http://www.eff.org/press/archives/2008/11/18

New York - A New York City community organizer is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting.

The Electronic Frontier Foundation (EFF) is representing Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. As one part of her education campaign, Durkee created a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil rights activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

In the WIPO proceedings, USP has argued that Durkee's website copied elements of USP's website and that users are likely to be confused into thinking the parody site is actually USP's site.

"Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work," said EFF Staff Attorney Corynne McSherry. "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."

In addition to filing her answer and counterclaims, Durkee today filed a letter with the court asking for a prompt hearing on her fair use defense. Durkee asked the court to convene a conference as soon as possible to set a schedule for briefing and a hearing.

The law firms Mayer Brown LLP and Gross & Belsky LLP are co-counsel in this case.

For the full answer and counterclaim:
http://www.eff.org/files/filenode/usp_v_durkee/Answer%20and%20Countercla...

For more on USP v. Durkee:
http://www.eff.org/cases/usp-v-durkee
Contacts:

Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

http://www.eff.org/deeplinks/2008/11/riaa-wins-campuses-lose-tennessee-governor-signs-c

Last week, the RIAA celebrated the signing of a ridiculous new law in Tennessee that says:

Each public and private institution of higher education in the state that has student residential computer networks shall:

[...]

[R]easonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (50) or more legally valid notices of infringement as prescribed by the Digital Millennium Copyright Act of 1998 within the preceding year.

While the entertainment industry failed to get "hard" requirements for universities in the Higher Education Act passed by Congress earlier this year, the RIAA succeeded in Tennessee (and is pushing in other states) with this provision that gives Big Content the ability to hold universities hostage through the use of infringement notices. Moreover, the new rules will cost Tennessee a pretty penny -- in the cost review attached to the Tennessee bill, the state's Fiscal Review Committee estimates that the new obligations will initially cost the state a whopping $9.5 million for software, hardware, and personnel, with recurring annual costs of more than $1.5 million for personnel and maintenance. Not a penny of this will go to artists, nor to any of the record labels RIAA represents.

Unfortunately, the entertainment industry lobby seems to be succeeding, bit-by-bit, in persuading legislators to coerce universities into buying "infringement suppression" technologies -- expensive technologies that won't stop file sharing on campus networks. Even if the technologies did work (magical thinking in light of encryption), does anyone think they would somehow force students back into record stores or the iTunes Store? After all, today students on campus can swap multiple gigabytes hand-to-hand for pennies (see, e.g., blank DVD-R disks, or the price of portable hard drives, as well as the ease of copying from iPod to iPod).

It makes no sense to force universities to spend millions on technologies that will hobble innovation on campus while failing to stop file-sharing. Why not use those millions to compensate creators and copyright owners, and thereby make file-sharing legal, instead? Now, more than ever, the universities need to come forward with a collective licensing proposal that will protect their campus communities and their own bottom lines.

Meanwhile, universities under the gun should make sure to shun the hype of network filtering when possible and seek solutions more amenable to teaching and academic freedom -- our whitepaper on copyright infringement technologies on campus networks is a good place to start. For more detail, EDUCAUSE has in-depth resources on P2P, file sharing, and the Higher Education Act.

http://www.eff.org/deeplinks/2008/11/judge-allows-bogus-jones-day-trademark-claims-go-f

In a decision that could have significant negative consequences for online speech and commerce, Judge John Darrah of the Northern District of Illinois has refused to dismiss some of the most preposterous trademark claims we've ever seen (and that's saying something).

The defendant in the case, BlockShopper.com, provides information about recent real estate transactions, including publicly available information about buyers and sellers. After BlockShopper published articles referring to two Jones Day attorneys who had recently bought homes (with links to their bios on the Jones Day firm website), the law firm sued BlockShopper, alleging that using the term "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site. With amicus support from EFF, Public Citizen, Public Knowledge and the Citizen Media Law Project, BlockShopper.com argued that the uses were fully protected by fair use and the First Amendment, and that no Internet user would imagine that Jones Day was affiliated with or sponsored BlockShopper based solely on a link or a reference to the firm in a headline.

