the state, including fingerprints and head-shot photographs. The policy would also require these companies to maintain detailed records about all transactions for 10 years, including identity data of users.

"Digital currencies such as Bitcoin strengthen privacy and are resistant to censorship," EFF Activism Director Rainey Reitman said. "We should consider this a feature, not a bug; it's an innovative way of importing some of the civil liberties protections we already enjoy offline into the digital world."

EFF notes that digital currency protocols are used for more than just payments—they have expressive and associational uses, too. Bitcoin-like systems are used for organizing and engaging with groups or communities. In addition, Bitcoin block chains frequently contain political speech, such as famous quotes and portraits of prominent historical figures. As currently written, EFF argues, the BitLicense regulations place an unacceptable burden on free speech and association.

"The courts have long recognized that code is speech protected by the First Amendment," EFF Special Counsel Marcia Hofmann said. "At their core, digital currency protocols are code. Attempts to regulate code must include robust protections to ensure constitutionally protected speech is not stifled, and the BitLicense proposal would undermine those First Amendment principles."

On Oct. 15, EFF launched an online activism campaign encouraging Internet users to oppose the BitLicense proposal by submitting comments to the New York State Department of Financial Services.

For the text of EFF's comments:

For EFF's activism campaign:


Rainey Reitman
   Activism Director
   Electronic Frontier Foundation

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Open Letter from Diego Gomez: "Access to Knowledge Is a Global Right" - Wed, 22/10/2014 - 02:59

The progress of knowledge is fueled by people who dedicate their lives to a field—to read, examine, and absorb everything they can out of passionate intellectual curiosity. Diego Gomez is one of these individuals, and is dedicated to the conservation of reptiles and amphibians.

Unfortunately, like so many scholars around the world, Diego’s work has been frustrated by a lack of access to research trapped by expensive paywalls. So he did what many researchers and academics do today when they see a barrier to knowledge: he shared the research with his colleagues. Due to excessive criminal copyright laws in his native country of Colombia, however, Diego is now being prosecuted by Colombian officials for sharing another researcher's Master's thesis online. He faces up to eight years in prison and crippling monetary fines.

The following is an open letter from Diego (also available in Spanish):

The use of FLOSS was my first approach to the open source world. Many times I could not access ecological or statistical software, nor geographical information systems, despite my active interest in using them to make my first steps in research and conservation. As a student, it was impossible for me to cover the costs of the main commercial tools. Today, I value access to free software such as The R project and QGis project, which keep us away from proprietary software when one does not have the budget for researching.

But it was definitely since facing a criminal prosecution for sharing information on the Internet for academic purposes, for ignoring the rigidity of copyright law, that my commitment to support initiatives promoting open access and to learn more about ethical, political, and economic foundations has been strengthened.

I am beginning my career with the conviction that access to knowledge is a global right. The first articles I have published in journals have been under Creative Commons licenses. I use free or open software for analyzing. I also do my job from a social perspective as part of my commitment and as retribution for having access to public education in both Colombia and Costa Rica.

From the situation I face, I highlight the support I have received from so many people in Colombia and worldwide. Particularly, I thank the valuable support of institutions working for our freedom in the digital world. Among them I would like to acknowledge those institutions that have joined the campaign called “Let’s stand together to promote open access worldwide”—EFF, Fundación Karisma, Creative Commons, Internet Archive, Knowledge Ecology International, Open Access Button, Derechos Digitales, Open Coalition, Open Knowledge, Research rights Coalition, Open Media, Fight for the Future, USENIX, Public Knowledge and all individuals that have supported the campaign.

If open access was the default choice for publishing scientific research results, the impact of these results would increase and cases like mine would not exist. There would be no doubt that the right thing is to circulate this knowledge, so that it should serve everyone.

Thank you all for your support.

Diego A. Gómez Hoyos


Join the movement and stay connected! Together with the Right to Research Coalition, Creative Commons, Open Access Button, Fundación Karisma, and others, we created a platform for everyone to add their support for the open access movement. Sign here and share far and wide.

In the US? Send a message to your lawmakers to secure open access to taxpayer-funded research

Watch Internet's Own Boy: The Story of Aaron Swartz

Between October 20 and 26, EFF is celebrating Open Access Week alongside dozens of organizations from around the world. This is a week to acknowledge the wide-ranging benefits of enabling open access to information and research—as well as exploring the dangerous costs of keeping knowledge locked behind publisher paywalls. We'll be posting on our blog every day about various aspects of the open access movement. Go here to find out how you can take part and to read the other Deeplinks published this week.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceOpen AccessInternational
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The Troubling Arguments from the Government in Smith v. Obama - Tue, 21/10/2014 - 10:22

We’ve filed our reply brief in the appeal of Smith v. Obama, our case challenging the NSA’s mass telephone records collection on behalf of Idaho nurse Anna Smith. The case will be argued before the Ninth Circuit Court of Appeal on December 8, 2014 in Seattle, and the public is welcome to attend.

Another case challenging the telephone records program, Klayman v. Obama, will be argued on November 4 in Washington DC before the DC Circuit and EFF will be participating as an amicus.

The Smith v. Obama case records are all here: but we thought we’d highlight three of the more outrageous arguments the government made, and our responses debunking them.

The Cases

Mrs. Smith doesn’t think her phone records are any of the government’s business. That’s why, only a few days after the Guardian published a secret order from the Foreign Intelligence Surveillance Court revealing the government's bulk collection of the telephone records of millions of innocent Americans, she sued. Smith v. Obama challenges the government’s collection of call detail records under Section 215 of the PATRIOT Act. Mrs. Smith is represented by her husband, attorney Peter Smith, along with the ACLU, EFF, and Idaho State Rep. Luke Malek.

The district court said it felt bound to dismiss her claims because of a 1979 Supreme Court case, Smith v. Maryland. That case involved the collection of the phone numbers dialed by a criminal suspect over the course of three days. It’s one of the cornerstones of the so-called “third party doctrine,” the idea that people have no expectation of privacy in information they entrust to others—and it’s outdated to say the least.

The centerpiece of Mrs. Smith’s case is the issue of whether the government’s collection of our telephone records in bulk, and retention of those records for five years, triggers the Fourth Amendment's warrant requirement. The warrant requirement applies if there is a legitimate and reasonable expectation of privacy in those records. And if the warrant requirement applies, the collection is unconstitutional, since there is no warrant (everyone agrees that the secret FISA Court rulings allowing the bulk collection under Section 215 of the Patriot Act are NOT warrants).

We argue that there is a legitimate and reasonable expectation of privacy violated by the bulk collection of telephone records, because unlike the narrow situation the Supreme Court considered in 1979, they can reveal an incredible amount of sensitive information. For example, in one short-term study of only a few months of telephony metadata from 546 people, researchers at Stanford were able to identify one plausible inference of a subject obtaining an abortion; one subject with a heart condition; one with multiple sclerosis; and the owner of a specific brand of firearm.The government wants the court to simply ignore these differences. Alternately, the government argues that even if there is an expectation of privacy, it is so small compared to the government’s interest that the warrant requirement can be ignored, under something called the “special needs” test (more on that below).

But, as we emphasize in our reply brief, this is wrong, in part because we are living in what member of the President's Review Group Professor Peter Swire calls the “Golden Age of Surveillance.” As we argue: “technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated.”

The Government’s Arguments

So with that background, let’s look at three of the most troubling claims the government makes.

Call Detail Records Don’t Actually Identify People

The government still claims with a straight face that call detail records don't reveal private information, because they "do not include information about the identities of individuals," including “the name, address, [or] financial information” of any telephone subscribers.

That’s technically true, of course, but who cares? It’s not like this prevents the government from identifying you in less than a millisecond after it gets your telephone number. Last time we checked, the government did have access to, say, telephone books and the many public online services that can do reverse number lookup. That’s why we point out that: “phone numbers are every bit as identifying as names. Indeed, they are more so: while many people in the country may share the same name, no two phone subscribers share the same number.”

It’s pretty ridiculous for the government to continue to try to convince the court that the absence of the names in calling records represents any real privacy protection for the millions of Americans whose records are collected. It plainly does not.

We Have to Collect Everything for the Program to Work. But We’re Not Collecting Everything.

