In July 2012, the United Nations Human Rights Council issued the first-ever UN resolution affirming that human rights in the digital realm must be protected and promoted to the same extent and with the same commitment as human rights in the off-line world. In September 2013, at the 24th U.N. Human Rights Council meeting in Geneva, States such as Austria, Brazil, Germany, Hungary, Liechtenstein, Norway and Switzerland organized an event to specifically focus on the protection of the right to privacy in the digital age. At the end of 2013, the United Nations General Assembly approved a key resolution on the right to privacy in the digital age, which commissioned a report on the privacy to the Office of of the High Commissioner for Human Rights. On February 24, 2014, at Palais des Nations in Geneva, the Permanent Missions of Austria, Brasil, Germany, Liechtenstein, Mexico, Norway, and Switzerland organized an expert seminar to examine the international human rights law framework of the right to privacy, and investigate the extent to which domestic and extraterritorial surveillance may infringe on an individuals's right to privacy. Today, the Human Rights Committee, a body of independent experts that monitors the implementation of States human rights obligations, is holding its one hundredth and tenth session in Geneva from 10th to 28th March. During this meeting, the Committee will review the reports of the United States (among other countries) on how they are implementing the provisions of the International Covenant on Civil and Political Rights. In particular, the Committee will be scrutinizing the United States' mass surveillance practices and its compliance with Article 17 on the the right to privacy.
We are pleased that the Human Rights Committee now has the opportunity to clarify the scope of United Sates legal obligations under Article 17 on the right to privacy, especially in light of the recent revelations on mass surveillance leaked by Edward Snowden. We call upon the Human Rights Committee to note the 13 International Principles for the Application of Human Rights to Communications Surveillance—or more commonly, the Necessary and Proportionate Principles, which are supported by over 400 organizations and 300,000 individuals, as a guidance for understanding a State Party’s compliance with Article 17 on the right to privacy. The Principles look beyond the current set of revelations to take a broad look at how modern communications surveillance technologies can be addressed consistently with human rights and the rule of law. Some of the key factors are:
Protect Critical Internet Infrastructure: No law should impose security holes in our technology in order to facilitate surveillance. Dumbing down the security of hundreds of millions innocent people who rely on secure technologies in order to ensure surveillance capabilities against the very few bad guys is both overbroad and short-sighted. Yet one of the most significant revelations this year has been the extent to which NSA, GCHQ and others have done just that—they have secretly undermined the global communications infrastructure and services. They have obtained private encryption keys for commercial services relied upon by individuals and companies alike and have put backdoors into and have generally undermined security tools and even key cryptographic standards relied upon by millions around the world. The assumption underlying such efforts—that no communication can be truly secure—is inherently dangerous, leaving people at the mercy of "good guys" and "bad guys" alike. It must be rejected.
Protect Metadata: It’s time to move beyond the fallacy that information about communications is not as private as the content of communications. Information about communications—also called metadata or non-content—can include the location of your cell phone, clickstream data, and search logs, and is just as invasive as reading your email or listening to your phone calls, if not more so. What is important is not the kind of data is collected, but its effect on the privacy of the individual. Thus, the law must require high standards for government access—for criminal prosecutions this means the equivalent of a probable cause warrant issued by a court (or other impartial judicial authority)—whenever that access reveals previously nonpublic information about individual communications. This includes revealing a speaker’s identity if it is not public; the websites or social media one has encountered; the people one has communicated with; and when, from where, and for how long. In the pre-Internet age, the much more limited amount and kind of “metadata” available to law enforcement was treated as less sensitive than content, but given current communications surveillance capabilities, this can no longer be the case. Our metadata needs to be treated with the same level of privacy as our content.
Monitoring Equals Surveillance: Much of the expansive state surveillance revealed in the past year depends on confusion over whether actual "surveillance" has occurred and thus whether human rights obligations apply. Some have suggested that if information is merely collected and kept but not looked at by humans, no privacy invasion has occurred. Others argue that computers analyzing all communications in real-time for key words and other selectors is not "surveillance" for purposes of triggering legal protections. These differences in interpretation can mean the difference between targeted and mass surveillance of communications.
Definitions Matter. This is why one of the crucial points in our Principles is the definition of "communications surveillance", which encompasses the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, or arises from or a person’s communications in the past, present or future. States should not be able to bypass privacy protections on the basis of arbitrary definitions.
Mission Creep: Contrary to many official statements, the modern reality is that state intelligence agencies are involved in a much broader scope of activities than simply those related to national security or counterterrorism. The NSA and its partners, for example, have used the expansive powers granted to them for political and even economic spying—things that have little to do with the safety of the state and its citizens. Worse, the information collected by foreign intelligence agencies, it turns out, is routinely (and secretly!) re-used by domestic agencies such as the Drug Enforcement Agency, effectively bypassing the checks and balances imposed on such domestic agencies.
The Necessary and Proportionate Principles state that communications surveillance (including the collection of information or any interference with access to our data) must be proportionate to the objective they are intended to address. And equally importantly, even where surveillance is justified by one agency for one purpose, the Principles prohibit the unrestricted reuse of this information by other agencies for other purposes.
No Voluntary Cooperation: As we've learned about extralegal and voluntary deals between tech companies and intelligence agencies, it's become increasingly clear that the terms of cooperation between governments and private entities must be made public. The Necessary and Proportionate principles clarify that there is no scope for voluntary cooperation from companies unless a warrant has met the proportionality test.
Combat a Culture of Secret Law: The basis and interpretation of surveillance powers must be on the public record, and rigorous reporting and individual notification (with proper safeguards) must be required. The absence of transparency in surveillance laws and practices reflects a lack of compliance with human rights and the rule of law. Secret laws—whether about surveillance or anything else—are unacceptable. The state must not adopt or implement a surveillance practice without public law defining its limits. Moreover, the law must meet a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of, and can foresee, its application. When citizens are unaware of a law, its interpretation, or its application, it is effectively secret. A secret law is not a legal law.
Notification: Notification must be the norm, not the exception. Individuals should be notified of authorization of communications surveillance with enough time and information to enable them to appeal the decision, except when doing so would endanger the investigation at issue. Individuals should also have access to the materials presented in support of the application for authorization. The notification principle has become essential in fighting illegal or overreaching surveillance. Before the Internet, the police would knock on a suspect's door, show their warrant, and provide the individual a reason for entering the suspect’s home. The person searched could watch the search occur and see whether the information gathered went beyond the scope of the warrant.
