DeepLinks Archives, June 2006
Noteworthy news from around the internet.
USA Today: Five Intelligence Committee Members Say AT&T Participated in Spying Program
Deeplink by Derek SlaterIn a follow-up to its story last month on the NSA's illegal spying, USA Today backed off claims about BellSouth and Verizon, but confirmed its claims about AT&T, reporting that, "Five members of the intelligence committees said they were told by senior intelligence officials that AT&T participated in the NSA domestic calls program." AT&T told the paper that "The U.S. Department of Justice has stated that AT&T may neither confirm nor deny AT&T's participation in the alleged NSA program...."
Last Friday, EFF argued in court that our case against AT&T should be allowed to go forward. If you are as concerned as we are by the government's power grab over your personal information, please consider donating to EFF to help stop this illegal spying.
Blogging WIPO: Development Agenda Deadlocked
Deeplink by Gwen HinzeNegotiations on the WIPO Development Agenda came to a grinding halt today, after the Chair presented the Committee with a proposed recommendation for the WIPO General Assembly that raised concerns about procedural fairness and transparency. Brazil and Argentina announced that they had instructions from their governments to withdraw from the process due to unfair procedural treatment, and requested that the existing proposals be sent to the WIPO General Assembly to decide the future of the Development Agenda. The only thing that was clear by day's end is that the annual General Assembly meeting on September 25-October 3 will be very interesting indeed.
Read on for more analysis and the NGO Coalition's notes after the jump.
Copyfraud
Deeplink by Fred von LohmannProfessor Jason Mazzone at Brooklyn Law School has just published an interesting article on "copyfraud"--the common practice of putting false copyright notices on public domain materials.
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free.
We at EFF have some firsthand experience with the copyfraud problem. In 2004, music publisher Ludlow Music threatened JibJab with a lawsuit over their use of Woody Guthrie's "This Land is Your Land" in JibJab's "This Land" parody. After EFF got involved, our research revealed that the song has been in the public domain since 1973. That fact, however, didn't stop Ludlow from falsely asserting ownership rights more than 30 years later.
So what can be done about the pervasive mislabeling of copyrighted works?
Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends.
Sadly, signs indicate that our elected representatives are headed precisely the other way, extending the term of copyright and allowing the Smithsonian to lock up public domain materials, rather than making them more publicly accessible.
CDT Report on Spyware Enforcement
Deeplink by Fred von LohmannCDT has issued a useful report summarizing the actions taken so far by law enforcement agencies against spyware and adware vendors. Both federal (FTC and DoJ) and state (Attorneys General) actions are discussed. (As Prof. Eric Goldman points out, there are also a variety of civil cases that have been brought around the country.)
The report is a useful reminder to Congress that we may not need more new laws to tackle the spyware problem. As we've pointed out in the past, if Congress weighs in with new laws, those laws may do more harm than good (especially once the lobbyists for adware companies get into the game).
For those suffering with spyware and adware, enforcement of existing laws, coupled with a robust free market in anti-spyware tools, is more likely to provide relief than more federal laws. So kudos to federal and state authorities for enforcing existing laws against fraud and deceptive practices, and to CDT for bringing their efforts to light.
Blogging WIPO: The Development Agenda By The Numbers
Deeplink by Gwen HinzeFor most of day 2 of this week's meeting on the WIPO Development Agenda, we counted. We heard statements from Brazil, Chile, Uruguay, and South Africa about the importance of protecting the public domain, balancing intellectual property rights with human rights, and the very real problems facing developing countries . In between, we listened to developed countries reel off lists of the numbers of the 111 proposals that they would -- and in the case of the U.S., Japan and Mexico -- would not support.
There was no real engagement or debate on matters of substance; the developed countries have clearly decided that the real action will be at the September WIPO General Assembly. Meanwhile, Brazil on behalf of the Group of Friends of Development, continued carefully documenting how their 21 proposal document (PCDA/2/2) addresses and summarizes the proposals on the table.
The key question in this numbers game is what do you count? The "ticks" -- the statements in support of particular proposals? Or the "crosses" -- the no-go votes from a minority of developed countries? And how do you weigh them if there are votes on both sides and statements of qualified approval? There's clear support from a majority of countries for some proposals on WIPO's technical assistance program. There are both supporters and objectors on proposals on protecting the public domain and discussion of alternative approaches to innovation, such as free and open source software and creative commons licenses. And there's flat-out rejection of a swathe of proposals by the U.S., Mexico and Japan.
If you count the "ticks", then there's at least the prospect that we may see some long-needed and very appropriate reforms to the global intellectual property system including improvements to WIPO's technical assistance program. But if not, developed countries would effectively be given a veto over any development-oriented proposal, turning the last two years' work into nothing more than a process of elimination.
The NGO coalition's notes from day 2, posted after the jump, document these two parallel sets of discussions - the substantive and the numbers game. We'll provide our analysis of the numbers shortly.
Another Endangered Gizmo: Neuros MPEG4 Recorder 2 and the Analog Hole
Deeplink by Derek SlaterLast week, Congress held yet another hearing about "plugging the analog hole." Why is Hollywood so bent on making all analog-to-digital technologies obey copyright holders' commands? Because in an age of DRM on digital media, the analog hole is often the last refuge for fair use and for innovators trying to build new gadgets to take your rights into the digital age.
Take the Neuros MPEG4 Recorder 2 (the "R2"), an endangered gizmo that digitizes analog video output and records it to a CF card or a memory stick in MPEG4 format. The video can then be put on your computer, burned to DVD, moved to your video iPod, or slotted right into your Sony PSP. You can also output video to a display device from the R2.