The government tries to challenge Mrs. Smith’s standing to sue by repeatedly alleging that the call detail records “program has never encompassed all, or even virtually all, call records and does not do so today.” It claims that the case should be dismissed because Mrs. Smith cannot immediately “prove” that her records were included. Of course, that’s not how litigation works. Mrs. Smith has good reason to believe that her records have been included—the government’s own public statements give her good reason. The district court properly rejected this argument, but the government continues to press it on appeal.

The government also seems to be talking out of both sides of its mouth here, since, as we note in our brief:“In explaining the program to Congress and the public…the government has emphasized not only that the program is comprehensive, but that this comprehensiveness is the key to its utility.”

In fact, Robert Litt, General Counsel of the Office of the Director of National Intelligence told Congress: “In order to find the needle that matched up against that number, we needed the haystack, right. That’s what the premise is in this case.” And NSA Deputy Director John Inglis defended the program by saying: “If you're looking for a needle in the haystack you need the haystack. So you wouldn't want to check a database that only has one third of the data, and say there’s a one third chance that I know about a terrorist plot, there’s a two thirds chance I missed it because I don’t have that data.”

So to get the case dismissed they want to convince the court that they aren't really collecting "virtually all" of the telephone records, but their public justifications rely on the fact that they are. So either they are collecting Mrs. Smith’s records, along with every other Verizon Wireless customer—Verizon is the second largest wireless service in the U.S. after all—or they are not very good at meeting their own stated goals. Which is it, government?

And that goes right to the heart of the government’s next argument:

Bulk Telephone Records Collection Isn’t Necessary to Protect Us—But Is Still Allowed Under the "Special-Needs Doctrine"

The government’s fallback argument is that even if the call detail records triggered the Fourth Amendment, a warrant is still not required under a narrow legal precedent called the “special-needs doctrine.” It allows warrantless searches of a few small categories of people who have a reduced privacy expectation, like students in schools or employees who handle dangerous equipment. It also only applies when compliance with probable-cause and warrant requirements would be “impracticable” and the government’s primary goals are not law enforcement.  

The first problem here is that the millions of ordinary Americans affected by the government's bulk collection do not have a reduced expectation of privacy in the records of their telephone calls. The privacy interests here are great, since with a trail of telephone records, the government can learn extremely sensitive information.

The second problem is that no less than the White House itself has said that the government can accomplish its goals without bulk telephone records collection.  This has been confirmed by the President’s two hand-picked panels as well as several Congressmembers who have seen the intelligence information. As we point out in our reply brief, the best the government can say about the program is that it “enhances and expedites” certain techniques it uses in its investigations.  So getting a warrant isn’t impracticable, it’s just, at most, inconvenient. But as we point out: “If efficiency alone were determinative, the Fourth Amendment’s warrant requirement would have no force at all.”

The special-needs argument is especially concerning because if the courts were to accept it, the special-needs doctrine could become an exception that swallows the Fourth Amendment’s rule against general searches. It could, de facto, create a national security exception to the Constitutional rights enjoyed by ordinary, nonsuspect Americans, something the founders plainly did not do when they created this country in the midst of a national security crisis.

We expect an interesting argument on December 8.

Related Issues: NSA SpyingRelated Cases: Smith v. ObamaKlayman v. ObamaJewel v. NSAFirst Unitarian Church of Los Angeles v. NSA
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EFF Launches Updated Know Your Rights Guide - Tue, 21/10/2014 - 05:15

In the U.S., if the police come knocking at your door, the Constitution offers you some protection. But the Constitution is just a piece of paper—if you don’t know how to assert your rights. And even if you do assert your rights…what happens next? That answer may seem complicated, but protecting yourself is simple if you know your rights.

That’s why EFF has launched an updated Know Your Rights Guide that explains your legal rights when law enforcement try to search the data stored on your computer, cell phone, or other electronic device.

The guide clarifies when the police can search devices, describes what to do if police do (or don’t) have a warrant, and explains what happens if the police can’t get into a device because of encryption or other security measures. 

Our guide is up to date as of October 2014, and will always indicate when it was last updated. While the Constitution stays the same, there are constantly new court opinions interpreting the law in light of new technologies. Since we first published a Know Your Rights whitepaper in 2011, state and federal courts, including the US Supreme Court, have issued key opinions that affect rights around search and seizure. In an important 2012 decision in United States v. Jones, the US Supreme Court ruled police could not install a GPS device onto a car without a search warrant. And in the seminal 2014 case Riley v. California, the same court ruled an arrest isn’t sufficient reason to search a cell phone without a warrant. We expect there to be many new cases interpreting Jones and Riley to other forms of technologies, and will keep our Guide updated with those new developments.

Remember, when it comes to your legal rights, what you don’t know can hurt you. Read our guide, share it with your friends and family, and be prepared!

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Free as in Open Access and Wikipedia - Tue, 21/10/2014 - 04:06

This is a guest post by Yana Welinder, Legal Counsel at the Wikimedia Foundation and Non-Residential Fellow at Stanford CIS. If you have comments on this post, you can contact her on Twitter or her Wikimedia talk page.

Wikipedia and the other Wikimedia sites are closely connected to open access goals of making scholarship freely available and reusable. Consistent with these goals, the Wikimedia sites make information available to Internet users around the world free of charge in hundreds of languages. Wikimedia content can also be reused under its free licenses. The content is complemented by citations to open access scholarship, and the Wikimedia sites play a unique role in making academic learning easily available to the world. As the next generation of scholars embraces open access principles to become a Generation Open, we will move closer to "a world in which every single human being can freely share in the sum of all knowledge."

To write and edit Wikipedia, contributors need to access high quality independent sources. Unfortunately, paywalls and copyright restrictions often prevent the use of academic journals to write Wikipedia articles and enrich them with citations. Citations are particularly important to allow readers to verify Wikipedia articles and learn more about the topic from the underlying sources. Given the importance of open access to Wikipedia, Wikipedia contributors have set up a WikiProject Open Access to increase the use of open-access materials on the Wikimedia sites, improve open access-related articles on Wikipedia, and signal to readers whether sources in Wikipedia articles are open access.

Privacy info. This embed will serve content from

Link to video on Wikimedia Commons // CC BY-SA 3.0: Reusing Open Access materials on Wikimedia projects, Jesse Clark, Max Klein, Matt Senate, Daniel Mietchen.

Great potential lies in the reciprocal relationship between the open access scholarship that enriches Wikipedia and Wikipedia’s promotion of primary sources. As a secondary source, Wikipedia does not publish ideas or facts that are not supported by reliable and published sources. Wikipedia has tremendous power as a platform for relaying the outcomes of academic study by leading over 400 million monthly visitors to underlying scholarship cited in articles. Just as a traditional encyclopedia would, Wikipedia can make the underlying research easier to find. But unlike a traditional encyclopedia, it also provides free access and reuse to all. In that sense, Wikipedia is an ideal secondary source for open access research.

In light of this, we are thrilled to see Generation Open grow. The Digital Commons Network now boasts 1,109,355 works from 358 institutions. The Directory of Open Access Journals further has over 10,000 journals from 135 countries. Esteemed law journals such as the Harvard Journal of Law and Technology, Berkeley Technology Law Journal, and Michigan Law Review subscribe to the Open Access Law Program, which encourages them to archive their articles under open access principles. But while all these initiatives enable free access to academic scholarship, some of them still provide limited ability to reuse that work falling short of the definition of open access:

[F]ree availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

Wikipedians are also contributing to the body of published open access scholarship. Earlier this month, four Wikipedians published an article on Dengue fever in Open Medicine (an open access and peer-reviewed journal) based on a Wikipedia article that was collaboratively edited by over 1,300 volunteers and bots. In addition to providing an open access scholarly article on this important topic, this publication validated that Wikipedia's editorial process can produce high quality content outside traditional academia. Many Wikipedia articles incorporate text from openly licensed scholarship and some scholars write and publish openly licensed scholarship specifically to have it reused in Wikipedia articles.

Placing scholarship behind paywalls and copyright restrictions has the effect of relegating new advances in human knowledge to small academic communities. We have previously joined many open access groups to demand that scholarship be not only freely accessible, but also freely reuseable. As more academics allow their work to be shared and used freely, online secondary sources like Wikipedia will play a large role in disseminating the knowledge to more people in new regions and on different devices.


