Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory

Deeplink by Fred von Lohmann

The district court in Atlantic v. Howell today denied the recording industry's motion for summary judgment against Mr. and Mrs. Howell, two lawyer-less defendants caught up in RIAA's litigation campaign against file-sharers. EFF filed an amicus brief on their behalf in the case and participated in oral argument.

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The likely next stop for Mr. and Mrs. Howell is a bench trial (neither party asked for a jury trial) in Phoenix, probably in September. EFF will continue to try to find them counsel.

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MSN Music Pulls the Plug on Customers

Deeplink by Hugh D'Andrade

Last week, Microsoft announced that it was leaving the paying customers of its MSN Music store out in the cold. Rob Bennett, the head of MSN Entertainment and Video Services, told customers in an email that “[a]s of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers."

In other words, the DRM copy protection that Microsoft and the major record labels insisted customers put up with has now drastically devalued that music -- at least for consumers who like to regularly upgrade their PCs. Come August 31st, if you buy a new computer, or even upgrade your OS, you’ll have to give up your MSN Music.

Bennett says the burden of managing its DRM servers and updating its code with every OS change created problems that were unmanageable. “We really feel, in the long term, what’s best for people who want to buy music from Microsoft is to move to Zune,” Bennett told CNET.

If Bennett is truly concerned with “what’s best for people,” he can start with ensuring that his customers can enjoy their legally purchased digital content on whatever machines they choose to use, on whatever OS or devices they have in the future. Indeed, if Microsoft doesn’t take immediate steps to provide that assurance, it’s hard to imagine why anyone would want to move to Zune and risk having their their digital content damaged the next time Microsoft decides its business interests require shutting down a music service.

“No one ever foresaw being in this situation,” Bennett told CNET. But if Microsoft had listened to consumer advocates and digital rights proponents, it might not have been so surprised to find that DRM is bound to cause problems. EFF Fellow Cory Doctorow gave a speech at Microsoft in 2004 in which he told executives:

There is no market demand for this "feature." None of your customers want you to make expensive modifications to your products that make backing up and restoring even harder. And there is no moment when your customers will be less forgiving than the moment that they are recovering from catastrophic technology failures.

EFF predicted that DRM-laden music could be rendered useless when companies stop supporting it in our paper “The Customer Is Always Wrong: A User’s Guide to DRM in Online Music”: “If the time comes that stores and devices no longer support your DRM, you're entirely out of luck.”

Among the many problems with DRM, its threat to musical longevity is one of the most insidious. Vinyl records created decades ago continue to play just fine, on whatever brand of player the music listener desires, thus insuring that our musical heritage is preserved for future generations. By making digital music rely on a license controlled by Microsoft or some other corporation, DRM makes it harder for us to share and preserve our history.

Of course, Microsoft is not entirely insensitive to the desire of its customers to hold on to their music. That’s why they’ve suggested that MSN Music customers strip the DRM from their music by burning it to CD, then re-importing it. The odd thing about this suggestion is that the more music you bought from Microsoft -- the more of a loyal customer you were -- the more time you are expected to spend sitting in front of your computer, burning discs and then re-importing them (degrading the sound quality in the process).

EFF is calling on Microsoft to do the right thing and ensure that their customers maintain their ability to enjoy the content they paid for. We’ve written an open letter to Microsoft demanding that they take steps to make things right with their customers, including issuing an apology, compensating MSN Music customers, and publicly committing to keeping Zune customers from being stuck in the same boat.

We’ll be watching to see how Microsoft responds. And meanwhile, we’ll continue to argue against DRM and other forms of content restriction that limit the rights of the public to access and control content they own.

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Defending Anonymity Online: Legislation Would Give Does a New Weapon in Battle Against Frivolous Lawsuits

Deeplink by Corynne McSherry

The California Assembly took a crucial first step yesterday towards closing a significant gap in protection for anonymous speech online. One of the most pernicious threats to anonymity is the filing of bogus lawsuits as an excuse to force ISPs to reveal speakers’ identities. Once such a lawsuit is filed, speakers who want to protect their anonymity must find a way to pay a lawyer to go to court and prevent disclosure of their personal information. That can be a real hardship—in fact, even the threat of having to go to court may intimidate many people from speaking out in the first place.

