EFF: EFFector Vol. 19, No. 9 March 3, 2006

[Guest guest]

EFFector Vol. 19, No. 9 March 3, 2006 editor

 

A Publication of the Electronic Frontier Foundation

ISSN 1062-9424 - In the 370th Issue of EFFector:

 

* Tell AOL To Drop Its Pay-To-Send Email Plan

* New House Bill Would Cripple Digital Radio Devices

* EFF Files Brief in P2P File Sharing Case, Fights

Expansion of Copyright Holders' Rights

* Support EFF: Fourth Amendment Shipping Tape and Mini-

Flashlights now Available From the EFF Store

* Summer Legal Internships at EFF

* Come See EFF at eTech, March 7-9, and SXSW, March 12-14

* " Cultural Environmentalism at 10 " Symposium at Stanford,

March 11-12

* miniLinks (15): DRM Down Under

* Administrivia

 

For more information on EFF activities & alerts:

<http://www.eff.org/>

 

Make a donation and become an EFF member today!

<http://eff.org/support/>

 

Tell a friend about EFF:

http://action.eff.org/site/Ecard?ecard_id=1061

 

effector: n, Computer Sci. A device for producing a desired change.

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* Tell AOL To Drop Its Pay-To-Send Email Plan

 

We're extremely troubled by AOL's plan to introduce a pay-

to-send email system that will guarantee access to AOL

customers' inboxes for senders who pay $0.0025 per mail to

escape anti-spam filters. Last week, we helped assemble a

coalition to persuade AOL to drop this misguided scheme.

 

Our worry is that AOL is trying to sell preferred access to

something that it does not own -- its members inboxes -- and

creating a delivery charge to email senders. The system

creates a perverse incentive for AOL to lower the benefits

of free email delivery and let its spam filters languish,

encouraging senders to switch to the for-pay alternative.

The company's first steps confirmed this, as they declared

(then hurriedly denied) that they would be dropping their

Enhanced Whitelist, a free service for trusted email

senders.

 

One might trust that the market will eventually sort this

out: rewarding ISPs that do not sell access to their users'

inboxes and that work to improve deliverability for

everyone, not just senders who pay. But the market speaks

slowly -- in the meantime, this system will push small

speakers into a choice of paying or not being sure that

their messages are getting through to their members. And

recipients often won't know what mail they are not

receiving, making it difficult for the market to work.

 

Many AOL users have significant impediments to moving away

from their provider, with its proprietary and closed

software. Meanwhile, other mail providers, like , are

already eyeing the revenue opportunities of pay-to-send.

Microsoft's Bonded Sender is actually worse in many ways.

 

Since AOL's members are also the members of the nonprofits

and other groups that would be hurt by this program, we

thought it should hear from them. That's why we pulled

together a diverse coalition of email senders to oppose

AOL's pay-to-send system. Over fifty groups with nearly 15

million members joined with us, including Free Press, the

U.S. Humane Society, the Gun Owners of America, MoveOn.org,

RightMarch.com, the AFL-CIO, and Computer Professionals for

Social Responsibility. Around 30,000 individuals have signed

our petition, including Tim O'Reilly, Michael Geist and

Chris Pirillo.

 

Earlier today, AOL made its first concessions in this

battle. We're sure that, with your support, it will make

more. If you'd like to help, visit Dear AOL, and help us

help AOL avoid making a terrible mistake.

 

Take Action, and Sign our Letter:

<http://www.dearaol.com/>

 

AOL Announces it is Dropping its Whitelist:

<http://www.the-dma.org/cgi/dispnewsstand?article=4405+++++>

 

Our Deep Link on AOL's system:

<http://www.eff.org/deeplinks/archives/004398.php>

 

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* New House Bill Would Cripple Digital Radio Devices

 

Yesterday, Rep. Mike Ferguson (R-N.J.) introduced the " Audio

Broadcast Flag Licensing Act of 2006, " H.R. 4861, a House

companion bill to the Senate's broadcast flag bill.