Many thanks to Hilary Richardson and Camille Desai for their help in preparing this post. I would also like to thank Stephen LaPorte, Manprit Brar, Daniel Mietchen, and other members of WikiProject Open Access for their helpful feedback.

Between October 20 and 26, EFF is celebrating Open Access Week alongside dozens of organizations from around the world. This is a week to acknowledge the wide-ranging benefits of enabling open access to information and research—as well as exploring the dangerous costs of keeping knowledge locked behind publisher paywalls. We'll be posting on our blog every day about various aspects of the open access movement. Go here to find out how you can take part.

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Celebrating Open Access Week: Research Should Be Free, Available, and Open - Tue, 21/10/2014 - 02:05

Welcome to the eighth annual Open Access Week! We're joining an international community—researchers and students, doctors and patients, librarians and activists—to celebrate free and open access to knowledge. This is also a time to discuss the barriers and costs of keeping research and information locked up with restrictive licenses and publisher paywalls.

This week, we'll be blogging daily about various aspects of open access, as well as ways to get involved in the movement. Visit this page throughout the week to find a list of all our blog posts. If you have further questions, be sure to tune in on Thursday at 10 a.m. PT for a reddit AmA, where we’ll be joined by fellow advocates and researchers.

Deeplinks Open Access, Today

"Open access" refers to the practice of making scholarly research available online for free upon publication (or soon after). Implemented by academics, institutions, journals, and major funding bodies, open access policies allow everyone across the globe to benefit from the latest findings and discoveries—whether it’s assessing Ebola risk in West Africa or the studying the effect of cute kitten pictures on people’s attention spans.

Open access policies should aim to remove barriers to research, whether they are steep paywalls or strict copyright provisions. Tools like open licenses not only facilitate downstream re-use of research, but also help maximize both impact and citations.

While Internet adoption continues to rise, so do the prices of scholarly journals. Trapping knowledge behind prohibitively expensive paywalls is a disservice to researchers and problem solvers across the world. Those at the forefront of our collective intellectual progress are increasingly embracing the open access model for research worldwide. With Open Access Week, we have a chance to use this global momentum to advance constructive policy changes.

This year, we have seen a number of encouraging steps in the realm of open access. California passed AB 609, the first state-level open access bill ever. While the legislation ended up not being as strong as it once was, it was a critical step in the direction of openness and transparency. On the federal level, the US Department of Energy was the first to reveal their mandated public access policy. Unfortunately, it wasn’t as robust as we would have hoped. The open access movement is pushing in the right direction, but much work still remains.

This year's Open Access Week theme is Generation Open. We'll be focusing on the importance of students and early career researchers embracing open access, and exploring how changes in scholarly publishing affect academics and researchers at different stages of their careers.

What You Can Do

There are all kinds of ways to get involved. We invite you and your community to join us for this exciting week of action. Here’s how:

  • Share on social media: simply spreading the word is important ... and easy! Post your thoughts about open access and share articles and media that EFF will be posting throughout the week using the hashtag #OAWeek2014. Follow us on Twitter, Facebook, and Google+. See below for all of our shareable graphics.

  • Host a screening and discussion about the film The Internet’s Own Boy, a powerful documentary that tells the story of activist and innovator Aaron Swartz, who also was a passionate and outspoken advocate for open access. Here is our guide to help you organize a screening of this important film. Be in touch if you decide to organize a viewing.

  • Print and share handy guides to help people in your community get up to speed on why we demand open access to research. There’s one on Diego Gomez's case and one on the open access movement more broadly.

  • Send us your photos of events you’ve organized! We’re doing to do a re-cap of all the exciting things people around the world have done to celebrate Open Access Week.

  • If you’re a scientist or researcher, make your own work open access!

We believe the Internet should be a place where we can share ideas and get educated, unimpeded by unfair paywalls. We are thrilled to join forces with dozens of organizations across the world for this year’s Open Access Week to spread the message loud and clear: research should be free, available, and open for everyone’s benefit.

Shareable Graphics

Related Issues: Fair Use and Intellectual Property: Defending the BalanceOpen Access
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What Are You Doing For Open Access Week? - Sat, 18/10/2014 - 17:36

This Monday, October 20 marks the first day of Open Access Week, an international event that celebrates the wide-ranging benefits of enabling open access to information and research–as well as the dangerous costs of keeping knowledge locked behind publisher paywalls. This year's theme is Generation Open.

There are tons of events happening around the world for Open Access Week. We wanted to share a handful of ones that we've heard about, most of which are screenings of the fantastic film, The Internet's Own Boy, a documentary about the late Internet activist and pioneer Aaron Swartz.

We're delighted that many of these screenings are inaugural events for new local digital rights initiatives! Here are a few:

If these events are near you, try to attend and meet others in your area who are also interested in fighting for our rights online. If you're in the Bay Area, EFF activist April Glaser will be a guest speaker at the Berkeley event, and if you've got an event happening that's not on this list, email to let us know and share your event photos.

At EFF, we'll be blogging about Open Access everyday next week, so stay tuned to learn more about developments in the growing movement to ensure that knowledge should never be trapped behind a paywall.

If you haven't already, please sign and share the petition to support Diego Gomez, a Colombian graduate student who currently faces up to eight years in prison for doing something thousands of researchers do every day: posting research results online for those who would not otherwise have a way to access them. Diego's case is an important example of the dangers of closing access to knowledge. We will continue to follow his case closely and report back with new developments.

The Internet should be a place where we can share ideas and get educated, unimpeded by unfair paywalls. We are thrilled to join forces with dozens of organizations across the world for this year’s Open Access Week to spread message loud and clear: academic research should be free, available, and open for everyone’s benefit.

Join us for Open Access Week. This is going to be big.

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EFF Response to FBI Director Comey's Speech on Encryption - Sat, 18/10/2014 - 05:33

FBI Director James Comey gave a speech yesterday reiterating the FBI's nearly twenty-year-old talking points about why it wants to reduce the security in your devices, rather than help you increase it. Here's EFF's response:

The FBI should not be in the business of trying to convince companies to offer less security to their customers. It should be doing just the opposite. But that's what Comey is proposing—undoing a clear legal protection we fought hard for in the 1990s.1 The law specifically ensures that a company is not required to essentially become an agent of the FBI rather than serving your security and privacy interests. Congress rightly decided that companies (and free and open source projects and anyone else building our tools) should be allowed to provide us with the tools to lock our digital information up just as strongly as we can lock up our physical goods. That's what Comey wants to undo.

It's telling that his remarks echo so closely the arguments of that era. Compare them, for example, with this comment from former FBI Director Louis Freeh in May of 1995, now nearly twenty years ago:

[W]e're in favor of strong encryption, robust encryption. The country needs it, industry needs it. We just want to make sure we have a trap door and key under some judge's authority where we can get there if somebody is planning a crime.

Now just as then, the FBI is trying to convince the world that some fantasy version of security is possible—where "good guys" can have a back door or extra key to your home but bad guys could never use it. Anyone with even a rudimentary understanding of security can tell you that's just not true. So the "debate" Comey calls for is phony, and we suspect he knows it. Instead, Comey wants everybody to have weak security, so that when the FBI decides somebody is a "bad guy," it has no problem collecting personal data.

That's bad science, it's bad law, it's bad for companies serving a global marketplace that may not think the FBI is always a "good guy," and it's bad for every person who wants to be sure that their data is as protected as possible—whether from ordinary criminals hacking into their email provider, rogue governments tracking them for politically organizing, or competing companies looking for their trade secrets. 

Perhaps Comey's speech is saber rattling. Maybe it's an attempt to persuade the American people that we've undertaken significant reforms in light of the Snowden revelations—the U.S. government has not—and that it's time for the "pendulum" to swing back. Or maybe by putting this issue in play, the FBI may hope to draw our eyes away from, say, its attempt to water down the National Security Letter reform that Congress is considering. It's difficult to tell.

But if the FBI gets its way and convinces Congress to change the law, or even if it convinces companies like Apple that make our tools and hold our data to weaken the security they offer to us, we'll all end up less secure and enjoying less privacy. Or as the Fourth Amendment puts it: we'll be be less "secure in our papers and effects."

