EFFector Vol. 19, No. 37 October 3, 2006 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 398th Issue of EFFector: * NSA Wiretapping Bills Stalled, For Now * Action Alert - Don't Let Cable Companies Ratchet Up Restrictions! * Who Killed TiVoToGo? * More Updates from Congress, WIPO, and CA State Legislature * MGM v. Grokster: More Bad News for Innovators * Calling Sony BMG's Bluff: Canadian Rootkit Settlement Improved * miniLinks (9): US Cripples Online Poker and Gaming Industry * Administrivia For more information on EFF activities & alerts: http://www.eff.org/ Make a donation and become an EFF member today! http://eff.org/support/ Tell a friend about EFF: http://action.eff.org/site/Ecard?ecard_id=1061 effector: n, Computer Sci. A device for producing a desired change. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * NSA Wiretapping Bills Stalled, For Now For the past few months, we've been urging you to tell Congress to stop legislation related to the illegal NSA spying program. These bills threaten vigorous judicial oversight of the program, including EFF's case against AT&T, and they could let the government off the hook for breaking the law. Thanks to your tireless efforts, Congress adjourned on Saturday without passing any of these dangerous bills. Stalling the surveillance bills is quite an accomplishment, but this is no time to rest on our laurels. In five short weeks, Congress will be back, and so will this legislation. The November election gives you a chance to rebuke those who have supported illegal spying, and you can keep the pressure on your representatives by visiting our Action Center: http://action.eff.org/fisa To learn more about EFF's case against AT&T for its role in the spying program: http://www.eff.org/legal/cases/att : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Action Alert - Don't Let Cable Companies Ratchet Up Restrictions! Thanks to Hollywood and your cable provider, you'll face "digital rights management" (DRM) restrictions on your TiVo and other devices in the brave new world of high definition (HD) and digital cable. That's bad enough, but the restrictions could get even worse if cable companies can evade certain pro-competitive policies. Take action now to stop them. http://action.eff.org/cablecard/ In 1996, Congress directed the FCC to clear the way for useful, competitive alternatives to cable companies' proprietary set-top boxes, which haves annoyed customers and held up innovation for far too long. In the digital world, those boxes help the cable companies and Hollywood ratchet up limits on legitimate uses, like moving recorded content to portable video devices. But cable companies have been dragging their feet on CableCARD, the credit-card size gadget meant to help create set-top alternatives. Their latest trick: asking the FCC to waive a rule that in effect requires their own set-top boxes to use CableCard to unscramble digital cable signals. This rule (known as the "integration ban") creates a more level playing field for CableCard devices. Without it, cable companies would be able to continue pushing their own proprietary set-top boxes on customers, treating CableCard devices (such as TiVo Series 3 HD) like second-class citizens. The CableCARD standard also prescribes awful restrictions, but if the cable companies succeed in killing it off, their set-top boxes won't face competition, and the DRM will get much worse. Competition from the CableCARD helps keep the cable providers' DRM in check -- after all, trying to put tighter restraints on customers is a good way to lose them to competitors. Follow this link to tell the FCC that you support competition in cable-compatible devices: http://action.eff.org/cablecard : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Who Killed TiVoToGo? Digital Cable and Satellite DRM Harms TV Fans and Innovators San Francisco - Digital Video Recorders (DVRs) have changed the way millions of people watch television. But the new TiVo Series 3 for HD lacks a feature that past versions have had -- TiVoToGo, which allows users to move recorded shows to a computer or other device. In a report released today, "Who Killed TiVoToGo?", EFF gets to the bottom of this digital murder mystery. The plot includes Hollywood, the Federal Communications Commission (FCC), and digital rights management (DRM) -- and it's an ominous tale for television fans looking forward to the widespread adoption of high-definition (HD) television. "When you upgrade to HD TV, you will lose some of your favorite features on other digital devices," said EFF Activist Derek Slater, the report's author. "DRM restrictions won't stop 'Internet piracy,' but they will hamper your ability to watch recorded TV content wherever and whenever you choose." Both digital cable and satellite providers must transmit their programming with DRM to satisfy Hollywood's demands -- and because of the Digital Millennium Copyright Act's (DMCA) restrictions on unlocking DRM even