EFFector, Vol. 13, No. 10; Oct. 19, 2000

EFFector Vol. 13, No. 10 Oct. 19, 2000 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 158th ISSUE OF EFFECTOR (now with over 25,600 subscribers!):

"Music Owners' Listening Rights Act of 2000" (H.R. 5275) 1st Step to Copyright Reform

The Electronic Frontier Foundation (EFF) encourages all Netizens to contact their Congressional representatives and urge them to support the "Music Owners' Listening Rights Act of 2000" (MOLRA, bill number H.R. 5275). The Bill begins to reform unbalanced copyright law by firmly establishing users' rights to access the music they lawfully own via the Internet at any time from any place.

Large record companies have used tortured interpretations of copyright law to stifle new Internet businesses that compete with these record companies. For example, they sued MP3.COM (Universal Music Group, et al., v. MP3.COM) to stop it from letting people play music over the Internet even though the users proved that they possessed the CD. Agreeing with the recording studios, the district court found MP3.COM guilty of an act of "intermediate copying," without ever deciding whether consumers are allowed to play audio of their own CDs. MP3.COM is appealing the case, but it has also encouraged Congress to make its intent clearer by passing this legislation.

H.R. 5275 would declare unequivocally that consumers can transmit an audio recording over the Internet so it will play wherever they are, if they've shown that they possess the CD (or otherwise lawfully own the music). The bill legalizes copies made by a service company so consumers and artists can begin to experiment with new models of distribution better suited for a digital realm.

Copyright law was designed to strike a balance between authors' and artists' rights to be compensated for their creations, and the public's right to access and use that creation. Restrictions written before the advent of digital technology should not be used to preclude new technologies from coming into existence, depriving society of the benefit of innovation. Updating the law to reflect the change in real-world circumstances begins to address the threat that the recording studios place on free expression in a digital world.

The bi-partisan MOLRA bill was introduced into Congress last month by Rep. Rick Boucher (D-VA) and co-sponsored by several Republican representatives. Contact your representative to stand up for free expression and your rights to use digital audio. Let your voice be heard!

For more information:

Civil Liberties Group Challenges Corporate Lawyer's Effort to Undermine Internet Writer's Right to Remain Anonymous

October 13, 2000 - An Internet civil liberties group has teamed up with a consumer group to weigh in against the common practice of using unsubstatiated civil lawsuits to determine the identity of a controversial speaker. The Electronic Frontier Foundation (EFF), along with the consumer group Public Citizen, filed a motion to quash a subpoena presented to America Online (AOL) seeking the identity of an anonymous poster absent proof from the plaintiff that statements made were actually defamatory.

The brief was filed on behalf of an individual (Jane Doe) who had made several comments on a Yahoo! message board devoted to AK Steel (formerly Armco Steel), based in Middletown, Ohio. Among these messages were statements that John Hritz, executive vice president and general counsel of AK Steel, was too litigious. Hritz promptly filed a "petition for discovery," generally alleging that "John and/or Jane Doe" had made "disparaging, threatening and defamatory" comments on the Internet. Ohio law allows Hritz to file a "petition for discovery" even though he has not yet filed a lawsuit against Doe. Hritz then used that petition to issue subpoenas to Yahoo! and AOL to identify Doe.

EFF and Public Citizen stepped in to combat the growing problem of powerful entities increasingly turning to their lawyers when they find something online they don't like. Lauren Gelman, EFF's Director of Public Policy, explained, "This is just one more example where the legal system is being misused to chill Internet conduct. Lawyers are churning out subpoenas with the sole purpose of intimidating individuals into self-censoring speech. That's especially clear here, where Hritz hasn't even filed a lawsuit."

The only specific web posting about himself that Hritz cited in his request for discovery is "Hritz will litigate the time of day. OOPS I will be in court." As Doe explains in her brief, not only is this statement purely opinion, and hence not actionable as libel, but the filing of this case against Doe seems to substantiate Doe's criticism of Hritz.

Doe argues in her brief that because the main purpose of such suits is often to unmask a company's critics, the identification of those critics should be treated as a major form of relief that cannot be awarded without proof of wrongdoing. "A company should not be able to deny members of the public the right to speak anonymously simply by making vague allegations of wrongdoing," clarified EFF's Legal Director, Cindy Cohn.

EFF's Gelman explained further, "Given the complete lack of evidence that Hritz was libeled, his use of the court as his own private detective agency constitutes a blatant disregard for the Supreme Court's ruling that the First Amendment protects Jane Doe's right to speak anonymously. This is unacceptable behavior, especially from a lawyer for a major corporation."

"This lawsuit is a blatant attempt to intimidate all of AK Steel's employees and other members of the public," said Paul Levy of Public Citizen Litigation Group, who plans to argue the case on behalf of Doe. "Hritz is in effect warning workers not to exercise their First Amendment right to speak freely about the company on the Internet."

"It would be disturbing if courts were to permit the disclosure of the identities of people who post messages anonymously," Levy said. "The First Amendment guarantees people a right to speak out and participate in public debates. A message board is just that -- an ongoing public debate."