For more on EFF's coverage of the "new" Crypto Wars, read this article focusing on the security issues we wrote last week in Vice. And going back even earlier, a broader update to a piece we wrote in 2010, which itself was was based on our fights in the 90s. If the FBI wants to try to resurrect this old debate, EFF will be in strong opposition, just as we were 20 years ago. That's because—just like 20 years ago—the Internet needs more, not less, strong encryption.

  • 1. Here's the relevant part of CALEA that Comey wants to effectively undo: "47 USC 1002(b)(3): A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication." Also from the CALEA legislative history: "Finally, telecommunications carriers have no responsibility to decrypt encrypted communications that are the subject of court-ordered wiretaps, unless the carrier provided the encryption and can decrypt it. This obligation is consistent with the obligation to furnish all necessary assistance under 18 U.S.C. Section 2518(4). Nothing in this paragraph would prohibit a carrier from deploying an encryption service for which it does not retain the ability to decrypt communications for law enforcement access ... Nothing in the bill is intended to limit or otherwise prevent the use of any type of encryption within the United States. Nor does the Committee intend this bill to be in any way a precursor to any kind of ban or limitation on encryption technology. To the contrary, section 2602 protects the right to use encryption." H/T Chris Soghoian:
Related Issues: PrivacyCALEAEncrypting the WebLaw Enforcement AccessNational Security LettersSecurityRelated Cases: Bernstein v. US Department of Justice
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New ODNI Report Doesn’t Address Mass Surveillance, Provides "Flexibility" to Skirt Privacy Commitments - Sat, 18/10/2014 - 05:21

Earlier today, the Office of the Director of National Intelligence (ODNI) released an optimistically titled report Safeguarding the Personal Information of all People. This is basically a status update from ODNI on how they are doing in implementing Presidential Policy Directive 28, which among other things was supposed to better recognize the privacy rights of people worldwide.

Today’s report from the ODNI is disappointing, though not surprising. This is in part because PPD 28 was pretty limited in the first place. When Obama first announced his surveillance reforms and PPD 28, we rated him on 12 criteria for effective surveillance reform—and found his proposal only met only 3.5 of those criteria. We saw an example of the limitations of PPD 28 in its 5th footnote, which begins, "The limitations contained in this section do not apply to signals intelligence data that is temporarily acquired to facilitate targeted collection." That seems to say that they can seize a haystack so long as they intend to look for needles.  

Here are a few choice sections from our initial read of today's report:

To that end, PPD-28 states that personal information of non-U.S. persons shall be retained and disseminated only if the retention and dissemination "of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333."

We are disheartened to see ODNI pinning its privacy protections to Executive Order 12333. EO 12333 is a poorly-understood Reagan-era authority; one former State Department chief said:

 …Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333.

The ODNI report itself highlights (Section D) one massive flaw in EO 12333, noting that "if read literally," it places no limits whatsoever on retention or dissemination of any information about any foreign person. One wonders if any element of the intelligence community has ever acted in accordance with this reading. 

In short, Executive Order 12333 is a weak privacy standard—at least what we know of it, because its implementation has had little oversight from the public or even Congress. This is not the standard we want to adopt for protecting the rights of individuals worldwide who have not been suspected of a crime.

What might be a better standard? EFF along with intentional human rights groups and scholars worldwide developed 13 principles for protection human rights when engaging in communications surveillance. That’s a much better starting point for crafting protections for privacy of people worldwide. 

Another disappointment (though again not a surprise) in today’s report was the failure to address or rein in mass collection of digital data:

Section 2 of PPD-28 acknowledges the importance of collecting SIGINT in bulk to help identify new and emerging threats or other vital national security information. At the same time, the United States recognizes that collecting information in bulk may not result in the collection of information about persons whose activities are not of interest to the Intelligence Community. PPD-228 therefore places limitations on the use of SIGINT collected in bulk.....PPD-28 also states that in no event may SIGINT be used for the purpose of suppressing or burdening criticism or dissent….

Basically, ODNI is reaffirming that it will continue to vacuum up data from people not suspected of a crime and is merely outlining methods of limiting the use and dissemination of that data.

It’s particularly disheartening to see ODNI talking about how data collected in bulk will not be used for the purpose of suppressing or burdening criticism or dissent. This is a cognitive dissonance: mass surveillance by its nature creates a chilling effect on free speech. More than 500 authors, including 5 Nobel laureates, have written that:

A person under surveillance is no longer free; a society under surveillance is no longer a democracy. To maintain any validity, our democratic rights much apply in virtual as in real space. Surveillance violates the private sphere and compromises freedom of thought and opinion.            

The ODNI deludes itself into believing that you can have surveillance without suppressing or burdening dissent. In fact, it is the very nature of mass surveillance to chill criticism and dissent. That is the very basis for our lawsuit against the NSA phone record collection program.

Finally, all of the commitments to civil liberties and privacy in ODNI’s report come with a rather alarmingly large loophole:

N. Intelligence Community Elements Must Have the Flexibility to Deviate from their PPD-28 Implementing Procedures After Receiving Senior Level Approval.

It is important that elements have the ability to deviate from their procedures when national security requires doing so, but only with approval at a senior level within the Intelligence Community element and notice to the DNI and Attorney General. 

Regardless of what procedures are put into place to safeguard individual privacy, the intelligence community gives itself a loophole for “national security” concerns. National security, unfortunately, remains undefined in the document.

We’re still reviewing the report and may have more thoughts in the coming days, but these are our initial impressions. 

Read the entire report. Take action against mass surveillance.

Related Issues: PrivacyNSA SpyingRelated Cases: First Unitarian Church of Los Angeles v. NSA
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EFF to Patent Office: There’s Nothing Wrong With Throwing Out Bad Patents - Sat, 18/10/2014 - 04:55

Earlier this year, Randall Rader, then Chief Judge of the Federal Circuit, called a group of administrative patent judges “death squads.” What had these judges done to deserve such savage criticism? They had done exactly what Congress intended: found some bad patents invalid. This week EFF filed comments with the U.S. Patent and Trademark Office (PTO) supporting the work of its administrative trial judges and urging the agency to make review of issued patents as affordable and efficient as possible.

When Congress passed the America Invents Act (AIA) in 2011, we predicted that the law would not be enough to stop the rampant abuse of patent trolls. We were right. But the AIA did include some good provisions allowing the challenge of bad patents before the Patent Trial and Appeal Board (PTAB) at the PTO. These administrative proceedings (known as covered business method review, inter partes review, and post grant review) are important because fighting a patent in court is ruinously expensive. For smaller companies, an administrative proceeding may be the only way it can afford to contest a patent. Indeed, with help from our supporters, EFF filed an inter partes review to challenge Personal Audio’s podcasting patent.

In our comments to the PTO, we make a number of suggestions about how to improve trials before the PTAB. For example, we urge the PTO to lower application fees for small businesses. Currently, fees for an instituted inter partes review are at least $23,000. This is far too high for many of the small businesses that have been targeted by patent trolls. We also argue that the PTAB should continue to construe patents broadly when comparing them to the prior art. The public notice function of patents is best served by applying the broadest reasonable construction. If a patent owner is concerned that his or her patent will be found invalid under a broad construction, he or she can add narrowing language to the claims. This protects the interests of both the patentee and the public by promoting clearer claim language.

We also respond to the hyperbolic criticism of the PTAB from Rader and others. The PTAB should not be vilified for doing its job. Congress intended for it be a place where companies could efficiently remove bad patents from the system. Since companies have a choice about whether to spend money on a challenge, it is no surprise that they have tended to challenge the worst patents. This explains why the PTAB has found so many patents invalid. Blaming the PTAB for invalidating patents that should be invalidated is like blaming critical care for having the sickest patients in a hospital.

On the whole, the PTO has done a reasonable job managing the new trial procedures created by the AIA. These procedures don’t solve all problems with the patent system, but they at least provide a cheaper alternative to litigation. We hope the PTO will continue to make administrative review effective and do even more to make it accessible.

