EFF Looks To Bust Bogus Podcasting Patent; Needs Prior Art

from the help-'em-out dept

Back in July, we wrote about how a company named Volomedia had gleefully announced that it had patented podcasting. The patent itself (7,568,213) seemed ridiculously broad, obvious and covered by prior art. On top of that, it was difficult to see how it passed the current (though, perhaps not for long) "Bilski" test for what can be patented.

It looks like the EFF has decided to be proactive about this and is looking for prior art with which to bust this particular patent. In the comments on our original post about this, reader Marcel de Jong, noted that Dave Winer described audio enclosures for RSS in a blog post in January of 2001 -- nearly three years before this patent was filed. Hopefully that is rather compelling prior art, but if anyone has any more info, please send it over to the EFF.

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US Subpoenaed All Visitor Logs From Online News Publication; Falsely Said Site Couldn't Tell Anyone

from the the-abuse-of-secrecy dept

We've seen it over and over again: when the government can hide behind the veil of secrecy, it can abuse its power. That's why we're supposed to have checks and balances on power, but all too often governments figure out ways to get around that. The latest example is that US attorneys issued a subpoena to the person hosting the news website Indymedia, demanding a logfile of all visitors from a particular day and ordered the woman not to reveal the existence of the subpoena itself. Indymedia doesn't keep its logfiles, so it simply had nothing to turn over, and after realizing this, the government withdrew the request. However, the requirement to stay silent about it still was there, and the woman asked the EFF for help. With the EFF involved, the government finally backed down and admitted that there was absolutely no legal basis for demanding that the woman not talk about the subpoena, and "chose not to go to court" over the matter, despite threatening to at an earlier time.

This is hardly the first time we've heard about the government using (and abusing) procedures like national security letters to not just demand all sorts of info, but also demand that the recipient not tell anyone about it. Every once in a while we're able to hear about these situations because a group like the EFF or the ACLU pushed back and were able to get the US government to back down, but that's likely only a fraction of the situations where this has happened. In many others, we likely don't even know at all, because the recipient gave in, either because they didn't realize their legal rights, or because it just wasn't worth the fight. But when the government thinks that it can demand certain data and cloak the demand behind a related demand for secrecy, it makes it way too easy for the government to abuse the process. It basically guarantees no oversight, so why not ask for way more than the law requires, knowing that most people won't push back and no one will ever find out about it?

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Administration Finally Releasing Some Info On Telco Immunity Lobbying

from the quite-a-fight dept

After many attempts to block or delay the release of info on who lobbied the federal government last year for telco immunity in lawsuits involving the fed's warrantless wiretapping program, the government has finally agreed to hand over some of the information requested. Of course, since the administration had already won a longer delay, and only some of the info is being revealed, I'm guessing that there isn't much surprising in what's being released -- though it makes you wonder why the administration went to such lengths to hide it.

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EFF Launches Takedown Hall Of Shame

from the who-will-be-inducted-next? dept

With so many organizations trying to use copyright and trademark law to take content offline, the EFF is announcing the launch of its new Takedown Hall Of Shame, highlighting "the most egregious examples of takedown abuse." You'll recognize the names on the list -- as every one of them we've written about here. Who knows if this will cause lawyers to think twice before issuing bogus takedowns (I doubt it), but at least it should shine some light on how widely copyright and trademark law are abused to stifle speech.

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Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site

from the this-won't-end-well dept

There was a lot of news a few days back when notorious pranksters, Yes Men, set up a fake press conference pretending to be the US Chamber of Commerce, announcing that it had changed its controversial stance on climate change -- which had recently driven some large companies, including PG&E and Apple, to leave the CoC. The fake press conference, along with a fake website and fake press release, apparently fooled some in the media -- including Reuters -- until someone from the real Chamber of Commerce burst into the room and confronted the pranksters. The video is great:

Part of the hoax was a fake website at www.chamber-of-commerce.us, and apparently the real Chamber of Commerce has sent a DMCA takedown on the site. The EFF is responding in support of Yes Men, saying that the site is a parody, which is protected fair use. While I think that the Chamber of Commerce is pretty dumb to issue the takedown -- only giving the Yes Men more attention -- I'm not sure that the parody defense will stick here. While the site is for the purpose of criticism, the site is most certainly not an obvious parody. It's designed to look real. Thus, the bigger issue may actually be trademark infringement, not copyright infringement, as the site could certainly confuse users, but there are other ways to deal with such things that don't involve a DMCA takedown.

