EFFector Vol. 20, No. 8 February 21, 2007 editor@eff.org A Publication of the Electronic Frontier Foundation ISSN 1062-9424 In the 414th Issue of EFFector:

• Judge Denies Complete Stay in AT&T Surveillance Case
• Media Giant Bullies Internet Critic
• RIAA to ISPs: Help Us Sue Your Customers Better
• Film Insurers Recognize Fair Use
• Why Microsoft Sold Out Consumers in Vista
• Awesome EFF Sticker Pack Now Available!
• miniLinks (12): Free Congress!
• Administrivia

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

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* Judge Denies Complete Stay in AT&T Surveillance Case

Government and AT&T Cannot Freeze Proceedings During Appeal

San Francisco - A federal judge yesterday ruled that the
Electronic Frontier Foundation (EFF) can go forward with 
elements of its class action lawsuit against AT&T for 
collaborating with the government on illegal spying in 
ordinary Americans -- despite the government and AT&T's 
request to freeze proceedings during an appeal.

In his ruling, U.S. District Court Judge Vaughn Walker 
opened the door to beginning the discovery process, 
allowing EFF to ask "limited and targeted" questions as 
long as those questions do not overlap with the issues 
under consideration in the 9th U.S. Circuit Court of 
Appeals.

"The government wanted to put this case in the deep 
freeze," said EFF Staff Attorney Kurt Opsahl. "Instead, the 
court has invited us to move forward with some targeted 
questions. We're glad to accept that invitation, which will 
allow progress while respecting the government's national 
security concerns."

Judge Walker also refused to implement a blanket stay on 
the other telecommunications surveillance cases transferred 
to his court. He ruled that unless the parties stipulate to 
a stay, then "defendants will answer or otherwise respond 
to the complaint" by March 29. Earlier yesterday, Judge 
Walker denied requests from media groups to unseal critical 
evidence in the AT&T case.

"We're disappointed that the court did not choose to unseal 
all of the documents that include or refer to the evidence 
presented by Mark Klein and our expert, J. Scott Marcus. 
The government has already agreed that the evidence is 
neither classified nor a state secret, and is only being 
held under seal because of AT&T's weak trade secrecy 
claims," said Cindy Cohn, EFF's Legal Director. "Given that 
the privacy of millions of Americans is at stake, we 
strongly believe that the public would benefit from seeing 
this evidence for themselves."

Judge Walker did grant the media groups' request to 
intervene, and said he might revisit the unsealing issue at 
a later date.

For Judge Walker's full order:
http://www.eff.org/legal/cases/att/stayorder220.pdf

For more on EFF's case against AT&T:
http://www.eff.org/legal/cases/att/

For this release:
http://www.eff.org/news/archives/2007_02.php#005130

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* Media Giant Bullies Internet Critic

Discovery Communications Tries to Chill Speech with 
Baseless Legal Claims

San Francisco - The Electronic Frontier Foundation (EFF) 
warned Discovery Communications, Inc., last week to cease 
its demands for the removal of an online template that uses 
humor to help people criticize the media company.

The "SpankMaker," located at 
http://www.spankmymarketer.com/ , helps users create 
parodies of a controversial marketing campaign in 
connection with a Discovery television production. The 
online tool provides images from the marketing campaign and 
Discovery's corporate websites, and allows users to modify 
them with commentary.

A lawyer for Discovery has demanded that the website 
operator remove the template, claiming it infringes 
Discovery's copyright and is used to defame the company. 
But in a letter sent in response, EFF outlines how the use 
of the images in the template is clearly a non-infringing 
parody. EFF also explains that the comments that offended 
Discovery are not libelous and that, in any event, Section 
230 of the Communications Decency Act protects the creator 
of the SpankMaker from liability for comments written by 
others.

"Once again, a business is trying to use false legal claims 
to chill criticism," said Staff Attorney Corynne McSherry. 
"Fortunately, more and more, the targets of these kinds of 
threats are fighting back."

EFF's letter is part of its ongoing campaign to protect 
online free speech. Earlier this month, EFF provided legal 
support for environmental activists who were threatened by 
the Chicago Auto Show after posting an Internet parody. In 
November, EFF reached an agreement with the corporate 
owners of the popular children's television character 
Barney the Purple Dinosaur to withdraw meritless legal 
threats against a website publisher who parodied the 
character.

For EFF's response letter:
http://eff.org/legal/cases/discoverycom_v_rubinstein/response_letter.pdf

For this release:
http://www.eff.org/news/archives/2007_02.php#005126

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* RIAA to ISPs: Help Us Sue Your Customers Better

As if suing thousands of music fans isn't bad enough, now 
the RIAA wants to conscript ISPs into helping them 
streamline the shakedowns. The major record labels sent a 
letter to ISPs across the country asking them to trade away 
customers' rights and make the overzealous file sharing 
lawsuits more profitable -- and the RIAA even has the 
audacity to suggest that this is all for your own good.