In turn, the R2 helps you make legitimate use of your media and lawfully escape DRM restrictions -- examples after the jump:
Flags through Senate Committee Stage
Deeplink by Danny O'BrienWhile the Senate floor was
amendment, the Senate Commerce committee was letting another two—the broadcast flag and audio flag—slip
by. Senator Sununu spoke strongly against the flags, noting that we don't need technology mandates that inject federal bureaucrats into technology design decisions, but chose ultimately to withdraw his amendments to remove the audio and broadcast flags from the larger telecom package. But he said he may
propose to remove them again when—or if—the bill reaches the Senate
floor.
The bill still has
another day of mark-up in committee, focusing on the controversial
network neutrality proposals. But they won't be revisiting the flags. So, if the committee ultimately passes a telecom reform bill, the flags will be in it.
The good news for now is that the bill's chief sponsor, Senator Ted Stevens (R-AK), is
having second thoughts about the wisdom of sending the bill to the floor for a vote. "We have to get 60 votes, we don't have them right now," he told reporters after the mark-up hearing (60 votes are needed to defeat a filibuster in the Senate).
Meanwhile, in the House, the matching committee
the broadcast flag and audio flag. If
the flags get past the Senate, they'll have to pass muster in the House, too.
The MPAA and the RIAA sat on one side of the argument; satellite radio makers,
broadcasters, consumer electronics manufacturers and public interest groups on
the other. The best line? Gary Shapiro of the Consumer Electronics
Association:
"We have to stop measuring creativity by the financial interests of ten
companies."
Let your senators know what these technology mandates will do to the
creativity of technologists, tinkerers, and the rest of us.
tell them to vote against the flags, and stand against S.2686, the Stevens
telecom bill.
UPDATE: The Senate committee also apparently added a web labeling provision to the telecom bill during today's mark-up session. According to news reports, this provision would regulate the inclusion of sexually explicit material on web pages through restrictions on top-level homepages and labeling requirements on other pages.
Blogging WIPO: Development Agenda Talks Edge Forward
Deeplink by Gwen HinzeThis week WIPO is holding the final round of talks on establishing a WIPO Development Agenda. The WIPO Development Agenda offers the possibility of creating global intellectual property laws that balance rightsholders' interests with the human rights of the world's citizens for access to medicine and knowledge. The scope of proposals on the table is truly amazing. WIPO is being asked to create ways to protect the Public Domain and to rebalance its technical assistance to developing countries. But so far, the talks have been marred by procedural stalling and little agreement on specifics. Now it's crunch time. In the next five short days, WIPO member states have to come up with concrete recommendations for the September WIPO General Assembly.
The last meeting ended with a list of 111 proposals grouped into six thematic clusters. As expected, much of today's meeting was taken up with procedural wrangling on how to progress discussions. The Chair suggested grouping the proposals into three "baskets": those which had consensus, those which didn't, and those where consensus was emerging. This would have given developed countries a veto right, making it easier to eliminate proposals that didn't have universal approval. Not surprisingly, the 15 countries in the Group of Friends of Development rejected that approach.
Last Friday the Group of Friends of Development presented their own proposal: a list of 21 carefully framed recommendations picking up key elements from their own and others' proposals. But it was treated as a new document submitted past the deadline, and rejected as the basis for this week's discussions. Mexico attempted, unsuccessfully, to stop Brazil discussing it. France recorded a formal objection.
Discussions on the clusters in the original list finally started in the afternoon. The Chair got his wish: the U.S., Italy and France all helpfully identified the proposals that they would and would not support. Mexico followed suit, rejecting discussion of Chile's proposal on free and open source software and creative commons licenses. India spoke of the benefits already provided by free and open source software and suggested that WIPO should be involved in promoting open standards. Japan objected to protection of the Public Domain. Brazil noted that WIPO did not have the expertise or mandate to provide a guidebook on "best practices for economic growth" requested by the U.S. China joined with Brazil in noting that counterfeiting and piracy were global issues, not uniquely related to development.
So many yellow cards, and no score yet, but stay tuned. The NGO coalition's notes of day one are after the jump.
EFF Battles Government's Motion to Dismiss AT&T Surveillance Case
Deeplink by Rebecca Jeschke
EFF went to court today to tell a federal judge that the government should not be allowed to use the "state secrets privilege" to preempt our class-action lawsuit against AT&T. The Department of Justice argues that even if the NSA program is illegal, pursuing the case might expose "state secrets." However, in court today, EFF attorneys asked the judge to allow the case to proceed -- considering the privilege step-by-step instead of derailing the suit all together.
The courtroom was packed today with reporters and others closely watching this critical case. If you are as concerned as we are by the government's power grab over your personal information, please consider donating to EFF to help stop this illegal spying.
Watch video of the post-hearing press conference and see more pictures after the cut:
Telecom Log Jam - Broadcast Flag Decision Postponed
Deeplink by Danny O'BrienAs if it wasn't convoluted enough, the 159-page Stevens telecoms reform bill -- which now includes broadcast and audio flag provisions -- got buried under an avalanche of 200 proposed amendments today. At the markup committee meeting, senators became quickly mired in discussions over a tiny fraction of these proposals. The remainder of the amendments -- including Senator Sununu's proposal to throw out the flags wholesale -- were postponed until next Tuesday.
It's certainly getting messy in there. With Senator McCain proposing that the broadcast flag be tied to broadcaster support for a la carte cable channels, and heavyweights like Intel balking at the current language, even the flag's proponents may be having second thoughts about entering this cauldron of competing special interests.
If you have a senator on the Commerce committee, keep calling or writing to tell them to do the sensible thing, and snip out the extraneous flags from an already overcomplex bill.
