Press Releases
Jewelry Company Quest to Expand Trademark Law Could Quash Internet Commerce
EFF Urges Court to Reject Appeal in Tiffany v. eBay
San Francisco - The Electronic Frontier Foundation (EFF) along with Public Citizen and Public Knowledge urged a U.S. court of appeals Wednesday to reject jewelry-maker Tiffany's attempt to rewrite trademark law and create new barriers for online commerce and communication.
Tiffany sued the online marketplace eBay, claiming that eBay should be held liable for trademark infringement when sellers offer counterfeit Tiffany goods on the eBay site. The evidence in the case showed that eBay quickly takes down listings when Tiffany sends notice that it believes a specific item is not genuine. However, Tiffany wants eBay to police listings on its own and to be held responsible for any counterfeit items it missed.
"Millions of Americans use sites like eBay and craigslist to buy and sell goods," said EFF Senior Intellectual Property Attorney Michael Kwun. "If Tiffany had its way, sites like eBay would be responsible for figuring out whether items its users are selling -- items eBay itself never sees -- are authentic or counterfeit. That's an impossible task."
A judge correctly rejected Tiffany's claims earlier this year. In an amicus brief filed with the 2nd U.S. Circuit Court of Appeals Wednesday, EFF asks the court to reject Tiffany's new attempts to expand trademark law.
"The Internet has created new opportunities for communication, and trademarks are an integral part of this exchange," said EFF Staff Attorney Corynne McSherry. "But if intermediaries have to take on the burden of policing trademarks, many Internet service providers will take the easy route and remove any posting that is even remotely suspicious. That would effectively quash the extraordinary growth of online commerce and speech."
For the full amicus brief:
http://www.eff.org/files/filenode/tiffany_v_ebay/effamicus.pdf
For more on this case:
http://www.eff.org/cases/tiffany-v-ebay
Contacts:
Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Copyright Office Should Right DMCA Wrongs in Rulemaking
EFF Seeks Exemptions for Video Remixes, Cell Phone Unlockers
San Francisco - The Electronic Frontier Foundation (EFF) filed three exemption requests with the U.S. Copyright Office today aimed at protecting the important work of video remix artists, iPhone owners, and cell phone recyclers from legal threats under the Digital Millennium Copyright Act (DMCA).
The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Every three years, the Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.
One proposal filed by EFF is aimed at protecting the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.
"Remix is what free speech looks like in the 21st century, which is why thousands of noncommercial remix videos are posted to YouTube every day," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The DMCA wasn't intended to drive fair use underground."
Another proposal requests a DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. Hundreds of thousands of iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store."
"It's not the DMCA's job to force iPhone users to buy only Apple-approved phone applications," said von Lohmann. "The DMCA is supposed to block copyright infringement, not competition."
EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset.
"Millions and millions of Americans replace their cell phones every year. EFF is representing three organizations that are working to make sure the old phones don't end up in the dump, polluting our environment," said EFF Civil Liberties Director Jennifer Granick. " Also, renewing this exemption will continue to help people who want to use their phones while traveling and will promote competition among wireless carriers."
The rulemaking proceeding will accept public comments regarding proposed exemptions until the deadline of February 2, 2009. The Copyright Office will then hold hearings in Washington, DC and California in Spring 2009. The final rulemaking order will be issued in October 2009.
For more on EFF's exemption requests:
http://www.eff.org/issues/dmca-rulemaking
For more on the anti-circumvention rulemaking:
http://www.copyright.gov/1201/
Contacts:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
EFF to Fight Against Telecom Immunity in Tuesday Hearing
Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims
San Francisco - On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.
At Tuesday's hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government's warrantless surveillance program.
Also Tuesday, in the afternoon, the court will hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.
For more information about attending the hearing, please contact press@eff.org.
WHAT:
Hepting v. AT&T and other NSA telecommunications records lawsuits
WHEN:
Tuesday, December 2
10 a.m.
WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102
For more on EFF's case against AT&T:
http://www.eff.org/nsa/hepting
Contact:
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
Bogus IP Claims Quash Debate Over Future of NYC Landmark
Parody Website Shut Down by Baseless Lawsuit Against Community Organizer
New York - A New York City community organizer is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting.
The Electronic Frontier Foundation (EFF) is representing Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. As one part of her education campaign, Durkee created a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.
EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.
"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil rights activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."
In the WIPO proceedings, USP has argued that Durkee's website copied elements of USP's website and that users are likely to be confused into thinking the parody site is actually USP's site.
"Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work," said EFF Staff Attorney Corynne McSherry. "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."
In addition to filing her answer and counterclaims, Durkee today filed a letter with the court asking for a prompt hearing on her fair use defense. Durkee asked the court to convene a conference as soon as possible to set a schedule for briefing and a hearing.
The law firms Mayer Brown LLP and Gross & Belsky LLP are co-counsel in this case.
For the full answer and counterclaim:
http://www.eff.org/files/filenode/usp_v_durkee/Answer%20and%20Countercla...
For more on USP v. Durkee:
http://www.eff.org/cases/usp-v-durkee
Contacts:
Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Court Must Vacate Kentucky Court's Baseless Domain Name Seizure
Battle Over Online Gambling Sites Puts Free Speech, Commerce at Risk
Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.
In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.
"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."
As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.
"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."
"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.
For the full amicus brief:
http://www.eff.org/files/filenode/ky_v_domainnames/amicusbriefky.pdf
For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-nam...
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
EFF Marks 10th Anniversary of DMCA with Report on Law's Unintended Consequences
Ten-Year Legacy of Harm to Fair Use, Free Speech
San Francisco - Ten years ago Tuesday, the Digital Millennium Copyright Act (DMCA) was signed into law. In a report released to mark the anniversary, the Electronic Frontier Foundation (EFF) documents the ways in which this controversial law has harmed fair use, free speech, scientific research, and legitimate competition.
"Unintended Consequences: Ten Years Under the DMCA" focuses on the most notorious aspect of the law: its ban on "circumventing" digital rights management (DRM) and "other technical protection measures." Instead of protecting against copyright infringement, this ban has routinely been used to stymie consumers, scientists, and small businesses. "Unintended Consequences" collects reports of the law's most egregious abuses over the last decade. In 2003, for example, Lexmark used the DMCA to block distribution of chips that allow the refilling of laser toner cartridges. In 2006, computer security researchers at Princeton delayed disclosure of a dangerous hidden program in some Sony CDs based on fears of DMCA liability. Meanwhile, the DMCA has not prevented digital piracy. DRM systems are consistently and routinely broken almost immediately upon their introduction.
"Over the last ten years, the DMCA has done far more harm to fair use, free speech, scientific research, and competition than it has to digital piracy. Measured from the perspective of the public, it's been a decade of costs, with no benefits," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The music industry has given up on DRM, and Hollywood now relies on DRM principally to stop innovation that it doesn't like. It's time for Congress to consider giving up on this failed experiment to back up DRM systems with misguided laws."
For "Unintended Consequences: Ten Years Under the DMCA":
http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca
For more on the DMCA:
http://www.eff.org/issues/dmca
Contact:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
Monitor Election Problems Nationwide with OurVoteLive.org
Search by State or County for Real-Time Voter Reports on Election Day
San Francisco - Reporters, bloggers, and voters across the country can monitor problems at the polls on Election Day on OurVoteLive.org, a project built and hosted by the Electronic Frontier Foundation (EFF) on behalf of Election Protection, the nation's largest nonpartisan voter protection coalition, and its toll-free voter-assistance hotline, 866-OUR-VOTE.
OurVoteLive.org collects and analyzes reports from calls to the 866-OUR-VOTE hotline, which is staffed by hundreds of volunteers across the country. Tested during the presidential primaries, the site is already documenting over a thousand examples per day of voters needing information or reporting problems such as registration and identification issues, difficulties with voting machines, and polling place accessibility issues. Over 200,000 calls are expected to come into the hotline and be documented on OurVoteLive.org through Election Day.
