EFFector Online Newsletter

EFFector       Vol. 15, No. 36       November 22, 2002     ren@eff.org

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 235th Issue of EFFector:

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Language and Travel Site Appeals Forced Name Change

Las Vegas - The Electronic Frontier Foundation (EFF) recently appealed a court ruling stripping the name "visa" from the evisa.com website and domain.

In October 2002, credit card giant Visa convinced a Las Vegas federal court to prevent the small business JSL Corp. from using the term "evisa" and the domain "evisa.com" for its website offering travel, foreign language, and other multilingual applications and services. The court ruled that the website--run by Joe Orr from his apartment-- "diluted" Visa's trademark, even though the site uses the word "visa" in its ordinary dictionary definition, not in relation to credit card services.

"Apple Computer, no matter how famous it becomes, cannot restrict companies from using the word 'apple' to refer to the fruit," said EFF Legal Director Cindy Cohn. "Yet the court held that the Visa credit card company can restrict the ability of Americans to use the word 'visa' when they offer travel-related information and services."

Tom Moore of Tomlinson Zisko LLP will join EFF in representing Orr in the case.

"The order simply doesn't address the fact that 'visa' is a common English word," said Orr, who has moved the website to a new address (www.3dtree.com). "My evisa.com site had 20,000-30,000 people visiting for free travel visa information, computer training, and foreign language learning. It has nothing to do with credit cards or financial services."

"Having lifted its name from the dictionary, Visa cannot now claim ownership of the word," added Cohn.

Evisa.com has been on the web since 1997. The name came from Orr's English conversational school in Japan called Eikaiwa Visa ("Eikaiwa" means "English conversation" in Japanese).

The 9th Circuit Court of Appeals will likely hear the case in Spring 2003.

For this release:

For more information on Visa v. JSL case:

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Court Considers Global Jurisdiction Issue

Los Angeles - On Monday, November 24, a federal court in Los Angeles will consider whether entertainment companies may sue Sharman Networks, distributor of the Kazaa peer-to-peer file sharing software, in U.S. courts.

Sharman is incorporated in the island-nation of Vanuatu, operates out of Australia, and distributes the Kazaa software from servers located outside the U.S. Attorneys for Sharman will argue that their client is an off-shore corporation with no substantial contacts with the U.S., thus the company cannot be sued in U.S. courts. Sharman is represented by the Los Angeles law firm of Hennigan, Bennett & Dorman.

The judge will also consider procedural motions brought by StreamCast Networks, distributors of the Morpheus peer-to-peer software, in preparation for a summary judgment hearing scheduled for December 2, 2002. StreamCast is represented by the Electronic Frontier Foundation and the law firm of Brobeck, Phleger & Harrison.

The hearing will be held at 1:30pm on Monday, November 25, before U.S. District Court Judge Stephen Wilson at the U.S. Federal Courthouse, located at 312 North Spring Street in downtown Los Angeles.

For this advisory:

Documents related to Metro-Goldwyn Mayer v. Grokster case:

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The W3C Patent Policy Working Group has published a new (and likely final) draft of the W3C's patent policy. This draft responds to the public outcry which resulted when an initial draft of the policy suggested that participants in a standards process could reserve the right to collect royalties from the use of a patented process in a standard.

EFF and other organizations expressed dismay at this prospect and encouraged the public to comment to the W3C. The resulting comments prompted the W3C Patent Policy Working Group's year-long effort to re-examine the policy and to consider whether W3C would permit royalty-bearing "RAND licensing" for technologies used in standards, or require only "Royalty-Free (RF) licensing."

The working group invited three experts to give advice on behalf of the free software/open source software community, which is particularly likely to be adversely affected by patents in communications standards. The invited experts were Eben Moglen (Free Software Foundation), Bruce Perens (Software in the Public Interest), and Larry Rosen (Open Source Initiative). After significant deliberation, and informed by public comment, the working group adopted a "Royalty-Free Only" policy, which is now proposed for official adoption by the W3C.

The new draft policy is available at:

It provides that:

In order to promote the widest adoption of Web standards, W3C seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. Under this policy, W3C will not approve a Recommendation if it is aware that Essential Claims exist which are not available on Royalty-Free terms.

To this end, Working Group charters will include W3C RF licensing requirements that specifications produced by the Working Group will be implementable on an RF basis, to the best ability of the Working Group and the Consortium.

It also includes disclosure obligations for organizations which participate in standards-development working groups of the W3C.

