Gov't Files Statement of Interest in AT&T Case

Deeplink by Kurt Opsahl

The United States filed today a "Statement of Interest" in EFF's class-action lawsuit against AT&T, which accuses the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications.

The statement advises "the Court that the United States intends to assert the military and state secrets privilege in this action. In addition, the United States will also move to intervene and to seek dismissal of this case."

[Updated, 3:55 PM to include link to "Statement of Interest."]

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Felten: DMCA Does Real Harm to Real People

Deeplink by Derek Slater

The litany of DMCA abuses continues to grow, and yet some still deny the damage being done. Perhaps they'd think differently if they tried walking in the shoes of a company or individual who's stared down the barrel of DMCA claims.

Take Professor Ed Felten, who EFF has helped defend against the RIAA's threats. Responding to the Progress and Freedom Foundation's Solveig Singleton describing the case as having a "happy ending," Felten writes:

"To call the case of my colleagues and me a 'happy ending' takes some real chutzpah. Let's catalog the happy consequences of our case. One person lost his job, and another nearly did. Countless hours of pro bono lawyer time were consumed. Anonymous donors gave up large amounts of money to support our defense. I lost at least months of my professional life, and other colleagues did too. And after all this, the ending was that we were able to publish our work — something which, before the DMCA, we would have been able to do with no trouble at all.

In the end, yes, we were happy — in the same way one is happy to recover from food poisoning. Which is not really an argument in favor of food poisoning."

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RIAA, MPAA Launch Another Short-Sighted Attack on Campus Network File Sharing

Deeplink by Derek Slater

Today the RIAA and MPAA sent a nag letter to 40 university presidents, urging them to stop students from swapping music and movies on campus networks. Once again, rather than offering collegiate music fans "all you can eat" sharing plans in exchange for a sensible fee, the entertainment industry is trying to deputize universities to act as their unpaid on-campus police force.

It's not that universities haven't made an effort -- it's that more enforcement isn't a realistic answer. When Napster first rose to fame, many universities complied with the RIAA's demand that Napster be blocked. We all know how that turned out, with Napster replaced by an ever-growing number of file sharing technologies that are more popular than ever. Then universities were told to spend scarce dollars to offer students Windows-only, iPod-allergic, music services like the new Napster. Campus file sharing continued unabated. Three years ago, the RIAA companies began bypassing the university administrators and suing college kids directly. That, too, hasn't stopped students from sharing.

More policing of college networks won't stop file sharing, it will just push fans to use other technologies -- VPNs, hard drives, USB flash drives, recordable DVDs (and soon HD-DVD and Blu-Ray), and ad hoc wireless networks. In fact, the migration to sharing on "small worlds networks" like college LANs is a confirmation of one of the now-famous Darknet paper's [PDF] central predictions: so long as people are able to make and share copies, they are going to do so. In fact, RIAA chief Mitch Bainwol has already said he is more worried about CD burning than P2P. So, short of ubiquitous surveillance of all communications channels (including hand-to-hand swapping), stopping college music fans from sharing music is doomed to failure.

While cracking down on university LANs won't stop file sharing, it will likely compromise the privacy of the university community, as activities are monitored for file sharing. The RIAA and MPAA recommend adopting network filtering tools like Audible Magic, but they're trivial to evade. New restrictions on network use will also hinder legitimate network uses (already, some universities are blocking students from running any kind of servers). EFF has explained these problems at great length in its white paper, "When Push Comes to Shove: A Hype-Free Guide to Evaluating Technical Solutions to Copyright Infringement on Campus Networks."

College students are some of the most avid music and movie fans, yet the RIAA and MPAA continue to treat them like criminals. It's high time for a better way forward.

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Over Thirteen Million Americans Get News from Blogs

Deeplink by Kurt Opsahl

The Pew Internet and American Life project recently published a report regarding how Americans get their news online. According to the report, "Some 50 million Americans turn to the internet for news on a typical day, a new highwater mark for online news-gathering."

Moreover, "9% of all internet users have been to news blogs, with 12% of broadband users saying they've been to news blogs." A different Pew study shows that 73 percent of adults, or 147 million people, now use the Internet. So that's over thirteen million Americans reading news blogs, with countless more using news blogs around the world.

As more people turn to news blogs to keep informed about the events of the day, it becomes all the more important to defend the rights of online journalists. Support Bloggers' Rights.

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Petition Congress to Oppose RIAA Lawsuits, Forge Better Way Forward

Deeplink by Derek Slater

In response to the RIAA's irrational lawsuit campaign against the tens of millions of American P2P users, EFF set up a petition asking Congress to stop the madness and support ways for artists to get paid without fans getting sued. We're now close to our goal of 100,000 signatures, and, with your help, we hope to surpass it by a longshot and deliver the petition to Congress.

