EFFector Vol. 21, No. 04  February 6, 2008  editor@eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 457th Issue of EFFector:
 * Action Alert: Support Senate Patent Reform and the EFF
Patent Busting Project!
 * EFF Testifies Before House Committee in Support of State
Secrets Privilege Reform
 * Savage v. CAIR: Another Year, Another Attempt to Misuse
Copyright Law to Silence a Critic
 * Illegal Government Surveillance: It's Not Just For
Foreigners
 * EU Law Does Not Require ISP to Hand Over Customers'
Identity Data in Alleged Filesharing Case
 * Update on Pro-IP Act: DC Roundtable on Statutory Damages
 * Barracuda Networks Asks for Help in Defending Free and
Open Source Patent Claim
 * ABA Quietly Considers Anti-Consumer Proposals to Impede
Keyword Advertising
 * MPAA's Error  Oops, College Students Aren't So Bad
After All!
 * Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod
 * Come See EFF at the O'Reilly Emerging Technology
Conference!
 * EFF Seeks Member Services Assistant
 * EFF's 17th Birthday Fundraiser a Success!
 * miniLinks (6): Bush order expands network monitoring
 * 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/

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 http://action.eff.org/site/Ecard?ecard_id=1061

effector: n, Computer Sci. A device for producing a desired
change.

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* Action Alert: Support Senate Patent Reform and the EFF
Patent Busting Project!

Encourage the Senate to take up the Patent Reform Act of
2007 and improve the state of invention and innovation in
America!
http://action.eff.org/site/Advocacy?id=361

The Senate is now deciding whether or not to take up S.
1145, the Patent Reform Act of 2007. This bill represents
the best effort to promote meaningful patent reform, which
is sorely needed. Among other things, the bill aims to
reduce certain excessive patent infringement damages, allow
third parties to file patent defeating documents before
patents are issued, and create a new system for challenging
bad patents. While not perfect, S. 1145 is an important
step in the right direction.

For years, EFF's Patent Busting Project has been a
successful and important front in the fight against harmful
patents and patent abuse. While S. 1145 is generally a good
and important piece of legislation, dangerous language
cropped up in a draft committee report about the bill --
language that threatens the efforts of advocacy groups to
battle patents harmful to consumers, innovation, and the
public interest. There's time yet to address this threat,
so urge your Senators, when looking at S. 1145, to
reevaluate and adjust the provisions in Section 5, titled
"Post-grant Procedures."

The House has already passed its version (H.R. 1908) --
let's keep the momentum for patent reform going strong in
the Senate!

For more information, check out:
http://action.eff.org/site/Advocacy?id=361

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* EFF Testifies Before House Committee in Support of State
Secrets Privilege Reform

EFF Senior Staff Attorney Kevin Bankston testified before
the U.S. House Judiciary Subcommittee on the Constitution,
Civil Rights, and Civil Liberties today, using EFF's case
against AT&T as an example of the misuse of the State
Secrets Privilege by the Administration. The hearing was
the Oversight Hearing on Reform of the State Secrets
Privilege.

Bankston highlighted the fact that the Administration is
attempting to use the state secrets privilege to shield
itself and the telecommunications carriers from
accountability for violating the rights of millions of
Americans. He observed that the Administration is
simultaneously claiming that no information can be
presented to the court about the warrantless wiretapping
without harming national security, while at the same time
selectively providing information to Congress and the
public when that information will further its political
goals. Bankston said, "The Administration should not be
allowed to share or withhold information for its own
political advantage, or to avoid accountability."

For the written testimony by EFF Senior Staff Attorney
Kevin Bankston:
http://www.eff.org/files/EFF_HJC_SSP_written_testimony_Final.pdf

For the complete post by EFF Legal Director Cindy Cohn:
http://www.eff.org/deeplinks/2008/01/eff-house-committee-let-our-cases-go

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* Savage v. CAIR: Another Year, Another Attempt to Misuse
Copyright Law to Silence a Critic

Last week, along with our co-counsel, EFF filed a motion
for judgment on the pleadings asking a U.S. District Court
judge to throw out a copyright infringement suit brought by
talk show host Michael Savage against the Council on
American-Islamic Relations (CAIR). Savage sued CAIR in
December, alleging that CAIR infringed the copyright in his
show when it posted brief excerpts from Savage's radio
program in order to criticize Savage's remarks.