Electronic surveillance, however, is much more surreptitious. Data can be intercepted or acquired directly from a third party such as Facebook or Twitter without the individual knowing. Therefore, it is often impossible to know that one has been under surveillance, unless the evidence leads to criminal charges. As a result the innocent are the least likely to discover their privacy has been invaded. Indeed, new technologies have even enabled covert remote searches of personal computers. Any delay in notification has to be based upon a showing to a court, and tied to an actual danger to the investigation at issue or harm to a person.
Restore Proportionality: Authorities must have prior authorization by an independent and impartial judicial entity in order to determine that a certain act of surveillance has a sufficiently high likelihood to provide evidence that will address a serious harm. Any decisions about surveillance must weigh the benefits against the costs of violating an individual's privacy and freedom of expression. Respect for due process also requires that any interference with fundamental rights must be properly enumerated in law that is consistently practiced and available to the public. A judge must ensure that freedoms are respected and limitations are appropriately applied.
Cross-Border Access Protection: Privacy protections must be consistent across borders at home and abroad. Governments should not bypass national privacy protections by relying on secretive informal data sharing agreements with foreign states or private international companies. Individuals should not be denied privacy rights simply because they live in another country from the one that is surveilling them. Where data is flowing across borders, the law of the jurisdiction with the greatest privacy protections should apply.
More To Be Done: The Necessary and Proportionate Principles provide a basic framework for governments to ensure the rule of law, oversight and safeguards. They also call for accountability, with penalties for unlawful access and strong and effective protections for whistleblowers. They are starting to serve as a model for reform around the world and we urge governments, companies NGOs and activists around the world to use them to structure necessary change. The technology companies’ statement last week is a welcome addition and a good start. It also highlights the conspicuous silence of the telecommunications companies, which appear to have a much bigger and deeper role in mass surveillance.
But while the Principles are aimed at governments, government action isn’t the only way to combat surveillance overreach. All of the communications companies, Internet and telecommunications alike, can help by securing their networks and limiting the information they collect. EFF has long recommended that online service providers collect the minimum amount of information for the minimum time that is necessary to perform their operations, and to effectively obfuscate, aggregate and delete unneeded user information. This helps them in their compliance burdens as well: if they collect less data, there is less data to hand over to the government.
Working together, legal efforts like the Necessary and Proportionate Principles serving as a basis for international and national reforms, plus technical efforts like deploying encryption and limiting information collected, can serve as a foundation for a new era of private and secure digital communications.Related Issues: InternationalState Surveillance & Human Rights
San Francisco - Electronic Frontier Foundation (EFF) Staff Attorney Daniel Nazer has become the new "Mark Cuban Chair to Eliminate Stupid Patents." Nazer succeeds former Senior Staff Attorney Julie Samuels and will lead EFF's campaign to reform the patent system and smash patent trolls. Samuels has left EFF to become the new executive director of Engine Advocacy, one of EFF's key partners in defending innovation in the start-up sector.
Entrepreneur and Dallas Mavericks owner Mark Cuban funded the title and Nazer's position with a $250,000 donation in 2012. Together, Nazer and Samuels, along with the other members of EFF's Intellectual Property team, have worked tirelessly to reform the patent system on multiple fronts, including in the courts, in Congress, at the White House, and before the US Patent and Trademark Office. On Wednesday, Nazer scored a victory against Personal Audio when a judge agreed to quash the notorious patent troll's subpoena for the names of donors who supported EFF's Save Podcasting campaign.
"This is an exciting time to be working on patent reform," said Nazer, who practiced law at Keker & Van Nest LLP before joining EFF at the start of 2013. "The next few months could see new legislation, important Supreme Court decisions, and action from the president. We need to make sure we get real reform that stops the flood of abusive patent troll litigation. I look forward to building on Julie Samuel's success as the Mark Cuban Chair to Eliminate Stupid Patents."
One of the first items of business will be to push Congress to pass meaningful reform. With the Innovation Act overwhelmingly passing in the House (by a vote of 325 to 91), it is now the Senate's turn. Over 5,000 inventors, entrepreneurs, investors, and concerned citizens have signed EFF's letter urging the Senate to act. EFF will continue to develop TrollingEffects.org, an online clearinghouse of crowd-sourced intelligence on patent trolls launched last year in collaboration with a coalition of organizations and law schools.
"Daniel has been an invaluable colleague, and I know he will head up EFF's patent work with dedication and success," Samuels said. "I look forward to continuing to collaborate with him, and the entire EFF patent team, as we all work toward fixing a broken patent system."
For a high resolution image of Daniel Nazer with formal bio:
Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
Within a week, over 5,000 individuals have urged the Senate to pass meaningful patent reform. These individuals represent over 900 inventors, 700 investors, and well over 1300 entrepreneurs who drive the innovation economy—yet are suffering billions of dollars in losses at the hands of patent trolls and rampant litigation.
What is meaningful reform? There must be immediate changes to remove incentives from the patent troll business model: fee shifting to raise trolls' financial stakes, for example; strong end user protections to stop trolls from targeting users of off-the-shelf technologies; transparency provisions preventing bad actors from hiding behind shell companies, striking with misleading demand letters, then stepping back into the shadows.
But reform must go beyond trolls' present tactics; meaningful reform would strike at the root. We must urge the Senate to put an end to destructive patent troll and troll-like behavior by addressing their weapon of choice: overbroad software patents. While fundamental reform may not be in the picture, the Senate has a chance to reintroduce language—for example, expanding the Covered Business Method provision—that would allow individuals and companies to trim down seriously vague patents after they have been issued.
The House recently passed the Innovation Act, which, while quite comprehensive, dropped its patent quality provisions in a last-minute push to gain the favor of older technology companies and their associated Congressional champions. It lies on the Senate to not only quell the current troll-ridden battlefield, but to also start restoring sanity to the patent system as a whole.
Five-thousand people have spoken out in the last week, and the number is still rising. Join us in securing the patent reform we need this year.Related Issues: PatentsLegislative Solutions for Patent ReformPatent Trolls
UPDATE MARCH 5, 2014:
The court held a hearing today on the subpoena. Good news: Magistrate Judge Nathanael Cousins agreed with EFF and struck down Personal Audio's demands. The judge will issue a written order shortly; we will publish as soon as we have it.
Personal Audio can try to appeal the decision, so this fight may continue. But for now: victory!
For decades, EFF has been fighting to make the world safe for innovation. And we’ve been fighting even longer to protect First Amendment rights to anonymity and privacy. Today, those fights came together, as we went to court to stop a patent troll from obtaining information about a specific group of EFF donors, as well as a vast swath of otherwise privileged information.
