EFFector Vol. 14, No. 4 Mar. 5, 2001 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 14, No. 4 Mar. 5, 2001 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
For more information on EFF activities & alerts: http://www.eff.org
FOR IMMEDIATE RELEASE
Mon., Mar. 5, 2001
ELECTRONIC FRONTIER FOUNDATION (EFF) PIONEER AWARDS HONOR INTERNET LUMINARIES
Bruce Ennis, Seth Finkelstein, and Stephanie Perrin Presented Awards at EFF's Tenth Annual Pioneer Awards Ceremony
Contact: Katina Bishop, Electronic Frontier Foundation
(415) 436-9333 ext. 101 or
(617) 492-1234 - during CFP from 3/5 - 3/9
Monday, March 5, 2001, Boston, MA -- The ceremony for EFF's Tenth Annual Pioneer Awards will take place at the New England Aquarium on March 8, 2001, in conjunction with the Computers, Freedom and Privacy conference this week in Cambridge, MA. The online civil liberties group chose to honor Bruce Ennis, in appreciation of his lifelong commitment to the legal defense of free expression and the First Amendment; Seth Finkelstein, for his dedication to raising the level of public awareness about the dangers to free expression posed by Internet content blocking and labeling systems; and Stephanie Perrin, for her instrumental and long-term role in advancing understanding and protection of privacy internationally and in her home country of Canada.
Since 1991, the EFF Pioneer Awards have recognized individuals who have made significant and influential contributions to the development of computer-mediated communications or to the empowerment of individuals in using computers and the Internet.
Bruce Ennis - Described by the legal press as one of the most influential attorneys in the country, Bruce Ennis devoted much of his life and practice to defending intellecual freedom. Bruce argued many crucial First Amendment cases before the U.S. Supreme Court and lower courts, including the landmark free speech victory in ACLU v. Reno (the "Communications Decency Act" case). Sadly, Ennis passed away earlier this year, but his contributions to free expression and press in the Internet, news reporting, political and other spheres live on.
Seth Finkelstein - Anti-censorship activist and programmer Seth Finkelstein spent hundreds of unpaid and uncredited hours over several years to decrypt and expose to public scrutiny the secret contents of the most popular censorware blacklists. Seth has been active in raising the level of public awareness about the dangers that Internet content blocking software and rating/labeling schemes pose to freedom of communication. His work has armed many with information of great assistance in the fight against government mandated use of these systems.
Stephanie Perrin - internationally recognized privacy and freedom of information expert Perrin spent 5 years engineering Canada's inspiring new privacy law (PIPEDA), among 15 years of important privacy and cryptography policy work, and has bridged the government, nonprofit and commercial sectors in privacy technology, policy, standards and education. Perrin has also been involved in privacy protection issues at the global scale, on the OECD Security and Privacy Committee, and made signifcant contributions to understanding technical privacy protection issues.
"We, as a community of people respecting rights in technology, do not take enough opportunity to honor our own," stated Shari Steele, Executive Director of the Electronic Frontier Foundation. "Bruce, Stephanie and Seth are shining examples of the spirit and energy that makes good things happen. We're proud to present them with this year's Pioneer Awards."
The judges for this year's EFF Pioneer Awards were: Herb Brody (Senior Editor, Technology Review); Whitfield Diffie (Distinguished Engineer, Sun Microsystems); Moira Gunn (Host, "Tech Nation", National Public Radio); Donna L. Hoffman (Associate Professor of Management, Vanderbilt University); Peter G. Neumann (Principal Scientist, SRI Intl.; Moderator, ACM Risks Forum); Drazen Pantic (Media & Tech. Director, NYU Center for War, Peace, & the News Media); Barbara Simons (past President, Association for Computing Machinery, & U.C. Berkeley Distinguished Alumnus); Karen G. Schneider (Technical Director, Shenendehowa Public Library, NY).
The Tenth Annual EFF Pioneer Awards ceremony will be held on the evening of March 8th, 2001, at the New England Aquarium. The ceremony and reception are made possible by generous contributions from Guardent, Michael Golub and Mark Belden, MEconomy, Inc, Organic, Inc, Privada, Inc., and Sun Microsystems.