CAIR's use of the radio program excerpts is, of course,
protected under the fair use doctrine. The Copyright Act
specifically makes clear that third parties may utilize
copyrighted works for purposes of commentary or criticism,
as CAIR did in this case. This is not, however, the first
time that a critic attempted to use copyright law to punish
a vocal critic, and it won't be the last. EFF routinely
defends online speakers faced with such abuses of copyright
law.

Our most analogous recent case was our representation of
pseudonymous blogger "Spocko" who criticized the hosts of
San Francisco-based KSFO-AM, utilizing clips from various
KSFO talk shows. KSFO corporate parent ABC sent a
threatening letter to Spocko's ISP which, unfortunately,
pulled down Spocko's site before EFF stepped in and got
Spocko back up and running.

As we pointed out last January, while radio personalities
certainly have a right to air their views, the First
Amendment says nothing about a right to
advertiser-subsidized speech. Even if advertisers choose to
pull their ads because a critic has a more convincing
argument -- even if advertiser revenue dries up completely
and shows are canceled -- it doesn't necessarily follow
that anyone's free speech rights have been violated. Using
the legal process to silence critics, instead of
participating further in the oftentimes rough-and-tumble
"marketplace of ideas," is the antithesis of what the First
Amendment and the Copyright Act stand for. Savage, with his
own daily radio program, would certainly seem able to
compete in that marketplace without the aid of the legal
process.

For more information about Spocko and ABC/KSFO:
http://www.eff.org/cases/spocko-and-abc-ksfo

For the complete post by EFF Senior Staff Attorney Matt
Zimmerman:
http://www.eff.org/deeplinks/2008/01/another-year-another-attempt-misuse-copyright-law-silence-critic

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* Illegal Government Surveillance: It's Not Just For
Foreigners

Last week, Senator Feingold spoke with progressive bloggers
about FISA, eloquently explaining part of what's so
frightening about today's surveillance laws:

  "Do you folks realize that, if you make a phone call or
an email, or do what I did yesterday, receive an email from
my daughter who is in England, that that is no longer
private? That the government can suck up all your emails
and all your phone calls, whether it be to your son or
daughter in Iraq, or your child who's a junior year abroad,
or a reporter over there, and there's no court oversight of
it at all? It's just 'trust us,' by the administration.
That's what's going on in this legislation."

These simple examples are true enough, but the reality is
far worse than they convey. The surveillance devices used
by the NSA copy all Internet traffic that passes through
their cables, ones that carry what is known as "peered"
traffic, or traffic between AT&T and other
telecommunications carriers like Sprint. This is by no
means limited to phone calls to England -- it includes
domestic private communications.

So, the government isn't only listening to phone calls with
your child who's on her junior year abroad -- it's likely to
be receiving phone calls with your child who's at her
friend's house down the road. This distinction is an
important part of the legal action being brought against
AT&T and the other carriers, and something that's rarely
conveyed by the media or understood by members of Congress.

As telecommunications expert Brian Reid says: "This isn't a
wiretap. It's a countrytap."

For the complete statement by telecommunications expert
Brian Reid:
http://www.eff.org/files/nsa/reid.pdf

For this complete post:
http://www.eff.org/deeplinks/2008/01/illegal-government-surveillance-its-not-just-foreigners

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* EU Law Does Not Require ISP to Hand Over Customers'
Identity Data in Alleged Filesharing Case

Can a rightsholder force an ISP to hand over a subscriber's
identity in a civil copyright infringement lawsuit? In the
U.S., the answer is yes - as evidenced by the music
industry's more than 20,000 lawsuits against alleged
individual filesharers. In Spain (and perhaps other EU
countries), the answer is no, at least for now.