Fortunately, Assembly member Paul Krekorian with co-authors Sally Lieber and Anthony Portantino introduced AB 2433 to help answer this problem. If AB 2433 becomes law, speakers who successfully oppose the use of bogus litigation to obtain their identities could also demand attorneys' fees. The bill has now passed the Assembly unanimously and is moving on to the Senate. EFF, the California AntiSLAPP project, and the California Newspaper Publishers Association are all supporters of this bill.

Californians have long had an extra layer of protection against these lawsuits. Thanks to California’s anti-SLAPP law (SLAPP stands for Strategic Lawsuits Against Public Participation) they can file a special motion to strike any cause of action based upon their speech or petition activity. Courts are required to strike the action unless the plaintiff can show a probability of prevailing on the merits. As a deterrent to abusive lawsuits, a defendant who successfully moves to strike can also seek attorney fees and court costs. This procedure has been very successful in preventing abusive lawsuits designed to chill speech and waste precious court resources.

The Anti-SLAPP law works fine to stop the abusive subpoena if the underlying lawsuit is filed in California. But there’s a loop-hole: If the underlying lawsuit is filed outside California, at least one California court has read the law narrowly and held the Anti-SLAPP law is unavailable. As a result, speakers and companies in California are exposed to frivolous satellite litigation without the shield of deterrence provided by the Anti-SLAPP law.

AB 2433 would close this loophole by amending California law to provide that individuals whose information is subpoenaed can move to quash the subpoena (i.e, to prevent production of the requested information) and, if they succeed, seek compensation for the costs of going to court.

[Read the entire post]

minilinks for 2008-04-23

miniLinks by Hugh D'Andrade

• Feds to Collect DNA from Every Person They Arrest
  Anyone arrested by the feds would have their DNA included
  in a massive database.
  
• Chertoff Says Fingerprints Aren't 'Personal Data'
  Homeland Security Secretary Michael Chertoff told the
  Canadian press that fingerprints should not be considered
  private.
  
• Domestic Satellite Surveillance Coming Soon
  The Department of Homeland Security is set to begin using a
  new domestic spy program using advanced satellite
  technology.
  
• Warning on Storage of Health Records
  Two leading researchers warn that plans for electronic
  health records from Google and Microsoft pose a threat to
  online privacy.
  
• Alaska Joins Real ID Refuseniks
  The state legislature passed legislation rejecting the
  federal Real ID Act.
  
• Access Denied: Report on Internet Censorship Around the
  World
  A new study looks at Internet filtering practices in dozens
  of countries around the world.
  
• Pirate Bay Launches Uncensored Blogger Service
  The new service promises to provide a platform for free
  speech and unpopular ideas.
  
• Microsoft Proposes New Ad Privacy Structure
  The software giant has put forward five self regulatory
  principals to guide privacy policy for third party
  advertising.
  
• Newspapers Argue for First Amendment Right to Snoop on
  Readers
  A newspaper group claims attempts to limit behavioral
  targeting violate First Amendment principals.
  
• RIAA vs. Homeless Man
  The latest victim of an RIAA lawsuit is a man who lives in
  a homeless shelter.
  
• Six Misconceptions About Orphaned Works
  A blogger dissects the debates and exposes myths about
  Orphan Works legislation.
  

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No Cause Needed to Search Laptops at the Border

Deeplink by Jennifer Granick

On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between "routine" suspicionless searches and invasive "non-routine" searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

The defendant has time to petition the Ninth Circuit to rehear the case en banc, and the Court might agree to do so. The panel included a District Court judge sitting by designation. Additionally, the opinion sets up Arnold's reliance on cases protecting highly private areas like the home from suspicionless searches as a straw man and then knocks the argument down by pointing out "the simple fact that one cannot live in a laptop". This strained and strange argument suggests that Arnold is not the last word on border searches of laptops. In the meantime, travelers carrying their corporation's trade secrets, personal emails, or health and financial information are at risk of arbitrary and capricious fishing expeditions at the border.

