Copyright lawsuits have a hard time in Texas, and rightly so

My original plan for todays blog was to talk about the EFF's Deeplinks blog post, "Don't Mess With Texas: Another Texas Judge Scrutinizes Mass Copyright Litigation." But before I could do that, I saw "6,374 DISMISSED John Doe Defendants cheer as the LFP Internet Group lawsuits go down in flames," on the TorrentLawyer blog.

I'm proud of the Texas judges who are upholding civil liberties. I'm not defending illegal file sharing, but I am defending the right of the accused to due process. The plaintiff's lawyers in these cases try to treat it more like a racketeering case, filing one suit against all of the John Doe defendants. As Corynne McSherry of DeepLinks put it:

In his orders, Judge Furgeson notes an essential feature of mass copyright litigation: unlike the normal case, in which a defendant is notified of early case developments and can intervene to protect his or her interests (such as by opposing a plaintiff's request to send out subpoenas), the Does in these cases are unlikely to have any idea a lawsuit has been filed, much less that the plaintiff is seeking their identity. Appointing an attorney ad litem for limited purposes is one way to address that problem and help ensure that the Does receive the same constitutional protections that must apply to any defendant, in any litigation.

Filing one suit for hundreds, even thousands of John Does allows the plaintiff's attorneys to proceed with the case without paying filing fees for most of the defendants. Most of the defendants also don't have lawyers, so there is little opposition to whatever the plaintiffs lawyers do. One thing Judge Furgeson has done is consider appointing attorneys for the John Does. He also severed each of the John Does from the primary case. noting that the plaintiff has not offered any proof of conpiracy, and just because a group of people are doing the same thing does not mean they are conspiring or working together.

Because the judge severed each of the defendents, if the plaintiff wants to sue them he will have to sue each individually, paying the filing fees for each case. That will get expensive very quickly. They would also have to file in the correct jurisdiction, another problem with the John Doe cases that have been filed recently in movie sharing cases.

The RIAA and MPAA have a right to protect their interests, but they need to realize that this is not 1980. Although they could look back to the late '70's and early '80's and maybe learn a few things. Then it was the VCR that was the doom of the movie industry. A solution was found then, and once the RIAA and MPAA quit panicking one will be found now. Independent musicians and film makers are using the very things causing traditional content providers problems to promote themselves as they've never been able to before. Instead of suing current and potential customers they should be finding ways to turn make use of the new technologies. And in case nobodies noticed, all their encryption and lawsuits haven't even managed to slow down file sharing. Instead of trying to cut heads off the hydra, they should be seeking a way to harness the beast.

House extends shredding of citizens rights. Battle moves to the Senate.

UPDATE: The Senate has passed a 3 month extension of the Patriot Act (the House extension is until Dec. 8th) with a Judiciary Committee hearing on S. 193 expected soon, according to a report by the <a href="http://epic.org/2011/02/senate-house-pass-limited-patr.html" target="blank">Electronic Privacy Information Center</a> (EPIC>.

On Valentines Day members of the House of Representatives showed their love for their constitutents by passing the Patriot Act extension. I talked last week about the reasons to let the Patriot Act expire. The Patriot Act is too open ended and gives the government too much power to spy on people - citizens and non-citizens without verifiable reason. According to the Electronic Frontier Foundation (EFF) the justification for last years extension by claiming a need to study proposed changes. But this years extension was passed without hearing or amendments, or apparently any reason given for not allowing discussion before the vote.

The House has passed the extension, but it still has to get through the Senate. The EFF reports that there are three Patriot Bills that could go to the floor - unless the Senate leadership chooses to put the House bill on the floor for a vote. All of these bills extend the Patriot Act, but only S.193 contains changes to provide oversight and accountability for the governments use of Patriot Act powers. The American Library Association supports S.193, which is a plus. The ALA has been fighting for stronger protections from the Patriot Act almost since it's inception. It also has the support of:

• Electronic Frontier Foundation
• Common Dreams
• Association of American Publishers
• PEN American Center

It's time to contact your senator. The senate website is here. There is a pull down menu in the upper right corner to get your senators contact information. If you're in Texas, I'll make it easy for you:

Cornyn, John - (R - TX) 517 HART SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-2934

Hutchison, Kay Bailey - (R - TX) Class I 284 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-5922

Tell your Senator not to extend the Patriot Act. Or if they feel it must be extended, the bill to back is S.193.

FBI may have violated U.S. citizens civil liberties 40,000 times since 9/11

The EFF released a report (pdf) last month on FBI violations of our civil liberties - of the rules that dictate how the FBI can investigate us. It covered the time period from 2001 to 2008, and showed disturbing trends in FBI investigations.