ISPs currently have no obligation to maintain IP log files, 
and that's a good thing when it comes to protecting your 
privacy. Those log files can serve as Internet breadcrumbs 
-- your ISP and any third party that has access to them can 
retrace your online activities.

But the RIAA wants ISPs to maintain (and disclose) a 
customer's IP logs for six months whenever the RIAA says 
the user may have infringed copyright. In exchange, the 
record companies will reduce its initial lawsuit settlement 
demands. Of course, the actual customer would have no say 
in the matter. The RIAA letter says it wants the 
information kept because it could "exculpate" the customer, 
but of course those same records can also implicate the 
user. Funny, the labels don't mention that.

EFF and others have long warned that copyright claims could 
become an altar on which personal privacy is sacrificed. 
Now the RIAA wants your ISP to voluntarily wield the knife, 
and there's no telling what else the RIAA might ask for 
once this cut has been made.

The RIAA also wants ISPs to keep customers in the dark 
about their legal options. Before the RIAA has even 
verified that the user is correctly identified, it wants 
ISPs to send along a note saying the user might be sued and 
can already settle potential claims. At the same time, the 
RIAA scolds ISPs for giving information to their customers 
that could help provide sound legal counsel. Instead, the 
RIAA wants ISPs to direct subscribers solely to the RIAA.

In other words, the RIAA wants it to be harder for 
customers to find out that settling early might be a bad 
idea. Does the RIAA readily tell customers that parents are 
generally not liable for infringements committed by their 
kids, or that bankruptcy might be a last-ditch option for 
some, or that the record labels have occasionally sued the 
wrong people? Doubtful. The RIAA's letter notes that some 
people have been told that "the RIAA could have been 
incorrect in identifying your IP address" -- which of 
course is true -- and "directed the subscriber to certain 
websites, instead of having him contact the RIAA." We 
suspect those websites include EFF's resources as well as 
the Subpoena Defense website.

It's possible that, after the fact, a given user might have 
preferred a cheaper, earlier settlement, but neither ISPs 
nor fans should have to make the remarkably perverse choice 
laid out in the RIAA's "offer." As we've pointed out 
repeatedly, the record labels could help forge a better way 
forward to get artists paid without suing fans or further 
endangering their privacy.

The last time we checked, ISPs don't work for the RIAA, so 
until the major record labels come to their collective 
senses, ISPs shouldn't be handmaidens in their misguided 
lawsuit campaign.

Sign our petition opposing the lawsuit campaign: 
http://www.eff.org/share/petition

For this post and related link:
http://www.eff.org/deeplinks/archives/005124.php

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* Film Insurers Recognize Fair Use

Copyright law has long caused headaches for documentary 
filmmakers. Fair use allows for the use of brief excerpts 
of copyrighted material, but that doesn't stop some 
copyright holders from threatening lawsuits and demanding 
exorbitant licensing fees. Unless they clear every snippet, 
filmmakers are generally unable to get "errors and 
omissions" insurance, and, without that, it's basically 
impossible to get a film distributed and released in the 
theaters or TV.

To help clarify the principle of fair use, a group of five 
national filmmakers organizations put together a Statement 
of Best Practices in Fair Use in 2006. The Statement 
provides guidance for lawyers, broadcasters and insurers as 
to what constitutes fair use.

And happily, the Statement has had a dramatic effect. Cable 
programmer IFC has been guided by the Statement in deciding 
what documentaries to air, and now insurers are using it to 
extend coverage for filmmakers. National Union, a major 
insurer, has recently adjusted its policy to extend 
coverage for fair use. Filmmakers can now purchase 
insurance provided an attorney with experience in copyright 
law is willing to attest that the film falls within the 
fair use as defined in the Statement.

This is tremendous news for independent filmmakers, who 
should find it easier to make their art and inform the 
public without fear of being shut down by legal threats. As 
Professor Bill McGeveran suggests at the Info/Law blog this 
could also be "a powerful approach" for other creative 
communities "to preserv[e] fair use without direct legal 
action." Let's hope so.

For the Statement of Best Practices:
http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/

For this post and related links:
http://www.eff.org/deeplinks/archives/005125.php

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* Why Microsoft Sold Out Consumers in Vista

For now, the PC industry needs Hollywood more than 
Hollywood needs the PC. Most consumers rely on traditional 
consumer electronics devices to view DVDs and TV content, 
but companies like Microsoft desperately want a bigger 
piece of that market and are betting on the convergence of 
traditional media devices with PCs. Because of the Digital 
Millennium Copyright Act, Microsoft has to get permission 
to build devices compatible with Hollywood's digital rights 
management (DRM) restricted content. So when Hollywood 
demanded that Microsoft lard Vista with restrictions to 
access high-def DVD and digital cable content, the software 
giant was in a weak bargaining position.