W3C invites the public to continue to comment on this draft, which is likely to be officially adopted as W3C policy next year.

Comments may be sent to:

A record of earlier public comments (and Patent Policy Working Group meetings) is available at:

Old EFF alert (not applicable to the current draft):

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EFF recently submitted its comments on the U.S. government's cybersecurity strategy document, The National Strategy to Secure Cyberspace, noting three main criticisms. First, the Strategy is so broad that it fails to set any clear priorities for action. What are the weakest links in cybersecurity? What are the most important threats? What are the most important actions needed to improve security? This failure was especially disappointing in light of the much more concrete discussion of security issues in an earlier draft (http://www.seul.org/~gabe/cybersecurity/)

Second, the Strategy is silent on oversight mechanisms for protecting privacy and civil liberties, such as a privacy office with meaningful authority, funding, staffing, and technical expertise.

Third, the Strategy relies primarily on exhortation and public-private partnerships between government and industry. EFF is skeptical that this approach will lead vendors to improve security to any meaningful degree. EFF is also concerned that such partnerships signal a "closed-door" approach to cybersecurity that will prevent the public from learning about vulnerabilities, security breaches, and corrective action (and may harm competition and innovation).

Other points:
- The problem of "buggy code" needs to be openly confronted.
- Encryption played only a small part in the recommendations.
- Unrealistic assumptions were made about the ability of home and small business users to improve security.
- Free software's potential for enhancing security was ignored.
- The Strategy endorsed the Council of Europe Convention on Cybercrime, which poses serious privacy and civil liberties issues.
- Legislation like the DMCA, CBDTPA, and the Berman P2P "hacking" bill are not good for cybersecurity.

Many of these themes were highlighted in a 2002 National Research Council report, Cybersecurity Today and Tomorrow: Pay Now or Pay Later, available at:


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The U.S. Foreign Intelligence Surveillance Court of Review (FISCR) this week gave the Justice Department (DOJ) broad authority to conduct wiretaps and other surveillance on terrorism suspects within the United States.

Earlier this year, the Foreign Intelligence Surveillance Court (FISC) made public a unanimous decision rejecting the government's bid for expanded spying powers under the Patriot Act's amendments to the Foreign Intelligence Surveillance Act (FISA).

Citing numerous errors in past applications for FISA court orders, the FISC had held that DOJ's proposal to involve criminal prosecutors in the FISA surveillance process violated the traditional line between criminal and counter-intelligence surveillance.

The FISCR reversed, rejecting past cases holding that the Fourth Amendment requires a traditional Fourth Amendment warrant where the purpose of the surveillance is primarily criminal. Indeed, the FISCR held that FISA contained no "primary purpose" requirement until amended by the Patriot Act. The FISCR also found that FISA as amended by the Patriot Act "is constitutional because the surveillances it authorizes are reasonable," but it also said that the constitutional question "has no definitive jurisprudential answer."

Rep. John Conyers (D-Mich.), ranking member of the House Judiciary Committee, said of the FISCR decision: "The Administration's race down the slippery slope of eroding constitutional safeguards seems to have no end in sight. Today's disappointing decision constitutes an embarrassing step backwards for civil liberties in this country. Piece by piece, this Administration is dismantling the basic rights afforded to every American under the Constitution."

The FISA authorizes government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret. Yesterday's decision was public only because the FISC allowed its May decision to be published by Congress.

The court's decision is online at:

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London - Privacy International, in response to the UK Home Office's consultation paper on their proposed national entitlement card, is hosting a public meeting on the proposal on December 11th, 2002, at the London School of Economics. At issue is the Home Office's plan to implement a national ID system under the guise of an entitlement registration card.

The proposed entitlement card differs from a national ID in name only. David Blunkett, the UK Home Secretary, admitted as much in his July 3rd speech, saying "the focus should therefore be on whether entitlement cards would generally be useful to people in their daily lives and in affirming their identity." The entitlement card would not be a national ID per se, but it would function in all aspects as one.

While the proposed entitlement card would not be compulsory, its designers envision it being used in a variety of ways, including commercial uses and, as quoted from the Home Office's consultation paper, "establish(ing) for official purposes a person's identity so that there is one definitive record of an identity which all government departments can use if they wish." And while an individual could potentially opt out of such a system, Secretary Blunkett affirmed that "if services, whether public or private, required some proof of identity, I doubt whether non-use of it would last very long."