 

This bill would require that all future digital radios (both

terrestrial, like HD Radio, and satellite, like XM and

Sirius) " include prohibitions on unauthorized copying and

redistribution of transmitted content. " The FCC would be

tasked with working out the details.

 

This is the culmination of months of lobbying by the RIAA to

lock down the " record " button on your next radio. Despite

the fact that, under existing copyright law, building and

using digital radio recorders is clearly legal, thanks to

the Audio Home Recording Act.

 

H.R. 4861 is chilling in at least three ways. First, the

bill forces technology creators to get a license from the

FCC to build a radio receiver and incorporate DRM if the

receiver has a record button. In other words, satisfying the

Code of Federal Regulations would come before satisfying

customers.

 

Notice that " unauthorized " copying and redistribution will

be prohibited, rather than unlawful copying and

redistribution. Translation: unless you get permission, it's

forbidden, even if it would be a fair use or perfectly legal

under the AHRA.

 

The bill also says that the restrictions " shall not be

inconsistent with the customary use of broadcast content by

consumers to the extent such use is consistent with the

purposes of this act and other applicable law. " This freezes

fair use based on yesterday's " customary uses, " rather than

leaving room for tomorrow's innovators. Remember, time

shifting with your VCR was not " customary " in 1976, nor was

platform-shifting CDs to your iPod in 1997.

 

The RIAA's filings with the FCC on this topic back in 2004

are suggestive of what it considers permissible. Among the

many restrictions they've asked for:

 

* preprogrammed recordings must be for no less than 30

minutes;

* recordings cannot be divided into individual songs, nor

will you be allowed to jump between songs;

* recordings must be encrypted and locked to the individual

recording device (no transfers to your iPod!);

* recordings can only be triggered by a human pressing a

" record " button or by pre-programmed date-and-time (like

your old VCR!), which means no smart metadata driven

features like TiVo's " Wishlist. "

 

" RIAA believes that these rules appropriately balance the

interests of users in recording material off-the-air while

protecting the interests of the music industry.... "

Neither EFF nor the Copyright Act agrees.

 

For the House bill:

<http://eff.org/IP/Video/HDTV/fergus_bill.pdf>

 

To voice your opposition to the Senate companion bill:

<http://action.eff.org/site/Advocacy?id=205>

 

For more on the RIAA's attempts to cripple digital radio:

<http://www.eff.org/IP/Video/HDTV/?f=digitalradioflag.html>

 

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* EFF Files Brief in P2P File Sharing Case, Fights Expansion

of Copyright Holders' Rights

Last week, EFF filed an amicus brief on behalf of Denise

Barker, one of the more than 19,000 Americans who have been

sued by the record labels for file sharing. Ms. Barker,

represented by Ray Beckerman, is fighting back in court.

 

EFF's brief makes one narrow but important point: P2P file

sharing does not infringe a copyright owner's " distribution right. "

The major record labels have been suing file-sharers for

infringing both the reproduction right (for downloading) and

the distribution right (for uploading). Because most of

these lawsuits settle or go undefended, simply alleging

infringing copying should be enough. So why sue on both grounds?

 

Answer: the record labels are hoping to quietly expand the

" distribution right " to include Internet transmissions.

In other words, the major labels are trying to rewrite the rules

on the backs of people like Denise Barker,

hoping to get new leverage in other contexts.

 

The labels are aiming to stretch the distribution right in

two ways. First, they are claiming that " merely offering " to

upload a file infringes the distribution right, even if no

one ever takes you up on the offer. In other words, the

labels are hoping to fool a court into conjuring a brand new

beast: attempted copyright infringement. Judge Patel

rejected exactly this notion in the Napster case.

 

But even more importantly, the labels are hoping that the

courts will extend the distribution right to include

transmissions over the Internet. When a file-sharer uploads

a file, the file is transmitted and a copy retained at the

other end. While that may look like a " distribution, " the

Copyright Act does not give a copyright owner control over

all distributions, but rather only distributions of

physical, material objects ( " copies and phonorecords " ). So,

unless a file-sharer has unscrewed her hard drive and handed

it to another person, she is not infringing the distribution

right, because that right only extends to distributions of

physical objects.