But as computer security expert Bruce Schneier explains in 
a recent editorial, Vista's DRM may also be a play to turn 
the tables and turn Microsoft's platform into a 
distribution channel on which Hollywood relies:

"[W]hile it may have started as a partnership, in the end 
Microsoft is going to end up locking the movie companies 
into selling content in its proprietary formats.

"We saw this trick before; Apple pulled it on the recording 
industry. First iTunes worked in partnership with the major 
record labels to distribute content, but soon Warner 
Music's CEO Edgar Bronfman Jr. found that he wasn't able to 
dictate a pricing model to Steve Jobs. The same thing will 
happen here; after Vista is firmly entrenched in the 
marketplace, Sony's Howard Stringer won't be able to 
dictate pricing or terms to Bill Gates. This is a war for 
21st-century movie distribution and, when the dust settles, 
Hollywood won't know what hit them....

"Microsoft is reaching for a much bigger prize than Apple: 
not just Hollywood, but also peripheral hardware vendors. 
Vista's DRM will require driver developers to comply with 
all kinds of rules and be certified; otherwise, they won't 
work. And Microsoft talks about expanding this to 
independent software vendors as well. It's another war for 
control of the computer market."

Schneier overstates his case a bit when he says Microsoft 
could have simply refused Hollywood's demands for DRM and 
Hollywood would have released today's high-def video 
content for Vista anyway. But he's right that Microsoft 
would very much like to lock content vendors into 
distribution channels that it can control, including IPTV 
and digital downloads. And the more Hollywood depends on 
Microsoft, the more Microsoft may be able to limit 
competition from other tech companies' platforms and 
devices.

For Schneier's editorial:
http://www.schneier.com/blog/archives/2007/02/drm_in_windows.html

For this post and related links:
http://www.eff.org/deeplinks/archives/005121.php

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* Awesome EFF Sticker Pack Now Available!

Our new sticker pack will set you up with a selection of 
awesome EFF stickers. Spice up your laptop with our  logo,, 
our icon for free speech, or slogans like "Come Back With a 
Warrant," and help spread the word about EFF.

See the stickers at the EFF store:


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* miniLinks
The week's noteworthy news, compressed.

~ Free Congress!
Coders gather to open up more of the legislature's 
deliberations.
http://theopenhouseproject.com/

~ Republicans, Democrats Spat Over IP Rights in Congress TV
After Speaker of the House Nancy Polosi is accused of 
"pirating" C-SPAN, the TV service reiterates that it has no 
copyright interest in the video.
http://techdailydose.nationaljournal.com/2007/02/post_2.php

~ Chinese Lawyers Protest Sina's Blog Censorship
Fight the arbitrary nature of China's limits on free 
speech.
http://www.eff.org/cgi/tiny?urlID=591

~ New York Times on the DJ Mixtape Arrests
"DJs continued to release tapes -- some with hastily added 
tracks on which rappers cursed the RIAA"
http://www.nytimes.com/2007/02/18/magazine/18djdrama.t.html?ref=slashdot

~ Disney Must Consider Sharing Pooh's Honey
The endless fight over the merchandising rights to A.A. 
Milne's work continues to plague the copyright maximalist 
company.
http://techdirt.com/articles/20070219/015211.shtml

~ Students Balk at University's "Free" Music Deals
One insider's view of dealing with the college-only 
licensed music services.
http://www.eff.org/cgi/tiny?urlID=592

~ Bipartisan Effort to Junk Real ID Law
Democrat Rep. Tom Allen and Republican Rep. Scott Lansley 
push for reform of costly, invasive national ID mandate.
http://www.eff.org/cgi/tiny?urlID=593

~ A 55-inch TV Is too big for the Super Bowl
Consumer electronics mavens scratch their heads at NFL's 
Super Bowl rules.
http://www.cepro.com/news/editorial/17746.html

~ UK Government Rejects Calls for DRM Ban
While faulty, DRM is good for price discrimination, Prime 
Minister's office says.
http://news.zdnet.co.uk/itmanagement/0,1000000308,39285993,00.htm?r=1

~ Framing the DRM Debate 
LinuxJournal's Don Marti says it's about more than 
property.
http://www.linuxworld.com/community/?q=node/372

~ Europe's Plan to Track Phone and Net Use
Data retention implementation to be far worse than original 
plans.
http://www.eff.org/cgi/tiny?urlID=594

~ UK Now Running 439,000 E-mail and Phone Taps
Report's author declares wiretap error rate "unacceptably 
high."
http://www.eff.org/cgi/tiny?urlID=595

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* Administrivia

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  http://www.eff.org/	

Editor:
Derek Slater, Activist
 derek@eff.org	

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