for lawful uses, innovators like TiVo have to get permission from Hollywood and the TV providers before creating compatible devices. TiVo Series 3 HD is one of many new devices that replace your typical cable set-top box by taking advantage of CableCARD technology. Because TiVo could not get permission to include the TiVoToGo feature in conjunction with CableCARD, the feature was removed. "Had Hollywood and the TV providers obtained this kind of veto power years ago, the original TiVo might never have been created," said Slater. "Remember, Hollywood tried to stamp out DVRs when they first started to become widespread, suing DVR-maker ReplayTV into bankruptcy and comparing commercial-skipping to 'stealing.' TiVoToGo is the latest casualty in Hollywood's crusade against new technologies." For the full report "Who Killed TiVoToGo?": http://www.eff.org/IP/pnp/cablewp.php Learn more about cable and satellite DRM: http://www.eff.org/IP/pnp/ For this release: http://www.eff.org/news/archives/2006_10.php#004934 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * More Updates from Congress, WIPO, and CA State Legislature As mentioned above, Congress went into its pre-election recess on Saturday. Along with stalling the NSA wiretapping bills, your phone calls and letters to Congress helped stop tech mandates like the broadcast flag, the fair use-crushing Section 115 Reform Act, and the speech-chilling Deleting Online Predators Act. Your efforts truly made a difference: http://www.eff.org/deeplinks/archives/004929.php Meanwhile, two huge victories for the public interest are within reach at the World Intellectual Property Organization (WIPO). The WIPO Broadcasting Treaty will get further scrutiny at two future meetings, and the Treaty's overbroad scope might be significantly narrowed. Member countries will also continue dialogue on the WIPO Development Agenda. Learn more about the most recent WIPO meetings here: http://www.eff.org/deeplinks/archives/004930.php Learn more about the Broadcasting Treaty and Development Agenda: http://www.eff.org/IP/WIPO/broadcasting_treaty/ http://www.eff.org/IP/WIPO/dev_agenda/ In local news, California's state legislature recently passed a bipartisan, groundbreaking new law that would institute tough privacy safeguards for Radio Frequency Identification RFID chips embedded in state identification cards. Unfortunately, over the weekend Governor Arnold Schwarzenegger vetoed the Identity Information Protection Act and prevented Californians from gaining control over the personal information that will be broadcast by RFID-equipped drivers' licenses, library cards, and other important ID cards. While obviously disappointing, the fight's not over yet -- EFF and our partners will work hard to get this bill reintroduced and passed next year. Read more about the veto: http://www.eff.org/deeplinks/archives/004931.php Learn more about the bill, SB 768: http://www.eff.org/Privacy/Surveillance/RFID/sb768_fact_sheet.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * MGM v. Grokster: More Bad News for Innovators The district court in the MGM v. Grokster case issued its ruling last week, granting summary judgment in favor of the entertainment industry plaintiffs against P2P software maker StreamCast Networks (the other defendants, Grokster and Sharman Networks, have settled). This comes 15 months after the Supreme Court ruling that sent the case back down for consideration under the newly-minted "inducement" theory. EFF represented StreamCast from the beginning of the case through the Supreme Court proceedings. After the Supreme Court's ruling, we predicted that the new inducement theory would have a chilling effect on innovators. Yesterday's ruling bears out that fear. In finding StreamCast liable for inducement, the court said: "Thus, Plaintiffs need not prove that StreamCast undertook specific actions, beyond product distribution, that caused specific acts of infringement. Instead, Plaintiffs need prove only that StreamCast distributed the product with the intent to encourage infringement." This is a remarkably broad statement, and it is at odds with the Supreme Court's view that an intent to encourage infringement must be accompanied by "clear expression or other affirmative steps" beyond the mere distribution of a product. Here's the nightmare scenario for innovators: if you distribute a product that can be used for infringement, copyright owners sue and seek to comb through every document in your company (emails, customer support records, engineering notes, etc.) looking for anything that looks like evidence of bad intent. If the lawyers find anything (how well-trained is your customer support staff? did your engineers have copyright debates in email? how did they test the product?), they will argue that intent + distribution = inducement -- even if you never advertised or publicly encouraged infringing uses. And don't forget, this process is expensive. It cost SonicBlue three million dollars per quarter in legal fees in a lawsuit brought by Hollywood over the ReplayTV DVR. The district court's ruling is one more reason to suspect that secondary liability rules in copyright are out of balance and chilling innovation. For this post and related links: http://www.eff.org/deeplinks/archives/004927.