EFFector 19.37: NSA Wiretapping Bills Stalled, For Now

[David Farber <dave () farber net>]

Begin forwarded message:

From: EFFector list <editor () eff org>
Date: October 3, 2006 12:44:21 PM EDT
To: farber () cis upenn edu
Subject: EFFector 19.37: NSA Wiretapping Bills Stalled, For Now
Reply-To: EFFector list <editor () eff org>

EFFector Vol. 19, No. 37  October 3, 2006  editor () eff org

A Publication of the Electronic Frontier Foundation
ISSN 1062-9424

In the 398th Issue of EFFector:

 * NSA Wiretapping Bills Stalled, For Now
 * Action Alert - Don't Let Cable Companies Ratchet Up
Restrictions!
 * Who Killed TiVoToGo?
 * More Updates from Congress, WIPO, and CA State
Legislature
 * MGM v. Grokster: More Bad News for Innovators
 * Calling Sony BMG's Bluff: Canadian Rootkit Settlement
Improved
 * miniLinks (9): US Cripples Online Poker and Gaming
Industry
 * 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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* NSA Wiretapping Bills Stalled, For Now

For the past few months, we've been urging you to tell
Congress to stop legislation related to the illegal NSA
spying program. These bills threaten vigorous judicial
oversight of the program, including EFF's case against AT&T,
and they could let the government off the hook for breaking
the law. Thanks to your tireless efforts, Congress adjourned
on Saturday without passing any of these dangerous bills.

Stalling the surveillance bills is quite an accomplishment,
but this is no time to rest on our laurels. In five short
weeks, Congress will be back, and so will this legislation.
The November election gives you a chance to rebuke those who
have supported illegal spying, and you can keep the pressure
on your representatives by visiting our Action Center:
<http://action.eff.org/fisa>

To learn more about EFF's case against AT&T for its role in
the spying program:
<http://www.eff.org/legal/cases/att>

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* Action Alert - Don't Let Cable Companies Ratchet Up
Restrictions!

Thanks to Hollywood and your cable provider, you'll face
"digital rights management" (DRM) restrictions on your TiVo
and other devices in the brave new world of high definition
(HD) and digital cable. That's bad enough, but the
restrictions could get even worse if cable companies can
evade certain pro-competitive policies. Take action now to
stop them.
<http://action.eff.org/cablecard/>

In 1996, Congress directed the FCC to clear the way for
useful, competitive alternatives to cable companies'
proprietary set-top boxes, which haves annoyed customers and
held up innovation for far too long. In the digital world,
those boxes help the cable companies and Hollywood ratchet
up limits on legitimate uses, like moving recorded content
to portable video devices.

But cable companies have been dragging their feet on
CableCARD, the credit-card size gadget meant to help create
set-top alternatives. Their latest trick: asking the FCC to
waive a rule that in effect requires their own set-top boxes
to use CableCard to unscramble digital cable signals. This
rule (known as the "integration ban") creates a more level
playing field for CableCard devices. Without it, cable
companies would be able to continue pushing their own
proprietary set-top boxes on customers, treating CableCard
devices (such as TiVo Series 3 HD) like second-class
citizens.

The CableCARD standard also prescribes awful restrictions,
but if the cable companies succeed in killing it off, their
set-top boxes won't face competition, and the DRM will get
much worse. Competition from the CableCARD helps keep the
cable providers' DRM in check -- after all, trying to put
tighter restraints on customers is a good way to lose them
to competitors.

Follow this link to tell the FCC that you support
competition in cable-compatible devices:
<http://action.eff.org/cablecard>

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* Who Killed TiVoToGo?

Digital Cable and Satellite DRM Harms TV Fans and Innovators

San Francisco - Digital Video Recorders (DVRs) have changed
the way millions of people watch television. But the new
TiVo Series 3 for HD lacks a feature that past versions have
had -- TiVoToGo, which allows users to move recorded shows
to a computer or other device.

In a report released today, "Who Killed TiVoToGo?", EFF gets
to the bottom of this digital murder mystery. The plot
includes Hollywood, the Federal Communications Commission
(FCC), and digital rights management (DRM) -- and it's an
ominous tale for television fans looking forward to the
widespread adoption of high-definition (HD) television.

"When you upgrade to HD TV, you will lose some of your
favorite features on other digital devices," said EFF
Activist Derek Slater, the report's author. "DRM
restrictions won't stop 'Internet piracy,' but they will
hamper your ability to watch recorded TV content wherever
and whenever you choose."