This case was a perfect candidate for early dismissal. It is based on the erroneous belief that trademark owners can prevent others from using their marks, accurately, in the ordinary course of communication, to refer to the owners themselves. Trademark law has never given a mark owner veto power over all uses of its mark, and for good reason. Online and off, trademarks—words, symbols, colors, etc—are also essential components of everyday language, used by companies, consumers and citizens to share information. If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it.

We're disappointed that a respected law firm like Jones Day started this outrageous litigation, but we're even more disappointed that the court didn't take this opportunity to nip it in the bud. The court said that it could not end the case at this stage because it is required to take Jones Day's allegations as true. That's not precisely so; on an early motion like BlockShopper's, a court is required to accept facts as true, but not (implausible) legal conclusions. That's because deciding the facts is up to a jury. But interpreting the law is exactly what the judge is supposed to do, and it's disheartening to see the court let this case go any further.

At any rate, by allowing the case to go forward, the court has made BlockShopper's defense much more expensive, even if BlockShopper is confident (as it should be) that it will win in the end. Thus, the court has sent a signal to news sites and blogs everywhere: no matter what the Lanham Act says, if you link to a trademark owner's site, or use a mark in a headline or post, you'd better have a pretty decent legal budget.

http://www.eff.org/deeplinks/2008/11/fcc-unanimously-approves-use-television-white-spac

Advocates for the opening of the "white spaces" were rewarded with a resounding victory earlier this month when the FCC unanimously voted in favor of allowing unlicensed use of the unused spectrum between TV channels. (For a more complete explanation of white spaces, check out our earlier blog post.) While FCC Chairman Kevin Martin had telegraphed his support for white spaces at the conclusion of technical trials, the landslide vote opens doors for innovation and is a victory for the public over the entrenched media incumbents.

However, it's important to consider the remaining variables in play. The end goal is better wireless broadband access in America -- more Internet, in more places, at lower cost. While innovators have been given a significant green light by the FCC through this vote, there are other milestones to be met and obstacles to overcome: a possible legal challenge from the broadcasters, full implementation of spectrum avoidance technology, and FCC certification of consumer-ready devices. These will all have an effect on the amount of time it takes for white space devices to reach consumers.

Regardless, the FCC's unanimous approval is a major win for the public. It's easy to imagine the FCC playing it safe and succumbing to the incumbent broadcasters instead, closing the gates on improved wireless technology at the outset. But the current Commission's commitment to innovation, its investment in researching the technology, and the efforts of public interest groups and regular folks speaking out made the difference and is paving the way for a better future in wireless broadband.

http://www.eff.org/press/archives/2008/11/13

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.

For the full amicus brief:
http://www.eff.org/files/filenode/ky_v_domainnames/amicusbriefky.pdf

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-nam...

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

http://www.eff.org/deeplinks/2008/11/transparency-agenda

This is the final post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on government transparency. Previously, we've written about surveillance and intellectual property.

The past eight years have seen an increase in government secrecy and a decrease in government accountability. These factors have led to record levels of distrust in our government. Here are three steps the new leadership should take to begin to restore that trust:

1. Leverage new technology to provide authoritative government data. It's notoriously difficult or impossible to find and manage data on legislation (both passed and proposed), on election day polling locations, on the boundaries of Congressional districts, and on government spending. All of these should be made available online for the federal and state levels, in open formats, with no intellectual property restrictions on their use, distribution or ownership.

2. Review the entire information-classification infrastructure and reform it to create meaningful oversight. This system has been repeatedly abused by the White House. It leaves far too much discretion in administration hands, allowing them to "capture" legislators who want to be "in the loop," forbidding them from conducting any serious investigation into the administration's illegal or questionable practices.

