EFFector       Vol. 17, No. 36       September 30, 2004

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 308th Issue of EFFector:


Action Alert: Don't Let "Intelligence Reforms" Take Away Your Rights!

Congress is moving fast on two bills that purport to implement recommendations in the 9/11 Commission Final Report, but they include far more than anyone bargained for. In some provisions, the bills use language lifted directly from the infamous "PATRIOT II" draft legislation leaked to the public last year - including a clause that would allow the government to use secret foreign intelligence warrants and wiretap orders against people unconnected to any international terrorist group or foreign nation. This poses a dire threat to the Fourth Amendment, and it doesn't belong in the 9/11 legislation. Don't let support for intelligence reform become a blank check for law enforcement - tell Congress you oppose this stealth attack on your constitutionally protected rights!

Make your voice heard with EFF's action center:
http://action.eff.org/911_patriotii

Join EFF today:
https://secure.eff.org/


EFF Wins in Diebold Copyright Abuse Case

Voting Machine Company Liable for Damages, Costs in Landmark Ruling

San Jose - In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.

"This decision is a victory for free speech and for transparency in discussions of electronic voting technology," said Wendy Seltzer, an EFF staff attorney who worked on the case. "Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement."

OPG Executive Director Will Doherty said, "This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices."

In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright...The Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest."

Fogel's decision:
http://www.eff.org/cgi/tiny?urlID=270
(PDF)

For this release:
http://www.eff.org/news/archives/2004_09.php#001961


Dangerous Ruling Menaces Rights of Free Software Programmers

Contract and Copyright Trump Fair Use and Competition in BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a Federal Court decision which held that programmers are not allowed to create free software designed to work with commercial products. At issue in the case was whether three software programmers who created the BnetD game server - which interoperates with Blizzard video games online - were in violation of the Digital Millennium Copyright Act (DMCA) and Blizzard Games' end user license agreement (EULA).

BnetD is an open source program that lets gamers play popular Blizzard titles like Warcraft with other gamers on servers that don't belong to Blizzard's Battle.net service. Blizzard argued that the programmers who wrote BnetD violated the DMCA's anti-circumvention provisions and that the programmers also violated several parts of Blizzard's EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for the defendants, argued that programming and distributing BnetD was fair use. The programmers reverse-engineered Battle.net purely to make their free product work with it, not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a right to choose where and when they want to use the products they buy. This ruling gives Blizzard the ability to force you to use their servers whether you want to or not. Copyright law was meant to promote competition and creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling that creating alternative platforms for legitimately purchased content can be outlawed.

Ruling:
http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf

For this release:
http://www.eff.org/news/archives/2004_09.php#001962


Court Strikes Down Key USA PATRIOT Power

New York - The American Civil Liberties Union (ACLU) won a tremendous victory for Internet privacy yesterday in ACLU & Doe v. Ashcroft, a case challenging the constitutionality of "National Security Letters" (NSLs) under the USA PATRIOT Act. The letters, issued directly by the Department of Justice without any court oversight, can be used to demand sensitive financial and communications information about citizens, even if they are not suspected of any crime. When an Internet Service Provider (ISP) receives an NSL, it is forbidden from ever revealing its existence to anyone.

A federal district court in New York ruled that the statute authorizing NSLs is unconstitutional and barred the DOJ from issuing further NSLs. US District Court Judge Victor Marreo also found the gag provision an unconstitutional prior restraint on protected speech.

"Today's ruling is an important victory for the Bill of Rights, and a critical step toward reining in the unconstitutional reach of the Patriot Act," said Kurt Opsahl, EFF staff attorney. "The court recognized that judicial oversight and the freedom to discuss our government's activities, both online and offline, are fundamental safeguards to civil liberties and should not be thrown aside."

EFF wrote a friend-of-the-court brief in the case, joined by several ISPs and privacy organizations. The decision will likely to be appealed to the 2nd Circuit Court of Appeals in New York.

For this release:
http://www.eff.org/news/archives/2004_09.php#001945

Decision in ACLU & Doe v. Ashcroft:
http://www.eff.org/cgi/tiny?urlID=261
(EFF; PDF)

EFF amicus brief in the case:
http://www.eff.org/cgi/tiny?urlID=197
(EFF, PDF)

More about NSLs under PATRIOT:
http://www.eff.org/cgi/tiny?urlID=260
(EFF)


E-voting Victory - California Gets a Paper Trail!

Early this month, we asked our California supporters for help in getting California Governor Arnold Schwarzenegger to sign legislation to put vital voting-security reforms on the books - and this week, Governor Schwarzenegger did just that. Now, state law requires all electronic voting machines to produce a voter-verifiable paper trail by January 2006. That makes California the first state in the nation where paperless electronic voting systems have been widely deployed that the law requires that the machines be retrofitted or replaced.

This is an extraordinary victory, especially when you consider how far we've come since the security problems with e-voting machines first came to light. We thank you for helping make California a safer place to vote, and we will continue to give you updates on how your actions help make our campaigns successful. We'd also like to remind you that grassroots activism needs people like you to spread the word - don't forget to tell your friends and family about EFF!

"Schwarzenegger Signs Bill Banning Paperless Voting Systems":
http://www.eff.org/cgi/tiny?urlID=266
(AP)

More about e-voting:
http://www.eff.org/e-vote/

Tell a friend about EFF today:
http://www.eff.org/cgi/tiny?urlID=267
(EFF)


Court of Appeals Revives Florida E-voting Lawsuit

Florida - The Eleventh Circuit Court of Appeals on Monday overturned a lower court's ruling in a case that challenges the legality of Florida's paperless electronic voting machines. The federal suit, brought by Florida Congressman Robert Wexler, argues that the use of the machines violates constitutional guarantees of equal protection and due process. The Court of Appeals ruled that the existence of a related lawsuit in Florida state court does not prevent the federal district court from hearing the challenge. The decision returns the case to the district court for further proceedings.