For more information on EFF Pioneer Awards, see: http://www.eff.org/awards/pioneer.html
For more information on the Electronic Frontier Foundation see:
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 Web sites in the world:
http://www.eff.org
Like the district court before it, the 9th Circuit Court of Appeals found little sympathy for Internet music swapping service Napster, finding it liable for both contributory and vicarious copyright infringement. The decision chipped away at the famous holding in the "Betamax" case where the Supreme Court held that the movie studios could not outlaw a technology (VCRs) that was capable of substantial non-infringing uses. The appellate court then ordered Napster to police and control its systems to prevent future infringement and sent the case back to the district court for specific rulings about how Napster must rewrite its software to meet the court's requirements.
This ruling marks a stark departure from the Supreme Court's standard for third party liability in Betamax where knowledge that VCRs would be used for some infringement was irrelevant. In Betamax, the Supreme Court held that allowing copyright holders to ban devices capable of substantial non-infringing uses would go beyond the power of copyright monopoly, regardless of whether the creators knew their devices would be used to infringe copyrights.
Although the appellate court disagreed with the district court and held that Napster is capable of substantial non-infringing uses, it nonetheless held that the Betamax defense was unavailable to Napster because of its actual knowledge of specific infringement and unwillingness to prevent that infringement. This distinction narrows the protection for technology providers under Betamax since lawful uses of the system apparently become irrelevant once knowledge of infringement can be shown. And knowledge can be easily established by a content holder sending a "cease and desist" letter, rendering technology providers thereafter liable for the infringing actions of third parties who misuse their systems.
Under the ruling, "if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement." Furthermore, the court held that Napster materially contributed to infringement by providing the site and facilities for the infringement to occur. And the opinion could arguably reach to ISPs and upstream providers including technology companies and individuals.
The appellate court attempted to recognize a distinction between merely providing a technology that allows for sharing of information and specific conduct that encourages the illegal distribution of music. "We are compelled to make a clear distinction between the architecture of the Napster system and Napster's conduct in relation to the operational capacity of the system," said the court. But the decision still cuts a wide swath through Betamax, since P2P providers will be required to prevent infringement or face liability. The lack of the traditional Betamax "substantial noninfringing uses" defense to P2P providers who receive notice of infringement will have a chilling effect on speech as operators will be required to act as copyright police over their systems to avoid liability themselves.
It will also undoubtedly have a chilling effect on the growth of technology, as developers and entrepreneurs will be reticent to release and promote new products, services and ideas when their liability hinges on such a thin requirement as the receipt of a single complaining letter or, as the court's vicarious liability analysis suggests, on an affirmative duty to make sure no one misuses their tools or products and a threat that the court itself will second guess their design decisions should someone do so.
The 9th Circuit laid out a new test for holding third parties liable for contributory infringement for providing file-sharing technology. According to the court, contributory liability may potentially be imposed to a file-sharing technology provider who:
Although the court stated that the mere existence of a file-sharing technology, absent notice and a failure to remove the offending material, is insufficient to impose contributory liability under Betamax, P2P providers should be wary since "knowledge" of infringement trumps substantial non-infringing uses of the system under the new standard. While the 9th Circuit's decision asserts that it follows the Supreme Court in Betamax for dealing with contributory liability, its result is a dangerous narrowing of the doctrine that ignores and imperils the constitutional limitations to a copyright holder's power.
DANGER: Right + Ability to Supervise = Vicarious Liability if Fail to Police
Even more worrisome, the appellate court found that Napster engaged in vicarious copyright infringement, a doctrine based in the context of employee/employer relationship. It imposes liability when a third party has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities. Despite Napster's lack of a business model, the court found it financially benefited because the availability of the music acted as a draw for future customers.
The 9th Circuit's holding also dramatically narrowed Betamax's protection against vicarious liability by requiring technology providers to affirmatively police their systems for potential infringement, a practice which essentially forces technology creators to serve as law enforcement for the content industry, even in the absence of notification that specific infringement has occurred. In addition to creating an undue burden, this outsourcing of police functions will undoubtedly result in over-policing, limiting the distribution of legitimately shared materials and the creation of new technology.