Homepage for the initiative:

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In every field of human endeavor, there are those dedicated to expanding knowledge, freedom, efficiency, and utility. Many of today's brightest innovators are working along the electronic frontier. To recognize these leaders, the Electronic Frontier Foundation established the Pioneer Awards for deserving individuals and organizations. The Pioneer Awards are international and nominations are open to all. The deadline for nominations this year is Feb. 1, 2003 (see nomination criteria and instructions below).

How to Nominate Someone
You may send as many nominations as you wish, but please use one e-mail per nomination. You may submit your entries to us via e-mail to: pioneer@eff.org. Just tell us:

1. The name of the nominee;
2. The phone number or e-mail address at which the nominee can be reached; and, most importantly
3. Why you feel the nominee deserves the award.

You may attach supporting documentation as RTF files, Microsoft Word documents, or other common binary formats, or as plain text. Individuals, or representatives of organizations, receiving an EFF Pioneer Award will be invited to attend the ceremony at the Foundation's expense.

Nominee Criteria
There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:

1. The nominees must have made a substantial contribution to the health, growth, accessibility, or freedom of computer-based communications.
2. The contribution may be technical, social, economic, or cultural.
3. Nominations may be of individuals, systems, or organizations in the private or public sectors.
4. Nominations are open to all (other than EFF staff & board and this year's award judges), and you may nominate more than one recipient. You may nominate yourself or your organization.
5. All nominations, to be valid, must contain your reasons, however brief, for nominating the individual or organization, along with a means of contacting the nominee (or heirs, if posthumous), and your own contact number. Anonymous nominations will be allowed, but we prefer to be able to contact the nominating parties in the event that we need further information.

The 2003 Awards
The 12th annual EFF Pioneer Awards will be presented in New York, NY, in conjunction with the 13th Conference on Computers, Freedom, and Privacy (CFP2003). All nominations will be reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

Pioneer Awards webpage:

CFP site:

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WHEN: Tuesday, December 10th, 2002, at 7:00 PM Pacific Time
WHERE: Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110

No, we're not moving! But we are expanding to include the space next door. It is now the newest addition to EFF Headquarters. Come celebrate our new digs and the spirit of the holiday season with us. We'll have great food, beer, musical madness from the Funkmonsters, and the latest news on EFF from the ever-compelling John Perry Barlow and Shari Steele.

This event is free and open to the general public. The Electronic Frontier Foundation (http://www.eff.org) is the leading civil liberties organization working to protect rights in the digital world. For more information, please see EFF's website.

An RSVP is appreciated. Please contact:

Let us know you're coming so we don't run out of food and holiday libations.

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The hardest part of holiday giving is the guessing. "Will he like this sweater?" "Didn't we give her a chimpanzee *last* year?" In the spirit of making your world a better place, EFF is saving you the headache of worrying what to get us. It's your lucky day, 'cause we made a list:

~ Adobe Illustrator 10
~ Adobe Photoshop 7
~ Macromedia Flash MX
~ Final Cut Pro 3
~ Extensis Suitcase
~ BBEdit 7.0

And to avoid any confusion, we can only accept legitimate, non-academic editions of this stuff. Mac software is preferred, and we can provide tax-deductible receipts for any donations. Thanks in advance!

Email ren@eff.org with any inquiries or offers.

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Deep Links
Deep Links features noteworthy news items, victories, and threats from around the Internet.

Retailers Swing DMCA to Stop "Black Friday" Sale Info
Sale prices are copyrighted? The DMCA inspires another round of attacks that would be funny if they weren't so scary.

And here's the Chilling Effects Weather Report:

The Awful Truth About the Decline of Radio
The Future of Music Coalition releases report on how deregulation made radio a wasteland.

DMCA Overview
Adam "TidBits" Engst gives a great retrospective on the DMCA.

You're Grounded!
ACLU Washington has set up a form for people who are kicked off airplanes because they're on the no-fly list to report their experiences.

Terms of Art (Prison Terms, of Course)
This is a *great* exhibit running through Dec. 6 at the legendary CBGB, highly recommended for those in NYC. Web site includes downloadable mp3 versions of music that has previously been suppressed for fear of copyright liability.

Public Documents in Danger
The Executive Branch is trying to disperse the General Printing Office, which puts most government docs into your local library and onto the Internet. EFF Action Alert forthcoming.

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EFFector is published by:

The Electronic Frontier Foundation
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San Francisco CA 94110-1914 USA
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+1 415 436 9993 (fax)

Ren Bucholz, Activist

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