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Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

ASCAP and BMI have been pushing all sorts of ridiculous claims over the past few months, trying to squeeze extra money out of pretty much everything, rather than actually doing right by those they represent and helping them adapt new business models based on giving people a reason to buy. Beyond claiming that Congress should make sure their royalties never decrease, they've also been saying they deserve money for things like YouTube embeds (even though YouTube already pays them for that same traffic) and the 30 second previews on iTunes and other music stores. However, the most ridiculous of all was trying to claim that ringtones are a public performance, and thus mobile phone providers need to pay ASCAP/BMI. The thing is, ASCAP and BMI already get paid for ringtone purchases -- but this was an attempt to get a second payment on top of that for the fact that people might hear the ringtones.

Thankfully (as a whole bunch of you have sent in), a judge wasted little time totally rejecting that reasoning. The court pointed out that the Copyright Act is pretty clear that there's no royalty needed for any sort of "performance" that isn't done for commercial advantage and "customers do not play ringtones with any expectation of profit." It's a pretty complete rejection of an obvious stretch by ASCAP.

We might hope that ASCAP will take this and begin to recognize that the best way to serve songwriters is helping them embrace new business models, but we expect that instead they'll keep looking to squeeze more money and double dip from other providers... while continuing to pay industry insiders to smear those who want to protect consumer rights.

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Once Again, Blocking Ads And Automating Clicks Isn't 'Stealing'

from the explaining-it-nicely dept

A couple years back, we wrote about some guy who kicked off a campaign to get sites to block all Firefox users, claiming that too many of them use extensions like "AdBlock" and those people are "stealing" from the site. This is silly for a whole bunch of reasons. You don't need to monetize every single person who visits your site, and it's their computer. If they don't want to see ads on their computer, that's their decision. If your business model is something they don't appreciate, that's your problem, not their's. This issue has suddenly come up again, as Rose M. Welch alerts us to a blog post from a guy who threatens to start blocking Firefox users, claiming that using AdBlock is "practically like you are stealing from me."

Amusingly, in that same post, he argues that he never expects people to actually click on the ads from his site, but he relies on the revenue those ads bring in. So... let me get this straight. If people use AdBlock, they're stealing from you. But... if, instead, people come to your site and totally ignore the ads, but those advertisers have to pay you anyway, that's okay? Based on this guy's own logic, isn't he "practically stealing" from the advertisers? After all, he's granting them a service and then telling his readers to ignore the ads. Those advertisers rely on people buying stuff after clicking the ads, right? So, it's okay if people don't help out those advertisers, but if your own readers don't help you out by allowing the ads, it's theft? Yeah... okay.

Taking this concept to an even greater extreme, the EFF has stepped in on a legal dispute, where file hosting provider MediaFire is demanding Mozilla remove a plug-in that lets people skip the ad that MediaFire tries to show people before they can access the file they're trying to download. As the EFF notes:

It's my browser, and I can ignore your ads if I want to.

MediaFire's claims are like the people who claim that anyone using AdBlock is "stealing" from them and breaking their user agreement -- but as the EFF notes, there's no stealing of anything going on here, and the user agreement is never actually agreed to, and thus not particularly enforceable or even relevant.

So, once again, with feeling, it's worth reminding people that your business model is not sacred. You have no right to a business model, and if some technology comes along that undermines your business model, that shouldn't be illegal. It just means the market has changed, and it's time you change along with it. And yes, for those who ask, please feel free to use AdBlock on this site if you want to. It's totally up to you, of course. You don't need my permission.

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Wait, Was That An RIAA Education Campaign... Or Is It About Turning Schoolkids Into Unpaid Shills?

from the why-is-this-in-our-schools? dept

We recently took a look at the many problems with the RIAA's "educational materials" that it's pushing on schools. The EFF (who has its own -- much more accurate -- curriculum for schools) has noticed one other significant problem with the RIAA's propaganda material. They include an exercise that involves having schoolkids pitch local newspapers and TV stations to present propaganda:

Imagine that you are in the music industry... With your team of fellow music industry employees, plan an information campaign that lets others know why it's important to get their music the right way... You'll want to convince your classmates that your teams' plan is the one that will become the class project!

