Intellectual Property Law

Ninth Circuit Upholds Privacy of Text Messages

Posted on June 18, 2008
Today the Ninth Circuit issued its opinion in Quon v. Arch Wireless, holding that "users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages." The Court concluded: The search of Appellants? text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope...

minilinks for 2008-06-18

Posted on June 18, 2008
Selectable Output Control (SOC) for Video Content: It's All About Control Jon Healy explains that the MPAA's petition to the FCC is really about gaining control over the next generation of video technology. Counter Spy Act -- Pro-Privacy or Anti-Piracy? A new bill in the Senate is designed to fight spyware -- but Ed Foster says it provides a loophole for software makers who would like the ability to remotely disable software that is suspected of being pirated...

Biting the Hand that Feeds (Traffic to) Them

Posted on June 17, 2008
Last week, the Associated Press sent the Drudge Retort seven DMCA takedown notices, demanding that the site remove excerpts of AP articles ranging from 33 to 79 words that were linked through to authorized copies of the AP stories. As as business matter, the AP's approach is curious...

HOWTO: Analyze Immunity Provisions in FISA Legislation

Posted on June 17, 2008
Members of Congress are currently negotiating language for Foreign Intelligence Surveillance Act (FISA) legislation, with reports saying that a deal is imminent. As early as this week, Congress may be voting on this legislation, which will determine whether or not telecommunications companies will be given immunity against lawsuits for their illegal participation in the President's warrantless surveillance program...

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Help Put Fair Use and Transparency on the OECD Internet Agenda!

Posted on June 17, 2008
EFF is currently attending the Organization for Economic Cooperation and Development's ministerial meeting on the future of the Internet Economy in South Korea. As ever when a new international venue for discussion of Net policy emerges, there's a strong risk that the usual vested interests will attempt to dominate and use it for their own agendas...

Sweden and the Borders of the Surveillance State

Posted on June 16, 2008
A proposed new law in Sweden (voted on this week, after much delay) will, if passed, allow a secretive government agency ostensibly concerned with signals intelligence to install technology in twenty public hubs across the country. There it will be permitted to conduct a huge mass data-mining project, processing and analysing the telephony, emails, and web traffic of millions of innocent individuals...

Report: Deal to Stop Courts From Ruling on Illegal Warrantless Wiretaps Imminent

Posted on June 13, 2008
Today The Hill and Congressional Quarterly are reporting that a deal has been reached on legislation to amend FISA, which will include retroactive immunity for telecommunications companies. Under the guise of a compromise, the legislation is designed to ensure that the only issue the courts will review is whether or not the President told the telecoms that their conduct was legal, but not whether the conduct actually was legal...

Anonymity Preserved for Creator of MySpace 'Spoof' Profiles

Posted on June 13, 2008
Cook County, IL - The president of a Chicago suburb has dropped his attempt to obtain the identity of an anonymous MySpace user after the Electronic Frontier Foundation (EFF) filed an amicus brief detailing how the petition violated both the First Amendment and a federal statute that protects the privacy of online users...

The Patent Office Can?t Do It All Alone: Public Participation Is Key to Ensuring Patent Quality

Posted on June 13, 2008
It?s not news that there are patents out there that never should have been granted. Whether it?s the ?invention? of entertaining a cat with a laser pointer, combining two well-known car features in a manner that offers no unexpected new outcome, or selling CDs of a live concert immediately after the show, the patent office allows some bad patents...

Judges Urged to Curtail Random Searches of Travelers' Laptops

Posted on June 12, 2008
San Francisco - The Electronic Frontier Foundation (EFF) and the Association of Corporate Travel Executives (ACTE) urged an appeals court today to review a flawed decision allowing random and invasive searches of travelers' computers at the U.S. border...