"Improved transparency in all aspects of the electoral process is critical to ensuring accurate results as well as diagnosing systemic problems and helping voters," said EFF Senior Staff Attorney Matt Zimmerman. "OurVoteLive.org is helping the Election Protection Coalition make that possible."
In addition to call incident data, OurVoteLive.org also features maps, nationwide trend information, and an active election issues blog that will highlight important election incidents as they develop.
"OurVoteLive.org will allow us to help more voters more effectively," said Jonah Goldman, director of the National Campaign for Fair Elections at the Lawyers' Committee for Civil Rights Under Law, which leads Election Protection. "We -- along with election officials and the media -- will be able track trends and identify problem areas quickly so that we can remove any barriers that voters face as they cast their ballots."
Election Protection has more than 100 partners at the national, state and local level and is providing live voter protection services now through Election Day across all 50 states. On November 4, Election Protection will mobilize tens of thousands of volunteers, including 10,000 legal volunteers to monitor polling places, educate voters, facilitate a dialogue with local and state officials, provide legal support to poll monitors, and answer the 1-866-OUR-VOTE voter services hotline -- a monumental undertaking designed to ensure smooth voting in November.
On Election Day, reporters who have questions about OurVoteLive.org or particular incidents reported on the site should contact Nell McGarity via email at press@ourvotelive.com.
Contact:
Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org
TV Networks Must Stop Blocking Election Videos on YouTube
Public Interest Coalition Outlines Steps to Protect Online Political Speech
San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups called on four television networks today to stop stifling vibrant political debate on the Internet with overreaching copyright claims and proposed two measures to help YouTube protect online political speech in the final days before America's presidential election.
In an open letter sent to CBS, the Christian Broadcasting Network (CBN), Fox, and NBC, the coalition asked the broadcasters to stop sending takedown requests based on copyright in short clips of news footage used in election-related videos. Last week, the McCain-Palin campaign contacted YouTube after CBS, CBN, and Fox targeted the campaign's videos for removal from YouTube. The Obama-Biden campaign has had at least one of its videos removed from YouTube in response to a similar copyright demand from NBC.
"The videos at issue include clips of news footage that last only a few seconds, used as part of constitutionally-protected political speech. This is not piracy, but fair use, no different from what Saturday Night Live and The Daily Show do every night," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Sending unfounded takedown notices is not only against the law, it also threatens to interfere with the vibrant political debate occurring on community video sites like YouTube. Remixing the news to make your point is what political speech looks like in the 21st century."
The networks' use of copyright law to remove the videos is especially disappointing as CBS, NBC-Universal, and Fox have all officially endorsed "User-Generated Content Principles" (www.ugcprinciples.com) aimed at accommodating legitimate fair use of their material.
In a separate open letter written to YouTube, the coalition suggests two measures to protect all video contributors from unfounded takedown demands. First, all "counter-notices" sent by YouTube users protesting copyright takedown demands should be immediately reviewed by YouTube staff, and the video immediately restored if it is a clear case of fair use. Second, once a user has already provided a valid counter-notice, then YouTube should also review any further takedown notice issued to any video posted to the account.
"In clear cases of fair use, YouTube should stand firmly behind the interests of its user community," said von Lohmann. "YouTube has nothing to fear by hosting videos that do not infringe anyone's copyright."
In addition to EFF, the coalition includes the American Civil Liberties Union (ACLU); the ACLU of Northern California; the Citizen Media Law Project at Harvard's Berkman Center; Anthony Falzone, the executive director of Stanford's Fair Use Project; the Center for Social Media, School of Communication, American University; the Program for Information Justice & Intellectual Property, American University Law School; and Public Knowledge.
For the full letter to the television networks:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+networks.pdf
For the full letter to YouTube:
http://www.eff.org/files/filenode/ip_freespeech/letter+to+YouTube.pdf
For more on user-generated content and political speech:
http://www.eff.org/deeplinks/2008/08/election-approaches-do-your-part-pr...