Challenge: Take your campaign a step further by contacting the editor of your community newspaper or the director of your community cable television station to see if you can submit an article or video about your campaign.

Of course, since we were suggesting more reasonable responses to the RIAA's proposals, why not have those same kids do a class project where they talk about artists who have embraced what their fans want, and have showed that it's possible to do quite well with models that don't involve going to war with your best fans. In the meantime, we're still wondering why any school would use obviously biased materials from an industry association, rather than impartial materials that are actually accurate? Does anyone know of any schools that use the RIAA's materials? We'd love to speak to some teachers who do...

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The Borderless Internet And Jurisdictional Disputes: A Growing Problem

from the different-laws,-different-places dept

For many, many, many years, we've discussed how the fact that the internet easily reaches anywhere, despite different laws in different places, makes for some really screwed up legal situations, and little has been done to address this over the years. We recently wrote about a troubling decision in Belgium, whereby a Belgian court seemed to think that Yahoo -- despite no presence in Belgium -- needed to comply with Belgian laws. And, we're seeing similar situations again and again and again. Two new examples...

First, we already wrote about how London's National Portrait Gallery was threatening someone in the US for copying photos of public domain paintings from the Gallery's website and putting them on Wikimedia's servers. The problem is that this is entirely legal in the US, and the guy was in the US, the computer he used was in the US, and Wikimedia's servers are in the US. But the threat of a lawsuit is in the UK. Luckily, the EFF has taken on the case and is trying to stress this point:

It's quite clear under U.S. law that Mr. Coetzee did nothing wrong -- as far as U.S. law is concerned, the photos are not copyrightable, the NPG website's "browsewrap" contract is unenforceable, there is no "database right," and using Zoomify on public domain images doesn't get you a DMCA claim. It's also clear that everything he's alleged to have done took place on his computer and Wikipedia's computers, none of which are in the UK.

In the offline world, that would certainly be the end of the matter. If Mr. Coetzee had flown to London, purchased posters of the same paintings at the museum store, brought them home, and started making copies for his friends, it's clear he would be well within his rights in doing so.

Why should the answer be different simply because he posted the photos to Wikipedia? NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.

In a separate case involving people in the US and a lawsuit in the UK, Mike Arrington, who runs TechCrunch, was recently sued for libel in the UK. The standards for proving libel in the UK are significantly lower than in the US, and considering that TechCrunch is a US site, based in the US on US servers, Arrington (reasonably) felt that responding to the lawsuit itself made little practical sense. Even if he could have won the case (and from the details, the case seems patently ridiculous, more a case of sour grapes than anything else), it would have been way too costly to defend. So he refused to respond... leading to the inevitable summary judgment (which is what happens by default when the other side doesn't appear). This is a bad result for everyone, as it means Arrignton can no longer travel to the UK (and, in fact, canceled planned travel there), for no good reason at all, other than not wanting to spend an incredible sum of money to defend himself in a country he doesn't live in or operate in. It's hard to see what's reasonable or fair about that at all.

Issues like these have been going on for many, many years, and at some point this is going to need to be addressed. You can't have a situation where the lowest common denominator of laws applies across the board in every country. And you can't have a situation where people would have to bankrupt themselves to defend themselves in a foreign country. It still seems like the most reasonable solution is to default such lawsuits to the country where the action has actually taken place and/or where the servers reside. Now, some might say that you can place the servers elsewhere, but for such situations you could just default to where the person resides.