Last year we filed a petition at the Patent and Trademark Office challenging the so-called ‘podcasting’ patent owned by Personal Audio. More than one thousand people donated to our Save Podcasting campaign to support our efforts. Our fight against Personal Audio became one of the major patent troll stories of 2013, with coverage in outlets ranging from Ars Technica to NPR’s Planet Money.
But we aren’t the only challenge Personal Audio faces. The company is suing a number of podcasters and three major television networks in a Texas federal court. EFF is not involved in that lawsuit – but that hasn’t stopped Personal Audio from trying to use it as an excuse to target us. Specifically, Personal Audio has issued a legal demand, called a subpoena, that attempts to force us to provide information about a variety of topics including donations to our Save Podcasting campaign (the subpoena is available here), on the pretext that the information is somehow relevant to the Texas case.
We believe that Personal Audio’s subpoena to EFF is improper for a number of reasons that are laid out in detail in our motion. Above all, we are outraged that Personal Audio is seeking to invade the privacy and associational rights of hundreds of our donors. EFF takes the privacy of its members and supporters extremely seriously—and so does the Constitution. As we explain in our motion, the First Amendment protects our donors’ right to privacy, and Personal Audio’s supposed need for the information does not trump those rights.
Personal Audio’s tactic is also improper for several other reasons. For example, it is appears to be primarily intended to avoid the well-defined limits of the PTO discovery process. The petition we filed follows a new, streamlined and therefore relatively inexpensive process. Rather than respond to that petition following the rules of that process, Personal Audio is trying to use entirely separate litigation as an excuse to raise the stakes on EFF – something Congress never intended. If Personal Audio succeeds, we fear it will send a message that this new process can be made invasive, cumbersome and expensive after all, which will in turn discourage others from using it to challenge low quality patents. That would be a shame for all of us.
The Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School has kindly offered to provide free, individual legal counseling to any donors to the Save Podcasting campaign who may have questions about the subpoena and their own options. The clinic can be reached at: 650 724 1900 or firstname.lastname@example.org. We strongly recommend that donors with questions contact the Stanford Clinic for independent legal advice.
While some of our donors will gladly tweet about giving to EFF, others may prefer to keep such information private. We strongly support the right to make that choice, and we will do all we can to oppose Personal Audio’s demand. We will be posting any major developments regarding the subpoena on our blog.Files: personal_audio_subpoena_to_eff.pdf eff_motion_to_quash_personal_audio_subpoena.pdf 2014-03-05_doc10_minute_entry_re_eff_mot_to_quash.pdfRelated Issues: PatentsPatent Trolls
The U.S. Attorney for the Northern District of Texas today filed a motion to dismiss 11 charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.
Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.
In response to the decision by the federal prosecutor’s office to drop some, but not all of Brown's charges, EFF issued the following statement:
"We are relieved that federal prosecutors have decided to drop these charges against Barrett Brown. In prosecuting Brown, the government sought to criminalize a routine practice of journalism—linking to external sources—which is a textbook violation of free speech protected by the First Amendment. Although this motion is good news for Brown, the unnecessary and unwarranted prosecution has already done much damage; not only has it harmed Brown, the prosecution—and the threat of prosecution it raised for all journalists—has chilled speech on the Internet. We hope that this dismissal of charges indicates a change in the Department of Justice priorities. If not, we will be ready to step in and defend free speech.”
EFF plans to publish its draft brief and deeper analysis later this week.Files: barrett_brown_mtd.pdfRelated Issues: Free Speech
Remember when Rep. Mike Rogers likened opponents of pernicious cybersecurity legislation to 14-year-olds? It turns out that middle-school-age students are also well-prepared to debate him on the NSA's programs as well.
EFF congratulates students from two middle schools who took home top prizes in the C-SPAN StudentCam 2014 competition for young filmmakers with their documentaries on mass surveillance. Students were tasked with answering the question: “What’s the most important issue the U.S. Congress should consider in 2014?”
According to the C-SPAN press release:
Peter Jasperse, Antonia Torfs-Leibman and Madeleine Hutchins, eighth graders at Eastern Middle School in Silver Spring, Md., are national First Prize winners in the Middle School division. Peter, Antonia and Madeleine will share $3,000 for their First Prize documentary, 'The NSA: The Lengths of America's Security,' about NSA surveillance."
The video, featuring an interview with author James Bamford, will air on C-SPAN at 6:50 a.m. E.T. and throughout the day on April 23. You can also watch it online.
Ben Blum, a filmmaker at Saint Mark's School in San Rafael, California, scored second place in the same category for his documentary "Data Obsession," featuring EFF Activist Parker Higgins. It will air on Friday, April 11 and you can watch it below:Privacy info. This embed will serve content from youtube-nocookie.com
UPDATE- March 5, 2014:
After an encouraging debate at the Oakland City Council meeting on February 18, EFF has submitted another letter opposing Oakland’s Domain Awareness Center (DAC). The DAC is a potent surveillance system that could enable ubiquitous privacy and civil liberties violations against Oakland residents. The city appeared set to approve a resolution that would have handed the City Administrator authority to sign a contract for completion of the project. However, after strenuous discussion, Councilmember Desley Brooks made a motion to delay the vote for two weeks in order to get more information about the potential civil liberties and financial impacts of the DAC. The council passed the motion with 6 yes votes and 2 abstentions.
Phase I of the DAC, funded by a Department of Homeland Security grant, is already operational. It integrates Port security cameras and an intrusion detection system with City of Oakland traffic cameras, city geographic information system (GIS) mapping, and a gun shot detector called ShotSpotter. The information from these various data sources is integrated using “Physical Security Information Management” PSIM. This allows law enforcement and other agencies to access and analyze all of these data sources through a single user interface. This means DAC staff can look at a single screen and see various video and information feeds at once, allowing much more invasive surveillance of Oaklanders.
At the February 18 meeting, speakers raised myriad issues. One of those was the racial profiling of Yemeni, Muslim, and African-American communities already happening in Oakland. Mokhtar Alkhanshali, a community organizer, talked about how law enforcement already targets the thousands of Muslims in Oakland, stating, “I represent people who are afraid to come here." Fred Hampton, Jr., son of the murdered Black Panther Party member Fred Hampton, reminded the council about the legacy of surveillance and targeting experienced by African-American activists.