In a much-anticipated decision, the European Court of
Justice ruled this week that European Community law does
not require EU Member States to impose an obligation on
ISPs to divulge customer data in response to a request from
a copyright holder who alleges that copyright infringement
has taken place. The decision in Promusicae v. Telefonica
involved a request made by a Spanish music rightsholder
association (Promusicae) to Spain's leading ISP
(Telefonica) for personal data about Telefonica subscribers
using particular dynamic IP addresses, which Promusicae
alleged were engaged in filesharing.

For legal documents related to Promusicae v. Telefonica:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-275/06

For the complete post by EFF International Policy Director
Gwen Hinze:
http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require

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* Update on Pro-IP Act: DC Roundtable on Statutory Damages

Sherwin Siy, staff attorney with Public Knowledge, has
posted an insightful first-person account of a recent
"roundtable" held by the U.S. Copyright Office about the
increase in statutory damages proposed in Section 104 of
the recently-introduced PRO-IP Act.

As we reported when the measure came out, there is precious
little reason to think that copyright's statutory damages
regime is too lenient. (With individuals being held liable
for $220,000 for sharing 24 songs, the evidence indicates
the opposite.) Having convened an all-day roundtable of
"stakeholders," it sounds like the Copyright Office may be
coming to the same conclusion. Read Sherwin's entire
account for a vivid portrait of how copyright policy gets
made in Washington.

For Sherwin Siy's post about the roundtable on copyright
damages:
http://www.publicknowledge.org/node/1369

For this post:
http://www.eff.org/deeplinks/2008/01/update-pro-ip-act-roundtable-statutory-damages

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* Barracuda Networks Asks for Help in Defending Free and
Open Source Patent Claim

Barracuda Networks, Inc., recently announced that it plans
"to defend itself, the open source community and the free
and open source Clam AntiVirus software from a patent by
Trend Micro." The patent at issue in the litigation is U.S.
Patent Number 5,623,600 and is directed generally to virus
detection and removal apparatus for computer networks.

Essentially, Trend Micro's claim is that Barracuda
infringed its patent by incorporating into its products the
free and open source Clam AntiVirus software, which scans
for viruses at the mail gateway. EFF has long worried that
bogus patent claims could threaten the free and open source
software community, and we'll be watching this case
closely. While this claim was made against a company using
the tool, if it's successful, the same argument could be
targeted at a university or even an individual, so it's
important to pay attention at the early stages.

Barracuda has asked for help from the community in seeking
prior art for the patent, much as EFF does in our Patent
Busting Project. As FSF's Eben Moglen says, "Collective
defense from software patents is a shared responsibility
for everyone in the free software ecosystem."

For the Barracuda Networks page about their patent defense:
http://www.barracudanetworks.com/ns/legal/

For this post by EFF Intellectual Property Fellow Emily
Berger:
http://www.eff.org/deeplinks/2008/01/barracuda-networks-defends-open-source-community

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* ABA Quietly Considers Anti-Consumer Proposals to Impede
Keyword Advertising

When you type a word like "Chevrolet" into an Internet
search engine, you aren't necessarily looking for the
nearest dealership. You might be looking for independent
information about Chevy's business practices, quality,
compliance with emissions standards, or even information
about how Chevrolets match up against their competitors.
One of the best ways for competitors, critics and others to
get that information to you is to place ads that use
Chevrolet's trademarks as keywords, so that this
information pops up when you run the search. That's why EFF
has worked hard to stop efforts to use trademark law to
impede keyword advertising. Through lawsuits and
legislation -- like a law that was proposed in Utah --
trademark owners have tried to limit consumer access to
information and block the ability of critics from using
keywords to advertise their point of view, stimulate debate
and mobilize support.

Now there is a quiet move in the American Bar Association's
Intellectual Property Section to make the legal defense of
such keyword advertising more difficult. An ABA committee
is currently debating four resolutions on the issue, all of
which have serious flaws, at best, and anti-consumer
slants, at worst. And some members of the committee are
trying to keep this discussion from public view. The full
analysis by Eric Goldman and EFF Staff Attorney Corynne
McSherry shows why these efforts -- not to mention the
committee's attempts to prevent public scrutiny of those
efforts -- are deeply misguided and could help undermine
the very purpose of trademarks: to improve consumer access
to accurate information about goods and services.

