EFFector       Vol. 15, No. 6       Feb. 27th, 2002     editors@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 206th Issue of EFFector:

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EFF and Law School Clinics Launch ChillingEffects.org

Project Aims to Educate Internet Users About Online Rights

Electronic Frontier Foundation Media Release

San Francisco - The Electronic Frontier Foundation (EFF) and four major law school legal clinics announced the launch today of a project and website to empower Internet users with detailed information about their legal rights in response to cease-and-desist letters designed to restrict their online activities.

The project brings the EFF together with Internet law clinics at Harvard, Stanford, the University of California at Berkeley, and the University of San Francisco, and is expected to grow to include additional law schools.

Called Chilling Effects in reference to the way legal threats can freeze out free expression, the project invites Internet users to add their cease-and-desist letters to an online clearinghouse at ChillingEffects.org. Students at the participating law school clinics will review the letters and annotate them with links to explain applicable legal rules.

"The Internet makes it easier for individuals to speak to a wide audience, but it also makes it easier for other people and corporations to silence that speech," said Berkman Center Fellow Wendy Seltzer, who conceived the project and programmed the website. "Chilling Effects aims to level the field by helping online speakers to understand their rights in the face of legal threats."

The Chilling Effects project works by publishing cease-and-desist letters received by Internet users and providing detailed information about the relevant legal rules. For example, if an Internet user receives a letter demanding that she remove a synopsis of a "Star Trek" episode from her website, members of the Chilling Effects team would post the letter online, embedding it with links to information about basic copyright protections, the rules governing synopses, and the fair use doctrine.

"EFF receives hundreds of requests for help and information from recipients of cease-and-desist letters," said EFF Legal Director Cindy Cohn. "This project should help individuals gain access to greatly needed information as well as allow us to track who is sending these letters and research larger trends."

The project currently provides basic legal information on issues like fan fiction, copyright and the Digital Millennium Copyright Act, trademark and domain names, anonymous speech, and defamation. New topics will be added as new issues arise. In addition to publishing cease-and-desist letters, the Chilling Effects team will offer periodic "weather reports" assessing the legal climate for Internet activity. The reports will seek to answer such questions as what types of Internet activity are most vulnerable to the chilling effects of legal threats.


The Chilling Effects project website:

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:

About Berkman Center for Internet & Society:

The Berkman Center for Internet & Society is a research program founded to explore cyberspace, share in its study, and help pioneer its development:

About Samuelson Law, Technology and Public Policy Clinic:

The Samuelson Law, Technology and Public Policy Clinic at Boalt Hall was the first clinic in the country to provide law students with the opportunity to represent the public interest in cases and matters on the cutting-edge of high technology law. Since January 2001, students participating in the Clinic have worked with leading lawyers in nonprofit organizations, government, private practice, and academia to represent clients on a broad range of legal matters including Internet free speech and online and wireless privacy.

About Stanford Law School's Center for Internet and Society:

The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School. The CIS brings together scholars, academics, legislators, students, hackers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, privacy, public commons, diversity, and scientific inquiry. The CIS strives as well to improve both technology and law, encouraging decision makers to design both as a means to further democratic values.

About University of San Francisco Internet and Intellectual Property Justice Project:

This University of San Francisco School of Law program provides legal services to parties who require help with intellectual property matters. The project is currently available to help parties in domain name disputes under ICANN online dispute resolution proceedings as well as with other trademark and copyright work that the faculty supervisors feel is appropriate. Legal work is performed free of charge by students under the direction of faculty members.

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SSSCA Hearing, Thu. Feb. 28

Electronic Frontier Foundation Media Advisory

For Immediate Release: Wednesday, February 27, 2002

Washington, DC - This Thursday, February 28th, the U.S. Senate Committee on Commerce, Science and Transportation will hold hearings on draft legislation, the Security Systems Standards and Certification Act (SSSCA). Sponsored by U.S. Senator Fritz Hollings (D-SC) and Ted Stevens (R-AK), SSSCA would require government mandated copy prevention technology in future digital devices that would give Hollywood control over how consumers can use digital content. Senate hearings had originally been scheduled for October 25, 2001, but were indefinitely postponed after much public opposition to the proposed legislation. Thursday's re-scheduled hearing will allow testimony only from major copyright holders and electronics companies; no public interest or consumer rights groups have been invited to provide input on the draft legislation on how information may be used in a digital environment.

Witness List:

Panel I:

Mr. Michael D. Eisner, Chairman and CEO, The Walt Disney Company

Mr. Peter Chernin, President and Chief Operating Officer, News Corporation

Mr. Leslie L. Vadasz, Executive Vice President, Intel Corporation

Panel II:

Mr. Andreas Bechtolsheim, General Manager/Vice President of the Gigabit Systems Business Unit, Cisco Systems Inc.

Mr. James E. Meyer, Special Advisor to the Chairman and formerly Senior Vice President and Chief Operating Officer, Thomson Multimedia

Mr. Robert Perry, Vice President, Marketing, Mitsubishi Digital Electronics America, Inc.

