Press Releases
EFF Kicks Off Campaign to Free Your Phone
Software Locks on Cell Phones Stifle Competition and Cripple Consumers
San Francisco - The Electronic Frontier Foundation (EFF) is asking for the public's help in its new campaign to free cell phones from the software locks that stifle competition and cripple consumers. The campaign's website is FreeYourPhone.org.
Hundreds of thousands of cell phone owners have modified their phones to connect to a new service provider or run the software of their choosing, and many more would like to. But the threat of litigation under the Digital Millennium Copyright Act (DMCA) has driven them underground.
The DMCA prohibits "circumventing" technical protection measures used to protect copyrighted works. But many cell phone manufacturers and service providers build these software locks to protect their business models instead of copyrighted material.
"Apple locks its iPhone to AT&T and prevents users from installing any software that has not been pre-approved by Apple," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "Consumers need a DMCA exemption to lift the cloud of legal risk that otherwise serves only to reduce competition and consumer choice."
Every three years, the U.S. Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the consumer harm. EFF has already filed exemption requests with the Copyright Office addressing the issues, but the rulemaking proceeding also accepts public comments about the proposals.
"Companies are using the DMCA to threaten customers out of exercising their consumer rights," said EFF Civil Liberties Director Jennifer Granick. "The Copyright Office needs to hear real stories about how these software locks frustrate consumers and developers."
On FreeYourPhone.org, people can sign EFF's petition to the Copyright Office and share their stories about cell phone frustrations. EFF will also help people officially submit those stories to the Copyright Office before the February 2 deadline. The Copyright Office will hold public hearings on the DMCA exemption requests in Washington, DC, and California in the spring, and the final rulemaking order will be issued in October.
For more on the Free Your Phone campaign:
http://www.FreeYourPhone.org
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
Community Organizations and Publishers Sue FBI and Other Agencies Over Illegal Computer Searches
Data Seizure Violates Constitution and Federal Law
San Francisco - The Electronic Frontier Foundation (EFF) and the ACLU of Northern California filed suit in federal court today to protect the privacy and free speech rights of two San Francisco Bay Area community organizations after the groups' computers were seized and the data copied by federal and local law enforcement. Both organizations, Long Haul and the East Bay Prisoner Support Group (EBPS), are publishers of information for social and political activists.
"We think the police should have treated us with the same respect due to any library whose public-access computers they suspected had been used for improper activity," said Jesse Palmer, a long-time participant in Long Haul operations. "Instead of asking for our assistance, they used their investigation as an excuse to break into Long Haul, search through our records, and seize our computers."
Long Haul is an all-volunteer collective that publishes a newspaper called Slingshot and provides community space, computer access, and a lending library of radical books to members of the public at its Infoshop in Berkeley, California. EBPS publishes a newsletter of prisoners' writings, distributes literature to prisoners, and occupies an office at Long Haul.
On August 27, 2008, University of California Police, the Alameda County Sheriff's Department and the Federal Bureau of Investigation (FBI) raided Long Haul's space in Berkeley, searching public and private rooms and cutting or unscrewing locks that protected private offices. The officers removed every computer in the building -- including those behind the locked doors of the Slingshot and EBPS offices -- even though the federal Privacy Protection Act specifically protects publishers from search and seizure except in the most narrow of circumstances.
"The Slingshot and EBPS computers were clearly marked and kept behind locked doors," said EFF Civil Liberties Director Jennifer Granick. "Yet the raid officers broke into the offices to take information these organizations collected and relied on to publish information to their readership. This is a blatant violation of federal law and the First and Fourth Amendments, interfering with the freedom of the press."
The search was not based on any allegations of wrongdoing on the part of Long Haul, EBPS or their members, and there have been no arrests. The seized computers were eventually returned, but investigators likely copied the data and continued their illegal search of the information.
"As long as the government keeps the copies they made of these hard drives, they are continuing to violate the privacy of everyone who wrote or stored a document on the computers." said Michael Risher, staff attorney at the ACLU of Northern California. "We filed this lawsuit to protect fundamental rights and to stop these illegal searches from happening in the future."
For the full complaint:
http://www.eff.org/files/filenode/longhaul_v_UC/longhaulcomplaint.pdf
Contacts:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Rebecca Farmer
Media Relations Director
ACLU of Northern California
rfarmer@aclunc.org
Patent Office Grants EFF's Request for Reexamination of Patent on Internet Music Files
Patent Busting Project Now Six for Six
San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate music patent from the U.S. Patent and Trademark Office (PTO). This was the sixth reexamination request filed by EFF's Patent Busting Project and the sixth time the PTO has granted EFF's request.
Seer Systems was awarded this 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. In the reexamination request, EFF, along with 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 in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib.
"Mr. Jungleib encouraged others to use the techniques he described in his book and sought patent protection only after those ideas had entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "It's unfortunate that Seer Systems didn't call Mr. Jungleib's book and the other prior art we cited to the PTO's attention before the patent issued."
Seer Systems now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine.
"Unmeritorious patents can place significant barriers in the way of innovation in the digital age," said Paul Grewal of the Day Casebeer firm. "The PTO quite rightly concluded that there are substantial questions of patentability raised by our request, and we look forward to the PTO's ultimate decision on this patent."
Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided substantial assistance on this reexamination request, carrying out detailed research, preparing an initial claim chart, locating and analyzing a critical piece of prior art cited in the request, and drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274, and the reexamination has been assigned the control number 90/009,299.
This reexamination request is part of EFF's Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has killed one patent covering a system and method of creating digital recordings of live performances. Five more patents are under review by the PTO due to the Patent Busting Project's efforts.
For the full reexamination order:
http://w2.eff.org/patent/wanted/seer/seer-reexam-granted.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
MBTA, MIT Students Join to Discuss Improvements to Automated Fare Collection System
Dismissal of Federal Lawsuit Brought by MBTA
Boston - Massachusetts Bay Transit Authority (MBTA) officials and three MIT student researchers announced today that, following the dismissal of a federal lawsuit brought by the MBTA against the MIT students, the parties agreed to work together to identify and help improve security in the MBTA's Automated Fare Collection System.
Pleased with the outcome, MBTA General Manager Daniel A. Grabauskas said, "This is a great opportunity for both the MBTA and the MIT students. As we continue to research ways to improve the fare system for our customers, we appreciate the cooperative spirit demonstrated by the MIT students."
"The best way to fix these problems is to approach them head on," said one of the students, RJ Ryan. "Now that we are on the same page, I am confident that we will be able to resolve the issues we discovered."
"We've always shared the goal of making the subway as safe and secure as can be," said student Zack Anderson. "I am glad that we can work with the MBTA to help the people of Boston, and we are proud to be a part of something that puts public interest first."
The MBTA and the researchers are working to make improvements to the fare collection system that will be as straightforward and inexpensive to address as possible.
The MIT students were represented in the lawsuit pro bono by the Coders' Rights Project of the Electronic Frontier Foundation (EFF). EFF was assisted in this case by the ACLU of Massachusetts Legal Director John Reinstein and Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown.
For more on MBTA v. Anderson:
http://www.eff.org/cases/mbta-v-anderson
Contact:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
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