After over 18,000 lawsuits and counting, file sharing has continued to increase rapidly. Meanwhile, music fans, like 12 year-old Brittany LaHara, college student Cassi Hunt, and parent of five Cecilia Gonzalez, are being forced to pay thousands of dollars they do not have to settle RIAA-member lawsuits, and many other innocent individuals are being caught in the crossfire.

But resistance to this shameful crusade is growing. Just this week, many top Canadian musical artists, including Barenaked Ladies and Avril Lavigne, called the lawsuits "destructive and hypocritical," and a court threw out a lawsuit against 14 year-old Brittany Chan.

It's time for Congress to join the chorus of opposition and stop kowtowing to the content cartel. Sign the petition, and donate to EFF to support a better way forward.

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Creative Commons Releases Podcasting Legal Guide

Deeplink by Derek Slater

Want to use music in your podcast, but don't know whether or how to clear the copyright? What sort of permissions do you need before using an interview in your podcast? Want to allow people to redistribute your podcast freely?

Creative Commons' new Podcasting Legal Guide has answers to these and many more questions. Like EFF's Legal Guide for Bloggers, this handbook breaks down thorny legal issues in clear, easy-to-understand terms.

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Who Are You Calling "Pirate"?

Deeplink by Derek Slater

The Consumer Electronics Association created this terrific new ad, which will run in two Capitol Hill publications today. (Click the image for a larger version. PDF version here.)

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Top Canadian Artists Oppose DRM, Suing Fans

Deeplink by Ren Bucholz

Remember when all of those Canadian record labels recently walked out on CRIA, the Canadian equivalent of the RIAA? Well, a bunch of them just launched a new coalition for Canadian musicians called the "Canadian Music Creators Coalition," and their founding principles are pretty rad:

1. Suing Our Fans is Destructive and Hypocritical
2. Digital Locks are Risky and Counterproductive
3. Cultural Policy Should Support Actual Canadian Artists

This remarkably reasonable and consumer-friendly stance is backed by some big artists, too. For example: Barenaked Ladies, Avril Lavigne, Sarah McLachlan, Chantal Kreviazuk, Sum 41, Stars, Raine Maida (Our Lady Peace), Dave Bidini (Rheostatics), Billy Talent, John K. Samson (Weakerthans), Broken Social Scene, Sloan, Andrew Cash and Bob Wiseman (Co-founder Blue Rodeo).

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The Season of Bad Laws, Part 3: Banning MP3 Streaming

Deeplink by Fred von Lohmann

The Washington Post reports that Senators Feinstein (D-Cal.) and Graham (R-S.C.) have introduced S. 2644, dubbed the PERFORM Act, that is aimed at punishing satellite radio for offering its subscribers devices capable of recording off the air.

Buried in the bill, however, is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming format used by Live365, Shoutcast, and many smaller webcasters (like Santa Monica's KCRW and Seattle's KEXP). The streaming radio stations included in iTunes also rely on MP3 streams (since Apple isn't about to license the Real or Microsoft streaming codecs).

Today, webcasters that want to transmit major label music are entitled to do so under a statutory license (administered by SoundExchange) set out in section 114(d) of the Copyright Act. So long as they follow the rules and pay a royalty, webcasters can play whatever music they like, using whatever streaming format they like.

Under the current law, webcasters are forbidden from helping their listeners record the webcasts, and are required to use DRM only if the format includes DRM. The statutory license applies so long as:

[114(d)(2)(C)(vi)] the transmitting entity takes no affirmative steps to cause or induce the making of a phonorecord by the transmission recipient, and if the technology used by the transmitting entity enables the transmitting entity to limit the making by the transmission recipient of phonorecords of the transmission directly in a digital format, the transmitting entity sets such technology to limit such making of phonorecords to the extent permitted by such technology.

The PERFORM Act would change that, requiring webcasters to use DRM that restricts the recording of webcasts. That means no more MP3 streams if you rely on the statutory license. Under the bill, the statutory license would only be available to a webcaster if:

[114(d)(2)(C)(vi)] the transmitting entity takes no affirmative steps to authorize, enable, cause or induce the making of a copy or phonorecord by or for the transmission recipient and uses technology that is reasonably available, technologically feasible, and economically reasonable to prevent the making of copies or phonorecords embodying the transmission in whole or in part, except for reasonable recording as defined in this subsection.

