EFFector Vol. 20, No. 4 January 23, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 410th Issue of EFFector:
- Action Alert - Tell Congress to Investigate the NSA Spying Program!
- Update on Eli Lilly Zyprexa Documents Fight
- Signs of Music Download DRM Fading
- Major Labels Block Zune Sharing of Certain Songs
- Newspaper Publisher Tries to Thwart First Amendment
- Time Running Out -- Nominate a Net Pioneer Now for EFF's 2007 Awards!
- miniLinks (8): Andy Griffith Stands Up to Warrantless Wiretapping
- *Administrivia
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. : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Action Alert - Tell Congress to Investigate the NSA Spying Program! Over five years since it first began, the NSA's massive domestic spying program remains shrouded in secrecy. Last week, the Bush Administration announced that it has let the shadowy FISA court review the program, but that's not enough -- the President must abide by the law and answer to the traditional court system, Congress, and the American public. Take action and demand immediate Congressional investigations: http://action.eff.org/fisa Three federal courts have already rejected the government's bogus arguments and allowed cases to go forward regarding the secret surveillance. With its back against the wall, the Administration has finally conceded that judicial review should be involved at some level. That's welcome news, but the President is still trying to dodge meaningful oversight. While claiming that the secret FISA court orders legalize the program, the Administration has refused to let anyone else see the orders and confirm key details about what they permit. EFF is skeptical that they actually satisfy the strict requirements of current statutes or the Fourth Amendment, considering the broad program of dragnet surveillance alleged in our case against AT&T for its role in the program. Congress must do its job and help uncover the truth about the program. Take action now to protect the checks and balances that define our democracy: http://action.eff.org/fisa Learn more about EFF's case against AT&T: http://www.eff.org/legal/cases/att Read the Justice Department's letter to Senators Leahy and Specter: http://action.eff.org/site/DocServer/justicedept_FISA_letter.pdf?docID=441 : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Update on Eli Lilly Zyprexa Documents Fight EFF was back in court January 16-17 defending the right of an anonymous wiki contributor to post links to important internal Eli Lilly documents about its biggest-selling drug, Zyprexa. After hearing two days of testimony from those involved (and not involved) with the disclosure of the Lilly documents, the judge has ordered additional briefs and promised a decision sometime in early February. Unfortunately, he also extended his January 4 injunction that bars anyone from posting the documents or information that would "facilitate the dissemination of the documents" (presumably, including links) to zyprexa.pbwiki.com until he is able to issue his ruling. The good news is that the documents continue to be readily available on the Internet. (One law professor said he was able to find and download them in 19 minutes.) The bad news is that the judge's order constitutes a prior restraint on free speech -- the court's injunction prohibits the whole world from publishing the documents on zyprexa.pbwiki.com. It's hard not to compare this outcome with the Pentagon Papers case, where the Supreme Court threw out even a temporary injunction against publication of stolen Pentagon documents in the New York Times and Washington Post. (It's also reminiscent of Proctor & Gamble v. Bankers Trust, where the court threw out a prior restraint against Business Week over documents leaked from a lawsuit.) But based on the evidence introduced in court, it appears clearer than ever that Eli Lilly will not be able to justify any ongoing restriction on publication of these documents by those who were not involved in the initial leak. So we are looking forward to Judge Weinstein's ultimate ruling. For this post and related links: http://www.eff.org/deeplinks/archives/005081.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Signs of Music Download DRM Fading Apparently, this year's MIDEM conference, the music industry's international trade show, took place in a parallel universe where the major record labels may be willing to embrace the open MP3 format. And this parallel universe may be coming to an online store near you in 2007. According to the International Herald Tribune, "Executives of several technology companies ... said ... that a move toward the sale of unrestricted digital files in the MP3 format from at least one of the four major record companies could come within months." While the RIAA's Mitch Bainwol pretended that fully interoperable digital rights management (DRM) could exist, the article recounts many examples that demonstrate "a new appreciation in the [music] industry for unrestricted copies, which could be sold as singles or through subscription services or made freely available on advertising-supporting Internet sites." The major labels should have gotten this clue long, long ago. Unfortunately, it remains clear that the major record labels aren't ready to eschew DRM entirely. They're once again in Congress pushing for a backdoor DRM mandate for satellite and digital radio as well as webcasting. The labels may finally be hearing your disdain for DRM at online music stores -- make your voice heard in Congress now by opposing mandatory radio DRM: http://action.eff.org/site/Advocacy?id=221 For this post and related links: http://www.eff.org/deeplinks/archives/005084.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Major Labels Block Zune Sharing of Certain Songs DRM may be fading for music downloads, but, in the meantime, it's still giving music fans a raw deal. Microsoft is trying to set its Zune media player apart from the iPod by showcasing its remarkably limited sharing feature. Many reviews have harped on how shared songs can only be played three times over three days. But the restrictions are actually even worse -- if you read the fine print, you'll find that "The Zune to Zune sharing feature may not be available for all audio files on your device." In fact, Engadget reports that certain songs bought at Microsoft's own store cannot take advantage of Zune's sharing. All the songs come wrapped in DRM, and apparently Microsoft doesn't tell customers at the time of purchase whether songs can be shared or not. The Zunerama blog tested the sharing feature on the top 50 songs sold at the Zune Marketplace, and 29 songs produced this message: "Can't send some songs because of rights restrictions." As usual, when you buy DRMed media, you may be getting much less than the online music service has promised. For this post and related links: http://www.eff.org/deeplinks/archives/005083.