[Fwd: EFFector 17.36: Don't Let "Intelligence Reforms" Take Away Your Rights!]

Paul G. Allen pgallen at randomlogic.com
Sat Oct 2 18:57:09 PDT 2004

FYI. Important legal updates, read on:

"St. Louis - Fair use was dealt a harsh blow today in a
Federal Court decision which held that programmers are not
allowed to create free software designed to work with
commercial products."


-------- Original Message --------
Subject: EFFector 17.36: Don't Let "Intelligence Reforms" Take Away Your Rights!
Date: Thu, 30 Sep 2004 20:15:21 -0700
From: EFFector list <editor at eff.org>
Reply-To: <editor at eff.org>
To: Paul Allen <pgallen at randomlogic.com>

EFFector  Vol. 17, No. 36  September 30, 2004  donna at eff.org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 308th Issue of EFFector:

  * Action Alert: Don't Let "Intelligence Reforms" Take Away
    Your Rights!
  * EFF Wins in Diebold Copyright Abuse Case
  * Dangerous Ruling Menaces Rights of Free Software
  * Court Strikes Down Key USA PATRIOT Provision
  * E-voting Victory - California Gets a Paper Trail!
  * Court of Appeals Revives Florida E-voting Lawsuit
  * Op-ed: The Induce Act - A Tax on Innovators
  * BayFF Event - "E-voting and the Upcoming Election,"
    Tuesday, October 12
  * MiniLinks (13): The Senate's Taste for RIAA Kool-Aid
  * Administrivia

For more information on EFF activities & alerts:

To join EFF or make an additional donation:

EFF is a member-supported nonprofit.  Please sign up as a
member today!

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* Action Alert: Don't Let "Intelligence Reforms" Take Away
Your Rights!

Congress is moving fast on two bills that purport to
implement recommendations in the 9/11 Commission
Final Report, but they include far more than anyone
bargained for.  In some provisions, the bills use
language lifted directly from the infamous "PATRIOT
II" draft legislation leaked to the public last year -
including a clause that would allow the government to
use secret foreign intelligence warrants and wiretap
orders against people unconnected to any international
terrorist group or foreign nation.  This poses
a dire threat to the Fourth Amendment, and it
doesn't belong in the 9/11 legislation.  Don't let
support for intelligence reform become a blank check
for law enforcement - tell Congress you oppose this
stealth attack on your constitutionally protected

Make your voice heard with EFF's action center:

Join EFF today:

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* EFF Wins in Diebold Copyright Abuse Case

Voting Machine Company Liable for Damages, Costs in
Landmark Ruling

San Jose - In a landmark case, a California district court
has determined that Diebold, Inc., a manufacturer of
electronic voting machines, knowingly misrepresented that
online commentators, including IndyMedia and two Swarthmore
college students, had infringed the company's copyrights.
This makes the company the first to be held liable for
violating section 512(f) of the Digital Millennium
Copyright Act (DMCA), which makes it unlawful to use DMCA
takedown threats when the copyright holder knows that
infringement has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for
Internet and Society Cyberlaw Clinic at Stanford Law School
sued on behalf of nonprofit Internet Service Provider (ISP)
Online Policy Group (OPG) and the two students to prevent
Diebold's abusive copyright claims from silencing public
debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs
hosting leaked internal documents revealing flaws in
Diebold's e-voting machines. The company claimed copyright
violations and used the DMCA to demand that the documents
be taken down. One ISP, OPG, refused to remove them in the
name of free speech, and thus became the first ISP to test
whether it would be held liable for the actions of its
users in such a situation.

"This decision is a victory for free speech and for
transparency in discussions of electronic voting
technology," said Wendy Seltzer, an EFF staff attorney
who worked on the case.  "Judge Fogel recognized the
fair use of copyrighted materials in critical
discussion and gave speakers a remedy when their
speech is chilled by improper claims of copyright

OPG Executive Director Will Doherty said, "This ruling
means that we have legal recourse to protect ourselves
and our clients when we are sent misleading or abusive
takedown notices."

In his decision, Judge Jeremy Fogel wrote, "No reasonable
copyright holder could have believed that the portions
of the email archive discussing possible technical
problems with Diebold's voting machines were proteced
by copyright...The Court concludes as a matter of law
that Diebold knowingly materially misrepresented that
Plaintiffs infringed Diebold's copyright interest."

