EFFector Vol. 14, No. 4 Mar. 5, 2001 editor@eff.org

EFFector Vol. 14, No. 4 Mar. 5, 2001 [email protected]

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

IN THE 164th ISSUE OF EFFECTOR (now with over 26,500 subscribers!):

* EFF Announces Winners of 2001 Pioneer Awards
* 9th Circuit Napster Ruling Requires P2P Developers to Ensure No
One Misuses Their Systems
* EFF & ACLU-WA Defend Pseudonym-Using Message Board User
* EFF Questions Pacifica's SLAPP Tactics
* Administrivia

For more information on EFF activities & alerts: http://www.eff.org
_________________________________________________________________

EFF Announces Winners of 2001 Pioneer Awards

Electronic Frontier Foundation Press Release March 5, 2001

FOR IMMEDIATE RELEASE

Mon., Mar. 5, 2001

ELECTRONIC FRONTIER FOUNDATION (EFF) PIONEER AWARDS HONOR INTERNET
LUMINARIES

Bruce Ennis, Seth Finkelstein, and Stephanie Perrin Presented Awards
at EFF's Tenth Annual Pioneer Awards Ceremony

Contact: Katina Bishop, Electronic Frontier Foundation
(415) 436-9333 ext. 101 or
(617) 492-1234 - during CFP from 3/5 - 3/9

Monday, March 5, 2001, Boston, MA -- The ceremony for EFF's Tenth
Annual Pioneer Awards will take place at the New England Aquarium on
March 8, 2001, in conjunction with the Computers, Freedom and Privacy
conference this week in Cambridge, MA. The online civil liberties
group chose to honor Bruce Ennis, in appreciation of his lifelong
commitment to the legal defense of free expression and the First
Amendment; Seth Finkelstein, for his dedication to raising the level
of public awareness about the dangers to free expression posed by
Internet content blocking and labeling systems; and Stephanie Perrin,
for her instrumental and long-term role in advancing understanding and
protection of privacy internationally and in her home country of
Canada.

Since 1991, the EFF Pioneer Awards have recognized individuals who
have made significant and influential contributions to the development
of computer-mediated communications or to the empowerment of
individuals in using computers and the Internet.

Bruce Ennis - Described by the legal press as one of the most
influential attorneys in the country, Bruce Ennis devoted much of his
life and practice to defending intellecual freedom. Bruce argued many
crucial First Amendment cases before the U.S. Supreme Court and lower
courts, including the landmark free speech victory in ACLU v. Reno
(the "Communications Decency Act" case). Sadly, Ennis passed away
earlier this year, on but his contributions to free expression and
press in the Internet, news reporting, political and other spheres
live on.

Seth Finkelstein - Anti-censorship activist and programmer Seth
Finkelstein spent hundreds of unpaid and uncredited hours over several
years to decrypt and expose to public scrutiny the secret contents of
the most popular censorware blacklists. Seth has been active in
raising the level of public awareness about the dangers that Internet
content blocking software and rating/labeling schemes pose to freedom
of communication. His work has armed many with information of great
assistance in the fight against government mandated use of these
systems.

Stephanie Perrin - internationally recognized privacy and freedom of
information expert Perrin spent 5 years engineering Canada's inspiring
new privacy law (PIPEDA), among 15 years of important privacy and
cryptography policy work, and has bridged the government, nonprofit
and commercial sectors in privacy technology, policy, standards and
education. Perrin has also been involved in privacy protection issues
at the global scale, on the OECD Security and Privacy Committee, and
made signifcant contributions to understanding technical privacy
protection issues.

"We, as a community of people respecting rights in technology, do not
take enough opportunity to honor our own," stated Shari Steele,
Executive Director of the Electronic Frontier Foundation. "Bruce,
Stephanie and Seth are shining examples of the spirit and energy that
makes good things happen. We're proud to present them with this year's
Pioneer Awards."