Both digital cable and satellite providers must transmit
their programming with DRM to satisfy Hollywood's demands --
and because of the Digital Millennium Copyright Act's (DMCA)
restrictions on unlocking DRM even for lawful uses,
innovators like TiVo have to get permission from Hollywood
and the TV providers before creating compatible devices.

TiVo Series 3 HD is one of many new devices that replace
your typical cable set-top box by taking advantage of
CableCARD technology. Because TiVo could not get permission
to include the TiVoToGo feature in conjunction with
CableCARD, the feature was removed.

"Had Hollywood and the TV providers obtained this kind of
veto power years ago, the original TiVo might never have
been created," said Slater. "Remember, Hollywood tried to
stamp out DVRs when they first started to become widespread,
suing DVR-maker ReplayTV into bankruptcy and comparing
commercial-skipping to 'stealing.' TiVoToGo is the latest
casualty in Hollywood's crusade against new technologies."

For the full report "Who Killed TiVoToGo?":
<http://www.eff.org/IP/pnp/cablewp.php>

Learn more about cable and satellite DRM:
<http://www.eff.org/IP/pnp/>

For this release:
<http://www.eff.org/news/archives/2006_10.php#004934>

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* More Updates from Congress, WIPO, and CA State Legislature

As mentioned above, Congress went into its pre-election
recess on Saturday. Along with stalling the NSA wiretapping
bills, your phone calls and letters to Congress helped stop
tech mandates like the broadcast flag, the fair use-crushing
Section 115 Reform Act, and the speech-chilling Deleting
Online Predators Act. Your efforts truly made a difference:
<http://www.eff.org/deeplinks/archives/004929.php>

Meanwhile, two huge victories for the public interest are
within reach at the World Intellectual Property Organization
(WIPO). The WIPO Broadcasting Treaty will get further
scrutiny at two future meetings, and the Treaty's overbroad
scope might be significantly narrowed. Member countries will
also continue dialogue on the WIPO Development Agenda.

Learn more about the most recent WIPO meetings here:
<http://www.eff.org/deeplinks/archives/004930.php>

Learn more about the Broadcasting Treaty and Development
Agenda:
<http://www.eff.org/IP/WIPO/broadcasting_treaty/>
<http://www.eff.org/IP/WIPO/dev_agenda/>

In local news, California's state legislature recently
passed a bipartisan, groundbreaking new law that would
institute tough privacy safeguards for Radio Frequency
Identification RFID chips embedded in state identification
cards. Unfortunately, over the weekend Governor Arnold
Schwarzenegger vetoed the Identity Information Protection
Act and prevented Californians from gaining control over the
personal information that will be broadcast by RFID-equipped
drivers' licenses, library cards, and other important ID
cards. While obviously disappointing, the fight's not over
yet -- EFF and our partners will work hard to get this bill
reintroduced and passed next year.

Read more about the veto:
<http://www.eff.org/deeplinks/archives/004931.php>

Learn more about the bill, SB 768:
<http://www.eff.org/Privacy/Surveillance/RFID/sb768_fact_sheet.php>

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* MGM v. Grokster: More Bad News for Innovators

The district court in the MGM v. Grokster case issued its
ruling last week, granting summary judgment in favor of the
entertainment industry plaintiffs against P2P software maker
StreamCast Networks (the other defendants, Grokster and
Sharman Networks, have settled). This comes 15 months after
the Supreme Court ruling that sent the case back down for
consideration under the newly-minted "inducement" theory.

EFF represented StreamCast from the beginning of the case
through the Supreme Court proceedings. After the Supreme
Court's ruling, we predicted that the new inducement theory
would have a chilling effect on innovators. Yesterday's
ruling bears out that fear.

In finding StreamCast liable for inducement, the court said:

"Thus, Plaintiffs need not prove that StreamCast undertook
specific actions, beyond product distribution, that caused
specific acts of infringement. Instead, Plaintiffs need
prove only that StreamCast distributed the product with the
intent to encourage infringement."

This is a remarkably broad statement, and it is at odds with
the Supreme Court's view that an intent to encourage
infringement must be accompanied by "clear expression or
other affirmative steps" beyond the mere distribution of a
product.

Here's the nightmare scenario for innovators: if you
distribute a product that can be used for infringement,
copyright owners sue and seek to comb through every document
in your company (emails, customer support records,
engineering notes, etc.) looking for anything that looks
like evidence of bad intent. If the lawyers find anything
(how well-trained is your customer support staff? did your
engineers have copyright debates in email? how did they test
the product?), they will argue that intent + distribution =
inducement -- even if you never advertised or publicly
encouraged infringing uses.