At issue now is whether the Oakland City Council will approve an expansion of the system to include more data sources, considering all the outstanding questions. The council seemed to hear the concerns raised by community members and asked a lot of their own questions at the meeting. The council directed staff to provide further information. Unfortunately, as EFF’s letter states, the most recent staff report:
Another major concern expressed at the meeting was the connection between the Domain Awareness Center and other law enforcement agencies, including the FBI. While city staff has repeatedly assured the public and the Oakland City Council that there are no information sharing agreements with federal agencies, the city already works several of them. EFF’s letter addresses this:
implying that there is any sort of firewall between DAC information and the federal government is disingenuous at best. As has been pointed out to the Council, Oakland already shares information with the FBI through its participation in a Joint Terrorism Task Force. Similarly, the Oakland Police Department participates in the Bay Area Urban Area Security Initiative (UASI), a Department of Homeland Security program. In fact, Renee Domingo is part of the “Approval Authority” for UASI. The Approval authority “provides policy direction and is responsible for final decisions regarding projects and funding,” to UASI.
Implying that the DAC has no relationship to fusion centers is also disingenuous. UASI is one of the primary funders for the Northern California Regional Intelligence Center (NCRIC), the regional Bay Area fusion center. Furthermore, the DAC itself has been “featured” regarding information sharing in relationship to NCRIC and other federal agencies; in a 2013 port security workshop that included Department of Homeland Security, NCRIC and Port of Oakland officials and brought in other federal agencies, law enforcement, and private interests, the DAC and NCRIC were used as models for information sharing relationships. In fact, pursuant to City Council resolutions, the Oakland Police Department and Fire Department staffed the Northern California Regional Intelligence Center in 2011 and 2012.
EFF joins the ACLU of Northern California, National Lawyers Guild and the Oakland Privacy Working Group (OPWG) in opposing the DAC. A group letter from OPWG has amassed over 35 signatories, including faith leaders, political party leaders, and community groups from the Arab, Muslim, Asian, and African-American communities. The Council has the opportunity to halt the DAC now, and to address the existing systems in place:
A no vote today is not the last step. The Council must then take responsibility for addressing Phase 1 of the DAC. EFF warns the Council that it must seriously consider how exactly a port-only DAC will work, taking into account the serious technical and legal concerns that accompany the DAC even as it currently exists. EFF again reminds the Council that any financial consequences of limiting the DAC are no reason to pursue a course of action that will seriously endanger civil liberties in Oakland. EFF urges the Council to consider the egregious lack of information and transparency that has surrounded this project and to vote against any expansion of the DAC.
The Mexican website 1dmx.org (mirror here), was set up in the wake of a set of controversial December 1st 2012 protests against the inauguration of the new President of Mexico, Enrique Peña Nieto. For a year, the site served as a source of information, news, discussion and commentary from the point of view of the protestors. As the anniversary of the protests approached, the site grew to include organized campaign against proposed laws to criminalize protest in the country, as well as preparations to document the results of a memorial protest, planned for December 1, 2013.
On December 2nd, 2013, the site disappeared offline. The United States host, GoDaddy, suspended the domain with no prior notice. GoDaddy told its owners that the site was taken down "as part of an ongoing law enforcement investigation." The office in charge of this investigation was listed as "Special Agent Homeland Security Investigations, U.S. Embassy, Mexico City." (The contact email pointed to "ice.dhs.gov," implying that this agent was working as part of the Immigration and Customs Enforcement wing, who have been involved in curious domain name takedowns in the past.)Email received by 1dmx.org owners from GoDaddy.
Luis Fernando García, 1dmx.org lawyer for the protestors, suspected that the call to bring down the site came from further afield than the U.S. embassy, and is suing several authorities in the Mexican courts to discover exactly which government agency passed on the order to the U.S. Embassy. Their court case, announced today, will continue to pursue the Mexican authorities to find the source of the demand, which the case contends violates Mexico's legal protections for freedom of expression.
If there are many questions to be answered by the Mexican authorities about this act of prior restraint on speech, there are no shortage of queries about the United States' involvement in this takedown. Why did GoDaddy take down content with the excuse of it being part of a legal investigation, when the company did not request or relay any formal judicial documents or an official court order? And why is the U.S. Embassy acting as a relay for an unclear legal process that resulted in censorship within the United States?
We look forward to following the result of the website owners' court case in Mexico, and to the responses of GoDaddy and the United States Embassy in Mexico City to this developing story.Related Issues: Free SpeechBloggers' RightsInternational
San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court to crack down on patent trolls and the schemes they use to perpetuate their lawsuits in two amicus briefs filed today.
"Patent trolls and their payoff demands depend on a flawed U.S. patent system," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "The cases the Supreme Court is tackling this term are prime examples of patent lawsuits gone awry. We're asking the justices today to enforce the law and protect new businesses, new gadgets, and the customers who use these products and services by providing clear rules that crack down on patent trolls."
In Nautilus v. Biosig Instruments, the Supreme Court could curtail vague and ambiguous patents that are currently allowed by the Federal Circuit. Under that standard, patent claims can stand even if "reasonable people can disagree" over the patent's meaning, and no matter "however difficult that task may be" to understand it. This has sparked a rash of vague patents, and EFF asked justices in today's brief to restore the Patent Act's requirement that patent claims be clear.
"Vague patents are extraordinarily prevalent in software, and they are a favorite tool of patent trolls," said EFF Staff Attorney Daniel Nazer. "If you can cleverly craft an ambiguous patent, you can stretch the claims later to cover all sorts of things you hadn't thought of at the time. Clarifying the law here and requiring definite claims is a straightforward, substantial way to improve patent quality and reduce shake-down patent litigation."
Limelight Networks v. Akamai Technologies involves a patent question over Limelight's content-distribution network, which allows for server-side storage of web content. Limelight's customers perform one of the steps of the patent at issue – tagging the remote content – but Akamai wants to enforce its patent anyway. In the brief filed today, EFF argues that Akamai's legal strategy could create a new category of patent defendants: end-users who unknowingly performed one of the steps.
"Imagine what would happen if using a piece of software or other service sold to you legally could result in a major patent infringement case," said Samuels. "Luckily, courts thus far have instituted a common-sense rule protecting end-users and consumers, and we're hopeful the Supreme Court will keep up this trend."
So far this term, EFF has filed four amicus briefs with the Supreme Court on patent and patent troll issues. Last week, EFF urged the court to rein in overbroad patents that are impermissibly abstract in Alice Corp. v. CLS Bank. In December, EFF filed a brief in Octane Fitness, LLC v. Icon Health & Fitness, Inc., urging the court to make it easier for prevailing defendants to get attorney's fees in patent cases.
