EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia ------------------------------------------------------------- [Note: That's the US state of Georgia, not the Republic of Georgia.] Many state and local governments have passed legislation that appear to be unconstitutional restraints on speech sent over the Internet. One state that recently passed a Bad Law is Georgia. Georgia House Bill 1630 currently sits on the governor's desk awaiting his signature. EFF weighed in and voiced our concerns about this legislation, asking the governor to veto the bill. Among the problems with this legislation is that it would not only make it a crime to use someone else's trademark in user IDs, domain names, and other online contexts - regardless of the fact that in most cases the trademarks in question would not even apply, and it would also criminalize the use of pseudonyms, and furthermore make it illegal to link from your homepage to another site without permission. The constitutionality of the law, as well as it's wisdom, is highly questionable, as is the compatibility of it with existing intellectual property law (for example it could essentially grant the first to trademark a term or name in a particular field a monopoly on online use of that term or name, in *all* fields, despite that fact that any number of non-competeting companies can have nearly identical trademarks in completely different areas of commerce.) Incidentally, though Bell South denies any involvement in the drafting of this legislation or in lobbying to pass it, the RBOC has filed suit (two days before announcing plans to enter into the Internet service market, no less) against an online service, realpages.com, for alleged trademark violation (Bell South's trademark is "The Real Yellow Pages". Confusingly similar? Applicable at all? Not likely.) The case is unlikely to go well for Bell South, but this new law, if upheld, could allow them to re-file and win on other grounds that those raised in their original case. More interestingly yet, the sponsor of AB 1630, in Georgia's part-time legislature, is a Bell South employee. Very similar legislation has existed in draft form in California for some time, and may hit other states and countries soon. Keep and eye out! EFF Staff Counsel Shari Steele send the following letter to Georgia Governor Zell Miller, explaining the problems with the new act and encouraging a veto. Electronic Frontier Foundation 1550 Bryant Street, Suite 725 San Francisco, CA 94103 (415) 668-7171; (415) 668-7007 (fax) Internet e-mail: eff@eff.org Governor Zell Miller State Capitol Atlanta, GA 30334 April 16, 1996 Via Facsimile: (404)656-5948 Dear Governor Miller, I am writing to you in my capacity as Staff Counsel for the Electronic Frontier Foundation (EFF) to ask that you veto Georgia House Bill 1630, Computer or telephone network; transmitting misleading data. EFF was founded in July of 1990 to work on protecting the free speech and privacy rights of users of new technology. Since that time, EFF has been involved in numerous battles against laws and actions that restrict the free speech rights of users of electronic bulletin board systems (BBSs) and the Internet. I fear that the Georgia legislature has just passed a bill which, if signed into law, will significantly hamper the development of the Global Information Infrastructure (GII, frequently referred to the Information Superhighway) and will result in an unconstitutional restraint on the free speech rights of the citizens of Georgia, the United States, and the global Internet. To help you understand the ramifications of this legislation, I'd like to take a minute to explain some basic things about electronic communications. First, individuals are not identified online by their "real world" names. Instead, they are identified by electronic mail addresses, which are composed of a "user ID" and the "location" of the individual's network access provider. Sometimes an individual gets to choose his or her own e-mail user-ID. But sometimes a random user ID is assigned to the individual by the service provider. For example, the online service provider CompuServe assigns user IDs like 102527.2327 and 75223.2153, which do not clearly identify the sender of the electronic message. Even where an individual gets to select his or her own user ID, it is rare that a person identifies him or herself by full name. In fact, many people identify themselves instead by words or heroes in which they have a personal interest. For example, I know a person whose user ID is calliope. I know another whose user ID is mnemonic, named for the character "Johnny Mnemonic" in the science fiction novel of the same name by William Gibson. I know yet another whose user ID is elvis. Even my user ID, which is ssteele, does not clearly distinguish me from others with the last name of Steele and the first initial "S." This brings us to the first problem with the current bill. The language of the bill makes it illegal for a sender of a message to "falsely identify" him or herself. All of the user IDs I've mentioned are false identifications, similar to the "handles" people use on citizen's band radios. It is and has always been legal for people to use any name they choose as long as it isn't for a fraudulent purpose. I can be Samuel Clemens to one set of people and Mark Twain to another set and nobody is harmed. Or Andrew Hamilton and Publius. Or ssteele@eff.org and Shari Steele. While it is true that some people may be harmed when others intentionally create confusion, by sending a message designed to look like it came from an identifiable other person, the bill criminalizes a vast array of everyday conduct in its attempt to reach this harm. Besides, there are already laws on the books that make it illegal to commit fraud or to fraudulently use the likeness of another that can be enforced where harm has occurred. Georgia House Bill 1630 makes criminals of the vast majority of us who communicate online. Next, the Internet is comprised of thousands of computers connected to one another. The World Wide Web is a graphical area of the Internet that allows users to move seamlessly from site to site by simply clicking on a mouse button. This is often referred to as "surfing the net" and is a basic quality to the World Wide Web. For example, I could get to Wired magazine's web site by clicking on a button at the Electronic Frontier Foundation's web site. I then would be seamlessly transported to Wired's site. Wired magazine loves this arrangement, because the more people they get visiting their web site, the more successful the site is. Which brings us to the second problem with the current bill. The language of the bill would make it illegal to create a button on our web site with Wired's "trade name" or "logo" without first obtaining "permission or authorization" from Wired magazine. Of course Wired magazine would give us permission -- they do not want to have a web site that no one visits. In fact, the more sites that "link" to Wired's site, the better it is for Wired. It's like making it illegal to take a copy of a newspaper that is labeled "free" on the top without first obtaining permission from the publisher. Or like making it illegal to look up a friend's phone number in the phone book and put it into a neighborhood directory or a bridge club newsletter. The problem is that H.B. 1630 would make criminals out of virtually everyone with a web site (for all web sites link to others) when the sites being linked to would always give permission for the link. Furthermore, because of its vague language, it appears that the bill would make it a crime even to mention Wired magazine in writing an electronic review of their magazine or their articles without first obtaining their permission. The right to criticize other peoples' work is basic to our open society; it is how errors are corrected and differences of opinion are aired. It would be senseless to have the right to criticize a story from the New York Times without being able to mention that the story was printed in the New York Times! Even if reviewers went to the effort contemplated in the bill of contacting the company and asking its permission, many companies would refuse permission to use their names in reviews that disagreed with the companies. This sabotages the whole process of critical review that keeps our society tending toward truth. Finally, the entire purpose of the bill seems to be to protect intellectual property, such as trademarks and logos. But there are already laws in place on both federal and state levels that protect these things. The legislature has created a poorly crafted, unconstitutional law to protect something that is already protected. There is no rational reason to make criminals out of all users of the Internet. I hope that I have helped shed some light on the dangers of this legislation. The Electronic Frontier Foundation urges you to veto H.B. 1630 as an unnecessary and unconstitutional restriction on the free speech right of Internet users. I invite you to contact me if you have any questions or concerns about the legalities surrounding electronic communications as you consider your actions regarding this bill. My telephone number is (301)375-8856. And you can reach me via Internet e-mail at ssteele@eff.org. Thank you for your consideration. Sincerely, Shari Steele Staff Counsel Electronic Frontier Foundation cc: Ms. Mary Beth Westmoreland, Georgia Department of Law, fax: (404) 651-6459 Mr. Michael Bowers, Attorney General, fax: (404) 657-8733