EFFector, Vol. 14, No. 8; Apr. 30, 2001

EFFector Vol. 14, No. 8 Apr. 30, 2001 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 168th ISSUE OF EFFECTOR (now with over 27,400 subscribers!):

EFF's Victory for Online Anonymous Speech

FEDERAL COURT UPHOLDS ANONYMOUS SPEECH ON INTERNET

For immediate release - Apr. 20, 2001

Contact:

Seattle -- In a precedent-setting ruling on free speech in cyberspace, a federal court in Seattle yesterday upheld the right to speak anonymously on the Internet. U.S. District Court Judge Thomas Zilly quashed a subpoena seeking to force an Internet service to disclose the identity of persons who spoke anonymously on an Internet message board. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) represented J. Doe, one of the anonymous speakers, in blocking the subpoena.

The subpoena was filed by 2TheMart.com, Inc., which is currently defending itself against a class-action lawsuit alleging the company engaged in securities fraud. The subpoena requested that InfoSpace turn over the identities of 23 speakers who used pseudonyms in participating on the Silicon Investor Web site owned by InfoSpace.

The ruling is the first of its kind nationally in a case involving anonymous speech by a third party. The case differs from many other Internet anonymity cases because J. Doe, who used the pseudonym "NoGuano," is not a party to the case, and no allegations of liability against Doe have been made. While Doe does maintain a Silicon Investor account, Doe never made any statements about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart message board.

"This is an important ruling for free speech on the Internet. The court recognized that you should be able to express opinions online without having to worry your privacy will be invaded because of a lawsuit that has nothing to do with you," said Aaron Caplan, staff attorney for the American Civil Liberties Union, an organization with an 80-year history of defending freedom of speech. "You have the right to speak anonymously on an Internet bulletin board just as you have the right to distribute a leaflet using a pseudonym," added Caplan. Caplan argued the case on behalf of J. Doe before the Court.

"By ruling for Doe, Judge Zilly has sent a clear message that the courts will not tolerate lawsuits designed to chill online speech," said Lauren Gelman, director of public policy for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world. "We hope that this decision will force companies to think twice before they issue subpoenas, and encourage users to step forward and protect their rights if they receive a subpoena."

The ACLU and EFF argued that the Court should adopt the same test currently used to determine whether to compel identification of anonymous sources of journalists or members of private organizations. Under that test, the Court must first determine whether the person seeking the protected private information (in this case 2TheMart.com) has a genuine need for the information in the context of the case and cannot discover the information any other way. If so, the Court must then balance the harm to the anonymous speakers against the plaintiff's need to discover the identity of the speaker. Anonymity should be preserved unless the identity of the anonymous person is clearly shown to be of central importance to the case. In his ruling, Judge Zilly said that the information sought by the subpoena clearly was not central to the case of 2TheMart.com.

2TheMart.com was a fledgling company that intended to launch an online auction house. After its stock price plunged in 1999, a number of investors sued for securities fraud, alleging that the company had misled them about its prospects. Like many Internet start-ups, 2TheMart.com had a number of people who chatted about the company on investor-related bulletin boards. One of these bulletin boards was operated by Silicon Investor, a Web site now owned by Seattle-based InfoSpace. The postings were made under 23 different user names, including "The Truthseeker," "Edelweiss," and "NoGuano."

J. Doe was represented by ACLU staff attorney Aaron Caplan and Cindy Cohn, legal director for EFF. InfoSpace also submitted a brief supporting the right of its users to speak anonymously, and Brent Snyder of Perkins Coie argued the case before Judge Zilly on behalf of InfoSpace.

An opinion will be published in the case and will be posted on the Web sites when it is available.

EFF Releases Public Music License to Promote Audio Freedom

Artists and Audiences Strike New Deal to Protect Public Commons

For Immediate Release - April 21, 2001

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New York -- The Electronic Frontier Foundation (EFF) introduced a new tool designed to empower both artists and audiences at the New York Music & Internet Expo on April 21, 2001. As part of its Campaign for Audiovisual Free Expression (CAFE), EFF's Open Audio License allows anyone to freely copy, share, perform, and adapt music in exchange for providing credit to the artist for her gift to humanity.

EFF's Open Audio License enables musicians and society to build upon and share creative expression creating a rich public commons. Artists who chose to release a song under the public license can build their reputation by offering unfettered access to their orginal works in exchange for recognition. Open Audio works are designated as "(O)" by the author and may be lawfully traded on file-sharing systems such as Napster or played by traditional and Web DJs royalty-free. Numerous musicians have traditionally taken advantage of super-distribution of their music, such as the Grateful Dead, a band that attributes much of its success to its encouragement of fans to freely copy and share their music.