Judge Shoots Down Universal's Bogus Infringement Allegations

Posted on June 11, 2008
San Francisco - A federal judge has shot down bogus copyright infringement allegations from Universal Music Group (UMG), affirming an eBay seller's right to resell promotional CDs that he buys from secondhand stores. Troy Augusto, represented by the Electronic Frontier Foundation (EFF) and law firm Keker & Van Nest, was sued by UMG last year in the United States District Court for the Central District of California for 26 auction listings involving promo CDs...

Liberation Day for Promo CDs: Victory in UMG v. Augusto

Posted on June 11, 2008
In an important victory for the first sale doctrine, a federal district court today ruled that selling "promo CDs" on eBay does not infringe copyright. The court threw out a lawsuit by Universal Music Group (UMG), which had argued that the "promotional use only" labels affixed to these CDs somehow conveyed eternal ownership on UMG, making it illegal to resell the CDs (or even throw them away)...

Tell Congress "No Deal on Telecom Immunity!"

Posted on June 11, 2008
A new FISA bill is being drafted behind closed doors. Although it may appear quiet on the Hill right now, reports indicate that high-ranking Republicans and Democrats are hoping that a "compromise" foreign intelligence surveillance bill can be rushed through both the House and the Senate before the July 4th holiday -- maybe even next week...

Minilinks for 2008-06-10

Posted on June 10, 2008
What the FISA Debate is Not About Marty Lederman asks why reverting to the old FISA rules is supposedly such a problem for the intelligence community. ISP Plan to Block Child Porn -- Will There Be Chilling Effects? The New York Attorney General says 3 major ISPs have agreed to block child porn -- but the plan could set a precedent that challenges the Communications Decency Act's protections for online content hosts...

What Will Happen to Surveillance in August 2008

Posted on June 10, 2008
Yesterday the New York Times published an article, "Return to Old Spy Rules Is Seen as Deadline Nears," which allowed various Administration official to push their talking points supporting expanding their warrantless wiretapping powers. The main focus of the talking points is to suggest that Congress faces a deadline in August 2008 due to the expiration of the Protect America Act, and must pass surveillance legislation before that deadline...

Debunking Republican Spin on Fake Telecom Immunity "Compromise" in Today's NYT

Posted on June 10, 2008
Congressional Republicans have new legislation they're pushing as a "compromise" on telecom immunity. One of their central talking points has been that the bill would allow a court to review whether the telcos acted legally when they cooperated with the NSA's warrantless wiretapping program...

Three Media Mistakes on Warrantless Wiretapping

Posted on June 10, 2008
Here's a game you can play when reading or watching news about the President's warrantless wiretapping program. There are a few mistakes that the media keeps repeating over and over and over — see if you can spot them. Friday night's exchange on PBS News Hour between host Judy Woodruff and New York Times columnist David Brooks is typical: JUDY WOODRUFF: There was a little bit of news, David, today, that he -- maybe bigger than that -- that McCain agrees with the president that this wiretapping of Americans on their international phone calls and e-mails is legal...

Senators Dodd and Feingold Criticize Bond's False FISA "Compromise"

Posted on June 10, 2008
Thanks to Senators Dodd and Feingold for sending a great letter today to House and Senate leadership decrying the telco immunity "compromise" being offered by Republican negotiators: As we understand it, the [Republican] proposal would authorize secret proceedings in the Foreign Intelligence Surveillance to evaluate the companies' immunity claims, but the court's role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received "a written request or directive from the Attorney General or the head of an element of the intelligence community...

Supreme Court Victory for Patent First Sale Doctrine

Posted on June 09, 2008
The Supreme Court today issued a unanimous opinion in Quanta v. LG Electronics, its first ruling in 66 years addressing the patent exhaustion doctrine. Patent exhaustion is the patent law equivalent to copyright law's first sale doctrine -- once you buy a product, you own it and the patent owner generally can't interfere with your subsequent use...

Animal Welfare Group Battles Online Censorship of Rodeo Videos

Posted on June 09, 2008
Chicago - The Electronic Frontier Foundation (EFF) asked a federal court today to protect the free speech rights of an animal welfare group after its video critiques of animal treatment at rodeos were removed from YouTube due to sham copyright claims...