And don't forget, this process is expensive. It cost
SonicBlue three million dollars per quarter in legal fees in
a lawsuit brought by Hollywood over the ReplayTV DVR.

The district court's ruling is one more reason to suspect
that secondary liability rules in copyright are out of
balance and chilling innovation.

For this post and related links:
<http://www.eff.org/deeplinks/archives/004927.php>

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* Calling Sony BMG's Bluff: Canadian Rootkit Settlement
Improved

Thanks to the quick action of the Canadian Internet Policy
and Public Interest Clinic (CIPPIC), Canadian music fans are
getting a better deal from Sony BMG.

As EFF and others reported, the proposed Canadian Sony BMG
rootkit settlement lacks several important consumer
protection provisions (e.g. disclosure and testing
requirements) that were included in the U.S. settlement.
Recently, CIPPIC filed an objection to the proposed
settlement, challenging this glaring omission and the
woefully inadequate and misleading "explanation" that Sony
BMG offered for it. EFF submitted an affidavit in support of
the objection, setting the record straight on the context
and details of the U.S. settlement.

Taking note of the objection at a hearing on the settlement,
the Canadian court required Sony BMG to give effective prior
notice to Class Counsel and CIPPIC if it decides to use any
DRM in Canada that has not already been independently vetted
for security problems, as required by the U.S. Settlement.
Thus, CIPPIC will be able to intervene to protect Canadians
from becoming guinea pigs for DRM.

What's more, the settlement is not the end of Sony BMG's
legal woes in Canada: it may now face investigations from
Canadian regulators as well.

One of Sony BMG's lame excuses for the absence of stronger
consumer protections in the Canadian settlement was that it
only agreed to those provisions in the U.S. in response to
pressure from U.S. government entities. Since the Canadian
government wasn't leaning on Sony BMG as well, the label
figured it didn't have to do the right thing.

Sony BMG's effort to rewrite history backfired. Taking up
Sony BMG's implicit dare, CIPPIC filed complaints with five
government agencies, calling for investigations into Sony
BMG's conduct.

Now it's time for Canadian regulators to pick up where the
civil litigators left off, and make sure Canadian customers
-- and their computers -- get the protection they deserve.

For this post and related links:
<http://www.eff.org/deeplinks/archives/004923.php>

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* miniLinks
The week's noteworthy news, compressed.

~ US Cripples Online Poker and Gaming Industry
Ordinary Americans lose access to favorite hobby as
companies' stocks tumble.
<http://www.forbes.com/business/2006/10/02/internet-gambling-offshore- 
tech-ebiz-cx_po_1002gambling.html>

~ AOL Sued for Search Data Debacle
Class action alleges violation of privacy laws.
<http://business.guardian.co.uk/story/0,,1882473,00.html>

~ YouTube Strikes Deal With Warner Music
Deal will allow music videos to be distributed on site.
<http://www.pcmag.com/article2/0,1759,2017138,00.asp>

~ News Aggregation and Copyright
Google continues fighting with Belgian court...
<http://www.theregister.co.uk/2006/09/22/google_loses_news_appeal/>

~ Robots.txt, We Hardly Knew You
...as publishers try to make their sites harder to
aggregate.
<http://today.reuters.com/news/articlenews.aspx? 
type=internetNews&storyID=2006-09-22T132105Z_01_L22732625_RTRUKOC_0_US-M 
EDIA-PUBLISHERS-SEARCH.xml>

~ Macarthur Grant for Social Entrepreneur and Human Rights
Cyberactivist
Benetech Initiative provides computer security for
activists.
<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/09/19/ 
BAGQ1L89AB1.DTL&hw=macarthur&sn=001&sc=1000>

~ Lime Wire Strikes Back at RIAA
P2P company counters copyright claims with accusations of
innovation-stifling antitrust violations
<http://recordingindustryvspeople.blogspot.com/2006/09/lime-wire-sues- 
riaa-for-antitrust.html>

~ United States Snooping Tramples European Privacy
Belgium says data protection laws were violated.
<http://www.theregister.co.uk/2006/09/28/swift_us_privacy_violation/>

~ First E-Passport Readers Installed
Brace for identity theft.
<http://www.realgeek.com/369/us-deploys-first-e-passport-readers>

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* Administrivia

EFFector is published by:

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Editor:
Derek Slater, Activist
 derek () eff org       

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