Contacts:
Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
EFF Challenges Constitutionality of Telecom Immunity in Federal Court
Unconstitutional Law Cannot Shut Courthouse Door on Americans' Privacy Claims
San Francisco - The Electronic Frontier Foundation (EFF) Thursday challenged the constitutionality of a law aimed at granting retroactive immunity to telecommunications companies that participated in the president's illegal domestic wiretapping program.
In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) violates the federal government's separation of powers as established in the Constitution and robs innocent telecom customers of their rights without due process of law. Signed into law earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month.
"The immunity law puts the fox in charge of the hen house, letting the Attorney General decide whether or not telecoms like AT&T can be sued for participating in the government's illegal warrantless surveillance," said EFF Senior Staff Attorney Kevin Bankston. "In our constitutional system, it is the judiciary's role as a co-equal branch of government to determine the scope of the surveillance and rule on whether it is legal, not the executive's. The Attorney General should not be allowed to unconstitutionally play judge and jury in these cases, which affect the privacy of millions of Americans."
In the public version of his certification to the court, Attorney General Mukasey asserted that the government had no "content-dragnet" program that searched for keywords in the body of communications. However, the government did not deny the dragnet acquisition of the content of communications. In support of its opposition, EFF provided the court with a summary of thousands of pages of documents demonstrating the broad dragnet surveillance of millions of innocent Americans' communications. Eight volumes of exhibits accompanied the detailed summary, including eyewitness accounts and testimony under oath.
"We have overwhelming record evidence that the domestic spying program is operating far outside the bounds of the law," said EFF Senior Staff Attorney Kurt Opsahl. "Intelligence agencies, telecoms, and the Administration want to sweep this case under the rug, but the Constitution won't permit it."
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency (NSA). EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 47 of the outstanding lawsuits concerning the government's warrantless surveillance program.
The constitutional challenge is set to be heard on December 2.
For the full brief:
http://www.eff.org/files/filenode/att/immunityoppocorrected.pdf
For the summary of evidence:
http://www.eff.org/files/filenode/att/section1006summary101608_0.pdf
For more on the NSA spying:
http://www.eff.org/issues/nsa-spying
Contacts:
Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston@eff.org
Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org
EFF Challenges Bogus Patent on Internet Music Files
Illegitimate Patent Threatens New Innovations in Music Distribution
San Francisco - The Electronic Frontier Foundation (EFF) is challenging a bogus patent on Internet music files that could stifle new innovations in online music distribution.
Seer Systems was awarded this illegitimate patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. But in a reexamination request filed with the United States Patent and Trademark Office (USPTO) today, EFF and the law firm Day Casebeer Madrid & Batchelder show that descriptions of this technology were published a number of times before Seer Systems made its claim—including one in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.
"Mr. Jungleib extensively publicized techniques for music distribution in his book, and he did not seek a patent until after the methods entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "Patenting technology that has already been publicly disclosed and widely adopted opens the door to lawsuits against legitimate innovators who are creating new products in good faith."
In fact, Seer Systems has already sued Beatnik, Inc., a company creating music software for mobile devices. Beatnik and Seer later entered into a settlement, which means Beatnik may well have paid money for a license to an invalid patent. Enforcement of the illegitimate Seer patent also threatens to compromise at least two public media standards, MPEG4 and XMF.
"The United States patent system is meant to encourage, not stifle, innovation," said Paul Grewal of Day Casebeer. "We are confident that the Patent Office will take a close look at these meritless claims by Seer Systems."
Day Casebeer attorneys Renee DuBord Brown and Andy Chan were also instrumental in researching and drafting the reexamination request. Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided assistance by drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274.
The challenge to the Seer patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far, the project has killed one patent covering a system and method for creating digital recordings of live performances. Four more reexaminations are underway by the USPTO due to EFF requests.
For the full reexamination request:
http://w2.eff.org/patent/wanted/seer/seer-request-reexamination.pdf
For more on the Patent Busting Project:
http://www.eff.org/patent/
Contacts:
Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org
Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com