For the full report by Eric Goldman and Corynne McSherry:
http://www.eff.org/pages/aba-keyword-advertising

For this post by EFF Staff Attorney Corynne McSherry:
http://www.eff.org/deeplinks/2008/01/aba-quietly-considers-anti-consumer-proposals-impede-keyword-advertising

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* MPAA's Error  Oops, College Students Aren't So Bad After
All!

When the Motion Picture Association of America (MPAA) began
their campaign against piracy on college campuses, they
waved a study that purported to show that 44% of the film
industry's losses were the direct result of illegal
downloading and filesharing by college students on US
campuses. The MPAA used that number to ramp up the pressure
on Congress to pass legislation that would force colleges
to eavesdrop on their networks and crack down on
filesharing on campus.

44% is a high number, and many were justifiably skeptical.
Now, it seems the MPAA has been forced to admit that its
numbers were not exactly accurate. After diligently
re-checking its math, it has admitted that the 44% figure
was really more like 15%. And because only 20% of college
students live on campus, then campus networks are
responsible for something like 3%.

These "restated" MPAA numbers suggest that the MPAA is
targeting universities not because college kids are a
serious threat to the movie industry's bottom line, but
because the studios hope to set a precedent on campus that
can be used to force filtering on larger commercial ISPs.
It's bad enough that the government is eavesdropping on our
Internet activities without having Hollywood joining in!

For this complete post:
http://www.eff.org/deeplinks/2008/01/mpaa-s-error-oops-college-students-aren-t-so-bad-after-all

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* Latest Test for DMCA Safe Harbors: Warner Sues SeeqPod

Warner Music Group has sued SeeqPod, a "Web 2.0" music
search engine that has been gaining popularity in recent
months. This is the latest in a string of lawsuits against
Web 2.0 companies, like YouTube, MP3Tunes.com, Veoh,
PornoTube, and Divx/Stage 6. Together, the suits represent
an attack by the entertainment industry on the DMCA safe
harbors that protect hosting services and search engines
from copyright claims.

As search engines become more specialized and capable,
certain copyright owners have become increasingly
dissatisfied with the notice-and-takedown bargain struck in
the DMCA. That's what these lawsuits are really about --
the defendants are complying with the letter of the law,
but copyright owners are now trying to change the rules in
court.

Of course, the SeeqPod case may settle, but the copyright
issues will not be going away anytime soon.

For Warner Music Group's full complaint against SeeqPod:
http://www.eff.org/files/Warner%20v%20SeeqPod%20complaint.pdf

For the complete post by EFF Senior Staff Attorney Fred Von
Lohmann:
http://www.eff.org/deeplinks/2008/01/latest-test-dmca-safe-harbors-warner-sues-seeqpod

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 * Come See EFF at the O'Reilly Emerging Technology
Conference!

Heading to San Diego for the O'Reilly Emerging Technology
Conference (ETech) in March? Plan to catch EFF's "On A
Brighter Note..." panel, where EFF lawyers and activists
will put on their rose-tinted spectacles and describe our
best case scenarios: near-future technology that will help
you defend your rights, real world policy initiatives that
could help save the Net, and techniques and tricks that you
can bake into your work now that will help preserve all our
freedoms, for now and for good.

Also, don't forget to come to EFF's Pioneer Awards ceremony
on March 4. And be sure to visit our booth and grab
some EFF schwag during exhibit hours.

The O'Reilly Emerging Technology Conference (ETech) takes
place March 3-6 in San Diego, CA. ETech hones in on the
ideas, projects, and technologies that the alpha geeks are
thinking about, hacking on, and inventing right now. From
robotics, health care, and space travel to gaming, finance,
and art, ETech explores promising technologies that are
influencing everyday life and inspiring the future.