Info on hearings:

Chair: Sen. Hollings to preside Feb. 28, 2002, 9:30 a.m. ET.
Title: "Protecting Content in the Digital Age"
Location: Hearings will be held in Room 253, Russell Senate Office Building (unless otherwise noted), Delaware and Constitution Avenues, North East District, Washington, DC 20510


U.S. Senate Committee on Commerce, Science & Transportation announcement of hearings:


Robin Gross, EFF Intellectual Property Attorney
  +1 415-436-9333 x112

Fred von Lohmann, EFF Senior Intellectual Property Attorney
  +1 415-436-9333 x123

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Urges Court to Reverse Decision Against Message Board Speaker

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, February 27, 2002

San Francisco - Seeking to protect the free speech rights of an online corporate critic, the Electronic Frontier Foundation (EFF) today filed a "friend of the court" brief in a California appeals court. A lower court ruled that critic Michael Wells's speech was not protected because, as a corporate shareholder, he had a "pecuniary" interest in the publicly-traded company.

After Hollis-Eden Pharmaceuticals sued Wells and over 50 other defendants who posted criticisms of the company on a Yahoo! message board, Wells requested dismissal of the case under California's Strategic Lawsuits Against Public Participation (SLAPP) statute. The lower court denied Wells's request for dismissal under the statute, which allows the target of an intimidation lawsuit to quickly and inexpensively halt such lawsuits.

"Michael Wells exercised his right to criticize company policies on an online message board," said EFF Legal Director Cindy Cohn. "Even as a shareholder, he should not face legal action for expressing his opinions online."

The EFF brief, also signed by the First Amendment Project and the California First Amendment Coalition, states: "It simply cannot be the case that the First Amendment or California's SLAPP statute protect only those who speak about issues in which they have no personal financial interest. To the contrary, it is often precisely this interest that motivates citizens to join public debates. The protection of these debates is the heart of the statute's goal of encouraging 'continued participation in matters of public significance.'"

Several other people have successfully challenged Hollis-Eden's lawsuit. The appellate court is expected to consider Wells's case late this spring.


For documents related to the Hollis-Eden case:

For the story of the victory of several other individuals sued by Hollis-Eden:

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:

About First Amendment Project:

The First Amendment Project (FAP) is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties.

About California First Amendment Coalition:

The California First Amendment Coalition (CFAC) is a nonprofit public benefit corporation organized under the laws of California. Its more than 500 members comprise news organizations, journalists, attorneys, citizen activists, public officials, students and teachers, whose common concern is protecting the free flow of information on matters of public significance.


Cindy Cohn, EFF Legal Director
  +1 415-436-9333 x108

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Asks Court to Rehear Ditto.com Case

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, February 27, 2002

San Francisco - The Electronic Frontier Foundation (EFF) today filed a brief on behalf of Ditto.com, urging the U.S. Ninth Circuit Court of Appeals to reconsider a ruling that threatens to make all linking on the World Wide Web a copyright infringement.

In order to hold Ditto.com liable for copyright infringement, the Ninth Circuit Court of Appeals created a novel legal rationale. It found that linking to a website without permission infringes the public display rights of the website owner.

"Extending copyright law to all linking on the Web would be a nightmare," said EFF Senior Intellectual Policy Attorney Fred von Lohmann. "A whole new flurry of lawyer letters would chill linking on the Web, striking at the heart of free expression on the Internet."

Ditto.com is a search engine that helps people find publicly available image files on the Web. So, for example, by entering "sailboat" into the Ditto website, the searcher would be shown a selection of images of sailboats from around the Web. Ditto both presented the images in reduced form, known as thumbnails, and also provided links that would allow the searcher to open the full-size image in a new web browser window.

Ditto was sued by Les Kelly, a photographer, after Kelly discovered that Ditto had indexed his website and the images found there. Ditto.com prevailed before the trial court, but suffered a defeat on appeal before the Ninth Circuit in San Francisco. Although the Ninth Circuit found that Ditto.com's use of thumbnail images was allowed under the copyright law doctrine of "fair use," it held Ditto.com liable for copyright infringement for opening a new window to display the image. This technique is known as "in-line linking" or "framing" and is commonly used by numerous other Web search engines, including Lycos, Google, and Altavista. By concluding that these common linking techniques infringe copyright law, the Ninth Circuit has seriously threatened linking on the Web.

EFF filed an amicus brief on Ditto.com's behalf, asking the Ninth Circuit to reconsider its decision. The case title is Kelly v. Arriba Soft Corp., No. 00-55521, decided on February 6, 2002. [Arriba Soft is the former name of Ditto.com.]


For documents related to the Ditto.com case:


Cindy Cohn, EFF Legal Director
  +1 415-436-9333 x108

Fred von Lohmann, EFF Senior Intellectual Property Attorney
  +1 415-436-9333 x123

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The California Supreme Court has agreed to review the decision by a state appeals court that overturned an injunction last fall against Web publishers of DeCSS software. On November 1, 2001, the California 6th Appellate District unanimously ruled that the lower court's issuance of a preliminary injunction against Andrew Bunner and other Web publishers violated the First Amendment since they were merely republishers of information obtained in the public domain.