Fogel's decision:

For this release:

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* Dangerous Ruling Menaces Rights of Free Software

Contract and Copyright Trump Fair Use and Competition in
BnetD Case

St. Louis - Fair use was dealt a harsh blow today in a
Federal Court decision which held that programmers are not
allowed to create free software designed to work with
commercial products.  At issue in the case was whether three
software programmers who created the BnetD game server -
which interoperates with Blizzard video games online -
were in violation of the Digital Millennium Copyright Act
(DMCA) and Blizzard Games' end user license agreement

BnetD is an open source program that lets gamers play
popular Blizzard titles like Warcraft with other gamers on
servers that don't belong to Blizzard's Battle.net service.
Blizzard argued that the programmers who wrote BnetD
violated the DMCA's anti-circumvention provisions and that
the programmers also violated several parts of Blizzard's
EULA, including a section on reverse engineering.

The Electronic Frontier Foundation (EFF), co-counsel for
the defendants, argued that programming and distributing
BnetD was fair use.  The programmers reverse-engineered
Battle.net purely to make their free product work with it,
not to violate copyright.

EFF Staff Attorney Jason Schultz said, "Consumers have a
right to choose where and when they want to use the
products they buy.  This ruling gives Blizzard the ability
to force you to use their servers whether you want to or
not.  Copyright law was meant to promote competition and
creative alternatives, not suppress them."

EFF will appeal the case, challenging the court's ruling
that creating alternative platforms for legitimately
purchased content can be outlawed.


For this release:

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* Court Strikes Down Key USA PATRIOT Provision

New York - The American Civil Liberties Union (ACLU)
won a tremendous victory for Internet privacy
yesterday in ACLU & Doe v. Ashcroft, a case challenging
the constitutionality of "National Security Letters" (NSLs)
under the USA PATRIOT Act.  The letters, issued directly
by the Department of Justice without any court oversight,
can be used to demand sensitive financial and
communications information about citizens, even if they
are not suspected of any crime.  When an Internet Service
Provider (ISP) receives an NSL, it is forbidden
from ever revealing its existence to anyone.

A federal district court in New York ruled that the
statute authorizing NSLs is unconstitutional and
barred the DOJ from issuing further NSLs.  US District
Court Judge Victor Marreo also found the gag provision
an unconstitutional prior restraint on protected

"Today's ruling is an important victory for the Bill of
Rights, and a critical step toward reining in the
unconstitutional reach of the Patriot Act," said Kurt
Opsahl, EFF staff attorney.  "The court recognized that
judicial oversight and the freedom to discuss our
government's activities, both online and offline, are
fundamental safeguards to civil liberties and
should not be thrown aside."

EFF wrote a friend-of-the-court brief in the case, joined
by several ISPs and privacy organizations.  The
decision will likely to be appealed to the 2nd Circuit
Court of Appeals in New York.

For this release:

Decision in ACLU & Doe v. Ashcroft:

EFF amicus brief in the case:

More about NSLs under PATRIOT:

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* E-voting Victory - California Gets a Paper Trail!

Early this month, we asked our California supporters for
help in getting California Governor Arnold Schwarzenegger
to sign legislation to put vital voting-security reforms
on the books - and this week, Governor Schwarzenegger
did just that.  Now, state law requires all electronic
voting machines to produce a voter-verifiable paper
trail by January 2006.  That makes California the
first state in the nation where paperless electronic
voting systems have been widely deployed that the law
requires that the machines be retrofitted or replaced.

This is an extraordinary victory, especially when you
consider how far we've come since the security
problems with e-voting machines first came to light.
We thank you for helping make California a safer place
to vote, and we will continue to give you updates on
how your actions help make our campaigns successful.
We'd also like to remind you that grassroots activism
needs people like you to spread the word - don't
forget to tell your friends and family about EFF!

"Schwarzenegger Signs Bill Banning Paperless Voting

More about e-voting:

Tell a friend about EFF today:

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* Court of Appeals Revives Florida E-voting Lawsuit

Florida - The Eleventh Circuit Court of Appeals on Monday
overturned a lower court's ruling in a case that
challenges the legality of Florida's paperless electronic
voting machines.  The federal suit, brought by Florida
Congressman Robert Wexler, argues that the use of the
machines violates constitutional guarantees of equal
protection and due process.  The Court of Appeals ruled
that the existence of a related lawsuit in Florida
state court does not prevent the federal district court
from hearing the challenge.  The decision returns the
case to the district court for further proceedings.

"This important challenge will now be decided on the
merits," said EFF Staff Attorney Matt Zimmerman, who
also noted the difficult task ahead of the district
court.  "Floridians will go to the polls in only 36
days, but a great deal of good can be done to improve
voting procedures in that time.  In the short term and
in the long term, we hope that the court requires a
voter-verifiable paper ballot for all Floridians."

