Fighting the abuse of copyright law to stifle competition, EFF helped Skylink score an important victory in the Federal Circuit that puts much-needed limits on the controversial "anti-circumvention" provision of the Digital Millennium Copyright Act (DMCA). Chamberlain, the manufacturer of garage doors, invoked the provision to stop Skylink from selling a "universal" remote control that works with Chamberlain garage doors. The court rejected Chamberlain's claims, noting that if it adopted the company's interpretation of the DMCA, it would threaten many legitimate uses of software within electronic and computer products – something the law aims to protect.
EFF helped defend a printer cartridge company against a competitor's overreaching copyright claims under the Digital Millennium Copyright Act (DMCA). Lexmark brought a DMCA lawsuit against Static Controls in an effort to eliminate the market for remanufactured or refilled Lexmark toner cartridges, which would have forced owners of Lexmark laser printers to buy more expensive cartridges from Lexmark. The Sixth Circuit Court of Appeals ultimately rejected that effort, concluding that Lexmark's "protection measure" was aimed at protecting the company from legitimate competition, rather than "piracy."
The FBI arrested Russian programmer Dmitry Sklyarov while he was attending a security conference in Las Vegas to discuss the Advanced eBook Processor, a program to decrypt Adobe eBook files. This made Sklyarov the first person to be criminally charged under the Digital Millennium Copyright Act (DMCA). Adobe initially pressed the case, but, after meeting with EFF, called for all charges against Sklyarov to be dropped. There is no DMCA in Russia, and a jury eventually acquitted Sklyarov's company, ElcomSoft, of willful violation.
When music publishing giant Warner/Chappell sent a cease & desist letter to the developer of pearLyrics, a piece of software that automates the process of adding lyrics to tracks in iTunes, EFF wrote an open letter defending the right of music fans to annotate their legitimately acquired music. Warner/Chappell ultimately backed down, and its CEO apologized to the developer.
EFF protected innovation and fair use by defending "intermediate" copying. Major motion picture studies filed a copyright infringement suit against two companies that made and distributed copies of movies with sexual and violent content removed. To make those copies, the companies first made an initial, "intermediate" copy of the entire movie, which the MPAA alleged were also infringing. Because such copies are crucial to the process of creating new works, EFF filed an amicus brief arguing that those copies were legal if the final copies were as well. The MPAA then backed off and withdrew its "intermediate copying" argument in front of the judge.
EFF defended the free speech rights of a website publisher who had repeatedly received baseless threats from the corporate owners of Barney the Dinosaur. The Lyons Partnership wrongly claimed that Dr. Stuart Frankel's online parody of Barney violated copyright and trademark laws. EFF filed suit on Dr. Frankel's behalf, forcing Lyons Partnership to withdraw their threats and compensate Dr. Frankel for the cost of his legal fees.
EFF blocked a brazen attempt to intimidate online critics by the Embroidery Software Protection Coalition (ESPC). ESPC asked the courts to unmask anonymous members of an online discussion group critical of the Coalition's actions. (The online group was created to share information about the ESPC's long-running campaign to threaten purchasers of embroidery designs and software with copyright infringement lawsuits.) When ESPC filed lawsuits against members of the group and subpoenaed personal information of every single person in it, EFF filed a motion to block ESPC's requests. ESPC then agreed to drop its attempts to unmask the users.
EFF helped protect free speech rights of users who provide online forums for the views of others. In this case, a breast implant awareness activist was sued for defamation in part for re-posting an article written by someone else. On November 20, 2006, the California Supreme Court upheld the strong protections of Section 230 of the federal Telecommunications Act of 1996, reversing an earlier ruling by the Court of Appeals. Agreeing with EFF's position, the court held that the 1996 law protects individuals from civil liability for posting to an Internet newsgroup a statement created by another.
EFF protected anonymous speech and fought off a controversial self-help group's abuse of the Digital Millennium Copyright Act (DMCA). The DMCA's subpoena process is ripe for abuse, because it lets content owners unmask an alleged infringer without first filing an actual lawsuit. Landmark Education sent subpoenas to Google and the Internet Archive to unmask whoever had posted a documentary criticizing the organization, even though the use did not infringe any of Landmark's copyrights. EFF defended the anonymous Google poster and the Internet Archive, and Landmark quickly backed down.
Standing up for the public's right to make legal, fair uses of copyrighted material, EFF successfully defended the creators of a parody flash animation piece using Woody Guthrie's "This Land Is Your Land" - and uncovered evidence that the classic folk song is in fact already part of the public domain.
EFF protected online speakers by bringing the first successful suit against abusive copyright claims under the Digital Millennium Copyright Act (DMCA).
bWhen internal memos exposing flaws in Diebold Election Systems' electronic voting machines leaked onto the Internet, Diebold used bogus copyright threats to silence its critics. EFF fought back on behalf of an ISP, winning an award of damages, costs, and attorneys' fees. Equally important, the case set a precedent that will allow other Internet users and their ISPs to fight back against improper copyright threats.