Files:  eff_comments_on_trial_proceedings_under_the_aia.pdfRelated Issues: Fair Use and Intellectual Property: Defending the BalancePatentsInnovation
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Cyber-Espionage and Trade Agreements: An Ill-Fitting and Dangerous Combination - Sat, 18/10/2014 - 04:45

Yesterday's leak of a May 2014 draft of the Trans-Pacific Partnership (TPP) agreement revealed the addition of new text criminalizing the misuse of trade secrets through "computer systems", as mentioned in our previous post about the leak. This is a significant revelation, because we also know that trade secrets are planned for inclusion in the EU-US free trade agreement, TTIP (the Trans-Atlantic Trade and Investment Partnership). The revelation of the proposed text in the TPP provides a good indication that the same kind of language will likely also appear in TTIP. Frighteningly, this text contains no protections to safeguard the public interest.

Today we delve into this provision and its background in more depth.

Why Trade Secrets, and Why Now?

The US Trade Representative's sudden interest in trade secret protection arises largely from reports of widespread cyber-espionage against US companies emanating from China. This has also led to domestic proposals such as this year's Defend Trade Secrets Act, introduced in the Senate in April, and its companion House bill, the Trade Secrets Protection Act, which would create a new federal private right of action for trade secret theft.

In August this year, 31 law professors wrote a joint letter opposing these bills on a number of grounds, including that they are unbalanced, risking that they could be used for anti-competitive purposes, and that they have potential ancillary negative impacts on access to information. The professors write:

Labeling information as a trade secret has become a common way to prevent public and even regulatory access to important information ranging from the composition of hydraulic fracturing fluids to the code inside of voting machines, all of which have compelling (but not uncontroversial) reasons for public access in a democracy.

Even if these new US bills pass, their enforceability against foreigners will be, in practical terms, rather limited. The introduction of new language on trade secrets into both TTP and TTIP—which may become the United States' two largest trade agreements—is therefore a parallel tactic to address cyber-espionage on the global stage.

(Observant readers might have spotted an apparent flaw in this plan, given that China will not be a party to either of these agreements. But the reasoning is that if enough other countries agree on new global standards, diplomatic pressure can be applied on China to also comply. As the Europeans have put it, “The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries”.)

Paragraph 1—Trade Secrets

The language in the TPP, however, doesn't much resemble either of the current Congressional bills. This is because if the TPP is agreed, it will create an obligation on the US to ensure that it accords with domestic law, and the US Trade Representative is unable to guarantee that the bills currently in Congress will pass. Instead, the first paragraph is drawn from TRIPS, the multilateral treaty that sets a global minimum standard for so-called intellectual property protection, and the second and third paragraphs are brand new, but share lineage with both the Economic Espionage Act and the Computer Fraud and Abuse Act (CFAA).

This is where things get complicated—because the legal theories, methods and objectives of those two sources are actually quite different.

So beginning with paragraph 1: it very closely mirrors the language that TRIPS members (including all the TPP negotiating countries) have already agreed. It requires them to offer the means to prevent trade secrets from being disclosed to, acquired by, or used by others without consent in a manner contrary to honest commercial practices. This generally, as in the US, involves a private cause of action to be litigated in a civil court.

Paragraphs 2 and 3—Computer Espionage

Next, let's turn to paragraphs 2 and 3, which are worth setting out in full:

  1. Each Party shall provide for criminal [VN propose: or administrative] procedures and penalties for one or more of the following:
    1. the unauthorized, willful access to a trade secret held in a computer system;
    2. the unauthorized, willful misappropriation of a trade secret, including by means of a computer system; or
    3. the fraudulent {or unauthorized} disclosure of a trade secret, including by means of a computer system.
  2. A Party may, where appropriate, limit the availability of such criminal procedures or limit the level of penalties available in respect of the aforementioned activity to one or more of the following conditions:
    1. for purposes of commercial advantage or financial gain;
    2. related to a product or service in national or international commerce;
    3. intended to injure the owner of such trade secret;
    4. directed by or for the benefit of or in association with a foreign economic entity; or
    5. detrimental to a Party's economic interests, international relations, or national defense or national security.

These provisions are quite different from the first, because they make trade secret misappropriation a criminal offence. As noted above, these provisions partly draw on the US Economic Espionage Act. But they go considerably further, in that the offense is not required to be limited to cases where the owner is harmed and where someone else benefits from the trade secret misappropriation, both of which are conditions of the offense under current US law.

They also add a new offense of unauthorized, willful access to a trade secret held in a computer system, regardless of whether the trade secret is copied or disclosed. This provision has more in common with the CFAA which criminalizes anyone who “intentionally accesses a computer without authorization…and thereby obtains…information from any protected computer”—one of the provisions under which Aaron Swartz was charged.

So in sum, these provisions go further than current US law, potentially criminalizing anyone who gains access to secret information of commercial value. There are no safeguards to protect investigative journalists, security researchers or whistleblowers, who may obtain access to information without criminal or commercial intent. The inevitable result will be to chill the speech of those who might otherwise have a valid public interest justification for releasing information that had been kept secret.

The TPP and TTIP are, supposedly, free trade agreements; they are not the Cybercrime Convention. If this text were accepted, it would be the first time that a trade agreement would be used to criminalize those who obtain access to secret information held online, regardless of their motivation and without any public interest defenses. Like the rest of the IP chapter—but if anything, even more so—this goes far beyond the appropriate scope for an agreement that is being negotiated behind closed doors and away from public oversight.

We don't know for sure that these paragraphs are included in the current TPP text, as the leaked text is several months old. It also contains the disclaimer, “Parties are still reflecting on the new formulation for paragraphs 2 and 3.” As such a spokesperson for the US Trade Representative has had the gall yesterday to “strongly caution anyone from drawing premature conclusions of any kind based on supposed leaked text from unsubstantiated, unnamed sources”, as if we had any more official source of information on which to draw.

All we can say is that we had all better hope that these provisions don't make it into the final agreement, because they are amongst the most atrocious, overreaching and human-rights infringing provisions in the entire text of the TPP.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceInternationalTrans-Pacific Partnership Agreement
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Latest TPP Leak Shows US Still Pushing Terrible DRM and Copyright Term Proposals—and New Threats Arise - Fri, 17/10/2014 - 05:30

Today Wikileaks published a new draft of the Trans-Pacific Partnership (TPP)’s intellectual property chapter. This draft text, from May 2014, gives us another look into the current state of negotiations over this plurilateral trade agreement’s copyright provisions since another draft was leaked last year. And what we’re seeing isn’t pretty. The TPP still contains text on DRM, ISP liability, copyright term lengths, and criminal enforcement measures, and introduces new provisions on trade secrets that have us worried.


Despite an over-abundance of evidence that laws punishing circumvention of DRM do far more harm than good, the USTR continues to press other countries to embrace the U.S.’s failed anti-circumvention policy. The leaked text suggest that some provisions have improved, but others have deteriorated. Although the leaked text does allow exceptions to the provision outlawing DRM circumvention, it suggests that these exceptions should be limited to specific cases “where there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process.” We know how well the exemption process has worked to protect lawful uses here in the U.S. (it hasn’t). If we are going to pressure other countries to adopt our failed policies, the least we should do is let them have an relatively easy way to prevent those policies from crippling innovation and free expression. What is worse, it would likely impede countries from adopting laws (such as those of India, although that law is hardly a paragon) that provide a blanket exemption for DRM circumvention for lawful purposes.

Copyright Term

Whereas in the previous leak a coalition of countries had proposed that the TPP should allow them to retain full flexibility in determining the optimal length of their copyright term, that proposal has now been excised from the agreement—the only option now on the table is a provision that specifies a minimum term of years. How many years that should be, ranging from life plus 50 to life plus 100 years, remains undecided.

Equally troubling, there seems to be full agreement to limit countries from imposing conditions on any extended term after 50 years, which would go beyond the requirements of international law, and preempt creative proposals aimed at helping overcome the orphan works problem, for example by requiring rightsholders to pay a $1 renewal fee to gain the benefit of any extended term of copyright protection.