For the full brief in Nautilus v. Biosig:
For the full brief in Limelight v. Akamai:
Senior Staff Attorney
The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
Electronic Frontier Foundation
President Obama has nominated former SOPA lobbyist Robert Holleyman to join the team of U.S. negotiators leading the Trans-Pacific Partnership (TPP) talks. If confirmed by the Senate, the former chief executive officer of the Business Software Alliance (BSA) would serve as a Deputy to the U.S. Trade Representative. Coincidentally, the current head of the BSA is former White House IP Czar Victoria Espinel.
Holleyman is an interesting choice for the Obama administration, given the current standstill in TPP negotiations. Reports from the TPP ministerial meeting last weekend said that nothing substantive came out of those talks and that an end date for this sprawling deal is growing increasingly uncertain. One of the many topics of contention is the copyright enforcement sections. On these, the U.S. refuses to agree to provisions that would allow signatory countries flexibility in their copyright regimes.
As a result, countries like Chile and Canada are standing firm against U.S. proposals—a stance confirmed by the “Intellectual Property” chapter published by Wikileaks in November. These proposals include provisions that would place greater liabilities on Internet Service Providers, create new tools of censorship, and new restrictions on how users can access and interact with digital content. Instead of allowing other countries to choose their own approaches to copyright, Obama's choice to appoint a prominent supporter of the spectacularly failed SOPA bill indicates the White House's unwillingness to let up on its extreme stance on copyright enforcement.
The evidence of corporate influence on trade talks doesn't stop there. Recent reports revealed that prominent U.S. trade officials had received millions of dollars in bonuses before they left their corporate jobs to take up their position at the Obama administration. Soon after these revelations, the U.S. Trade Rep Michael Froman—who received $4 million in bonuses from banking giant CitiGroup—introduced plans to create a new Public Interest Trade Advisory Committee. If this was an attempt to address our criticism of the overwhelming influence of private interests in setting the U.S. trade agenda, it was—at best—a half-hearted one. As we've pointed out, fundamental issues underlie this trade advisory system, primarily that members would be gagged from discussing or publicly advocating on the provisions they have seen as a result of serving on this committee. This Washington Post graphic clearly illustrates the current dominating influence of corporate industries in these trade advisory committees.TPP Talks at a Standstill
The pattern of most other TPP countries resisting relatively extreme U.S. proposals is becoming more and more common. According to some sources, Japan and the U.S. are so far from agreement on certain agricultural issues that the U.S. Trade Rep suggested to the other countries that they should exclude Japan from the talks entirely. And senior legislators from seven TPP countries demanded more transparency in negotiations, releasing a statement demanding that the text of the agreement be released before it is signed. Even the Malaysian trade minister said publicly that he would not sign the agreement as long as the text remained secret.
Meanwhile, Obama and the U.S. Trade Rep faces mounting opposition on the domestic front. Lack of concrete assurance from the trade official that he would be steadfast in his push for environmental protections in TPP has apparently eroded the trust of some House Democrats and powerful liberal supporters. Without solid support from his own political base in the House, it will be almost impossible for Obama to get Fast Track authority. Without Fast Track, it's not clear the administration can pass the TPP at all.
Beyond the legislature, the White House lacks popular support for its trade agenda. A recent poll showed that a majority of U.S. voters oppose Fast Track and the TPP. The same survey showed that there are marginally more Republicans who oppose Obama's whole trade agenda, despite the fact that there are many more prominent Republicans in Congress who support handing Fast Track authority to Obama.
TPP's completion becomes ever more tenuous as resistance to its corporate-driven policies continue to dissolve political support for the deal. Yet Obama's nomination of Holleyman suggests that his administration has no intention of removing the draconian copyright policies out of TPP no matter how unpopular or contentious they may be. It also reflects the greater issue at hand—the White House is choosing to heed the demands of Hollywood and other corporate giants and ignore the interests of users.
Those of us in the U.S. need to get our Congress members to oppose Fast Track authority and exercise their constitutional authority to ensure that these trade deals respect our digital rights. It would be an assault on our democratic governance to allow our lawmakers to hand over their own mandate to the White House.Fair Use and Intellectual Property: Defending the BalanceInternationalTrans-Pacific Partnership Agreement
The Electronic Frontier Foundation (EFF) filed two briefs on Friday challenging secret government demands for information known as National Security Letters (NSLs) with the Ninth Circuit Court of Appeals. The briefs—one filed on behalf of a telecom company and another for an Internet company—remain under seal because the government continues to insist that even identifying the companies involved might endanger national security.
While the facts surrounding the specific companies and the NSLs they are challenging cannot be disclosed, their legal positions are already public: the NSL statute is a violation of the First Amendment as well as the constitutional separation of powers.
“The NSL statute allows the FBI to demand potentially protected information without any court oversight,” EFF Senior Staff Attorney Matt Zimmerman said. “Furthermore, it permits the FBI to independently gag recipients so that NSL recipients like our clients have no ability to notify their customers or the public that any demands were made, let alone that they went to court to stop them. Our clients strongly desire to bring their unique perspectives to the ongoing national discussion on intrusive government spying, and they have timely and relevant information to contribute to that debate. However, the FBI’s unconstitutional NSL authority prevents these companies from exercising their rights and taking part in this critically important conversation.”
In March 2013 a federal district court judge in San Francisco agreed with EFF and ruled the NSL provisions unconstitutional, barring future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced separate NSLs—including NSLs issued to both EFF clients—and indicates that it will continue to do so until the Ninth Circuit rules on EFF’s challenges.
“The fight over NSLs and the government’s dangerous practice of bypassing meaningful review by the judicial branch is not an academic one—real people and real companies are involved, battling for their constitutional rights and the rights of their users,” Zimmerman said. “The district court was right: the First Amendment prevents the FBI from engaging in such invasive, secretive, and unaccountable activities. We are eager to explain to the Court of Appeals why it should come to the same conclusion.”
EFF also recently re-launched its Frequently Asked Questions page on National Security Letters. Read it at: https://www.eff.org/issues/national-security-letters-faq
For more on the National Security Letter cases: https://www.eff.org/cases/re-matter-2011-national-security-letter
Senior Staff Attorney
Electronic Frontier Foundation
The RightsCon summit is making its way back to Silicon Valley March 3-5, opening its doors to human rights experts, engineers, government representatives, and other activists from around the globe who will discuss solutions to human rights challenges. As such, a number of EFF staff members are looking forward to attending and speaking at the three-day conference, which is hosted by our friends at Access.