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Apple Withdraws Lawsuit Against Wiki Site Owner Over iPhone/iPod Interoperability Hack Discussion

from the took-'em-long-enough dept

Last November, the EFF took Apple to task for threatening the owner of a wiki site. Apple claimed that an ongoing discussion on the site about how to build interoperability between iPods and iPhones and alternative software other than iTunes violated the DMCA -- which requires quite a novel interpretation of the DMCA. After Apple refused to back down, EFF sued in April. Somewhere along the way, it looks like Apple's lawyers started to realize that it had pretty close to no chance whatsoever and has now withdrawn this particular threat. The EFF is dropping the lawsuit, but isn't pleased that the whole thing had to happen in the first place:

"While we are glad that Apple retracted its baseless legal threats, we are disappointed that it only came after 7 months of censorship and a lawsuit," said EFF Senior Staff Attorney Fred von Lohmann. "Because Apple continues to use technical measures to lock iPod Touch and iPhone owners into -- and Palm Pre owners out of -- using Apple's iTunes software, I wouldn't be surprised if there are more discussions among frustrated customers about reverse engineering Apple products. We hope Apple has learned its lesson here and will give those online discussions a wide berth in the future."

Indeed. While the Palm Pre situation is in the other direction (interop between alternative hardware and iTunes software, rather than alternative software with Apple hardware), it shows again that Apple will do whatever possible to stop people from making legal use of products they purchased.

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EFF, Public Knowledge Drop ACTA Lawsuit, Realizing 'National Secrets' Claim Will Block Them

from the really-unfortunate dept

With the Obama administration bizarrely claiming that documents pertaining to negotiations over ACTA, the industry-written treaty that will push countries to change their copyright laws, are somehow a state secret, EFF and Public Knowledge have reluctantly decided to drop their lawsuit to try to open up the proceedings and get access to the documents (freely shared with industry lobbyists, but kept secret from consumers or consumer watchdogs). Basically, they realized that by claiming it's a national secret, there was no way the lawsuit would get anywhere. The whole situation is really unfortunate. What a shame that the administration would be covering up for an entertainment industry's attempt to increase protectionism for its own broken business model, by claiming it was a "national secret."

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EFF Busts Another Bogus Patent... Five Years Later

from the still-taking-quite-a-long-time dept

In writing about ridiculously bad patents, we've seen a trend of commenters insisting that if a patent is truly "bad," then there's no problem, since it will likely get rejected. However, the process of getting a bogus patent rejected is ridiculously long and cumbersome. The EFF is rightfully happy that the USPTO is going to throw out a ridiculous patent on web subdomains, presenting another victory for the EFF's Patent Busting Project. We discussed this specific case earlier this year, when the patent in question received its initial rejection.

While this is certainly a victory against a bad patent, what should be quite worrying is just how long it's taken to get this far. The EFF launched their patent busting project almost five years ago. And while it's had success in getting two patents busted, one significantly narrowed and re-exams on three more, this is an incredibly slow moving process. Yet during that time, such a bogus patent can be used to stop innovation and advancement. That should be seen as quite troubling. Now some may argue that it takes an equally long time to get a patent granted, but that doesn't hold back innovation in the same way. While the patent process is going on, innovation can continue. Yet if a bogus patent is preventing innovation for many years, the harm to society can be great.

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EFF Tracking Changes To Major Company Terms Of Service

from the watch-what-you-change... dept

The EFF has launched a neat little project, called TOSback, where it tracks any changes to online service agreements from a bunch of different well known companies, such as Google, Yahoo, Microsoft, Facebook and eBay. Considering that some of these companies have been known to quietly change their terms without making the details all that public, it seems like this could be quite a useful service -- at least in getting these companies to recognize that they should clearly explain why they're changing their terms and what those changes really mean.

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As Expected, Judge Dismisses Warrantless Wiretapping Lawsuits Against Telcos

from the it's-the-law... dept

This isn't a huge surprise, but a judge has tossed out the ACLU and the EFF's various lawsuits against telcos for enabling warrantless wiretapping for the government. The reason it isn't a huge surprise is that the gov't last year, in a well publicized move, granted the telcos immunity from prosecution, and the judge basically pointed that out in dismissing the case. Instead, the judge said that if these groups have a complaint, it's with the gov't for granting immunity (not to worry, there are lawsuits against the gov't as well). Not surprisingly, the EFF and ACLU are appealing. Still, it does seem like these lawsuits are a longshot, even if it's disappointing. It seems ridiculous that the gov't can grant widespread immunity to a company for potentially breaking the law -- but, again, it seems that's an issue to take up with the government -- and once that's solved, go back and deal with the companies specifically. The judge's job is to interpret the law, and in this case, the law says that the telcos are immune. Now, if you believe (as I do) that such a law is ridiculous and should be seen as unconstitutional, than the issue is to take it up with the government. So, the judge's ruling makes sense, even if it's disappointing to see telcos potentially get off the hook for violating customer privacy rights.