"This important challenge will now be decided on the merits," said EFF Staff Attorney Matt Zimmerman, who also noted the difficult task ahead of the district court. "Floridians will go to the polls in only 36 days, but a great deal of good can be done to improve voting procedures in that time. In the short term and in the long term, we hope that the court requires a voter-verifiable paper ballot for all Floridians."

For this release:
http://www.eff.org/news/archives/2004_09.php#001939

Eleventh Circuit ruling:
http://www.ca11.uscourts.gov/opinions/ops/200412826.pdf


Op-ed: The Induce Act - A Tax on Innovators

By Fred von Lohmann
Senior Intellectual Property Attorney

The Senate Judiciary Committee recently released yet another version of S. 2560, otherwise known as the Induce Act. This week, after facing a withering hail of opposition from everyone other than the RIAA, the committee staffers are reportedly working on yet another draft, making it the fifth by my count.

Every draft released so far has suffered from the same fatal flaw: each would haunt legitimate American innovators while doing nothing to solve the peer-to-peer file-sharing dilemma. P2P vendors will simply move offshore (many already have) and filesharers will turn to open source applications (like Bit Torrent) that already circulate freely in cyberspace.

It will be legitimate American innovators who are left under the gun. Vague new laws targeting "inducement" or "dissemination" technologies will give entertainment industry lawyers leverage over big technology companies (like Apple, TiVo, and Intel) and a crushing hammer to wield against small ones.

So let's call this what it is: a tax on innovation. Technology companies would find themselves under constant pressure from entertainment industry lawyers waving their newly minted "inducement" law. This means many great products would be hobbled, and many others would never be built. Less flexible, less useful products means fewer sales, lower revenues. That's a tax on our nation's technology companies, a damper on earnings, a drag on competitiveness.

And all for nothing - this tax won't magically solve the file-sharing dilemma, nor will it put a nickel into the pockets of artists.

That's why the Amercian Conservative Union and National Taxpayer's Union have both joined the long list of public interest and technology industry groups opposing the Induce Act.

I'm a copyright lawyer. I believe in copyright. But copyright has never given an oligopoly of media companies a veto over new technologies. I urge you to call and write your members of Congress. Tell them that the Induce Act - in any of its many guises - is a tax our high technology economy doesn't need.

For the original version of this piece online:
http://www.eff.org/deeplinks/archives/001941.php


miniLinks

miniLinks features noteworthy news items from around the Internet.

VeriSign Plans to ID Your Kids Online
How do you make kids safe from Internet predators? According to VeriSign and the government-funded i-Safe, you give them hardware keys that verify their age and gender!
http://news.com.com/2100-1026_3-5380589.html

PubPat Busts Microsoft Patent
The Public Patent Foundation has succeeded in blowing one of Microsoft's amazingly broad patents out of the water. Way to go!
http://www.pubpat.org/Microsoft_517_Rejected.htm

The Senate's Taste for RIAA Kool-Aid
There's so much bad press about the Induce Act that we can't keep up, yet Hatch & Co. remain stubborn:
http://www.eff.org/cgi/tiny?urlID=269
(Washington Times)

More Induce Act in the News
The New York Times on today's negotiations:
http://www.nytimes.com/2004/09/30/technology/30peer.html
(Registration unfortunately required.)

Switzerland Internet Voting Deemed a Success
By Swiss authorities, that is. Security experts weren't nearly as sure:
http://www.eff.org/cgi/tiny?urlID=262
(AP)

ACM Opposes Paperless E-voting
The world's oldest professional society of computer scientists recently came out against voting machines that don't provide a voter-verifiable paper trail:
http://news.com.com/2110-1028_3-5384946.html

IBM Puts Big Bucks Behind RFID
Big Blue will spend $250 million over the next five years on its "pervasive computing" initiatives:
http://www.nytimes.com/2004/09/27/technology/27rfid.html
(Registration unfortunately required.)

IPac - Supporting Copyfighters in Congress
There's a brand new nonpartisan PAC that supports legislators who stand up to the entertainment industry on IP issues - meaning that you can help the good guys get elected:
http://news.com.com/2100-1025_3-5388708.html

Bits vs. Discs: Plastic Is King - For Now
A European study says CDs rule - but predicts that digital downloads will outsell them by the end of the decade:
http://www.eff.org/cgi/tiny?urlID=263
(Washington Post; registration unfortunately required.)

The Long, Winding Road to Digital Hollywood
Movie studios and tech companies at the "Digital Hollywood" conference pondered the perpetual problem: how to put even stronger locks on the stuff you buy:
http://www.eff.org/cgi/tiny?urlID=264
(CNet)

Innovating by Ear
EFF's own Annalee Newitz muses about how innovation happens:
http://www.sfbg.com/38/53/x_techsploitation.html

Biting the Hand that Feeds You
Fred von Lohmann on why suing your customers is (still) a bad idea:
http://www.eff.org/cgi/tiny?urlID=265
(Law.com)


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:
Donna Wentworth, Web Writer/Activist
donna@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/

To remove yourself from this mailing, please go to
http://www.kintera.org/TR.asp?ID=M6527409472045138585255&iEvent=57079

To remove yourself from all mailings from Electronic Frontier Foundation, please go to
http://www.kintera.org/TR.asp?ID=M6527410472045138585255&iEvent=57079