Criminal Treatment of Trade Secrets

A new, more detailed provision on trade secrets introduces text that would criminalize the unauthorized, willful access of a trade secret held in a computer system, or the misappropriation or disclosure of a trade secret using a computer system. This text goes far beyond existing trade secrets law, which in the United States and other common law countries is usually a matter for the civil not the criminal courts. No public interest exception, such as for journalism, is provided. In practice, this could obligate countries into enacting a draconian anti-hacking law much like the Criminal Fraud and Abuse Act (CFAA) that was used to prosecute Aaron Swartz.

Liability and Enforcement

On ISP liability the text remains quite contested, and as such is shuffled into a “non-paper” at the end of the leaked text. This article provides ISPs with a safe harbor against liability for copyright infringements by users, which EFF supports as a general principle. But the sting is in the tail: protection from liability may be conditioned on ISPs participating in a DMCA-like notice and take-down regime, where allegedly infringing content is removed from the Internet without a court order (although Canada would limit the ISP’s responsibility to sending notices of claimed infringement rather than taking the material down).

Also still contested are the criminal enforcement provisions. The issue is whether users can be held criminally liable for copyright infringements conducted on a commercial scale, for commercial advantage or financial gain. In the November 2013 text, the text was more highly contested by all 12 TPP countries, but now most of the disagreement lies between the US and Canada. The US seeks a broader definition of a criminal copyright infringement, to even cover acts that are noncommercial, whereas Canada only wants to apply criminal remedies to cases where someone has infringed for commercial purposes. If the US gets its way, then criminal penalties will apply even against users who were not seeking financial gain from sharing or making available copyrighted works, such as fans and archivists. Such a broad definition is ripe for abuse.

Public Domain

It's not all bad news. For the first time, the parties have reached agreement to include an article recording their recognition of “the importance of a rich and accessible public domain” and acknowledging “the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.” But this is easy to say. We are more interested in how these words are backed up with actions, and this article of the agreement imposes no specific obligations.

The latest TPP leak confirms that the US Trade Representative is not backing down from exporting the most severe interpretations of US copyright law. As we’ve reiterated for years, TPP is just the latest cycle of policy laundering that takes advantage of the secretive, special-interest dominated negotiating forum of trade agreements in order to continue heightening copyright standards around the world. The only way to make practical, public-interest driven digital policy is for our policymakers to be held accountable. Backroom trade negotiations are the epitome of a defective, undemocratic rulemaking system. As long as special corporate interests dominate the agenda of our international digital policymaking fora, Internet users will not stand for such illegitimate regulations.

Related Issues: WikileaksDRMInternationalTrans-Pacific Partnership Agreement
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New Report Finds Users Want Copyright to Respect Creators, Free Expression, and Democratic Rulemaking - Thu, 16/10/2014 - 09:53

Canadian digital rights organization, OpenMedia, released a copyright report today that crowdsourced input from users from around the world. Their survey asked users to express their thoughts about copyright and to determine what issues they would like policymakers to prioritize in constructing innovation policy domestically and internationally. The process took over two years and attracted participation from over 300,000 people in 155 countries.

The result was published today at Our Digital Future, which features the highlights of this extensive study. Hundreds of thousands of users have spoken and they have made three main recommendations to policymakers.

First, users called for creators interests' to be upheld and respected. 67% of respondents wanted to see at least three-quarters of revenue from the sale of creative works to go directly to artists and creators. They also called for the promotion of new ways for creators to share their work, flexible exemptions to copyright, and rules that encourage a rich public domain.

Secondly, they called for copyright policies to prioritize free expression. Nearly three-quarters of respondents selected “Prioritize Free Expression” as their first priority for developing more balanced copyright. Respondents proposed a four-pronged agenda, including: preventing censorship, protecting fair use and fair dealing, promoting access and affordability, and creating clear rules to govern the sharing of knowledge and culture online.

And third, users called for policymakers to embrace democratic processes. Over 72 percent of respondents indicated that they wanted rules created through “a participatory multi-stakeholder process...that includes Internet users, creators, and copyright law experts.” Respondents denounced closed-door processes that plague negotiations over trade agreements like the Trans-Pacific Partnership (TPP). These users overwhelmingly called for participatory, democratic, and transparent policymaking fora to shape copyright rules.

In short, people want copyright laws to make sense and balance the interests of everyone. At a time when the line between creator and cultural consumer has become blurred, users want copyright policy to uphold our collective rights and concerns, not just those of a separate illusory class of "creators." Despite how copyright laws both internationally and in most domestic regimes fiercely protect the special interests of Hollywood and Big Content industries, they are not the only ones producing creative works. Their exclusive access to international policymaking negotiations does not reflect the current reality of cultural creativity and consumption online.

This user-driven study is just one way of reflecting our interests, and showing policymakers that the secretive processes of agreements like TPP completely fail at respecting those interests when it comes to crafting copyright policy for the digital age.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceInternationalTrans-Pacific Partnership Agreement
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Is NY DFS Backing Off Its Attack on Bitcoin Developers? The Devil Will Be In The Details. - Thu, 16/10/2014 - 09:42

Last night, New York Department of Financial Services Superintendent Ben Lawksy gave a speech at the Benjamin N Cardozo School of Law in which he reportedly backed down from the threat of forcing software developers who innovate around Bitcoin to obtain licenses. According to Coindesk, Lawksy said: 

"To clarify, we do not intend to regulate software or software development. For example, a software developer who creates and provides wallet software to customers for their own use will not need a license. Those who are innovating and developing the latest platforms for digital currencies will not need a license."

From the Wall Street Journal:

Software developers, bitcoin miners, and individuals (unless they also offer financial services) doing business in New York state won’t have to apply for a BitLicense, he said, according to the prepared remarks, but traditional banks looking to get into digital currencies will. The proposal was meant as a starting point, not an ending point, he said, but it was also influenced by the collapse of the Mt. Gox exchange.

First of all, this is good news. It’s clear that the NY DFS is starting to hear from entrepreneurs and developers who are concerned that the proposed regulation would be disastrous for both civil liberties and innovation. 

But as with any regulation, the devil is in the details. While NY DFS may make promises in press releases and public statements, the real measure of its commitment to innovation and privacy is in the actual text of the regulatory framework. As currently written, the proposed regulations have vague, confusing provisions that could easily be interpreted as affecting developers and other entrepreneurs beyond money services. We won’t know for sure if the next draft is better until we can see the text.

Second, while Superintendent Lawsky is making promises about narrowing the category of people who need to get a BitLicense, we have yet to hear that he’s addressing other privacy and free speech concerns with the proposed framework. These include invasive processes for applying for a BitLicense as well as a mandate that licensees maintain identity records for all transactions for 10 years. 

So while we are heartened to see the superintendent is receptive to innovation concerns, we won’t be convinced that there are adequate safeguards for users, developers and merchants until we see those safeguards in writing. For now, we’re urging people who care about civil liberties to speak out against the BitLicense and demand that Superintendent Lawsky uphold digital rights. 

Speak out. Learn more about BitLicense

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Civil Liberties Groups Appeal Ruling Over Automatic License Plate Reader Data - Thu, 16/10/2014 - 08:31

The Electronic Frontier Foundation and the ACLU Foundation of Southern California are taking the fight over automatic license plate reader (ALPR) data to the next level by asking the California Court of Appeal to rule that the public has a right to know how Los Angeles cops are tracking their locations.

ALPRs are cameras mounted to patrol cars and fixed locations, such as light poles, that are able to capture, process, and store the license plates of every vehicle that passes nearby. The Los Angeles Police Department and Los Angeles County Sheriff’s Department together collect close to 3 million license plates each week; these data points could give police an intimate picture of the comings and goings of the entire population over several years. By our estimates, these agencies currently have an average of 61 plate scans for each vehicle registered in Los Angeles County.

EFF Senior Staff Attorney Jennifer Lynch and ACLU SoCal Senior Staff Attorney Peter Bibring describe the potential impact on civil liberties in the new brief:

A network of readers enables police to collect extensive location data on an individual, without his knowledge and without any level of suspicion. ALPRs can be used to scan and record vehicles at a lawful protest or house of worship; track all movement in and out of an area; gather information about certain neighborhoods or organizations; or place political activists on hot lists so that their movements trigger alerts ... Taken in the aggregate, ALPR data can create a revealing history of a person’s movements, associations, and habits.