While EFF encourages you to attend as many RightsCon events as you can, be sure to catch the following:
Monday, March 3, 5:00PM – 6:15PM: The Web Women Want featuring Director for International Freedom of Expression, Jillian C. York
Tuesday, March 4, 12:00PM – 1:15PM: Policy Laundering: Hacking the International Innovation Policy Machine featuring Intellectual Property Director, Corynne McSherry and Global Policy Analyst, Maira Sutton
Tuesday, March 4, 12:00PM – 1:15PM: Watching the Observers: The Impact of Surveillance on Human Rights Documentarians and Journalists featuring Global Policy Analyst, Eva Galperin
Tuesday, March 4, 4:00PM – 5:00PM: Toward Accountability: Reflecting on ICT Industry Action to Protect Users Rights featuring International Director, Danny O’Brien
Tuesday, March 4, 5:15PM – 6:15PM: Demonstrate and Disobey: Protest and Civil Disobedience On and Offline featuring Staff Attorney, Hanni Fakhoury
Wednesday, March 5, 9:00AM – 10:15AM: Competition, Consumers and Trolls: Why You Should Care About Patents featuring Senior Staff Attorney, Julie Samuels
Wednesday, March 5, 10:30AM – 11:45AM: Privatized Enforcement and Corporate Censorship: The Future of Freedom of Expression featuring Director for International Freedom of Expression, Jillian C. York
Wednesday, March 5, 10:30AM – 11:45AM: Securing Justice Safely: Documenting, Distributing, and Adjudicating on Digital Human Rights Data featuring Senior Staff Attorney, Kurt Opsahl
Wednesday, March 5, 2:30PM – 3:45PM: Uncontrolled Surveillance: Regulation and the Export Controls featuring International Director, Danny O’Brien
Wednesday, March 5, 4:00PM – 5:15PM: Fire the Lawyers, Hire the Engineers! – A Debate featuring Legal Director, Cindy Cohn
Wednesday, March 5, 4:00PM – 5:15PM: Location, Location, Location: What Rights Should we Have Against Pervasive Location Tracking? featuring Senior Staff Attorney, Jennifer Lynch and Senior Staff Technologist, Seth Schoen
Aside from the aforementioned events, many members of the EFF staff will be attending RightsCon so be sure to say “hello!”
Click here to find the complete RightsCon program schedule.
On back-to-back days this week, residents in Texas and Washington received some extra legal protection for the contents of their cell phones. These decisions, while only binding on law enforcement within each respective state, could play an important role on the ongoing debate on cell phone privacy specifically, and applying legal protections against unreasonable searches and seizures to new technologies generally.
Texas: a cellphone is not like a pair of pants or shoes
First, the Texas Court of Criminal Appeals ruled in State v. Granville that an inmate locked in jail maintained an expectation of privacy in the contents of his cell phone even when the phone was out of his custody and in the control of the jail guards. A Huntsville police officer arrested high-school student Anthony Granville on a misdemeanor charge, and he was locked up in jail. Three hours after his arrest, a different officer than the one who arrested him retrieved Granville's phone from the evidence locker and, without a warrant, looked through the contents of the phone for evidence of an unrelated crime.
The government attempted to justify the search by claiming that, similar to clothing worn by an inmate, once the phone was in the control of the jail officials, Granville no longer had any expectation of privacy in its contents. We filed an amicus brief explaining that a cell phone really isn't anything like a pair of pants given the immense amount of data stored on the phone, meaning that police needed to get a warrant to search it. The high court agreed with us, with Judge Cathy Cochran writing unequivocally:
[W]e conclude, as did the court of appeals, that a cell phone is not like a pair of pants or a shoe. Given modern technology and the incredible amount of personal information stored and accessible on a cell phone, we hold that a citizen does not lose his reasonable expectation of privacy in the contents of his cell phone merely because that cell phone is being stored in a jail property room.
Washington: A text message is like a phone call or letter
The next day, the Washington Supreme Court issued a pair of decisions in State v. Hinton and State v. Roden finding that police violated state law when, after seizing a cell phone from a suspect during a drug investigation, it monitored and responded to incoming text messages, arranging drug deals with defendants Hinton and Roden.
The state argued that neither Shawn Hinton or Jonathan Roden had an expectation of privacy in the text messages once they were sent to someone else's phone. Instead, the state argued both men had assumed the risk that their messages could be intercepted by someone else or that the person they thought they were communicating with was really someone else. EFF filed amicus briefs in both cases, explaining that the society's expectation that police won't intercept their phone calls or postal letters extends to the 21st century equivalent, the text message. The court agreed, ruling that police were unauthorized to intercept the conversation, noting that
unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient's cell phone instantaneously and remain susceptible to exposure because of a cell phone's mobility. Just as subjecting a letter to potential interception while in transit does not extinguish a sender's privacy interest in its contents, neither does subjecting a text communication to the possibility of exposure on someone else's phone.
Cell phone privacy spreading across the country
These decisions come at a time when cell phone privacy is a hot topic in courts across the country and hopefully the strides made in Texas and Washington will be felt elsewhere. State courts are taking a more aggressive approach to safeguarding privacy than federal courts, especially when it comes to law enforcement searching and tracking cell phones. Last week, the Massachusetts Supreme Judicial Court ruled that police needed a search warrant to obtain historical cell site records from a cell phone provider. New Jersey's Supreme Court reached the same result last year. The Rhode Island Supreme Court heard argument in early February in State v. Patino, a case similar to Hinton and Roden, that involves whether a person has an expectation of privacy in text messages found on someone else's phone. State legislatures have been active too, with Maine and Montana passing legislation last year protecting cell phone location data, and Maryland and Wisconsin considering similar legislation this year. This week's decisions could also go a long way to bringing the law into the 21st century.
Most importantly, the topic of cell phone privacy will shortly be before the U.S. Supreme Court, which is considering two cases this term on whether police can search a person's cell phone incident to their arrest. The U.S. Supreme Court would be wise to follow the lead of Texas and Washington. This week's decisions both appreciated the breadth of data stored on a cell phone meant it was foolish to analogize to physical items like a pair of pants or old cases involving antiquated technologies. They rejected the false notion that the mere act of exposing a phone or text message to someone else gives the government free reign to intrude and search through the reams of data on a cell phone. Hopefully the U.S. Supreme Court will make the same conclusions, ensuring that the right to privacy in a cell phone isn't just a local right but a national one.Related Issues: PrivacySearch Incident to ArrestRelated Cases: Washington state text message privacy casesState v. PatinoState v. Granville
This week, EFF asked a federal court in Florida to unseal records from the Disney v. Hotfile case describing Warner Brothers' system for sending takedown notices to websites. Warner, and the other plaintiffs in the case, want that information kept secret forever. But Congress is asking for input about the notice-and-takedown system created by the Digital Millennium Copyright Act, and a hearing is coming up soon. The Patent and Trademark Office is also holding public meetings on the DMCA. It'll be harder for the public to get involved in these conversations without knowing some basic information about how big copyright holders like Warner decide which files to target for takedowns. And copyright holders can't design their systems to comply with the law if basic parts of the court decisions that interpret the law are kept secret. That's why EFF asked the court to unseal these records.