The judges for this year's EFF Pioneer Awards were: Herb Brody (Senior
Editor, Technology Review); Whitfield Diffie (Distinguished Engineer,
Sun Microsystems); Moira Gunn (Host, "Tech Nation", National Public
Radio); Donna L. Hoffman (Associate Professor of Management,
Vanderbilt University); Peter G. Neumann (Principal Scientist, SRI
Intl.; Moderator, ACM Risks Forum); Drazen Pantic (Media & Tech.
Director, NYU Center for War, Peace, & the News Media); Barbara Simons
(past President, Association for Computing Machinery, & U.C. Berkeley
Distinguished Alumnus); Karen G. Schneider (Technical Director,
Shenendehowa Public Library, NY).

The Tenth Annual EFF Pioneer Awards ceremony will be held on the
evening of March 8th, 2001, at the New England Aquarium. The ceremony
and reception are made possible by generous contributions from
Guardent, Michael Golub and Mark Belden, MEconomy, Inc, Organic, Inc,
Privada, Inc., and Sun Microsystems.

For more information on EFF Pioneer Awards, see:
http://www.eff.org/awards/pioneer.html

For more information on the Electronic Frontier Foundation see:
http://www.eff.org

About EFF:

The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded
in 1990, EFF actively encourages and challenges industry and
government to support free expression, privacy, and openness in the
information society. EFF is a member-supported organization and
maintains one of the most linked-to Web sites in the world:
http://www.eff.org

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9th Circuit Napster Ruling Requires P2P Developers to Ensure No One Misuses
Their Systems

Supreme Court's "Betamax" Defense to Secondary Liability Narrowed

Appeals Court Requires Judge to Rewrite Software to Prevent Infringement

By Robin D. Gross, EFF Staff Attorney for Intellectual Property

Like the district court before it, the 9th Circuit Court of Appeals
found little sympathy for Internet music swapping service Napster,
finding it liable for both contributory and vicarious copyright
infringement. The decision chipped away at the famous holding in the
"Betamax" case where the Supreme Court held that the movie studios
could not outlaw a technology (VCRs) that was capable of substantial
non-infringing uses. The appellate court then ordered Napster to
police and control its systems to prevent future infringement and sent
the case back to the district court for specific rulings about how
Napster must rewrite its software to meet the court's requirements.

This ruling marks a stark departure from the Supreme Court's standard
for third party liability in Betamax where knowledge that VCRs would
be used for some infringement was irrelevant. In Betamax, the Supreme
Court held that allowing copyright holders to ban devices capable of
substantial non-infringing uses would go beyond the power of copyright
monopoly, regardless of whether the creators knew their devices would
be used to infringe copyrights.

Although the appellate court disagreed with the district court and
held that Napster is capable of substantial non-infringing uses, it
nonetheless held that the Betamax defense was unavailable to Napster
because of its actual knowledge of specific infringement and
unwillingness to prevent that infringement. This distinction narrows
the protection for technology providers under Betamax since lawful
uses of the system apparently become irrelevant once knowledge of
infringement can be shown. And knowledge can be easily established by
a content holder sending a "cease and desist" letter, rendering
technology providers thereafter liable for the infringing actions of
third parties who misuse their systems.

Under the ruling, "if a computer system operator learns of specific
infringing material available on his system and fails to purge such
material from the system, the operator knows of and contributes to
direct infringement." Furthermore, the court held that Napster
materially contributed to infringement by providing the site and
facilities for the infringement to occur. And the opinion could
arguably reach to ISPs and upstream providers including technology
companies and individuals.

The appellate court attempted to recognize a distinction between
merely providing a technology that allows for sharing of information
and specific conduct that encourages the illegal distribution of
music. "We are compelled to make a clear distinction between the
architecture of the Napster system and Napster's conduct in relation
to the operational capacity of the system," said the court. But the
decision still cuts a wide swath through Betamax, since P2P providers
will be required to prevent infringement or face liability. The lack
of the traditional Betamax "substantial noninfringing uses" defense to
P2P providers who receive notice of infringement will have a chilling
effect on speech as operators will be required to act as copyright
police over their systems to avoid liability themselves.

It will also undoubtedly have a chilling effect on the growth of
technology, as developers and entrepreneurs will be reticent to
release and promote new products, services and ideas when their
liability hinges on such a thin requirement as the receipt of a single
complaining letter or, as the court's vicarious liability analysis
suggests, on an affirmative duty to make sure no one misuses their
tools or products and a threat that the court itself will second guess
their design decisions should someone do so.