 

Why does it matter? If transmission plus reproduction equals

distribution, then suddenly lots of people start looking

like distributors. When XM and Sirius sell you a receiver

that can record their broadcasts, or Comcast provides DVRs

to rs, they might find themselves running afoul of

this new, expanded " distribution right. " This, in turn,

would give the movie and music industries another weapon in

their fight against new technologies.

 

After decades of lobbying in Congress, the entertainment

industries already have plenty of weapons at their disposal.

Bullying individual file-sharers shouldn't get them new ones.

 

For EFF's brief:

<http://eff.org/IP/P2P/RIAA_v_ThePeople/elektra_v_barker/elektra-amicus-efiled.p\

df>

 

For more on the RIAA's lawsuits:

<http://www.eff.org/IP/P2P/riaa-v-thepeople.php>

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* Support EFF: Fourth Amendment Shipping Tape and Mini-

Flashlights now Available From the EFF Store

Grab some all new swag from the EFF Store!

 

*Fourth Amendment Shipping Tape*

Declare your right to privacy with new EFF shipping tape,

and remind prying eyes to stay out of your packages,

presents, suitcases, and more.

 

*Mini-Flashlights*

Last year, EFF exposed how many popular laser printers embed

tiny tracking dots on printouts. Using EFF pocket-sized

mini-flashlights, you can see these normally invisible dots for yourself.

T-shirts, hats, and more are also available. All proceeds go

to support EFF.

To visit the store:

<http://secure.eff.org/shop>

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* Summer Legal Internships at EFF

EFF invites outstanding law students to apply for summer

internship positions at our high-energy office in San

Francisco. Interns assist in all aspects of litigation and

advocacy, including legal research, factual investigation,

and drafting of memoranda and briefs, while also helping

with policy research, client counseling, and the development

of public education materials. EFF's docket ranges across

the technological and legal landscape, from file sharing to

electronic voting to the USA PATRIOT Act.

 

Summer internships are full time and last 10-12 weeks.

First and second-year law students are encouraged to apply,

including students enrolled in non-US schools.

The deadline to apply is March 15.

For details:

<http://www.eff.org/about/opportunities/legalinterns/>

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* Come See EFF at eTech, March 7-9, and SXSW, March 12-14

EFF will be at the O'Reilly Emerging Technologies Conference

in San Diego, California. Please visit our booth and grab

some EFF swag during exhibit hours -- we look forward to seeing you!

Tuesday, March 7, 2006

6:00PM - 7:30PM (Sponsor Reception)

Wednesday, March 8, 2006

10:00AM - 11:00AM

12:00PM - 2:00PM

3:00PM - 4:30PM

Located in the Exhibit Hall

 

Staff Attorney Jason Schultz and Activism Coordinator Danny

O'Brien will also discuss the policy and legal challenges

facing innovators, presenting a session entitled " America's

Next Top Tech Lawsuits. "

 

Thursday, March 09

2:35pm - 3:20pm

Located in Madeleine AB

And if you're heading down to Austin, Texas for the South-

by-Southwest (SXSW) conference and festival, stop by EFF's

booth on March 12-14.

 

For more information about eTech:

<http://conferences.oreillynet.com/etech/>

For more information about SXSW:

<http://2006.sxsw.com/>

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* " Cultural Environmentalism at 10 " Symposium at Stanford, Mar.11-12

Ten years ago, Professor James Boyle helped launch the

movement for more balanced intellectual property laws. In an

insightful article, Boyle suggested that the environmentalist

movement provided important lessons for those who

sought to protect the public's right to access culture.

 

On March 11-12, the Stanford Center for Internet and Society

will host a symposium on " cultural environmentalism. " The

symposium will feature many leading scholars, including EFF

Board Members Pam Samuelson and Lawrence Lessig as well as

EFF Advisor Mark Lemley. The symposium is free, though

registration is required.