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Apple's Rejection Of EFF RSS Reader App Sort Of Proves EFF's Point About Arbitrary App Rejections

from the thanks-for-making-it-easy dept

It's pretty clear that Apple's policies covering what iPhone applications are acceptable for its App Store are pretty absurd and arbitrary. The company has repeatedly blocked applications that could allow users to access content Apple deems "objectionable" -- like an e-book reader that can display the Kama Sutra, among thousands of other books -- when that same content is accessible through the iPhone's built-in web browser or other applications. This rejection process led the Electronic Frontier Foundation to ask the Copyright Office to grant a DMCA exemption covering the jailbreaking of iPhones, so they could be used with any app the user wanted instead of just Apple-approved ones, as well as other phone unlocking techniques. Apple, of course, responded by saying that jailbreaking was copyright infringment.

The company may have now unwittingly given a little more juice to the EFF's claims that the approval process is arbitrary, censorial and anti-competitive, though, by rejecting an application that displays the EFF's RSS feed. Not because they dislike the EFF (ostensibly), but because it contained "objectionable content" in the form of a blog post that linked to a YouTube video containing the f-word in a subtitle. Once again, this content is available elsewhere on the iPhone, namely via the web browser and YouTube app pre-installed on the device, reinforcing the asinine nature of the rejection. Whether this will help the EFF's case with the Copyright Office -- or help change Apple's policy -- remains to be seen. But for now, it still looks like Apple's app rejection process is a digital equivalent of a "we reserve the right to refuse service to anyone" sign.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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EFF Launches Copyright Curriculum To Counter RIAA Propaganda Being Handed Out To Schools

from the good-news dept

It's been quite troubling that for years various schools have simply accepted propaganda and totally inaccurate "teaching materials" about copyright and used them to teach students. These programs have been created by both the RIAA and the MPAA, at times. More recently, a lobbying organization backed by both of those organizations, the Copyright Alliance (which has a long history of making up the most fantastic myths about copyright) has been pushing a copyright curriculum on schools. Tragically, unsuspecting schools have been using the pure propaganda put out by the Copyright Alliance as if it were some sort of impartial and accurate educational material on copyright. It's not. Not even close. Last year, one of the world's foremost experts in copyright, William Patry, took the Copyright Alliance's founder to task for having "chutzpah in abundance" in basically making up what copyright and fair use is about, and presenting himself as some sort of expert on the subject.

Unfortunately, schools that are using these materials often don't realize that they're simply accepting corporate propaganda, assuming that a front group like The Copyright Alliance is some sort of impartial player in the space, even though its curriculum is laughably bad, positioning any kind of copying as a high risk activity that should be avoided. Luckily, the EFF has finally launched a much more accurate and reasonable curriculum that was actually created by those who know the subject matter, rather than corporate execs and lobbyists. The EFF's curriculum is available at Teaching Copyright and is under a Creative Commons license. Unlike many of the propaganda copyright curricula, Teaching Copyright focuses on the broader picture, recognizing the fact that copyright is not for protecting creators, but is a deal between creators and the public to encourage creation within certain important limitations. It covers important concepts such as the public domain and fair use that are either ignored or downplayed in most of the curricula put out by the industry. This is a welcome addition to materials for schools to use to educate students on copyright.

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Public Citizen, EFF, CDT And CMLP Team Up To Question Recent Ruling On Section 230 Safe Harbor

from the this-is-important dept

A few weeks back, we wrote about a court ruling that said that Yahoo was protected against actions by users, thanks to Section 230 safeharbors, but that the company had effectively given up some of that protection by promising to remove some content. While the bigger issues in the case seemed to have been decided reasonably, some noticed that many of the finer points in the ruling were both sloppy and troubling. Eric Goldman ran down the details of the problems with the ruling. Now it appears that Yahoo is appealing not the major point of the case, but those specific troubling points made in the ruling, which could severely limit the effectiveness of using Section 230 to protect against frivolous lawsuits.