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Stopping Abuse of the State Secrets Privilege

Deeplink by Tim Jones

Update: A victory! On Thursday, the Senate Judiciary Committee approved the State Secrets Protection Act. Thanks to everyone who contacted their Senator. Stay tuned to Deeplinks for more info as the bill moves through the Senate.

This week presents an opportunity to put a stop to one of the main tactics in the Bush administration's bag of sketchy legal tricks.

The State Secrets Privilege allows the White House to hide evidence of wrongdoing, and even to try to dismiss important lawsuits, with a unilateral claim that "State Secrets" are endangered. This doctrine was adopted by the Supreme Court in the McCarthy era, and was originally meant to be used only in exceptional circumstances. However, since 2001, the Bush Administration has repeatedly abused the Privilege in attempts to cover up potentially embarrassing or illegal activities.

For instance, when the ACLU sued the NSA in 2006, asserting that domestic spying activities were unconstitutional, the Justice Department misused the privilege to keep the court from deciding the case on its merits. And, right now, the Bush administration is trying to do the same thing to the EFF's lawsuit against AT&T and other lawbreaking phone companies.

Now, Congress may finally be ready to act to stop these abuses. On Thursday, the Senate Judiciary Committee will consider S.2533, the State Secrets Protection Act, which would bring much-needed judicial supervision that could help eliminate bogus state secrets claims, while carefully protecting legitimate interests in national security.

In the wake of the Act's introduction, there's been important media attention to SSP abuse. National Journal detailed how "the government has shown, time and time again, that it cannot be trusted not to use bogus national security claims to avoid exposure of misconduct or embarrassment." On Friday, The New York Times editorial board asked "Whose Privilege?," writing that the bill "would go a long way toward restoring the balance and the accountability and openness that are essential for a democracy." And this week, The New Yorker published an article discussing the problems states secrets abuse poses for targeted organizations like the Islamic charity Al Haramain.

If one of your Senators is on the Judiciary Committee, then you're uniquely positioned to encourage the Committee to approve this legislation and make a real difference in fighting government secrecy. Contact them now and tell them to support the State Secrets Protection Act.

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Global minilinks for 2008-04-20

Deeplink by Danny O'Brien

• EU Intends to Criminalize Terrorist "Provocations"
  Online speech will be included.
• The Creep of Overbroad Surveillance Laws
  RIPA, a UK bill intended to be used in serious crimes, was used to spy on a couple suspected of forging school application forms.
• French Assembly Seek to Ban Anorexia Speech
  Bill which criminalizes "incitement to excessive thinness by publicising of any kind" passes the Assembly, but needs Senate approval before becoming law.
• Repression 2.0
  Newsweek looks at how the Net is used in censorship and surveillance in Africa and China.
• P2P Bandwidth - An International Overview
  Michael Geist takes a look at "disproportionate" net use -- and finds the Bell Canada has far less of a problem than other countries who do not throttle their users.
• "Judicial scandal" in Pirate Bay case
  One of the police officers and chief witnesses in the Swedish Pirate Bay case now works for Time Warner.

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FCC Hearings at Stanford: Towards a Consensus on ISP Transparency?

Deeplink by Peter Eckersley

Yesterday, the FCC held a second hearing in its investigation of Comcast's use of forged RST packets to interfere with BitTorrent and other P2P applications. Free Press has a page linking to written testimony, statements, and audio and video recordings from the Stanford hearing.

At the previous hearing at Harvard Law School, Comcast attracted criticism for filling the auditorium with paid attendees. This time around, the telcos declined to participate at all. They sent proxies in their place: a conservative think tank called the Phoenix Center, freelance tech pundit George Ou, and one ISP: Lariat.net of Wyoming. It's a pity that ISPs aren't willing to participate in public debate about their own practices.

EFF has argued that the FCC should use its position of leadership to clarify that ISPs should, at the very least, provide adequate disclosure of any discriminatory network management practices that they deploy (we are also trying to get similar information by promoting independent testing of ISP networks with our Test Your ISP project). This kind of transparency is essential for a properly functioning marketplace: the public must be able to know when their software doesn't work because it's buggy, and when it doesn't work because of interference by an ISP. Without this information, users don't know which tech support line to raise hell with, whether they need to switch to new software, or whether they need to switch to a new ISP.