EFF decided to put together a legal team to defend Doe because of the free speech implications of the case. Robert Corn-Revere and Ronald Wiltsie of the Washington, D.C.-based law firm of Hogan and Hartson, and Timothy Connors and Mark Belleville of the Ohio-based law firm of Calfee, Halter & Griswold, also are representing Doe as local counsel in the Virginia and Ohio courts, respectively.

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 Web sites in the world. EFF sees its action in this case as part of its larger mission to protect speech online. EFF was a plaintiff in ACLU v. Reno, the landmark case in which the Supreme Court ruled that the Internet is a constitutionally protected medium. EFF is currently providing the legal defense for Eric Corley, publisher of 2600 Magazine, in a lawsuit before the 2nd Circuit Court of Appeals where the movie industry has sued to keep Corley from publishing or even linking to controversial software.

Contact:
Lauren Gelman, Electronic Frontier Foundation, +1 202 487 0420
Cindy Cohn, Electronic Frontier Foundation, +1 415 436 9333
Paul Levy, Public Citizen, +1 202 588 1000

Media Advisory

BayFF Speaks Up

Free Speech Advocate, Hastings Law Professor, and Bay Area Cyberjournalist Explore the Limits of Free Expression on the Net

WHO: Electronic Frontier Foundation, Keith Henson, Joe Liu, Damien Cave.

WHAT: "BayFF" Meeting exploring the posting of private documents, and free expression on the Web
WHEN: Thursday, November 2nd, 2000, at 7:00PM PT
WHERE: Moscone Center, Room 101, in conjunction with WEB2000 conference
747 Howard St.
San Francsico, CA, USA

This event is free of charge to the general public. Registration for a free expo pass is encouraged but not required. See details below.

In honor of its 10th Anniversary 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.

The upcoming BayFF will be held in conjunction with the WEB2000 conference at Moscone center. Panelists include Keith Henson, a free speech advocate who was sued by the Church of Scientology, Prof. Joe Liu, an expert on intellectual property law, and Damien Cave, a Bay Area reporter with Salon.com who covers tech issues. They will focus on the publishing/posting of documents on the Web that are later claimed to be private, or to contain trade secrets. What are the repercussions of this type of publication? Can litigation to prevent or punish such publishing be seen as a violation of the publisher's First Amendment rights?

Keith Henson, an electrical engineer and programmer by trade, and long a free speech advocate, was troubled by the Church of Scientology's 1995 attempt to destroy a Usenet news group (alt.religion.scientlogy). He was sued by them in early 1996 over an open letter to a federal judge which quoted from a Scientology instruction manual ("NOTs 34," available on the Net). Most recently, he has been exercising his First Amendment rights by picketing Scientology's desert compound near Hemet, CA. He has been charged with making "terrorist threats" to the organization, which he denies. He is also well known for founding the L-5 Society in 1975, and was heavily involved in space politics for 6 years. He is a major character in the multi-person biography, "Great Mambo Chicken and the Trans-Human Condition" by Ed Regis. In recent years he has been deeply involved with cryonics.

Professor Liu was born and raised in Seattle, Washington. He received his B.A. in Physics and Philosophy in 1989 from Yale University, and his J.D. in 1994 from Columbia Law School, where he was Editor-in-Chief of the Columbia Law Review. After law school, he clerked for Judge Levin H. Campbell, U.S. Court of Appeals for the First Circuit. Following his clerkship, Professor Liu worked as a litigator at Foley, Hoag & Eliot in Boston, where his practice consisted of intellectual property litigation, securities litigation, and white collar criminal defense. Professor Liu then spent two years as a Climenko Teaching Fellow at Harvard Law School. He also serves as general counsel to an Internet startup company. Professor Liu's primary teaching and research interests are in the areas of intellectual property, property, and internet regulation.

Damien Cave is a staff writer for the technology section of Salon.com, where he focuses on policy, intellectual property and digital culture. He has written several stories on DeCSS, Napster, ICANN and other hot-button issues, while trying to keep his computer from crashing and his inbox from overflowing. Before coming to Salon.com, he attended the Columbia University Graduate School of Journalism, wrote for several publications while backpacking through South America, and covered health care at a daily newspaper in New Hampshire. His stories have also won several awards, none of which were Pulitzers.

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 BART, CalTrain and Muni directions, please call their information lines.

This month's BayFF will be Webcast. BayFF is first and foremost a real space event, meant to serve as an educational forum for the local community, as well as a catalyst for like-minded activists. Locals, please show your support in person! BayFF fans and followers that are scattered across the country can check the EFF Website for a link to the Webcast. See the BayFF homepage at:

EFF would like to thank Web2000 for providing the venue for this month's BayFF. Web2000 is an excellent source fo education and networking for the professional web community. It runs from October 30 - November 3, 2000, San Francisco. EFF members and supporters are entitled to a discount on any conference pass or a FREE Expo Pass. Register, with priority code W2KEFF, at:

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.

Contact:

Administrivia

The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103-4832 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax) http://www.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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