The 9th Circuit found that Napster sufficiently "supervises" its system to trigger vicarious liability because Napster retains the right and ability to control access to its system and it failed to exercise that right to prevent infringement. "The ability to block infringers' access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise," stated the three-judge panel.
The court held that to escape vicarious liability, "the reserved right to police must be exercised to its fullest extent." Napster has an express reservation of rights policy on its Web site and regularly exercises those rights including terminating users. Consequently, the court ruled Napster "bears the burden of policing the system within the limits of the system," which is designed to give it the ability to locate infringing material listed on its search indices. Put simply: because Napster granted itself a right and ability to police its system, it is required under law to do so in order to avoid liability.
Napster's failure to police its system and the court's finding that it financially benefited from infringement led to its imposition of vicarious liability. Under the ruling, a file-sharing technology provider may be vicariously liable when it fails to affirmatively use its ability to patrol its system and prevent access to potentially infringing files listed in its search index (if it has one). A file-sharing technology provider such as Freenet that is incapable of blocking access to users or disabling files because of its architectural design, seems to be at a legal advantage to systems such as Napster under the ruling.
P2P developers must proceed cautiously as 'knowingly' ignoring infringement will not absolve operators of vicarious liability for the illegal actions of others. "Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability" said the court. Once informed of infringement, a technology provider may not escape vicarious liability because of the substantial non-infringing uses of that technology, dramatically narrowing Betamax's protection against vicarious liability.
The Napster decision makes clear that maintaining a right and ability to police the actions of users creates a dangerous legal obligation for that P2P technology provider to police its system to the fullest extent possible. Consequently, the court's treatment of secondary liability will significantly impact the future design of P2P technology (to disable right and ability to police) in order to avoid secondary liability.
Freedom of Speech Threatened as Copyright Holders' Power Extended
The legal protection P2P technology providers enjoyed under the Supreme Court's Betamax standard for secondary liability has been curtailed in the 9th Circuit under Napster, restricting freedom of expression online. The copyright industry continues to secure dangerously broad legal precedents against innovative technologies whose full ramifications have not yet been thoroughly considered by courts or society.
The potential for contributory and vicarious liability present a real danger for file-sharing technology providers and great care should be paid to the architectural design of P2P systems including consulting an attorney. The Napster decision represents another instance where the legal code will influence the design of computer code, consequently limiting the public's ability to access and exchange information online and distorting the growth of the Net.
Despite Napster's demise, P2P's legal struggle lives on -- certain to battle RIAA further in the coming months, as the industry continues to wage a war to cripple the technology it cannot control and attempts to wrestle music distribution away from the people at the expense of freedom of speech and innovation.
Cindy Cohn
Director of Legal Services
Electronic Frontier Foundation
(415)436-9333 x 108
Doug Honig
ACLU
(206)624-2184
Seattle- In a case involving free speech and privacy rights online, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) today asked a federal court in Washington to quash a subpoena that would force an Internet service to disclose the identity of a person who spoke anonymously on an Internet bulletin board.
The ACLU and EFF are representing J. Doe in seeking to block a subpoena by 2TheMart.com, Inc., which is currently defending itself against a class-action lawsuit alleging the company engaged in securities fraud. The subpoena requests InfoSpace turn over the identities of 23 speakers who used pseudonyms in participating on the Silicon Investor Web site owned by InfoSpace. The motion to quash the subpoena was filed in U.S. District Court in Seattle.
This 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.
"If the courts don't establish a standard for the issuance of subpoenas in cases where the anonymous speaker is not a party, every party in every civil action could start subpoenaing the identities of online speakers in the desperate hope of finding something useful for their case," said Cindy Cohn, Legal Director for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world. "The courts should not allow subpoenas to be used for 'fishing expeditions' when individuals' First Amendment rights are at stake. The chilling effect on free speech would be catastrophic."