3. Restore strength to the Freedom of Information Act (FOIA). Encourage government agencies to produce documents, instead of withholding documents under overbroad pretenses. This will allow the government to assist in uncovering misconduct. A good start would be to re-introduce and pass the Faster FOIA Act.

http://www.eff.org/deeplinks/2008/11/innovation-agenda

This is the second post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on innovation, fair use and intellectual property. On Friday, we posted about privacy and surveillance, and tomorrow we'll discuss government transparency.

Today's intellectual property (IP) laws frequently fail to strike the proper balance between the rights of creators, copyright holders and the public. Powerful companies interested in maximizing their investments in intellectual property have run roughshod over the people's fair use rights. This has been especially problematic given the explosion of user generated content sites like YouTube, which celebrate creativity and innovation and actively encourage a remix culture. It is our hope that our government leaders will work to bring balance to the law. Here are some suggestions to get things started:

1. Repair the Digital Millennium Copyright Act (DMCA). Eliminate the ability of copyright holders to get statutory damages for noncommercial violations of copyright laws. Require proof of actual damages prior to any award based on copyright liability. Raise the requirements for content owners to receive preliminary injunctions against technologies in copyright cases. Congress should pass the FAIR USE Act and the Orphan Works Act.

2. Reform the U.S. Patent and Trademark Office (PTO), emphasizing its role to promote, rather than impede, innovation. Patents, by constitutional design, are supposed to "promote the Progress of Science and useful Arts." All too often today, patents are used to hold innovation hostage. Patent office procedures should be reviewed to ensure that patent examiners are being given the tools and incentives they need to challenge overbroad patent applications. Simultaneously, avenues for post-grant administrative review procedures should be broadened, ensuring that public interest groups can continue to raise post-grant challenges without restrictive time limitations on their participation.

3. Don't let the content industry use our government resources to pressure universities and others to participate in their intimidating peer-to-peer dragnet operations.

4. Show caution before regulating the use of technologies that limit consumer choice or consumer rights. In the United States and abroad, our government should advocate for policies that promote the ability of consumers to use technology they purchase however they choose.

http://ozlabs.org/~rusty/index.cgi/2008/11/09#2008-11-09

OK, so CCAN (think CPAN for C) finally got some cycles: the web page no longer completely sucks, and there's a rudimentry upload facility.

I thought it worth mentioning it here; IMHO it's something which would really advance best practices in C, but obviously needs a fair amount of more polish and a LOT more code before that becomes a reality. (The handful of modules so far are mine, most inspired by Linux kernel practice, such as the reimplemented list.h).

http://www.eff.org/deeplinks/2008/11/wipo-broadcasting-treaty-back-dead

Last year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.

Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.

Yesterday, the Broadcasting Treaty was the main topic of discussion at this week's meeting of the WIPO Standing Committee on Copyright in Geneva. In spite of the enthusiastic efforts of treaty supporters, consensus still seems quite a long way off. Several country delegations (France on behalf of the European Community, Japan, El Salvador and China) expressed support for concluding a treaty. Others repeated that the treaty must be limited to protection of signals and not grant exclusive rights, which the current draft does (Pakistan on behalf of the Asia Group, the Africa Group, South Africa, India. the US).

As in previous meetings, the most contentious issue was whether the treaty should give broadcasters and cablecasters exclusive rights over Internet retransmissions of broadcast and cablecast content. The Africa Group, China, Nigeria, India, South Africa and Egypt all opposed inclusion of webcasting or extension to Internet transmissions. Japan, the US, Australia and the Ukraine supported the extension of the treaty to the Internet.

The US delegation said that if discussions are to continue, the treaty should include webcasting. This is a reversal of the United States' most recent position, and harks back to a May 2006 meeting, where it was agreed to take out webcasting and divide the treaty into two tracks -- first, a treaty on broadcasting and cablecasting, and then second, an instrument dealing with broadcasting on the Internet -- webcasting or "netcasting", as the US had wanted, and "simulcasting", as supported by the EU.