According to the EFF analysis of documents they received from freedom of information lawsuits the FBI may have had 40,000 violations in that time. The violations that were reported often weren't reported for years. The violations ranged from oversight guideline violations (failure to make reports to oversight organizations) to constitutional violations.

Part of the problem is that President Bush relaxed and even removed many of the rules on oversight of FBI operations. Without oversight any agency is likely to overstep it's bounds. President Obama has reinstated some of those controls, but hasn't clarified just what that means. This has some people concerned that the changes may be window dressing. But only time will tell.

Sony hammers researchers with DMCA

On the Deeplinks blog at eff.org Corynne McSherry and Marcia Hofmann report on the case of Sony vs Hotz. The implications of the case are broad reaching and frightening. Sony is suing researchers for the crime of exposing security holes. The researchers found security holes that allow users to run Linux on the Playstation 3 - something Sony allowed until recently.

This is the ultimate result of the Digital Millenim Copyright Act (DMCA). The DMCA makes it a crime to circumvent security measures on electronic media and devices - even if you have purchased the device and are exercising rights granted to you by other laws. Copyright fair use and modifying your own equipment on your own network for otherwise legal uses are two examples.

Sony is also suing under the Computer Fraud and Abuse Act (CFAA) because the the researchers violated the terms of use for the Playstation Network - even though it appears the researchers used their own network, not Sony's. As McSherry and Hofmann point out, Sony is suing the researchers for using computers (PS3's are computers) they bought in a way Sony doesn't like. If Sony wins this case we could find ourselves facing criminal charges for installing software that didn't come with the computer or connecting our television to the wrong provider.

You think that sounds farfetched? Sony is suing these researchers because they installed Linux on Playstation 3's. Something Sony allowed until recently, but now is willing to go to court to prevent. If Sony wins how long before Dell insists you can't install Linux on their computers, or HP decides that you can't install Open Office, AbiWord, or any other replacement for Microsoft software?

EFF fights bad patent, copyright claims

I'm going to close the week with another intellectual property post. From where I sit, it can be hard to see the downside of overly strict copyright law. Patent law, on the other hand, can be a little more clear. To people on the outside looking in, anyway. The problem is real. According to the EFF's "Patent Busting Project,"

Now some patent holders have begun to set their sights on the new class of technology users - small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees - fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentee's costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.

Here are some examples of patents considered bad by the EFF:

• One-click online shopping (U.S. Patent No. 5,960,411.)
• Online shopping carts (U.S. Patent No. 5,715,314.)
• The hyperlink (U.S. Patent No. 4,873,662.)
• Video streaming (U.S. Patent No. 5,132,992.)
• Internationalizing domain names (U.S. Patent No. 6,182,148.)
• Pop-up windows (U.S. Patent No. 6,389,458.)
• Targeted banner ads (U.S. Patent No. 6,026,368.)
• Paying with a credit card online (U.S. Patent No. 6,289,319.)
• Framed browsing; (U.S. Patent Nos. 5,933,841 & 6,442,574.) and
• Affiliate linking (U.S. Patent No. 6,029,141.)
  

Imagine if the holder of U.S. patent No. 4,873,662 - the hyperlink - were to sue all of the websites using hyperlinks. Every website would have to either pay up or cease to exist. Ok, they could refuse to pay up and continue to exist, but they'd be pretty boring without any links to click on.

The EFF also asserts that bad patents can also threaten free expression by allowing the patent holder to threaten anyone using the technology for any purpose, whether or not the use causes any harm to the patent holder, is used for non-commercial purposes, or the user had any idea they were even using an infringing technology.

The latest patent infringement claim on the EFF's radar is made by a company called Flightprep against a company called RunwayFinder. The EFF believes the copyright is one that should never have been granted. In their words:

this dispute is emblematic of a patent system that has lost sight of its purpose. Instead of spurring innovation by encouraging folks to invent new and better ways to do things, the system is often used to impede the development and use of interesting and valuable new tools and services.

And that is a problem. The EFF works both to fight bad copyrights and to educate people about their rights when it comes to intellectual property. To facilitate the latter they have formed a joint venture with several university law departments called the Chilling Effects Clearinghouse.

The Chilling Effects website has information for people who are active online, whether it's commenting on blogs, creating fanfiction, blogging or creating an information site about your favorite hobby, or giving your opinion of your favorite (or least favorite) person. But it's primary purpose is to catalogue, analyze and clarify cease and desist orders so if you receive one the legaleze won't overwhelm you.