What constitutes "reasonable recording," you ask? Well, reasonable recording is basically the feature set offered by analog cassette decks in the 1970s:

A `reasonable recording' means the making of a phonorecord embodying all or part of a performance licensed under this section for private, noncommercial use where technological measures used by the transmitting entity, and which are incorporated into a recording device (i) permit automated recording or playback based on specific programs, time periods, or channels as selected by or for the user; (ii) do not permit automated recording or playback based on specific sound recordings, albums, or artists; (iii) do not permit the separation of component segments of the copyrighted material contained in the transmission program which results in the playback of a manipulated sequence; and (iv) do not permit the redistribution, retransmission or other exporting of a phonorecord embodying all or part of a performance licensed under this section from the device by digital outputs or removable media, unless the destination device is part of a secure in-home network that also complies with each of the requirements prescribed in this paragraph.

If the PERFORM Act becomes law, webcasters who use the statutory SoundExchange licenses to play music would have to give up MP3 streaming in favor of a DRM-restricted, proprietary formats that impose restrictions on any recordings made. So much for great time-shifting technologies like Streamripper and RadioLover.

[UPDATED to reflect bill number and language as introduced in the Congressional Record.]

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The Season of Bad Laws, Part 2: Criminal Copyright Infringement, Drug War Style

Deeplink by Fred von Lohmann

The Department of Justice is pushing for legislation that would expand the scope of, and stiffen the penalties for, criminal copyright infringement. The legislation has not yet been introduced, but the relevant subcommittee of the House Judiciary Committee has quietly circulated a draft bill based on the DoJ wish list. (A similar bill was circulated in November 2005, along with a "section-by-section" analysis apparently prepared by DoJ to explain their requests. The new bill goes farther than the previous version.)

The DoJ proposal is an outrage.

Keep in mind that criminal copyright infringement is no longer limited to situations involving commercial piracy. Thanks to laws like the No Electronic Theft (NET) Act and the Family Entertainment and Copyright Act (FECA), the feds can now bring criminal charges against people for simply uploading a single "pre-release" song (as two Ryan Adams fans discovered last month when they were brought up on federal charges for uploading tracks from pre-release promotional CDs).

Most of the changes sought by DoJ fall into two broad categories: (1) making it easier to convict people of criminal copyright infringement by eliminating the inconvenient necessity of proving that actual infringement took place; and (2) increasing the financial and penal penalties when someone is convicted.

This guarantees one result: more innocent people will be convicted. After all, if you're wrongly accused, but you know the feds don't have to prove their case and you're facing serious jail time, you're more likely to accept a plea bargain.

In fact, DoJ will have an easier time convicting you of criminal charges than civil litigants will have suing you for money. This is exactly backwards. Before they throw people in jail for copyright infringement (especially where the infringement does not involve a commercial motive), the feds should have to prove their case, just like copyright owners in civil cases. They should have to prove, among other things, that infringement took place, that it took place within the applicable statute of limitations, and that the work was properly registered.

Is it too much to ask that DoJ actually do its homework and prove its case before it imprisons people and seizes their assets for uploading a Ryan Adams song?

The draft bill includes the following changes to copyright's criminal provisions:

• Makes attempted copyright infringement a criminal offense. This is unprecedented in American copyright law.
• Makes conspiracy to commit copyright infringement a criminal offense. Aiding and abetting is already prohibited under existing law, as is contributory infringement, so this appears designed to enable prosecutions where no actual infringement ever took place.
• Empowers law enforcement with the same criminal and civil forfeiture powers used in drug prosecutions.
• Authorizes FBI wiretapping (including of email, internet activity, etc.) in criminal copyright infringement cases.
• Stiffens penalties in the "anti-bootlegging" statute that prohibits recording of live concerts, despite the fact that the law has been declared unconstitutional by a New York federal court (the government has appealed).
• For criminal prosecutions, eliminates the requirement that a work be registered before a case can be commenced.
• Dramatically increases the maximum prison sentences applicable to most criminal copyright provisions, including the anti-camcording laws enacted just last year.

In addition to the criminal provisions, the DoJ proposal also makes the following general changes, which would be available in both civil (think RIAA, MPAA) and criminal cases:

• Expands existing ex parte seizure remedies available to copyright owners to include seizure of "records documenting the manufacture, sale, or receipt of [infringing] items." You can expect the MPAA and RIAA to argue that this includes server logs, email, customer lists, and similar records.
• Prohibits exports of goods that are infringing or would have been infringing if the U.S. Copyright Act had applied. Current law already prohibits imports, as well as domestic reproductions, distributions, and performances. So targeting "exports" really addresses exports of works that would not otherwise be infringing under U.S. law. Another example of expanding a copyright owner's rights without any justification.
• Defines "traffic" under the DMCA to mean "to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of." By explicitly adding "possession" to the definition of "traffic," this expands the DMCA (when experience tells us the DMCA needs to be narrowed).

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