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Calling Sony BMG's Bluff: Canadian Rootkit Settlement Improved Thanks to the quick action of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), Canadian music fans are getting a better deal from Sony BMG. As EFF and others reported, the proposed Canadian Sony BMG rootkit settlement lacks several important consumer protection provisions (e.g. disclosure and testing requirements) that were included in the U.S. settlement. Recently, CIPPIC filed an objection to the proposed settlement, challenging this glaring omission and the woefully inadequate and misleading "explanation" that Sony BMG offered for it. EFF submitted an affidavit in support of the objection, setting the record straight on the context and details of the U.S. settlement. Taking note of the objection at a hearing on the settlement, the Canadian court required Sony BMG to give effective prior notice to Class Counsel and CIPPIC if it decides to use any DRM in Canada that has not already been independently vetted for security problems, as required by the U.S. Settlement. Thus, CIPPIC will be able to intervene to protect Canadians from becoming guinea pigs for DRM. What's more, the settlement is not the end of Sony BMG's legal woes in Canada: it may now face investigations from Canadian regulators as well. One of Sony BMG's lame excuses for the absence of stronger consumer protections in the Canadian settlement was that it only agreed to those provisions in the U.S. in response to pressure from U.S. government entities. Since the Canadian government wasn't leaning on Sony BMG as well, the label figured it didn't have to do the right thing. Sony BMG's effort to rewrite history backfired. Taking up Sony BMG's implicit dare, CIPPIC filed complaints with five government agencies, calling for investigations into Sony BMG's conduct. Now it's time for Canadian regulators to pick up where the civil litigators left off, and make sure Canadian customers -- and their computers -- get the protection they deserve. For this post and related links: http://www.eff.org/deeplinks/archives/004923.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ US Cripples Online Poker and Gaming Industry Ordinary Americans lose access to favorite hobby as companies' stocks tumble. http://www.forbes.com/business/2006/10/02/internet-gambling-offshore-tech-ebiz-cx_po_1002gambling.html ~ AOL Sued for Search Data Debacle Class action alleges violation of privacy laws. http://business.guardian.co.uk/story/0,,1882473,00.html ~ YouTube Strikes Deal With Warner Music Deal will allow music videos to be distributed on site. http://www.pcmag.com/article2/0,1759,2017138,00.asp ~ News Aggregation and Copyright Google continues fighting with Belgian court... http://www.theregister.co.uk/2006/09/22/google_loses_news_appeal/ ~ Robots.txt, We Hardly Knew You ...as publishers try to make their sites harder to aggregate. http://today.reuters.com/news/articlenews.aspx... ~ Macarthur Grant for Social Entrepreneur and Human Rights Cyberactivist Benetech Initiative provides computer security for activists. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/09/19/BAGQ1L89AB1.DTL&hw=macarthur&sn=001&sc=1000 ~ Lime Wire Strikes Back at RIAA P2P company counters copyright claims with accusations of innovation-stifling antitrust violations http://recordingindustryvspeople.blogspot.com/2006/09/lime-wire-sues-riaa-for-antitrust.html ~ United States Snooping Tramples European Privacy Belgium says data protection laws were violated. http://www.theregister.co.uk/2006/09/28/swift_us_privacy_violation/ ~ First E-Passport Readers Installed Brace for identity theft. http://www.realgeek.com/369/us-deploys-first-e-passport-readers : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Administrivia EFFector is published by: The Electronic Frontier Foundation 454 Shotwell Street San Francisco CA 94110-1914 USA +1 415 436 9333 (voice) +1 415 436 9993 (fax) http://www.eff.org/ Editor: Derek Slater, Activist derek@eff.org Membership & donation queries: membership@eff.org General EFF, legal, policy, or online resources queries: information@eff.org Reproduction of this publication in electronic media is encouraged. Signed articles do not necessarily represent the views of EFF. To reproduce signed articles individually, please contact the authors for their express permission. Press releases and EFF announcements & articles may be reproduced individually at will. Current and back issues of EFFector are available via the Web at: http://www.eff.org/effector/ This newsletter is printed on 100% recycled electrons.
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