Yesterday, the United States' delegation stated it had agreed only temporarily to limit the scope of the treaty to traditional broadcasting entities, provided that simulcasting was also excluded, and with the failure to move to a diplomatic conference in 2007, any agreement on the two-track approach had now expired. In other words, the US apparently wants to go back to 2006 and bring webcasting or "netcasting" back in to the treaty. Finally, in case there was any doubt, the North American Broadcasters' Association repeated that their strong preference is for a treaty with exclusive rights for broadcasters and extending to Internet retransmissions.

EFF and a diverse group of public interest NGOs, libraries and major U.S. tech industry players continue to oppose the current treaty draft because it's not limited to signal protection, but would instead create a new layer of exclusive intellectual property rights for broadcasters and cablecasters that would harm access to knowledge and consumers' existing rights under national copyright law, endanger citizen broadcasting on the Internet, raise competition policy concerns and stifle technological innovation. Here and here is the joint statement presented by that group to WIPO this week. And here's EFF's briefing paper on our concerns with the current treaty draft.

Discussions at WIPO wound up today, after heated discussions on the issue of copyright exceptions and limitations. Member states agreed to keep the Broadcasting Treaty on the Copyright Committee's agenda and asked WIPO to convene an information session at the next meeting in May to discuss outstanding issues. The Committee did not make a decision on the various options presented by the Chair in his informal paper. Perhaps most importantly, Member States affirmed the mandate previously provided by the WIPO General Assembly -- that the treaty must be framed on a signal-based approach, and that the convening of a diplomatic conference could be considered only after agreement has been achieved on the treaty's objectives, specific scope and objectives. We'll be back shortly with the full text of the final adopted conclusions of the meeting and our analysis of this week's key issue, copyright exceptions and limitations for the visually impaired, libraries and archives, education and innovative services.

(With many thanks to Sherwin Siy of Public Knowledge and Judit Rius Sanjuan of KEI for their notes of delegates' interventions.)

http://www.eff.org/deeplinks/2008/11/privacy-agenda

This is the first post in a three part series directed at restoring some of the civil liberties we've lost over the past eight years. Today's post is about our privacy rights. We'll follow this up early next week with our thoughts on intellectual property rights and government transparency.

As new leaders prepare to move into the White House and Congress over the next few months, we'd like to call on them to restore Americans' privacy rights. Here's a little "wish list" we'd like to put forward:

1. Repeal or repair the FISA Amendments Act (FISAAA). There are a great many flaws in FISAAA, which was passed last Summer after a long and difficult fight. Most significantly, the provisions granting retroactive immunity from litigation to telecommunications companies complicit in the Bush Administration's warrantless wiretapping program should be repealed so that the millions of Americans who have been illegally surveilled can have their day in court.

2. Reform the Electronic Communications Privacy Act (ECPA). ECPA is a major law restricting the government's ability to surveil citizens and is in desperate need of reform. It has become dangerously out-of-sync with recent technological developments and Americans' expectation of online privacy. In particular, the privacy of personal data should not depend on how long an ISP has stored that data or whether the data is stored locally or remotely.

3. Reform the State Secrets Privilege. The State Secrets Privilege has been radically abused by the Bush Administration, particularly to shield its electronic surveillance activity from judicial review. The new administration should voluntarily reduce its use of the privilege, and work with Congress to reform the privilege and insure that claims of state secrecy are subject to independent judicial scrutiny.

4. Scale back the use of National Security Letters to gag and acquire data from online service providers. The REAL ID Act, with its requirement that Americans carry a national ID card, has been rejected by many U.S. states and should be federally repealed. Large-scale government data collection and data-mining projects like Automated Targeting System (ATS) should be reduced or eliminated. Invasive border-searches of electronic devices should be stopped.