The 9th Circuit laid out a new test for holding third parties liable
for contributory infringement for providing file-sharing technology.
According to the court, contributory liability may potentially be
imposed to a file-sharing technology provider who:
1. receives reasonable knowledge of specific infringing files;
2. knows or should know that such files are available on the system;
and
3. fails to act to prevent viral distribution of the works.

Although the court stated that the mere existence of a file-sharing
technology, absent notice and a failure to remove the offending
material, is insufficient to impose contributory liability under
Betamax, P2P providers should be wary since "knowledge" of
infringement trumps substantial non-infringing uses of the system
under the new standard. While the 9th Circuit's decision asserts that
it follows the Supreme Court in Betamax for dealing with contributory
liability, its result is a dangerous narrowing of the doctrine that
ignores and imperils the constitutional limitations to a copyright
holder's power.

DANGER: Right + Ability to Supervise = Vicarious Liability if Fail to
Police

Even more worrisome, the appellate court found that Napster engaged in
vicarious copyright infringement, a doctrine based in the context of
employee/employer relationship. It imposes liability when a third
party has the right and ability to supervise the infringing activity
and also has a direct financial interest in such activities. Despite
Napster's lack of a business model, the court found it financially
benefited because the availability of the music acted as a draw for
future customers.

The 9th Circuit's holding also dramatically narrowed Betamax's
protection against vicarious liability by requiring technology
providers to affirmatively police their systems for potential
infringement, a practice which essentially forces technology creators
to serve as law enforcement for the content industry, even in the
absence of notification that specific infringement has occurred. In
addition to creating an undue burden, this outsourcing of police
functions will undoubtedly result in over-policing, limiting the
distribution of legitimately shared materials and the creation of new
technology.

The 9th Circuit found that Napster sufficiently "supervises" its
system to trigger vicarious liability because Napster retains the
right and ability to control access to its system and it failed to
exercise that right to prevent infringement. "The ability to block
infringers' access to a particular environment for any reason
whatsoever is evidence of the right and ability to supervise," stated
the three-judge panel.

The court held that to escape vicarious liability, "the reserved right
to police must be exercised to its fullest extent." Napster has an
express reservation of rights policy on its Web site and regularly
exercises those rights including terminating users. Consequently, the
court ruled Napster "bears the burden of policing the system within
the limits of the system," which is designed to give it the ability to
locate infringing material listed on its search indices. Put simply:
because Napster granted itself a right and ability to police its
system, it is required under law to do so in order to avoid liability.

Napster's failure to police its system and the court's finding that it
financially benefited from infringement led to its imposition of
vicarious liability. Under the ruling, a file-sharing technology
provider may be vicariously liable when it fails to affirmatively use
its ability to patrol its system and prevent access to potentially
infringing files listed in its search index (if it has one). A
file-sharing technology provider such as Freenet that is incapable of
blocking access to users or disabling files because of its
architectural design, seems to be at a legal advantage to systems such
as Napster under the ruling.

P2P developers must proceed cautiously as 'knowingly' ignoring
infringement will not absolve operators of vicarious liability for the
illegal actions of others. "Turning a blind eye to detectable acts of
infringement for the sake of profit gives rise to liability" said the
court. Once informed of infringement, a technology provider may not
escape vicarious liability because of the substantial non-infringing
uses of that technology, dramatically narrowing Betamax's protection
against vicarious liability.

The Napster decision makes clear that maintaining a right and ability
to police the actions of users creates a dangerous legal obligation
for that P2P technology provider to police its system to the fullest
extent possible. Consequently, the court's treatment of secondary
liability will significantly impact the future design of P2P
technology (to disable right and ability to police) in order to avoid
secondary liability.

Freedom of Speech Threatened as Copyright Holders' Power Extended

The legal protection P2P technology providers enjoyed under the
Supreme Court's Betamax standard for secondary liability has been
curtailed in the 9th Circuit under Napster, restricting freedom of
expression online. The copyright industry continues to secure
dangerously broad legal precedents against innovative technologies
whose full ramifications have not yet been thoroughly considered by
courts or society.