The good folks at O'Reilly are offering a discount to
EFFector readers; enter code "et08eff" when you register
online to save 20%!
http://www.oreilly.com/go/et3cheff

For more about ETech:
http://conferences.oreillynet.com/

For more information about O'Reilly:
http://www.oreilly.com

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* EFF Seeks Member Services Assistant

The Electronic Frontier Foundation (EFF), a nonprofit civil
liberties organization based in San Francisco, is seeking
an energetic, enthusiastic, Member Services Assistant for
supporting EFF's Membership Coordinator and current 12,500+
members. The job includes, but is not limited to, assisting
with the donor and membership database, processing
donations, sending out thank-you letters and renewal
notices, ordering member premiums, managing the donation
pages of the website, responding to any issues members may
have, and helping to develop strategies to grow the
membership. The Member Services Assistant also assists with
EFF's online shop, including order fulfillment. The job may
include running the EFF booth at a number of conferences
each year and assistance in planning other EFF events, so
some travel is required. The Member Services Assistant
reports to the Membership Coordinator and is a key member
of EFF's fundraising team.

The ideal candidate will have some experience in working
with a membership program. We're looking for someone who
has a proven track record of customer service, database
management, and working with a team. We're also looking for
someone who is independent and resourceful. Knowledge of
digital civil liberties issues would be helpful. Excellent
interpersonal, written, oral and organizational skills are
also required. This is a fulltime, hands-on position
working with a dedicated staff in a friendly work
environment.

EFF is a 501(c)(3) organization. Salary in the low $30s
with a comprehensive benefits package.

To apply, please send a cover letter and your resume to
memjob@eff.org. No phone calls please.

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* EFF's 17th Birthday Fundraiser a Success!

Thanks to everyone who came and celebrated with EFF at our
17th Birthday Party at 111 Minna on January 15. The place
was packed with friends and supporters, and EFF raised over
$8,000 to help us keep fighting for your digital rights.

EFF would also like to thank our sponsor, TCHO, "a new
chocolate company for a new generation of chocolate
enthusiasts." TCHO featured an exclusive chocolate sampling
at the party, and TCHO would like to thank EFF supporters
for providing great feedback on their beta chocolate. More
than 300 chocolate fans did a side-by-side comparison of
two slightly different recipes. Both chocolates were
enthusiastically received and each had its ardent
supporters, causing much debate at the sampling table. (For
the curious, the winner by only 17 votes was Sample A!)

EFF would also like to thank 111 Minna for their
enthusiastic support of our work, and for being excellent
hosts. A big thank you as well to the supremely talented
musicians who donated their talents to the party: Adrian &
the Mysterious D (A+D), Ripley, Kid Kameleon, J Tones, and
Qubitsu.

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* miniLinks
The week's noteworthy news, compressed.

~ Bush order expands network monitoring
The President has given the NSA more power to monitor
computer networks of federal agencies. (log-in may be
required)
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503261.html

~ Is retroactive immunity unconstitutional?
If Congress does pass immunity for telecom lawbreakers,
that law may violate the Constitution.
http://writ.news.findlaw.com/sebok/20080129.html

~ The dangers of "locking down" the Internet
Digital locks on content no longer work. Michael Geist
argues that industry is now shifting towards network
filtering to reassert control.
http://www.thestar.com/columnists/article/297938

~ Partner offers $10K bounty for blogger's identity
A lawyer is trying to unmask an anonymous blogger who has
criticized him.
http://www.abajournal.com/weekly/partner_offers_10k_bounty_for_bloggers_identity

~ Are Super Bowl parties copyright infringement?
The NFL is reminding people that showing the "Big Game" on
a large screen may constitute a public performance.
http://techdirt.com/articles/20070201/140812.shtml

~ Copyright law for individuals?
EFF fellow Cory Doctorow says copyright law should
distinguish between commercial and cultural uses.
http://www.guardian.co.uk/technology/2008/jan/29/copyright.law

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* 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:
Richard Esguerra, EFF Activist
 richard@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/