Under the DMCA, copyright holders or their agents can send notices to Internet sites, declaring that some material posted by users infringes their copyright. The Internet site then has a legal incentive to take the material down, to avoid liability.(In practice, most sites respond to every DMCA notice by taking down the targeted content, even when the notices are improper.) Warner, like some other large media companies, uses some combination of web-crawling search robots and human review to find files that it claims are infringing its copyright, and then sending takedown notices to the sites that host the files.
Hotfile was a file-hosting site (a "cyberlocker") that was sued in 2011 by five major movie studios, including Warner Brothers. The studios claimed that Hotfile wasn't protected by the DMCA, and should be held responsible when Hotfile users posted infringing video files. Hotfile had set up a special Web interface for Warner to send takedown notices. Warner designed a system that apparently used robots to crawl through indexes of Hotfile content looking for movie files.
We don't know how Warner's robots work, or what they are programmed to look for. Warner claims it didn't entrust all of the copyright decisions to software, and there was some human review involved. But Hotfile accused Warner of using its system to take down files that merely had the same name as a Warner movie - even files that weren't video. And Hotfile also claimed that Warner was taking down copies of a free and open source program called JDownloader that Warner had no rights in, but simply didn't want the public to have. Judge Kathleen M. Williams looked at the evidence behind these accusations, and concluded that Warner might be liable under Section 512(f) of the DMCA. That section, which is also the basis of Stephanie Lenz's suit against Universal Music, prohibits copyright holders from sending takedowns without having a basis for believing that the material is infringing.
The court's decision meant that a jury could decide whether Warner was liable. But the parties settled on the eve of trial in November, and Hotfile shut down.
Judge Williams's decision was encouraging, but mysterious – we don’t get to see evidence of how Warner's system works and which of its improper DMCA takedown notices gave rise to liability. So we know that Warner may have crossed a line, but not how or why. Without seeing the facts that went into Judge WIlliams's decision, it doesn't help people design takedown systems that comply with the law, and it doesn't help anyone make informed arguments about the DMCA when Congress takes it up.
We can't do without informed debate. The House Judiciary Committee may hold a hearing on DMCA takedowns in early March. Lawmakers need to hear about how well the system is actually working, and whether it protects Internet users against having their speech curtailed by takedown-bots or overzealous and poorly trained reviewers. Actual data about major DMCA users like Warner is vital.
The courts are public institutions, and their proceedings should be open to the public as much as possible, according to our legal traditions and the First Amendment. We hope the Florida court will open its records on this this important issue.var mytubes = new Array(1); mytubes = '%3Ciframe src=%22//www.youtube-nocookie.com/embed/iLbfcJgcnyc?autoplay=1%22 allowfullscreen=%22%22 frameborder=%220%22 height=%22369%22 width=%22650%22%3E%3C/iframe%3E'; Related Issues: Fair Use and Intellectual Property: Defending the BalanceDMCARelated Cases: Disney v. Hotfile
Tell Europe your views on CopyrightThe European Commission's open consultation on copyright ends in less than a week on Mar. 5. It's a rare and important opportunity for anyone who uses the Internet— whether you are a student or artists, librarian or entrepreneur— to influence the future of innovation policy in the region.
The 80 question "Public Consultation on the Review of the EU Copyright Rules" can be dizzying to tackle on its own, but there are several easy-to-use platforms that can help anyone with navigating the survey.How to Submit Your Own Comments
Digital rights organizations across the EU have submitted their own comments, addressing a wide range of restrictive copyright policies that afflict Internet users across the region. You can check out these various replies below:
With Coursera lifting restrictions for users of its online educational courses in Syria, but upholding restrictions for users in the sanctioned countries of Cuba, Iran, and Sudan, the need for streamlined communication technology policies for countries sanctioned by the U.S. is more necessary than ever.
Cuba, Syria, Sudan, North Korea, and Iran are all currently under heavy U.S. sanctions, which have a negative impact on what communications technologies individuals in these countries can access and use. EFF believes that all individuals should have the right to access technologies that facilitate communications. And the U.S. government recognizes the need to modify outdated sanctions that restrict vital communications and educational technologies from citizens living in U.S.-sanctioned countries. So what’s the problem?
The problem is that the U.S. government’s piecemeal approach to updating these sanctions is largely reactionary and ultimately prioritizes certain countries over others for reasons that are, to put it charitably, hard to discern.
For example, Iran recently received some relief. According to an article published by the Open Technology Institute, “the Treasury Department’s Office of Foreign Assets Control (OFAC) issued a revised General License D for Iran, clarifying a number of outstanding questions about the original license authorizing the export of hardware, software, and services that enable personal communications. The new General License D-1 replaces the May 2013 General License D, which allows companies to offer laptops, cell phones, anti-virus software, secure chat, and other tools to Iran despite comprehensive U.S. sanctions.”
So good for Iran, but why only them? Unfortunately, attempts by the Treasury and State Departments to clarify and reissue licenses in order to ameliorate confusing or unclear wording for licenses belonging to one sanctioned country leave citizens of other countries rightfully wondering why they don't receive similar treatment. OFAC never provides the basis for these relaxations, adding to the sense of unfairness.
Furthermore, even as the U.S. revises some sanctions regimes in favor of free flow of information, the disjointed way this occurs leaves many U.S. companies on the defensive—since the rules change depending on the recipient country and the penalties are so severe, companies overblock or otherwise restrict access to their products and services in order to protect themselves from liability. So the relaxation of sanctions doesn't even help those who it is intended to help. As OTI points out: “The Treasury and State Departments have previously struggled to entice U.S. companies to take advantage of existing authorizations, despite four attempts to revise and expand them since 2009.”
To fix this, the U.S. should stop the piecemeal. Any modifications to sanctions should make it easier for American companies to confidently comply with them and these modifications should apply to all sanctioned countries. They are begging for it.
Sudanese activist and blogger Dalia Haj-Omar says that the Internet is "the only platform for free civic engagement in Sudan." Meanwhile, an article on AllAfrica.com states: "This is an appeal to empower Sudanese citizens through improved access to ICTs so that they can be more proactive on issues linked to democratic transformation, humanitarian assistance and technology education -- an appeal to make the sanctions smarter."