The purpose of the Chilling Effects Clearinghouse isn't to enable IP infringement, it is to help people stand up to IP bullying. In the last twenty years it has become much easier to steal intellectual property. It has also become much easier to threaten and bully people into submission if what they're doing could hurt your business - regardless of whether they're doing anything wrong or not. Especially if you have a lot of money and they don't.

EFF wins Privacy case in Third Circuit

The Electronic Frontier Foundation has won a major victory protecting your cell phone location data from unreasonable seizure by the government. The decision by the Third Circuit Court of Appeals says that judges can deny requests for "D Orders and require a warrant to avoid possible Fourth Amendment complications.

This is more important than it looks at first glance. Though the case deals with cell phone location data, "D Orders" are used for a variety of communications related, including email. In the Third Circuit the government can no longer assume it will be able to demand communications from ISP's or other communications companies and automatically be granted access by the courts. The EFF is intending to use the decision in similar cases in other circuits, and expects others will, too.

This is a good decision. The governments position on "D Orders" is that they should be granted automatically. Now the government has to be sure of it's case before seeking information. They can still get information using "D Orders" but they have to make sure they won't run afoul of the Fourth Amendment by doing so. At least in the Third Circuit. That will decrease the number of cases that can be disputed on Fourth Amendment grounds, saving time and money. We can only hope other Circuits (or the Supreme Court) will agree with this decision.

There's a battle over how law enforcement can track us.

The EFF Deeplinks blog reports this week on three court cases regarding the feds use of cell phone and GPS tracking. Over all it looks promising, although the feds are predictably arguing that they should be able to track us using our cell phones and other geo-location technology without a warrant. But although it looks hopeful, we have to remain vigilant or have our right abridged, limited, and nullified.

It wasn't in the Deeplinks blog, but the News-Register.com reports that a federal appeals court in Washington D.C. ruled that D.C. police had violated Antoine Jones rights by placing a tracking device on his car without a warrant. The appeals court agreed with a lower courts opinion that a:

"reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination and each place he stops and how long he stays there."

A wise ruling on the part of both courts. If you can't get a judge to issue a warrant, you don't have enough reason to put a GPS on a car, any more than you have enough to tap a phone. There are reasons law enforcement is limited in it's ability to spy on us. We don't live in a police state. There has to be probable cause for police to search citizens, otherwise we could be pulled over and searched because the cop is having a bad day. Or because we post something critical of the President, or the mayor, or the police chief.

Apple patenting "traitorware"

Julie Samuels of the Electronic Frontier Foundations (EFF) "Deeplinks" blog has a lot to say about Apple's recent application for a patent on "Systems and methods for identifying unauthorized users of an electronic device." It doesn't sound too bad, does it. How do we identify someone who's stolen our $500 iPhone or our $1500 laptop? Use Apples newest development in user identification and monitoring, of course!

This technology is waaaay beyond what would be necessary to tell whether a device is stolen or not. With this "traitorware" as the EFF is calling it, Apple can collect and store biometric data on you, tell if the device has been jailbroken (and take action if it has), alert the appropriate parties of where the device is ... here's the EFF's partial list of what Apple's proposed system can do:

• The system can take a picture of the user's face, "without a flash, any noise, or any indication that a picture is being taken to prevent the current user from knowing he is being photographed";
• The system can record the user's voice, whether or not a phone call is even being made;
• The system can determine the user's unique individual heartbeat "signature";
• To determine if the device has been hacked, the device can watch for "a sudden increase in memory usage of the electronic device";
• The user's "Internet activity can be monitored or any communication packets that are served to the electronic device can be recorded"; and
• The device can take a photograph of the surrounding location to determine where it is being used.

In other words, Apple will know who you are, where you are, and what you are doing and saying and even how fast your heart is beating. In some embodiments of Apple's "invention," this information "can be gathered every time the electronic device is turned on, unlocked, or used." When an "unauthorized use" is detected, Apple can contact a "responsible party." A "responsible party" may be the device's owner, it may also be "proper authorities or the police."

There is no need for Apple, or anyone, to gather that much information about you as a purchaser of their products. This is information that can be used to steal your identity. We're not talking about a single biometric identifier - that would be bad enough. Apple want to gather your picture, voiceprint and heartrhythm at least, and maybe more. They want to monitor your internet usage - and log not just where you go, but record the actual data packets that are being sent to and from your device. They want to monitor memory usage for patterns that may indicate the device has been jailbroken - even though jailbreaking is legal.

With this patent application Apple is reaching far beyond any information they have a right or a need to gather. Pray the patent is denied and that Apple doesn't try to change it and reapply. This is an idea whose time will never come.