EFF defended the free speech and fair use rights of an online newsletter publisher after the world's third largest pharmaceutical company that accused him of trademark infringement and cybersquatting. Since March 2004, AcompliaReport.com has published original news and commentary about clinical trials of Acomplia, a new medication. Drug maker Sanofi-Aventis asked an international arbitrator to transfer the domain name, claiming that the use of the drug's name created a "risk of confusion." With EFF's assistance, the site's publisher asked a U.S. district court to declare that his use of the drug name was a fair use, made in good faith. The parties subsequently entered into a settlement that protected the publisher's right to the site's address.
The DVD Copy Control Association (DVD-CCA), a mouthpiece of the Motion Picture Association of America (MPAA), sued dozens of people in venues across the country and around the world for publishing DeCSS, software code that decrypts the data on commercial DVDs. EFF represented Andrew Bunner and Mathew Pavlovich to defend First Amendment rights in technically oriented speech, to fight the misuse of trade secret law, and to clarify the rules on jurisdiction. In the Bunner case, a California appeals court agreed with EFF and overturned as unconstitutional a 1999 trade secret injunction prohibiting Bunner from publishing the code. In the Pavlovich case, the California Supreme Court also found for the defendant, ruling that Texas resident Pavlovich could not be forced to stand trial in California.
Fighting the over-reach of trademark law, EFF signed on as co-counsel to a small travel services company, JSL, after credit card giant Visa convinced a federal court in Las Vegas to prevent the company from using the domain name "evisa.com." In December of 2003, the 9th Circuit Court of Appeals agreed with EFF that JSL's use of the generic term "visa" does not threaten or "dilute" Visa's trademark for credit cards, keeping the word in the dictionary (and domain name system servers) for now.
The Recording Industry Association of America (RIAA) threatened security researchers from Princeton and Rice to stop them from publishing their study of a weak technological protection scheme for CDs called SDMI. EFF filed a lawsuit to protect the researchers' First Amendment right to publish the paper, and the RIAA backed off from its threats. The protection scheme was never deployed and the researchers were able to present the paper at Usenix Security, 2001.
When former Intel employee Ken Hamidi sent email messages to Intel employees complaining about the company's allegedly unfair labor practices, Intel brought suit. The company won an injunction on a "trespass to chattels" theory, arguing that Hamidi's emails had harmed Intel's computers. EFF stepped in to protect Hamidi's First Amendment rights, arguing in a friend-of-the-court brief that there was no evidence to suggest that his email had threatened the integrity of Intel's systems. The California Supreme Court agreed, ruling that the tort of trespass to chattels does not encompass, and should not be extended to encompass, email communications.
Taxes.com showed up frequently in search engine results for "J.K. Harris," a chief competitor criticized on the website. J.K. Harris asked a federal court to deem this a violation of trademark law. Instead, the court rejected the claim and embraced EFF's arguments, pointing out that the information on the pages was completely truthful and useful to consumers.
In 1996, Georgia enacted a law barring online users from using pseudonyms or communicating anonymously over the Internet. EFF joined a coalition of groups in a suit that blocked the law's enforcement.
Karl Auerbach began asking for Internet Corporation for Assigned Names and Numbers's (ICANN) corporate records in November 2000, shortly after he was voted as the North American Elected Director of ICANN. ICANN management proceeded to obstruct his access to these records. Represented by EFF, Auerbach successfully sued to gain his rightful access under the law.
The court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This followed the reasoning outlined in a friend-of-the-court brief filed by EFF, which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.
More Free Speech Victories...
Standing up for the right to own and experiment with general-purpose technology, EFF helped "smart card" technology owner Mike Treworgy defend himself after DirecTV sued him based on the fact that he purchased hardware capable of intercepting the company's satellite TV signals but without any proof that he had done so. Treworgy prevailed in the 11th Circuit Court of Appeals, which found that DirecTV cannot sue individuals for "mere possession" of smart-card technology. In separate negotiations with DirecTV, EFF succeeded in getting the company to drop its "guilt-by-purchase" litigation strategy altogether.
In 1984, the US Supreme Court ruled that it is fair use, not copyright infringement, for people to use VCRs to tape television programs for later non-commercial viewing in their homes. Nevertheless, in 2001, 28 major movie studios, cable companies, and television networks brought a contributory copyright infringement lawsuit against ReplayTV, the manufacturer of a "digital VCR" that allows people to do the same kind of time- and space-"shifting." EFF and co-counsel brought a lawsuit on behalf of five ReplayTV owners asking the court to affirm their right to record programs, skip commercials, and send programs to other devices. Although the studios succeeded in getting the case dismissed after ReplayTV declared bankruptcy, EFF won from the studios a "covenant not to sue" our clients, as well as establishing the precedent that people using new technologies can join contributory copyright infringement lawsuits brought against the creators of those technologies.
EFF fought off overreaching trademark claims and protected consumers' control of their own computers. 1-800-Contacts sued Internet "adware" company WhenU, alleging that WhenU's software confused potential customers by generating ads relevant to the websites they were visiting. 1-800-Contacts' legal claims could have created a precedent enabling trademark owners to dictate what could be open on your desktop when you visit their websites. With the help of EFF's amicus brief, WhenU prevailed. In June 2005, the Second Circuit Court of Appeals ruled that the use of trademarks to launch ads does not, by itself, trigger trademark liability.