"EFF's Open Audience License hopes to use the power of copyright to protect copyright's ultimate objectives a vibrant and accessible public domain, incentivising creativity, and promoting the free exchange of ideas," said EFF Staff Attorney for Intellectual Property Robin Gross. "EFF's public music license strikes a new deal between creators and the public, granting more freedoms to the public to experience music while ensuring the artist is compensated."

The online civil liberties group launched CAFE in June 1999 to address complex social and legal issues raised by new technological measures for protecting intellectual property. EFF believes that new intellectual property laws and technologies harm - nearly eliminate - the public's fair use rights, and make criminals of people doing perfectly legitimate things.

About EFF: The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
http://www.eff.org

CHIPA Internet Blocking Protest Roundup

Electronic Frontier Foundation Media Release

Nationwide Protests Counter CHIPA Internet Blocking Law

Growing Opposition to Internet Blocking in Schools and Libraries

FOR IMMEDIATE RELEASE - Friday, April 20, 2001

Contacts:

April 20, 2001 -- A spirited crowd of activists opposed to Internet blocking protested, some of them chanting in pouring rain today, against implementation of Congressionally-mandated Internet blocking in schools and libraries. The protests took place in Pleasanton, California, and Long Island, New York, as well as in "blackouts" of websites supportive of the action.

Berkeley City Council member Kriss Worthington spoke at the Pleasanton protest stating, "Our schools and libraries must be the safety net to make education available through the Internet. CHIPA's cybernet censorship is unconstitutional, un-American, and unacceptable."

Worthington was joined by Jim Schmidt of San Jose State University, who served on the Congressional Child Online Protection Act (COPA) Commission; Will Doherty, Online Activist at the Electronic Frontier Foundation and Executive Director of the Online Policy Group; and by Lisa Maldonado, Field Director, American Civil Liberties Union of Northern California.

Maldonado commented, "The government is trying to strangle the free flow of information on the Internet to those library patrons who need it the most. CHIPA would widen the 'digital divide' that already exists between those who can afford Internet access at home and those who rely on their public library for Internet access."

"The government-mandated requirement for Internet blocking in schools and libraries violates the free expression rights of American, adults and minors alike," explained Will Doherty, EFF Online Activist. "We must protest Congressionally-mandated Internet blocking because it censors Constitutionally-protected materials, stunts the intellectual growth of American children, and weighs unfairly on disadvantaged and 'controversial' communities."

Internet blocking technologies underblock what they are supposed to block and overblock what they are not supposed to block. They rely on subjective control from software product companies many of whom exhibit clear political and religious biases, rather than relying on local communities to decide for themselves. The products are error-prone, vulnerable, problematic, and unfairly discriminatory, denying access to constitutionally protected and educationally important materials that schools and libraries would otherwise provide. Government-mandated censorship does not solve problems better handled through local decision making and educational efforts.

The Pleasanton protest place at offices of the Federal Communications Commission because it is the agency tasked by Congress with enforcement of the Children's Internet Protection Act (CHIPA a.k.a. CIPA) blocking law.

EFF, along with co-sponsors such as the Online Policy Group (www.onlinepolicy.org )and the American Civil Liberties Union ( http://www.aclunc.org ), called the protests to demonstrate the growing public opposition to Internet blocking in schools and libraries.

If you are interested in organizing a protest in you local area, please send email to:
freespeech@eff.org

The Electronic Frontier Foundation ( http://www.eff.org ) is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to websites in the world.

BayFF on Internet Blocking Software - May 6, 2001

Electronic Frontier Foundation Media Advisory

Contact:

Join the Electronic Frontier Foundation (EFF) in a Panel Discussion on Internet Blocking in Schools and Libraries

WHO: Electronic Frontier Foundation: Will Doherty, Online Activist, and Lee Tien, Senior Staff Attorney; James C. Hormel Gay and Lesbian Center: Jim Mitulski; N2H2: David Burt, Market Researcher; San Francisco Board of Supervisors: Mark Leno; San Francisco Public Library: Susan Hildreth; Santa Clara University: Tom Shanks, Ph.D, Professor.
WHAT: "BayFF" Panel Discussion on Internet Blocking in Schools and Libraries: Law, Litigation, and Community Response
WHEN: Sunday, May 6, 2001 at 2:00 PM Pacific Time
WHERE: San Francisco Public Library
Room: Koret Auditorium
100 Larkin Street
San Francisco, CA 94102
Tel: 415-557-4400 (for directions only)

With the United States Congress' passage of legislation requiring the use of Internet blocking technologies in all public schools and libraries participating in certain federal programs, it has become clear that these schools and libraries are facing a variety of challenges.