For this release:

Eleventh Circuit ruling:

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* Op-ed: The Induce Act - A Tax on Innovators

By Fred von Lohmann
Senior Intellectual Property Attorney

The Senate Judiciary Committee recently released yet another
version of S. 2560, otherwise known as the Induce Act.  This
week, after facing a withering hail of opposition from
everyone other than the RIAA, the committee staffers are
reportedly working on yet another draft, making it the
fifth by my count.

Every draft released so far has suffered from the same
fatal flaw: each would haunt legitimate American innovators
while doing nothing to solve the peer-to-peer file-sharing
dilemma.  P2P vendors will simply move offshore (many
already have) and filesharers will turn to open source
applications (like Bit Torrent) that already circulate
freely in cyberspace.

It will be legitimate American innovators who are left
under the gun.  Vague new laws targeting "inducement"
or "dissemination" technologies will give entertainment
industry lawyers leverage over big technology companies
(like Apple, TiVo, and Intel) and a crushing hammer to
wield against small ones.

So let's call this what it is: a tax on innovation.
Technology companies would find themselves under
constant pressure from entertainment industry lawyers
waving their newly minted "inducement" law.  This means
many great products would be hobbled, and many others
would never be built.  Less flexible, less useful
products means fewer sales, lower revenues.  That's
a tax on our nation's technology companies, a damper
on earnings, a drag on competitiveness.

And all for nothing - this tax won't magically solve the
file-sharing dilemma, nor will it put a nickel into the
pockets of artists.

That's why the Amercian Conservative Union and National
Taxpayer's Union have both joined the long list of
public interest and technology industry groups opposing
the Induce Act.

I'm a copyright lawyer.  I believe in copyright.  But
copyright has never given an oligopoly of media companies
a veto over new technologies.  I urge you to call and
write your members of Congress.  Tell them that the
Induce Act - in any of its many guises - is a tax our
high technology economy doesn't need.

For the original version of this piece online:

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* miniLinks
miniLinks features noteworthy news items from around the

~ VeriSign Plans to ID Your Kids Online
How do you make kids safe from Internet predators?
According to VeriSign and the government-funded i-Safe,
you give them hardware keys that verify their age and

~ PubPat Busts Microsoft Patent
The Public Patent Foundation has succeeded in blowing
one of Microsoft's amazingly broad patents out of the
water.  Way to go!

~ The Senate's Taste for RIAA Kool-Aid
There's so much bad press about the Induce Act that we
can't keep up, yet Hatch & Co. remain stubborn:
(Washington Times)

~ More Induce Act in the News
The New York Times on today's negotiations:
(Registration unfortunately required.)

~ Switzerland Internet Voting Deemed a Success
By Swiss authorities, that is.  Security experts weren't
nearly as sure:

~ ACM Opposes Paperless E-voting
The world's oldest professional society of computer
scientists recently came out against voting machines
that don't provide a voter-verifiable paper trail:

~ IBM Puts Big Bucks Behind RFID
Big Blue will spend $250 million over the next five years
on its "pervasive computing" initiatives:
(Registration unfortunately required.)

~ IPac - Supporting Copyfighters in Congress
There's a brand new nonpartisan PAC that supports
legislators who stand up to the entertainment
industry on IP issues - meaning that you can help
the good guys get elected:

~ Bits vs. Discs: Plastic Is King - For Now
A European study says CDs rule - but predicts that digital
downloads will outsell them by the end of the decade:
(Washington Post; registration unfortunately required.)

~ The Long, Winding Road to Digital Hollywood
Movie studios and tech companies at the "Digital Hollywood"
conference pondered the perpetual problem: how to put
even stronger locks on the stuff you buy:

~ Innovating by Ear
EFF's own Annalee Newitz muses about how innovation

~ Biting the Hand that Feeds You
Fred von Lohmann on why suing your customers is (still) a
bad idea:

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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)

Donna Wentworth, Web Writer/Activist
  donna at eff.org

Membership & donation queries:
  membership at eff.org

General EFF, legal, policy, or online resources queries:
  information at eff.org

Reproduction of this publication in electronic media is
encouraged.  Signed articles do not necessarily represent the
views of EFF.  To reproduce signed articles individually,
please contact the authors for their express permission.
Press releases and EFF announcements & articles may be
reproduced individually at will.

Current and back issues of EFFector are available via the
Web at:

Paul G. Allen
Owner, Sr. Engineer, Security Specialist
Random Logic/Dream Park

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