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Newspaper Publisher Tries to Thwart First Amendment The Santa Barbara News-Press needs a lesson in the First Amendment. Insisting that an anonymous comment posted for a few hours on a news blog skewed a labor unionization vote, the publisher of the newspaper is demanding that Google disclose the blogger's account information. It all started last September, three months after several editors walked off the job amid allegations that News-Press owner and co-publisher Wendy McCaw had improperly interfered in editorial decisions. The remaining employees were struggling to form a union to negotiate with McCaw, and McCaw did not take kindly to the unionization effort or even commentary about it. In fact, she has sued two newspapers based on their coverage of the labor dispute and threatened defamation suits against individual citizens who posted pro-union signs in their windows. The legal campaign has made headlines around the country. Enter pseudonymous blogger Sara de la Guerra. Sara reports and comments on current events in Santa Barbara and has been critical of McCaw's anti-union tactics. In early September, a third party submitted a comment advocating various acts of cybersabotage against News-Press management. The comment was taken down within hours, but News-Press later issued a press release quoting and complaining about the comment. When the employees then voted to form a union, News-Press filed objections with the National Labor Relations Board, arguing that the comment had influenced the election. Three months later, just a few days before the hearing on the objections, News-Press issued a subpoena to Google seeking information relating to Sara's account. News-Press has apparently forgotten a basic principle of the journalistic profession--respect for the First Amendment, which protects the right to anonymous speech. Court after court has recognized that discovery requests that seek to pierce the anonymity of online speakers must be carefully scrutinized. Moreover, courts have recognized the need for a particularly high level of protection when the discovery request seeks information about a nonparty. Such protection is especially important here, given McCaw's proclivity for retaliating against critics. Sara's important but fragile anonymity interests must be shielded unless News-Press can show that its claims are viable and that the requested evidence is necessary to advance those claims. And therein lies the rub: The hearing to which the information would be relevant was held two weeks ago, with no reference to the subpoena. Thus, even assuming the information was relevant to some claim, the need for that information has passed. EFF has written a letter to the NLRB judge explaining the free speech interests at stake and asking him to confirm the subpoena is moot. Here's hoping that the judge will bring a quick end to this dangerous skirmish in the News- Press' anti-union campaign. For this post and related links: http://www.eff.org/deeplinks/archives/005079.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * Time Running Out -- Nominate a Net Pioneer Now for EFF's 2007 Awards! EFF established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This is your opportunity to nominate a deserving individual or group to receive a Pioneer Award for 2007. The International Pioneer Awards nominations are open both to individuals and organizations from any country. Nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology. How to Nominate Someone for a 2007 Pioneer Award: You may send as many nominations as you wish, but please use one email per nomination. Please submit your entries via email to pioneer@eff.org. We will now accept nominations until January 30, 2007. Simply tell us: 1. The name of the nominee, 2. The phone number or email address or website by which the nominee can be reached, and, most importantly, 3. Why you feel the nominee deserves the award. Nominee Criteria: There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply: 1. The nominees must have contributed substantially to the health, growth, accessibility, or freedom of computer-based communications. 2. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization and a means of contacting the nominee. In addition, while anonymous nominations will be accepted, ideally we'd like to contact the nominating parties in case we need further information. 3. The contribution may be technical, social, economic, or cultural. 4. Nominations may be of individuals, systems, or organizations in the private or public sectors. 5. Nominations are open to all (other than current members of EFF's staff and board or this year's award judges), and you may nominate more than one recipient. You may also nominate yourself or your organization. 6. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at EFF's expense. More on the EFF Pioneer Awards: http://www.eff.org/awards/pioneer/ : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * miniLinks The week's noteworthy news, compressed. ~ Andy Griffith Stands Up to Warrantless Wiretapping Mayberry's privacy rights more secure than the modern United States. http://www.youtube.com/watch?v=4CvoC551i2E ~ How Do New NSA Spy Warrants Work? One Expert Speculates Jim Dempsey tries to work out what it might mean. http://blog.wired.com/27bstroke6/2007/01/how_do_innovati.html ~ Your Privacy Law Role-Call All the new privacy bills on their way to Congress, as collected by PogoWasRight. http://www.pogowasright.org/staticpages/index.php?page=20061217075935498 ~ Brewster Kahle's Orphan Works Case Denied Professor Chris Sprigman offers legal analysis. http://www.publicknowledge.org/node/799 ~ Music Industry Wants to Sue Euro ISPs Litigation against third-parties expected "in weeks rather than months." http://news.independent.co.uk/business/news/article2162919.ece ~ VirginMega Adopts DRM-Free MP3 on its Music Store France is first country in which major store switches from WMA to MP3. http://www.djing.com/news/1926/virginmega-adopts-drm-free-mp3-on-its-music-store/ ~ German, French Orgs Unite Against DRM Consumer groups claim iTunes' FairPlay is anti-competitive. http://www.macleans.ca/culture/news/shownews.jsp?content=e012247A ~ eMusic Surpasses 250,000 Subscribers... ...while unencumbered music sales go up and up. http://playlistmag.com/news/2007/01/22/emusic/index.php : . : . : . : . : . : . : . : . : . : . : . : . : . : . : * 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.