Two years ago, EFF and ACLU SoCal used the California Public Records Act to obtain policies and training presentations regarding ALPR used by these agencies, but the agencies refused to provide us with one week’s worth of ALPR data that we believe is crucial to an informed public debate over this mass surveillance technology.

When we took LAPD and LASD to court, the agencies came back with a stunning argument that they were allowed to withhold this information because 100 percent of the data constituted investigative records, which are exempted from disclosure under California’s open records law.

Who were they investigating? Every car in Los Angeles.

The Superior Court judge ultimately ruled in favor of the Los Angeles cops, but this decision was based on serious misconceptions about how the technology works and the public interest in the data. These two points are the central issues EFF and ACLU SoCal are now asking the California Court of Appeal for the Second Appellate District to consider.

In his ruling, Judge James Chalfant concluded that Los Angeles cops use ALPR in a “targeted”  fashion because officers choose where to drive their vehicles and which plates to focus on. This ignores the fact that ALPR cameras indiscriminately capture every license plate’s image, not just those of specific vehicles (such as stolen cars) that are the subject of investigations. As Lynch and Bibring write in the brief:

LAPD and LASD use ALPRs to collect license plate data automatically and indiscriminately on each and every driver in Los Angeles who passes within range of their cameras—at a rate of three million scans per week—whether or not those drivers are suspected of wrongdoing. These systems are unlike almost any other surveillance technology in use by law enforcement today. Even red-light cameras, which also capture an image of a vehicle’s license plate, are only triggered to save a picture of the plate when the driver has violated the law by entering an intersection after the light has turned red.

EFF and ACLU SoCal are also challenging the judge’s conclusion that releasing the week’s worth of data would compromise police investigations, outweighing the public interest in seeing this data. For example, the judge indicated that releasing the data would reveal patrol patterns, despite the fact that patrol patterns aren’t particularly secret—patrol cars are easily viewable to the naked eye.

More importantly, as we note in the brief, release of raw ALPR data has fueled debates in jurisdictions such as Minneapolis and Boston, leading to distinct policy changes to protect citizens’ privacy. Lynch and Bibring argued:

In each of these examples, disclosure of the data was integral to informed debate—within the legislatures, among the general public, and even within the agencies themselves. Without public access to information about how ALPR technology is being used—including the raw ALPR data from a limited time period—the very people whose whereabouts are being recorded cannot know if their rights are being infringed nor challenge policies that inadequately protect their privacy.

Around the country, we have seen local law enforcement agencies adopt privacy-invasive technologies with little oversight or public input. In some cases—particularly with ALPRs—even the companies supplying these devices ask agencies to sign agreements not to speak publicly about these programs.

The truth is: the only threat posed by transparency is to the police’s unchecked surveillance powers. 

Click here for the text of the petition for writ of mandate.

Related Issues: Locational PrivacyTransparencyRelated Cases: Automated License Plate Readers (ALPR)
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Beware the BitLicense: New York’s Virtual Currency Regulations Invade Privacy and Hamper Innovation - Thu, 16/10/2014 - 07:25

With assistance from Marcia Hofmann

What if you picked up a cup of coffee on your way to work and paid $2.00 in cash, only to have the man behind the counter request your home address?

"My home address?" you might ask. 

"Yes," he might reply, "And your full legal name. I’m keeping it in a file for the next 10 years, just in case the government wants it."

Sound ridiculous? Substitute bitcoins for cash, and that’s what the New York regulators might like to see happen in the near future at businesses that accept digital currency.

The State of New York has proposed BitLicense, a sprawling regulatory framework that would mandate licenses for a wide range of companies that intersect with digital currencies. The proposal creates expensive and vague new obligations for start-ups and infringes on the privacy rights of both Bitcoin businesses and casual users.

Right now NY DFS is accepting comments from the public about its proposal. Whether you are a startup, a student, an engineer, or just an Internet user with a passion for individual rights, please submit a comment. Click here to get started, or read on to find out what’s wrong with the regulatory framework.

Even if You Don’t Need A BitLicense, This Affects You

People affected by this proposal fall into two broad categories: those who must obtain a BitLicense and those who may be affected, but don’t need to obtain a BitLicense.

So, who will need a license? It’s not as clear as one would hope.  The regulations seem to require BitLicenses from anyone who converts digital currency, transmits digital currency, stores digital currency, secures digital currency, or "receives digital currency for transmission" "involving" New York or a resident of New York.1 (There are some specific exceptions.)

Who might this include? Anyone who makes virtual currency wallets, exchanges, or storage tools, as well as people innovating new types of digital currency. The regulations are worded vaguely enough that they may even sweep up innovators building Bitcoin-related businesses that aren’t financial services.  Basically, this implicates developers, entrepreneurs, middlemen, and other providers of services related to virtual currency. There are no carve-outs for academics or security researchers.

Then there is everyone else who might be affected by this. The NY DFS states that “the license is not required for merchants or consumers that utilize Virtual Currency solely for the purchase or sale of goods or services.” However, as written, the proposal would require companies with with licenses to keep records about transactions of everyone who uses their services, so the privacy of individual Bitcoin users would be affected. Think back to the coffee shop at the beginning of this article. If this coffee shop were using a Bitcoin payment provider to process transactions, that payment provider would need to obtain a BitLicense from New York. While the coffee shop and its customers would not need to get a license, every digital transaction processed by the payment provider would have to follow the BitLicense record-keeping requirements. We elaborate on these mandates below, but among other things they require licensees to keep 10 years of records about all transactions, including identity information about all parties to a transaction.

There is also vagueness in the language of the proposal about whether P2P node operators and miners of digital currencies might need a BitLicense2, and whether there are circumstances in which users hosting their own wallets and transmitting coins directly to other users might fall under the regulations.

Financial Privacy Under Threat

One of the benefits of Bitcoin and similar digital currencies is that they offer the potential for private financial transactions. Of course, not all Bitcoin transactions are private in nature; in fact, the public block chain has a level of transparency closer to a public stock exchange than a private bank account. However, there are already technical measures that can be taken to mask one’s real identity when using Bitcoin, and future innovations in digital currency could continue to preserve privacy.  

We can think of a hundred reasons why someone may prefer privacy in her financial transactions. Consider an NSA employee who wants to donate money to EFF, a teenager who wants to buy contraceptives for the first time, or a grassroots political organization raising money for the legal defense of a political prisoner. In each case as well as countless others, there are legitimate reasons why someone may want to spend money without having that fact linked to his or her identity for a decade.

Bank cards and websites where you can donate money or make purchases almost always come with terms of service, many of which may have onerous provisions that limit certain types of transactions to those the middle man considers acceptable. Websites and payment providers can make arbitrary decisions to shut down speech that is controversial even when it’s legal. We saw an example of this when Mastercard, Paypal, and Visa blockaded payments to WikiLeaks, a website publishing classified documents that had not been charged with a crime. 

Bitcoin and other digital currencies are attempting to recreate some of the censorship-resistant and privacy-protecting attributes of cash. And that’s good; it’s an innovative way of preserving some of those offline protections in a digital world. It could mean digital payments without terms of service or privacy violations.

 The BitLicense proposal threatens all of that.

Infringing Privacy Rights of Innovators, Developers and Businesses

Companies that are subject to BitLicense—including developers, innovators and businesses looking to create new digital currency products—would have to forfeit their privacy by making extensive personal disclosures to the state of New York. This might mean people who care about their privacy might choose to avoid working in the digital currency space altogether.

Virtual currency businesses would have to submit an application for a BitLicense. The application requires a wealth of information, including that every applicant and certain key individuals within the business submit:

  • Detailed information, including name, physical and mailing address and “information and documentation regarding their personal history, experience and qualification.”
  • A background report prepared by an independent investigatory agency.
  • A set of complete fingerprints to be handed over to both state and federal law enforcement.
  • Two portrait-style photographs.
  • Details about any legal proceedings they’re involved in, even those that have nothing to do with business activities.

In short, the BitLicense could spell the end of entrepreneurs and engineers hacking on new virtual currency tools and functions without turning their lives into an open book for the government to peruse.

 Infringing Privacy Rights of End Users and Merchants

If enacted, this regulation would affect the privacy of end users as well as businesses that offer Bitcoin payment options. While these folks might not need a BitLicense, they may well rely on service providers that do need it – such as payment providers. Those payment providers, in turn, would be collecting more information on customers.