http://www.eff.org/deeplinks/2008/11/global-minilinks-2008-11-06

• French Senate Votes for Three Strikes
  The bill still has to pass the National Assembly, however — and faces a clash with developing European law.
• No Clean Feed - Stop Internet Censorship in Australia
  The battle against the Australian goverment's plans to install compulsory filters on all Internet traffic grows in strength. Electronic Frontiers Australia offers action items for worried Aussie Net users.
• Circumvention in New Zealand
  Content Agenda summarizes what's been happening in NZ copyright law.
• Join the Public Domain Calculators
  The Open Knowledge Foundation is working on a system to determine whether works are in the public domain in your country or not. Join volunteers in Argentina, Belgium, Canada, Chile, Italy, Norway, Philippines, Sweden, Switzerland, United Kingdom, United States and add your country to the calculator.
• Internet and Freedom in Egypt
  Egyptian bloggers talk about how the Net and free speech fare in Turkey.
• UK Net Users Wrongly Accused of File-sharing Infringements
  British games companies are sending threatening letters to Internet users who have never touched a computer game.
• Linking Alone is Not Defamation in Canada, Court Declares
  The British Columbia Supreme Court asserts that websites linking to a document are not "publishing" the document for purposes of libel law. One of the defendants, p2pnet, comments.
</p>

http://www.eff.org/deeplinks/2008/11/ourvotelive-org-helps-86-000-voters

Yesterday, a year-long collaboration between EFF and the Election Protection Coalition came to fruition. OurVoteLive.org, powered by EFF's Total Election Awareness project, helped EP's thousands of hotline operators and legal response teams document and respond to over 86,000 calls to the 866-OUR-VOTE voter-assistance hotline on November 4th and during early voting. Over 5,000 more calls were documented during the primaries.

Now that the election is over, Our Vote Live contains the largest database of voting-related inquiries, problems, and discrepancies ever created — all searchable and visible to the general public. While important prototypes were used in prior elections, Our Vote Live was by far the most comprehensive and most successful effort to date.

Behind the simple features visible to the general public is a complex system that enabled hotline call centers to provide information to callers, record their questions and complaints, and coordinate legal assistance and media outreach in response.

The vast majority of the calls came from voters with one of two inquiries: 29,000 callers asked "Am I registered to vote?", and 34,000 asked "Where is my polling place?" Just trying to answer these basic questions is complicated task as up-to-date voter registration data and polling place data is notoriously difficult to find and consolidate. Catalist and The Google Elections Team did an impressive job of rounding up much of this information and helping us make it available to volunteer operators at EP's call centers. (Google's Abe Murray has a great post on the Google Maps Blog about the tangled process of assembling Google's polling location data.)

A significant number of the calls to the 866-OUR-VOTE hotline reported serious problems. When they did, Our Vote Live enabled operators to coordinate a response with unprecedented efficiency. Joe Hall, who used the system to assist volunteers in his call center in New York City, writes:

One thing that has become obvious is having a bonafide database record ID is gangbusters for coordinating across centers, from centers up to national and within centers. The ability to have a living entry, one you can add notes to and add follow-up information, was a big deal... often we'd finally get to one in our pile, pull up the entry and see that someone else had followed up, meaning that we could quickly move on and not waste anyone's time.

As the system provided unprecedented information in close to real time, Our Vote Live was regularly reviewed by the press, election integrity advocates, and others interested in the health of the electoral process. OurVoteLive.org received close to 60,000 visitors on Election Day and was blogged about or linked to by the likes of Fox News, the New Yorker, Daily Kos, the Wall Street Journal, the Huffington Post, the NAACP, Common Cause and many others.

We hope that the real benefits of the project are only beginning to be seen. It's been less than 24 hours since Election Day, and we (and Election Protection) are only beginning to review the data in a comprehensive way. There's a recount likely in the Minnesota Senate race, and there's a runoff imminent in the Georgia Senate race. We've heard nationwide reports of unmanageably long lines, voter intimidation, and (of course) voting machine problems. Beyond the serious problems identified in individual reports on Our Vote Live, we need substantial systemic reform of our election process, as Election Protection leaders outlined in a memo Tuesday evening.

In addition to all of the things that went right yesterday, Election Day highlighted areas where the need for major improvement remains. Smart, transparent information technology will play a critical role in future reforms, and EFF will continue to work with EP and others to help make it happen. Stay tuned to EFF's Deeplinks blog for updates as the process continues.

(This is cross-posted to the OurVoteLive blog.)