Panelists:

Will Doherty is the Electronic Frontier Foundation's Online Activist. He spearheads online outreach and grassroots organizing on EFF's pioneering work to protect Internet free speech and privacy rights. Doherty also currently serves as Founder and Executive Director of the Online Policy Group, dedicated to "one Internet with equal access for all." Doherty has designed and implemented Internetstrategies and websites for many nonprofit community and advocacy organizations

David Burt is currently employed as a market researcher and analyst at N2H2, a leading Internet filtering company. Mr. Burt joined N2H2 in April, 2000 after nearly three years as president of Filtering Facts, an organization devoted to the study and promotion of Internet content management software.

Susan Hildreth - Susan Hildreth is the City Librarian for the San Francisco Public Library. She has served as both Acting City Librarian and Deputy City Librarian since July 1998. She has previously worked with the California State Library, the Sacramento Public Library, the Placer County Library and other public libraries in northern California. She is active in both the American Library Association and the California Library Association and is an advocate for the library's role as a provider of all types of information for all users.

Other Participants:

The panel will be moderated by Tom Shanks.
Tom Shanks, Ph.D., is Senior Fellow in Business and Public Policy at the Markkula Center for Applied Ethics and Associate Professor of Communication at Santa Clara University in Santa Clara, California. He is also a Senior Scholar with the Washington, D.C., Ethics Resource Center. Shanks is a nationally-recognized expert in ethical decision-making and has conducted workshops and teaching seminars on ethics and values for corporate and nonprofit leaders, business and professional organizations, educators, engineering professionals, health care providers, and students.

Lee Tien is a senior staff attorney at the Electronic Frontier Foundation, a non profit public-interest organization based in San Francisco. He specializes in free speech law, including intersections with intellectual property law and privacy law. Before joining EFF, he also litigated FOIA cases. He has published articles on children's sexuality and information technology, anonymity, surveillance, and the First Amendment status of computer software.

Mark Leno is a member of the San Francisco Board of Supervisors. He recently introduced a Board resolution that prohibits the use of Internet blocking software on computers owned by the City or County of San Francisco.

This event is sponsored by: Electronic Frontier Foundation, San Francisco Public Library, James C. Hormel Gay and Lesbian Center, Friends and Foundation of the San Francisco Public Library, Online Policy Group, and Mark Leno, Member of Board of Supervisors, San Francisco.

The San Francisco Public Library is located across the street from the Civic Center BART/Muni stop. For directions to the event, you can use free services like http://www.mapquest.com or http://maps.yahoo.com to generate driving directions or maps. For CalTrain and Muni directions, please call their information lines. You can subscribe to receive future BayFF annoucements. To subscribe, email majordomo@eff.org and put this in the text (not the subject line):
subscribe bayff

Continuing over 10 years of defending civil liberties online, EFF presents a series of monthly meetings to address important issues where technology and policy collide. These meetings, entitled "BayFF", (Bay-area Friends of Freedom), kicked off on July 10, 2000, and will continue on a monthly basis.

For more information, see:
The Electronic Frontier Foundation:
http://www.eff.org

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Websites in the world:
http://www.eff.org

DeCSS Case to be Reviewed by Appellate Court

Electronic Frontier Foundation Media Advisory

Free Speech on Trial in DVD Fair Use Case

FOR IMMEDIATE RELEASE

Contact:

April 26, 2001 -- In a case involving free speech rights and fair use of DVDs, the 2nd Circuit Court of Appeals will hear the appeal of 2600 Magazine in Universal v. Remeirdes at 10:00 a.m. on May 1, 2001. The hearing will be held in Courtroom 506 of the United States Courthouse at 40 Centre Street (at Foley Square) in Manhattan, New York City.

Dean Kathleen Sullivan of Stanford Law School will argue the case on behalf of the magazine. 2600 Magazine will hold a short press conference immediately after the hearing in Foley Square Plaza, directly across from the courthouse.

The case arises from 2600 Magazine's publication of and linking to a computer program called DeCSS in November, 1999 as part of its news coverage about DVD decryption software. DeCSS decrypts movies on DVDs that have been encrypted by a computer program called CSS. Decryption of DVD movies is necessary in order to make fair use of the movies as well as to play DVD movies on computers running the Linux operating system, among other uses.

Universal Studios, along with other members of the Motion Picture Association of America, filed suit against the magazine in January 2000 seeking an order that the magazine no longer publish the program.

The Studios object to the publication of DeCSS because they claim that it can be used as part of a process to infringe copyrights on DVD movies.

In the case, formally titled Universal v. Remeirdes, et. al., the District Court granted a preliminary injunction against publication of DeCSS on January 20, 2000. By August 2000, after an abbreviated trial, the Court prohibited 2600 Magazine from even linking to DeCSS.

Administrivia

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

Editors:
Katina Bishop, EFF Education & Offline Activism Director, and
Stanton McCandlish, EFF Technical Director/Webmaster
editor@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.

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