For every transaction, the licensed business must keep:

  • The amount, date, and precise time of the transaction, and any payment instructions;
  • The total amount of fees and charges received and paid to, by, or on behalf of the licensee;
  • Names of the parties to the transaction;
  • Account numbers of the parties to the transaction; and
  • Physical addresses of the parties to the transaction.

All these records must be kept for at least 10 years, “in a condition that will allow the superintendent to determine whether the Licensee is complying with all applicable laws, rules, and regulations. ”

While we are generally concerned that forcing companies to maintain detailed records on every transaction is both burdensome and unnecessary, we are particularly concerned about the requirement that every transaction include name and physical address for all parties. This would, in effect, threaten the possibility of having any cash-like interactions in the digital world.

While you might be able to drop a couple quarters into an open guitar case as you walk down a busy street today, you’d never be able to anonymously send a street performer a few satoshi with an app on your smartphone.  You’d also never be able to make a donation to a politically radical cause through a payment provider without linking your identity to it for a decade.  Transactions – regardless of how big or small, how sensitive or mundane – would have a 10-year data trail that points back to your legal name and physical address.

An Industry in Its Infancy Does Not Merit Chains

It’s premature to craft extensive regulations for an industry that’s so new and still in flux. We think New York should play it cool for a few years and see what the market does before rushing in to clamp down on an industry in its infancy.

However, if NY DFS is intent on pushing ahead with this proposal, then we must call for safeguards to protect digital rights. The NY DFS is letting the fear of money laundering drive a massive regulatory proposal forward. NY DFS should respect the rights of technology users, and limit its regulation to what is proportionate to the real threat at hand.

Even if you aren’t a Bitcoin enthusiast, you should care about BitLicense. None of us knows what innovative new technologies might spring up in future years, including new ways that virtual currency protocols might be used for anything from combatting spam to facilitating international remittance. If enacted, the BitLicense proposal could stifle this innovation before it had a chance to get a foothold.

Submit comments to NY DFS, and ask your friends to do the same.

(Note: EFF is proud to accept Bitcoin; you can choose Bitcoin after hitting donate on any page). 

Read more:

Marco Santori's What New York's Proposed Regulations Mean for Bitcoin Businesses

Harley Geiger's NY's Proposed BitRegs a Threat to Privacy and Innovation

  • 1. According to NY DFS’ press release, the new DFS BitLicenses will be required for firms engaged in the following virtual currency businesses:
    • Receiving or transmitting virtual currency on behalf of consumers;
    • Securing, storing, or maintaining custody or control of such virtual currency on the behalf of customers;
    • Performing retail conversion services, including the conversion or exchange of Fiat Currency or other value into Virtual Currency, the conversion or exchange of Virtual Currency into Fiat Currency or other value, or the conversion or exchange of one form of Virtual Currency into another form of Virtual Currency;
    • Buying and selling Virtual Currency as a customer business (as distinct from personal use); or
    • Controlling, administering, or issuing a Virtual Currency. (Note: This does not refer to virtual currency miners.)

  • 2. While the NY DFS' press release clearly states that miners will not need to get a license, the regulations themselves are not nearly so clear.

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Act Now: California Public Utilities Commission Will Take A Stand On Net Neutrality Tomorrow - Thu, 16/10/2014 - 05:37

UPDATE: Just hours before the California Public Utilities Commission was scheduled to vote on whether or not the powerful state regulator would support the FCC's deeply flawed net neutrality proposal, the item was removed from today's agenda. This is the second time a vote on this issue has been delayed by the CPUC. In anticipation of today's vote, the state regulator received over 3,000 emails from Californians demanding protection from discrimination by Internet providers and advocates planned to deliver a petition with 11,000 signatures to the CPUC at today's meeting. Although the FCC's official comment window has closed, the federal agency has not closed the docket and continues to accept input.

When it comes to the Internet, Californians are pioneers. There’s a reason EFF chose to make its home in San Francisco, and that so many path-breaking new technologies and businesses were born in this state. Tomorrow the state’s Public Utilities Commission (CPUC) is scheduled to decide whether to do its part to protect those pioneers – and the next technologies and businesses being incubated right now in someone’s basement, dorm room, or lab – by supporting real net neutrality.

Specifically, the CPUC is debating whether to endorse the Federal Communication Commission’s proposed net neutrality rules. As we’ve explained, the FCC’s proposal is a bad idea that would not only do little to help protect the open Internet, it is likely to actually damage it by clearing the way for the creation of Internet “fast lanes.”

The CPUC is one of the nation’s largest and most influential utility regulators, and there’s little question that every telecommunications company is lobbying hard to convince the CPUC to come out in favor of the FCC rules.

But pay-for-play Internet isn’t a future we’ll accept. That’s why it’s we’re calling on our fellow Californians to make sure the CPUC knows that it must not back the FCC’s proposal to allow for ISPs to discriminate against how we access certain websites.

If the CPUC is serious about creating sound policy that truly reflects the needs of the educators, entrepreneurs, artists, families, and everyday people who rely on the Internet, the utilities commission will do the right thing and come out in favor of classifying the Internet as a telecommunications service at the FCC. Doing so would give the FCC the power to stop ISPs from unfairly impeding our access to parts of the Net.

But we aren’t sure that the CPUC is going to do the right thing here, especially given the pressure they are receiving from the telecom industry. So they need our help.

Californians have been the most vocal in the net neutrality debate at the national level. It’s time to make our voices heard here at home. Let’s make sure the CPUC understands what the Californians have been demanding all year: It's time to take real steps to protect the open Internet, beginning with reclassification.

The Internet is how we communicate with those we love; it’s how we learn and build our future. Please take action right now, before it’s too late.

Please note, this link will redirect you from the EFF website to an action by our friends at Media Alliance, a Bay Area based media justice organization.

Related Issues: Net Neutrality
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Nintendo Updates Take Wii U Hostage Until You "Agree" to New Legal Terms - Tue, 14/10/2014 - 03:09

When you buy a device, you expect to own it. You expect to be able to open it up, mess with it, and improve it. At the very least, you expect it to continue to work for its intended purpose.

What you don't expect is that the manufacturer will remotely cause the device to stop functioning unless you agree to be bound by new legal terms governing your relationship with them.

Yet this is how Nintendo's update to its end-user license agreement (EULA) for the Wii U works, as described by Youtube user "AMurder0fCrows" in this video. He didn't like the terms of Nintendo's updated EULA and refused to agree. He may have expected that, like users of the original Wii and other gaming consoles, he would have the option to refuse software or EULA updates and continue to use his device as he always had before.  He might have to give up online access, or some new functionality, but that would be his choice. That’s a natural consumer expectation in the gaming context – but it didn’t apply this time.

Instead, according to his video, the Wii U provides no option to decline the update, and blocks any attempt to access games or saved information by redirecting the user to the new EULA. The only way to regain the use of the device is to click "Agree."

Console users have good reason to want the power to refuse updates. A few years back, Sony released an update that removed the PS3's ability to run Linux and custom software. This downgrade eliminated important functionality, but at least users could refuse the update (though the DRM imposed onerous restrictions even then). The Wii U provides no such option: once the EULA update is in your system, it holds the device hostage until you agree to Nintendo's demands.

This is part of a dangerous trend. Last month, the New York Times reported that some auto loans are accompanied by "starter interrupter" devices that can shut down your car if you're a few days late with a payment or drive out of a designated area. People were suddenly prevented from driving their children to the doctor, stranded when they tried to escape domestic abuse, and in some cases had their cars deactivated while they were on the road. These extreme consequences came without judicial process, and often without notice.

This trend bodes ill for consumers.  As long as your devices came burdened with DRM and onerous licenses, a device you own may stop working merely because the manufacturer wants to rewrite its contract with you. Agree, or lose access to your device and stored data. That’s what happens when owners become renters.

These kinds of abusive business practices are among the reasons we at EFF fight for your right to hack, root, and pwn your hardware. To read more about those efforts, visit our issue pages for DRM, the Right to Repair, and our Coders' Rights Project.

Related Issues: Fair Use and Intellectual Property: Defending the BalanceDefend Your Right to Repair!DMCA
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