Leading Intellectual Property Attorney Joins EFF

Posted on June 09, 2008
San Francisco - Michael Kwun has joined the Electronic Frontier Foundation (EFF) as a new Senior Intellectual Property Staff Attorney, bringing years of copyright, trademark, and patent litigation experience to EFF's legal team. Kwun comes to EFF from Google...

McCain Revises Stance on Warrantless Wiretapping Again

Posted on June 07, 2008
Mere hours after a McCain spokesperson adopted the Bush Administration's flawed legal argument that courts have "recognized the President?s constitutional authority to conduct warrant-less surveillance" and that the "courts? findings supported the Bush Administration?s efforts in the wake of September 11, 2001," Senator John McCain said that: ?It?s ambiguous as to whether the president acted within his authority of not,?? he said, saying courts had ruled different ways on the matter...

McCain Adopts Bush Administration's Flawed Legal Analysis of Warrantless Wiretaps

Posted on June 06, 2008
ABC News reported today a new statement from McCain campaign spokesperson Tucker Bounds on the Senator's views on the executive power to conduct warrantless wiretaps in defiance of the restrictions of the Foreign Intelligence Surveillance Act (FISA): John McCain continues to believe, as he always has, that every President has the obligation to obey and enforce laws passed by Congress and signed by the President...

minilinks for 2008-06-06

Posted on June 06, 2008
Obama Should Lead on FISA A CBS News Blogger has some advice for the presumptive nominee: Get to work protecting civil liberties! FTC Investigates Big Brother The practice of compiling profiles on Internet users for purposes of targeted advertising is coming under scrutiny...

EFF Asks Judge to Block Unmasking of MySpace User

Posted on June 05, 2008
Cook County, IL - The Electronic Frontier Foundation (EFF) asked a judge in Illinois Wednesday to reject an attempt to identify an anonymous MySpace user who allegedly posted fake profiles of an Illinois official because the request would violate both the First Amendment and federal statute...

Laser Printers Found Guilty of "Making Available" Crimes

Posted on June 05, 2008
Two professors and a student at the University of Washington released a study today explaining "Why My Printer Received a DMCA Takedown Notice" [PDF]. They argue that DMCA takedown notices, used as the principle mechanism for enforcing copyright on the Internet, should be viewed skeptically...

McCain Campaign Staffed By Telecom Immunity Lobbyists

Posted on June 05, 2008
Senator John McCain's presidential campaign has strong connections to the high-powered lobbyists employed by AT&T and other telecommunications companies to escape from responsibility for violations of federal law, with paid lobbyists occupying prominant positions in the upper echelons...

Fair Use Defense Ruled "Likely to Prevail" in "Imagine" Copyright Infringement Suit

Posted on June 05, 2008
This week, the Stanford Center for Internet and Society's Fair Use Project struck a telling blow in the battle to protect fair use. A US District Judge issued an opinion holding that the producers and distributors of the documentary Expelled: No Intelligence Allowed are likely to prevail on their fair use defense in a copyright infringement suit brought by Yoko Ono...

Prince Issues One Takedown Too Many

Posted on June 02, 2008
It's a familiar story: A fan uploads a video shot at a Prince concert to YouTube, and that video promptly disappears the moment Prince's lawyers issue a DMCA takedown notice. It may seem silly to many fans, but the DMCA instructs content hosting sites to respond to copyright complaints by instantly removing disputed content...

Spying Telecoms Receive Billions in Government Contracts

Posted on June 02, 2008
The telecoms who are being sued for their cooperation in the government's illegal warrantless surveillance program have received billions in government contracts. According to Washington Technology magazine, Verizon received $1.3 billion, Sprint $839 million and AT&T $505 million in federal prime contract revenue for fiscal 2007, for a total of $2...

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