DVD-CCA claims that DeCSS contains its trade secrets and filed a complaint to ban its publication in December 1999 in San Jose, California on trade secret misappropriation grounds. After the appeals court lifted the injunction, DVD-CCA filed a petition to the California Supreme Court requesting it review the appellate court's decision. On February 21, 2002, the California Supreme Court agreed to review the appellate decision and could uphold, overturn, or modify the ruling. DVD-CCA's opening brief is due to be filed with the court on March 22, 2002. Bunner's response will be due April 22, 2002 and oral argument is expected late this summer before the state supreme court in Sacramento.

For more background information on the case see:

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As the first benefit dinner was a great success, we have decided repeat the experience to accommodate those who couldn't make it the first time around.

You are invited to join Stanford University Law Professor and Electronic Frontier Foundation (EFF) Board Member Larry Lessig for an intimate conversation regarding his new book over dinner and drinks. This exchange of ideas will take place on Tuesday, March 5th, at 7:30 p.m. and will benefit EFF's work to protect rights in the digital age.

In his book, "The Future of Ideas," Larry warns of the dangers of corporate power strangling public interest online. He argues that these powerful forces could usher in a new "Dark Age" in which ideas are more strictly monitored and filtered than at any time in our history.

Larry will engage a dozen interested people at the upscale new Japanese restaurant Ozumo for a meal in the Sunken Kotatsu room.

Seated on cushions around a low wooden table, you will have the chance to discuss Larry's book and ideas with him in an intimate personal setting while enjoying excellent food. You will also be contributing to an important cause, as the money raised from this unusual evening will go to furthering the work of the Electronic Frontier Foundation.

The evening includes the opportunity to talk with Larry about his thoughts for the future and how we can affect it, your dinner and drinks, and a signed copy of "The Future of Ideas."

The cost is $500. As there are only 12 available seats, space will fill up quickly.

Please contact Katina Bishop for more information and to RSVP at +1 415-436-9333 x101

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The members of the musical group Negativland have released a statement supporting Peer-to-Peer (P2P) file sharing and software provider Music City in its legal battles against the recording industry. An excerpt of the essay follows:

As musicians, we are happy to support peer to peer (P2P) music sharing technology on the web as facilitated by such programs as Morpheus. As artists, we support and actively promote the right of such file sharing software and networks to exist and to operate in the uniquely new digital domain of non-material cultural exchange that is the World Wide Web.

Besides selling our work in the form of compact discs, we encourage and promote the free exchange of our own music on the Internet using file sharing programs and P2P networks. We consider this new opportunity to share our music and ideas with others, and for others to share our music and ideas with each other, to be good for us, good for society, and good for art. We find it over-reaching when the mainstream music industry attempts to determine whether or not we can share whatever we come into digital possession of when there are so many non-infringing uses of this technology. And we find it curious that large corporations get the benefit of the doubt in this brand new context that is so alien to copyright's own brick and mortar premise, namely, that supply is always limited.

On the Net, supply is irrelevant, there is only demand. The fact that this plays havoc with copyright "protection" assumptions is not necessarily the best reason to suppress something entirely new and useful to everyone else - free and open P2P activity. The question should be: Should our unbendable copyright laws apply the same on the Net if it's going to also suppress P2P exchanges of all kinds there? What about the benefits of preserving THAT before it's too late?

As musicians who make a living selling our music, we believe in the spirit of copyright as set forth by our founding fathers who designed copyright to be a limited right, seeking to balance private profit and personal possessiveness with the greater public good inherent in free and open access to all ideas. Corporate America has ignored this original mandate and now seeks to re-make copyright into an endless and exclusive private property right through lawsuits such as this one. The Sonny Bono Copyright Term Extension Act's extension of copyright to 75 years plus the life of the creator means that NOTHING created in our lifetime will ever reach the public domain. Lobbied into existence by Disney and the RIAA, this new law betrays the original intent of this nation's copyright laws and is a disturbing preview of the direction our society is heading in. It ignores a basic human fact: Culture healthily evolves when it is shared. And we consider P2P systems to be a new and unexpected part of that sharing.

We also consider P2P to be very useful free advertising for the music we do sell as hard goods. And despite the plaintiff's claims of lost profits from the advent of P2P systems, independent musicians have far more to gain by its development. For thousands and thousands of musicians in the world, sharing their music via MP3 files is the ONLY way they share what they do with others. Society, and particularly artistic creativity, benefit dramatically from the Net's free and open exchange environment and we see no viable reason or way to stop it with any of the recently proposed legal and technological constraints that seek to criminalize and prevent unauthorized free exchange on the web.

For Negativland's complete essay, see:

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Join EFF lawyers Cindy Cohn and Fred Von Lohmann in a casual gathering in Los Angeles at 8pm on Monday, March 4th. After a long day in court for the Morpheus hearing, local EFF friends and supporters will be gathering at the Hotel Figueroa lounge for hors d'oeuvres and drinks. If you are in the area, please join us!

Hotel Figueroa is at 939 South Figueroa St., Los Angeles, CA 90015

For more information, or to RSVP, call Katie at 415-436-9333 x104 or email katie@eff.org

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EFFector is published by:

The Electronic Frontier Foundation
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