"People commonly use pseudonyms when speaking on the Internet. This promotes a diversity of viewpoints in cyberspace. The right to speak anonymously on an
Internet bulletin board should be upheld just as is the right to distribute a leaflet using a pseudonym," said Aaron Caplan, staff attorney for the American Civil Liberties Union, an organization with an 80-year history of defending freedom of speech.
In their brief filed today, the ACLU and EFF argue 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.
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."
John Doe is being represented by ACLU staff attorney Aaron Caplan and Cindy Cohn, legal director and senior staff attorney for EFF.
The brief may be found at the EFF Web site at:
http://www.eff.org/Legal/Cases/2TheMart_case/
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
The following is an electronic copy of a letter to the Pacifica Foundation board of directors from the Electronic Frontier Foundation.
Board of Directors
Pacifica Foundation
2390 Champlain St. NW
Washington, DC 20009
March 1, 2001
An open letter to the Board of Directors of the Pacifica Foundation
from the Electronic Frontier Foundation:
It has come to the attention of the Electronic Frontier Foundation (EFF) that counsel for the Pacifica Foundation (Pacifica) has been systematically threatening Web sites that are critical of Pacifica or some of your member stations with domain name lawsuits. While EFF is not representing any of those sites being threatened at the present time, we have been a vocal opponent to such anti-speech tactics and are representing defendants in a similar lawsuit filed by the Ford Motor Company. (See http://www.eff.org/Legal/Cases/Ford_v_GreatDomains .)
We write to you today because it has also come to our attention that you are displaying EFF's blue ribbon on the homepage of your Web site, http://www.pacifica.org . We are proud of our Blue Ribbon Campaign, and we are happy to see that Pacifica, at least in theory, believes in the principles of free speech that our blue ribbon symbolizes.
EFF's blue ribbon is displayed on tens of thousands of Web sites throughout the Internet as a symbol of support for the essential human right of free speech, a fundamental building block of a free society. This right was affirmed by the U.S. Bill of Rights in 1791 and by the U.N. Declaration of Human Rights in 1948. The Blue Ribbon Campaign has been one of EFF's ways of raising awareness of online censorship and freedom issues, both locally and globally.
We at EFF feel that free speech is such an important part of our humanity that no one, no company and no government, should have the right to abridge it. We also think that free speech has responsibilities such as being truthful and non-oppressive. We don't always agree with the speech we protect. So long as the blue ribbon is used simply to support our campaign, we would not bar its use based on whether or not we agree with the opinions of the user. That would contradict what the symbol is about. We would be concerned if the ribbon were used to imply endorsement of parties or ideas we don't support.
EFF believes that Internet domain names impact greatly on this fundamental right to free speech. It is through Internet protocol addresses and domain names that individuals and organizations place their speech on the Internet and give titles to that speech, or to collections of that speech. And it is through these addresses that others locate that speech to read and use it. A domain name is in some ways like a book title. A company does not have the right to stop publication of a book with their name in the title which says something negative about them, so why they should they be able to stop an online publication with what amounts to the same kind of title.
When individuals or groups choose to use domain names that identify things of which they are critical, that is a protected free speech right. Courts have upheld this use of speech as protected time and time again, and courts have upheld utilizing domain names for this purpose. It is only when there is true confusion that courts have intervened and ruled that free speech does not rule the day. The question EFF poses is "How should critical Web sites name themselves, if not in reference to what they criticize?" It's a serious question all people trying to block a domain should answer.
The sites that you have targeted are not confusing anyone. You seem to be systematically targeting them because you disagree with the criticisms they make of Pacifica. Pacifica has a history of being an ally of free speech and EFF asks you to be guided by your own mission statement, which states that you will "promote freedom of the press and serve as a forum for various viewpoints." We have come into the age of an electronic press and EFF asks you to promote these same values on the Internet. Though EFF is not taking a position on the issues that caused this domain name dispute, we urge you to do the right thing and have your lawyers cease attempts at censorship while the courts of law and public opinion come to their conclusions.
Thank you for your prompt attention to this matter. Together, we can ensure that the civil liberties we hold so dear are protected in this digital arena.
Respectfully,
Henry Schwan
Electronic Frontier Foundation
owlswan@eff.org
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