For more information:

<http://cyberlaw.stanford.edu/conferences/cultural/index.shtml>

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* miniLinks

miniLinks features noteworthy news items from around the Internet.

~ DRM Down Under

 

Australian report examines flaws in America's DMCA, hoping

to implement less misguided anti-circumvention law.

<http://www.aph.gov.au/house/committee/laca/protection/report.htm>

 

~ Poll: Americans Reject Government Spying on Searches

Though split about Google turning over search data to the

feds, 65% of Americans oppose government monitoring.

<http://www.uconn.edu/newsmedia/2006/February/rel06011.html>

 

~ How Will the Chinese Remember America?

Journalist Rebecca Mackinnon considers how Internet

companies' (in)action today will impact tomorrow's Chinese

citizens.

<http://www.thenation.com/doc/20060313/mackinnon>

 

~ Music Exec: Dump the DRM!

Refreshing common sense from David Goldberg at the Music 2.0

conference.

<http://news.com.com/2061-10799_3-6042756.html>

 

~ TIA Data Mining Program Proceeds in Secret

Item number 437 on the laundry list of surreptitious

government privacy invasions.

<http://nationaljournal.com/about/njweekly/stories/2006/0223nj1.htm>

 

~ Center for Democracy and Technology Releases Report on

Digital Surveillance

Proposes stronger privacy protections in light of new

technology.

<http://www.cdt.org/press/20060222press.php>

 

~ RIAA and Broadcasters to Huddle on Audio Broadcast Flag

Nothing like negotiating about the future of digital radio devices

without a technology company or consumer advocate in the room.

<http://billboardradiomonitor.com/radiomonitor/news/business/digital/article_dis\

play.jsp?vnu_content_id=1002034785

 

>~ The Benefits of MySpace

While the media panics about the site's dangers, danah boyd

takes a much-needed look at social networking's value.

<http://www.danah.org/papers/AAAS2006.html>

 

~ Reflections on " Cultural Environmentalism "

James Boyle reflects on his seminal article about extreme

intellectual property laws, ten years after its publication.

<http://news.ft.com/cms/s/cc8e24ce-a242-11da-9096-0000779e2340,s01=3D1.html>

 

~ Copyright, a new Open Access Journal

" Peer-reviewed journal ... seeks papers on all aspects of

copyright in the Internet age. "

<http://www.copyrightjournal.org/index.php/Copyright>

 

~ Shareholder Value and Human Rights Aren't Mutually Exclusive

Boston Common Asset Management pushes companies to improve

conduct in China.

<http://www.socialfunds.com/news/article.cgi/article1931.html>

 

~ The Illustrious Employment of " Sue Hollywood "

She's EFF's Fifth Beatle, but with more office chairs.

At least that's what Zoominfo told us.

<http://www.zoominfo.com/Search/PersonDetail.aspx?PersonID=231235436>

 

~ Tormap: A View Into Your Privacy Protection

Tormap is a visual representation of the Tor network.

<http://www.0x2a.at/projects/tormap/>

 

~ U.C. Berkeley Deems Google Desktop 3 Unsafe

Campus security warns that " Search Across Computers " could

put private data on Google's servers.

<http://istpub.berkeley.edu:4201/bcc/Fall2006/905.html>

 

~ The Power of the Playlist

WashingtonPost.com highlights the cultural benefits of

allowing music fans to share their tastes.

<http://www.washingtonpost.com/wp-dyn/content/article/2006/03/01/AR2006030100635\

..html?referrer=emailarticle>

 

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* Administrivia

EFFector is published by:

The Electronic Frontier Foundation

454 Shotwell Street

San Francisco CA 94110-1914 USA

+1 415 436 9333 (voice)

+1 415 436 9993 (fax)

<http://www.eff.org/>

 

Editor:

Derek Slater, Activist

derek

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