Transparency and responsiveness is also essential for application developers to understand the way that their applications will have to fit into ISPs' networks.

We were very pleased to see that requirements for disclosure and transparency seemed to command a near-consensus amongst the Commissioners and those testifying. The devil will be in the details, of course: will disclosures be informative enough for programmers to work with and for consumers to make good decisions?

One prevailing point of confusion in the discussion was the relationship between the lack of information about network traffic in general (eg, how much of Internet traffic is P2P? What kind of P2P?), the lack of information about Comcast's discriminatory network management practices (what percentage of BitTorrent seeds has Comcast been reseting? How has that varied at different times, and in different locations across the country?), and the lack of information about discrimination by other ISPs (Cox Communications, for instance, discloses that it uses "traffic prioritization" and "protocol filtering", but we don't know if its techniques are precisely the same as Comcast's, or whether it is planning to phase them out). These are all separate known unknowns and we know the FCC should look in different places if it wants to resolve them.

Another interesting question raised by Commissioner Tate was how an FCC disclosure obligation or principle would fit together with new software tools to test ISPs. We think the answer is that both are required: disclosures by ISPs and independent tests by the public are complimentary; neither of them will tell us everything we'd like to know about the network, and each of them will act as a cross-check for the other.

In the mean time, the threat of intervention by the FCC has caused Comcast to eat a great deal of humble pie. They're promising to work with BitTorrent Inc — we hope they'll also work with the wider Internet community — to find less discriminatory ways to manage their network.

In closing, we doubt that RST forgery will be the last "network management" practice to spark consternation and controversy. But we hope that in future, it won't take the best part of a year of wrangling and an FCC proceeding before transparency and common sense start to prevail.

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More Questions Swirl Around Mukasey's Emotional Plea for Warrantless Wiretapping

Deeplink by Rebecca Jeschke

The San Francisco Chronicle reports that lawmakers are still looking for answers about Attorney General Michael Mukasey's strange tale of an unmonitored terrorist phone call. Mukasey gave the account at a speech in San Francisco last month as part of an emotional plea to legalize warrantless wiretapping. But House Judiciary Committee members say this is the first they have heard of such a call.

As Chronicle reporter Bob Egelko has shown in his ongoing investigation, Mukasey's story is difficult for many experts to understand. Our legal analysis shows that the government had the authority to listen in on the call that Mukasey describes. Now, some members in Congress are speculating that the phone call may have already been investigated -- and found to have been actually intercepted, but simply not passed on to other intelligence agencies. We're pleased that both reporters and lawmakers are taking a hard look at Mukasey's story. Congress has some tough decisions to make about surveillance law in the coming months, and Americans should not lose their civil liberties to make up for the government's own failures.

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FBI General Counsel Questioned on EFF NSL Report

Deeplink by Kurt Opsahl

At a hearing of the House Judiciary Committee today, FBI General Counsel Valerie Caproni faced tough questions about the EFF Report on the abuse of a National Security Letter (NSL) to North Carolina State University at Raleigh.

In her testimony, Caproni speculated that this misuse of the NSL might have been the result of a "miscommunication." According to a 2007 report by Caproni's Office of the General Counsel, however, the FBI Charlotte Division "acted upon the advice and direction of FBIHQ [and] Charlotte personnel sought legal advice prior to the service of the NSL." FBI documents show that the NSL at issue was reviewed by the Senior Supervisory Special Agent for the Raleigh office, and then reviewed by the Special Agent in Charge of the Atlanta Division before being signed.

The Raleigh office also reported that "We had our CDC [Chief Division Counsel] and FBIHQ involved in in this throughout the process."

Later documents show that the field agents contacted FBI attorneys for "guidance concerning the matter and the questioned legality of the NSL," including the Acting Chief Division Counsel and legal counsel with the Office of General Counsel.

That's a whole lot of miscommunication.

Update
Rep. Nadler Questioning Caproni on NSLs:

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