The issue may certainly sound like inside baseball, but it's important to anyone who runs an online service of any kind. Traditionally, when receiving a mistargeted lawsuit that tries to pin liability on a service provider, rather than the actual user, it's common to file a motion to dismiss based on section 230 safe harbors. However, in this ruling, the court said that you couldn't raise section 230 in a motion to dismiss, and that it could only be used as an "answer" and thus required a more involved (and potentially much more costly) procedure of asking the court for a ruling in the case, rather than just a dismissal. That would significantly raise the cost to many site owners in trying to dismiss these sorts of mistargeted lawsuits. It's nice to see a long list of defenders of the public and the internet sign on to explain to the court why this dicta is incorrect. Public Citizen, EFF, CDT and the Citizen Media Law Project all joined in with an amicus brief. Hopefully the court realizes the earlier sloppy ruling was a mistake, and the ability to dismiss using Section 230 safe harbors remains.

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Does Apple Own The Copyright On A File You Create Via iTunes?

from the discussion-should-be-legal dept

Last last year, the EFF publicly blasted Apple for threatening a wiki site, called BluWiki, that had been set up by a firm OdioWorks to reverse engineer interoperability with iPods and iPhones so that those devices could work with other software apps (such as Songbird), rather than being locked into iTunes. Apple had threatened the wiki site with a DMCA violation claim, and the EFF pointed out numerous problems with the DMCA claim. Now things have been kicked up a notch, as the site, along with help from the EFF have sued Apple to have the site declared legal. The EFF argument points out that an open discussion site alone is hardly violating the anti-circumvention provisions of the DMCA, but perhaps the more interesting argument is the fact that the iTunes DB file, which is at the heart of this matter, is created by each user independently and is not encrypted. There are two interesting arguments here. First, since the file is not encrypted, there is no encryption to circumvent, thus no violation of the anti-circumvention clauses. Second, since the file is created by the user and his or her own interaction with the software, Apple has no claim on the copyright of the file. If there's any copyright at all, the argument goes, it belongs to the user, and thus they should have every right to do whatever they want with it. This should be a lawsuit worth watching.

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EFF: Obama DOJ's Warrantless Wiretapping Arguments Are Worse Than Bush's

from the wow dept

On the issue of warrantless wiretapping, we've never been given a clear explanation by anyone why it makes sense to allow the government to totally skip over the warrant process. The warrant process is there for a clear reason: to prevent abusive power by the government. No one is saying that the government can't issue wiretaps. They just want the gov't to get it reviewed and approved by a court. And, there isn't even an issue of urgency, since the government has the right, in extreme cases, to wiretap first, and get the warrant soon after. Many people hoped that with the Obama administration, things would change, and we'd finally move away from the warrantless wiretapping program, which by any basic definition, violates the 4th Amendment.

Apparently not. The EFF has an analysis of the new Justice Department in trying to get one of the warrantless wiretapping cases dismissed, noting that the new administration appears to be taking an even more extreme position than the previous administration (which was already quite extreme). Basically, the motion to dismiss claims that the government "is completely immune from litigation for illegal spying -- that the Government can never be sued for surveillance that violates federal privacy statutes." It's difficult to see how anyone could square that with the 4th Amendment, and hopefully the court will suggest the Administration's top lawyers reread the Constitution.

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Company Threatens EFF With Defamation In Response To EFF Trying To Bust Its Patent

from the slappity-slapp-slapp dept

Back in January, we noted that the EFF had scored another hit in its ongoing patent-busting project, getting the USPTO to re-examine a patent held by Seer Systems. It appears that Seer Systems doesn't much like being targeted by the EFF and decided to threaten the group with a defamation lawsuit over how it described Seer's actions. For example the EFF claimed that Seer was "threatening small companies" and Seer disputes the EFF's definition of small. That seems like pretty fine tooth nitpicking there, and hardly defamatory. It certainly feels like a threatened SLAPP, and (luckily) California has a pretty good anti-SLAPP law, which the EFF's attorney has suggested that Seer Systems acquaint itself with before moving forward with any lawsuits. Either way, it's fairly amazing that anyone would think it's a wise move to threaten the EFF with defamation based on something as weak as whether or not some startup is "small" or not.

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