Domain registry Network Solutions, Inc. (NSI) took the Sex.com domain name from Gary Kremen and gave the domain to another Internet user who presented NSI with fraudulent information. Agreeing with EFF's amicus brief, a federal appeals court ruled that Internet domain names are personal property and that NSI could be held responsible for transferring the domain name to an unauthorized party.
To protect your privacy, EFF supported the prosecution of an email provider who illegally copied his customers' incoming mail to his own email account. After a federal court misinterpreted the Wiretap Act and dismissed criminal charges, EFF and several other groups filed briefs endorsing the federal government's request for a rehearing of the case. The First Circuit Court of Appeals obliged and overturned the previous ruling, making it criminal for email providers to snoop on your email during transmission.
EFF fought the government's attempts to track the location of a mobile phone user without sufficient evidence. The government had argued that it did not need to show probable cause that a crime was being committed. Consistent with EFF's brief, a federal magistrate judge in New York rejected the government's arguments, calling them "unsupported," "misleading," "contrived," and a "Hail Mary." Since then, several other judges have made similar rulings.
Acting to protect the privacy of Internet users, EFF supported Verizon in a successful challenge to a lower court ruling holding that the company must reveal the identity of a Verizon customer accused of copyright infringement using the peer-to-peer file-sharing software KaZaA. The DC Circuit Court of Appeals agreed with Verizon and EFF that the special subpoena provisions in the Digital Millennium Copyright Act (DMCA) apply to potentially infringing material stored on an ISP server, not material stored on an individual's own computer.
EFF fought for bloggers' rights, defending the anonymity of an online speaker. In two messages from September of 2004, someone writing under the alias Proud Citizen criticized Patrick Cahill, a member of the Smyrna Town Council in Delaware. Cahill and his wife sued for defamation and sought to unmask the critic. In the first state supreme court decision considering "John Doe" subpoenas and bloggers' rights, the Delaware Supreme Court ruled that the plaintiffs had failed to meet the strict standards required by the First Amendment to breach a speaker's anonymity. The statements at issue were "incapable of a defamatory meaning."
EFF defended anonymous online speakers from frivolous subpoenas. After suing Internet users who had allegedly made critical comments about him on message boards and blogs, a Utah man asked the court to let him subpoena the names of the anonymous "John Doe" critics. The Utah District Court agreed with EFF and the ACLU of Utah that the plaintiff had not submitted sufficient justification.
This case involved a lawsuit against DirecTV for accessing the public website of anti-DirecTV activists run by plaintiff Michael Snow. The website had a banner and purported Terms of Service forbidding DirecTV representatives from entering the site or using its message board, but it was configured such that anyone in the public could enter the site, create a profile, and use the board. Setting aside a privacy-destroying lower court decision, the Eleventh Circuit agreed with EFF's arguments and ruled that web sites are protected by the Stored Communications Act, except when they are configured to be readily accessible to the general public.
In the first ruling of its kind, a federal magistrate judge held that the government must obtain a search warrant to collect the content of a telephone call, even when that content is dialed digits like bank account numbers, social security numbers or prescription refills. The decision from Magistrate Judge Smith in Houston closely followed the reasoning outlined in an amicus brief from EFF and the Center for Democracy and Technology (CDT).
After EFF intervened in the case, an Oklahoma school superintendent dropped his attempt to unmask the identities of a website operator and all registered users of an Internet message board devoted to discussion of local public schools. The superintendent sued anonymous speakers who criticized him on an online message board. As part of the case, he filed a broad subpoena seeking to identify the site's creator and everyone who had posted or even registered on the site, violating First Amendment protections for anonymous speech and association. EFF filed a motion to quash the subpoena on behalf of the site's operator and a registered user, and the superintendent responded by dismissing the case.
More Privacy Victories...
EFF fought for transparent elections, forcing e-voting companies to comply with North Carolina state law. In November 2005, Diebold Election Systems filed suit against the North Carolina Board of Elections to avoid a law requiring vendors to place their machines' source code into escrow. EFF intervened in the case, getting the complaint dismissed, and Diebold subsequently withdrew its e-voting machines from North Carolina elections.
EFF defended the use of voter-verifiable paper trails in Florida. The National Federation of the Blind filed suit to force Volusia County, Florida to spend approximately $700,000 of state funds on Diebold voting equipment that the county had repeatedly rejected. EFF and a Florida attorney filed an emergency friend-of-the-court brief in the case on behalf of disabled residents who opposed the purchase. A federal District Court judge ruled in favor of the county, giving it the opportunity to purchase voting equipment that is both accessible to disabled voters and that creates an auditable paper trail to protect against errors and fraud.
When voting officials held closed meetings to decide which e-voting systems would be used in upcoming elections, it left concerned citizens in the dark. EFF and co-counsel ACLU of Texas argued that the Texas Open Meetings Act should apply to the meetings, and the district court agreed.