It’s not just Sudan. Dr. Mahmud Angrini, a Syrian doctor who claims to have taken more than 20 Coursera classes so far, wrote in an email recently to Global Voices: “It's a shame for [the U.S.] to share the Syrian regime in his collective punishment against the Syrian people. Education is an essential part of the humanitarian aid that my people deserve, and now after this decision, we lost one of the last resorts that some Syrians were depending on to continue their learning. Please, if you can, let my voice reaches those who deprived us even from our simplest rights.”
Similarly, a recent piece published on Medium describes the harm being caused to Iranians by technology sanctions.
The U.S. government needs to recognize that U.S. sanctions on communication technology, especially in the piecemeal way they are being handled, are currently causing more harm than good. They need to give clear, unequivocal green light to U.S. companies that are helping people to communicate online, regardless of where they happen to live.
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San Francisco - The Electronic Frontier Foundation (EFF) along with Professor Pamela Samuelson of the University of California, Berkeley, urged the U.S. Supreme Court today to clean up the legal mess that is software patent law, reining in overbroad patents that are impermissibly abstract.
In front of the court is Alice Corp. v. CLS Bank, a long running case about a computer system that helps with closing financial transactions by avoiding settlement risk. In its amicus brief filed today, EFF argues that allowing a patent on this system goes against previous Supreme Court rulings that ideas like these are "abstract" and aren't legally patentable.
"It wouldn't make sense to patent simple ideas like ways of running a business or prioritizing a to-do list," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "That's basically what's under consideration here, with the small addition of a step that essentially implements it on a computer. Of course, since basically everything we do today is on the computer, letting patents like this exist shuts down entire business models."
The data on the U.S. technology industry bear this out. Since software patents have boomed, we've seen no corresponding boom in software growth and innovation; to the contrary, that growth maintained the steady pace that existed long before the advent of software patents. Instead, along with software patents, we've seen the rise of patent trolls – companies that don't make or sell anything, but shake down true creators through the loopholes in the law.
"In this case, the Supreme Court has the opportunity to implement a sensible system, limiting these broad and vague claims that do nothing besides fuel lawsuits," said Samuels. "A clear ruling here would limit one of the patent troll's favorite weapons—broad and vague software patents—and keep our innovation economy safe."
For the full amicus brief:
For more on abstract software patents:
Staff Attorney and The Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
We've made considerable progress in our fight against patent trolls. The House, you may remember, resoundingly passed the Innovation Act last year. The President has since said he would sign it, and make a strong statement in support of reform in this year's State of the Union address. Now, we await on the Senate to act (speaking of which, have you signed our letter urging such action?).
The letters demanding these payments are often evasive, failing to include details about the patents, who owns those patents, and the products or services that allegedly infringe. They fail to give recipients the information to make rational decisions, such as whether they should pay the troll, ignore the letter, or go to court to fight it. Just hiring a lawyer to ascertain that seemingly simple information can easily cost well into the tens of thousands of dollars.
The letters raise even more fundamental concerns, too. Because they happen before a legal complaint is ever filed, they are not part of the public record. And once a settlement or license is signed, it will likely include a non-disclosure provision, prohibiting the letter's recipient from talking publicly about its contents. This means that the scope of the problem is often underreported, making it harder for policymakers to understand the true scale of the patent troll problem.
Today, we are one step closer to having a real solution to this problem. Senators McCaskill (D-Mo.) and Rockefeller (D-W.V.) introduced the Transparency in Assertion of Patents Act, an important piece of legislation that would really protect consumers and small businesses by curbing the patent demand letter problem.
The bill would:
Making this bill law would go a long way toward stopping some of the worst demand-letter abuses. We applaud Sens. McCaskill and Rockerfeller and look forward to supporting this piece of legislation as it works its way through the Senate.Related Issues: PatentsPatent Trolls
San Francisco - Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.
"Too often, copyright is used as an excuse to silence legitimate speech," said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. "I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences."
The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF's work on open access, a cause of special importance to Lessig's friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music's methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.
Neither party concedes the claims or defenses of the other. Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with Professor Lessig. Liberation Music agrees that Professor Lessig's use of the Phoenix song 'Lisztomania' was both fair use under US law and fair dealing under Australian law. Liberation Music will amend its copyright and YouTube policy to ensure that mistakes like this will not happen again. Liberation Music is committed to a new copyright policy that protects its valid copyright interests and respects fair use and dealing."
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled "Open" at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.
As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.
Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.
"This is the policy Liberation Music should have had from the beginning," EFF Intellectual Property Director Corynne McSherry said. "Too many content owners are issuing takedowns and manipulating content filters without respect for the rights of users. This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use."
For more on this case:
About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of the Edmond J. Safra Center for Ethics at Harvard University and founder of Rootstrikers, a network of activists leading the fight against government corruption. He has authored numerous books, including The USA is Lesterland, Republic, Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and Other Laws of Cyberspace, Free Culture, and Remix.
Intellectual Property Director
Electronic Frontier Foundation
It's time for Congress to follow the Sixth Circuit's lead and update one of the main online privacy laws—the Electronic Privacy Communications Act (ECPA). In the past, the Department of Justice has used the archaic law to obtain private online communications without obtaining a probable cause warrant as the Fourth Amendment requires. A bill co-sponsored by Reps. Kevin Yoder, Tom Graves, and Jared Polis—HR 1852, The Email Privacy Act—seeks to update ECPA by requiring a probable cause warrant whenever the government wants to access your online private messages.
The bill is slowly making its way through Congress, but we can speed it up. Tell your representative right now to cosponsor the bill. The bill ensures the government can't try to (ab)use ECPA in order to obtain our private online messages.
ECPA must be updated because the government has used the law to obtain private online messages—like personal email accounts or our social media messages—older than 180 days without a probable cause warrant. The government would have to obtain a warrant if those same messages were printed out on your desk. This difference shouldn't exist. By cosponsoring The Email Privacy Act, the government can no longer neglect the fact that Fourth Amendment protections do not whither with age.
Along with EFF, fifteen other privacy advocates and companies—like the Center for Democracy and Technology and DuckDuckGo—are spurring momentum to pass HR 1852. The bill would finally accomplish one of four goals of the Digital Due Process Coalition, a collection of tech companies, start-ups, privacy advocates, and think tanks working to update ECPA to ensure that laws continue to protect the rights of users as technologies advance and usage patterns evolve.
Updating ECPA is a common-sense move. Our freedom and constitutional protections do not expire with time. Tell your Rep. now to cosponsor HR 1852 and join us in demanding for long-overdue updates to our archaic electronic privacy laws.