The potential for contributory and vicarious liability present a real
danger for file-sharing technology providers and great care should be
paid to the architectural design of P2P systems including consulting
an attorney. The Napster decision represents another instance where
the legal code will influence the design of computer code,
consequently limiting the public's ability to access and exchange
information online and distorting the growth of the Net.

Despite Napster's demise, P2P's legal struggle lives on -- certain to
battle RIAA further in the coming months, as the industry continues to
wage a war to cripple the technology it cannot control and attempts to
wrestle music distribution away from the people at the expense of
freedom of speech and innovation.

_________________________________________________________________

EFF & ACLU-WA Defend Pseudonym-Using Message Board User

Electronic Frontier Foundation Press Release -
February 26, 2001

Free Speech Advocates Seek to Protect Anonymous Speech on Internet

For Immediate Release

Contact:

Cindy Cohn
Director of Legal Services
Electronic Frontier Foundation
(415)436-9333 x 108

Doug Honig
ACLU
(206)624-2184

Seattle- In a case involving free speech and privacy rights online,
the American Civil Liberties Union (ACLU) and the Electronic Frontier
Foundation (EFF) today asked a federal court in Washington to quash a
subpoena that would force an Internet service to disclose the identity
of a person who spoke anonymously on an Internet bulletin board.

The ACLU and EFF are representing J. Doe in seeking to block a
subpoena by 2TheMart.com, Inc., which is currently defending itself
against a class-action lawsuit alleging the company engaged in
securities fraud. The subpoena requests InfoSpace turn over the
identities of 23 speakers who used pseudonyms in participating on the
Silicon Investor Web site owned by InfoSpace. The motion to quash the
subpoena was filed in U.S. District Court in Seattle.

This case differs from many other Internet anonymity cases because J.
Doe, who used the pseudonym "NoGuano," is not a party to the case, and
no allegations of liability against Doe have been made. While Doe does
maintain a Silicon Investor account, Doe never made any statements
about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart
message board.

"If the courts don't establish a standard for the issuance of
subpoenas in cases where the anonymous speaker is not a party, every
party in every civil action could start subpoenaing the identities of
online speakers in the desperate hope of finding something useful for
their case," said Cindy Cohn, Legal Director for the Electronic
Frontier Foundation, a civil liberties organization working to protect
rights in the digital world. "The courts should not allow subpoenas to
be used for 'fishing expeditions' when individuals' First Amendment
rights are at stake. The chilling effect on free speech would be
catastrophic."

"People commonly use pseudonyms when speaking on the Internet. This
promotes a diversity of viewpoints in cyberspace. The right to speak
anonymously on an

Internet bulletin board should be upheld just as is the right to
distribute a leaflet using a pseudonym," said Aaron Caplan, staff
attorney for the American Civil Liberties Union, an organization with
an 80-year history of defending freedom of speech.

In their brief filed today, the ACLU and EFF argue that the Court
should adopt the same test currently used to determine whether to
compel identification of anonymous sources of journalists or members
of private organizations. Under that test, the Court must first
determine whether the person seeking the protected private information
(in this case 2TheMart.com) has a genuine need for the information in
the context of the case and cannot discover the information any other
way. If so, the Court must then balance the harm to the anonymous
speakers against the plaintiff's need to discover the identity of the
speaker. Anonymity should be preserved unless the identity of the
anonymous person is clearly shown to be of central importance to the
case.

2TheMart.com was a fledgling company that intended to launch an online
auction house. After its stock price plunged in 1999, a number of
investors sued for securities fraud, alleging that the company had
misled them about its prospects. Like many Internet start-ups,
2TheMart.com had a number of people who chatted about the company on
investor-related bulletin boards. One of these bulletin boards was
operated by Silicon Investor, a Web site now owned by Seattle-based
InfoSpace. The postings were made under 23 different user names,
including "The Truthseeker," "Edelweiss," and "NoGuano."

John Doe is being represented by ACLU staff attorney Aaron Caplan and
Cindy Cohn, legal director and senior staff attorney for EFF.

The brief may be found at the EFF Web site at:
http://www.eff.org/Legal/Cases/2TheMart_case/

About EFF:

The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded
in 1990, EFF actively encourages and challenges industry and
government to support free expression, privacy, and openness in the
information society. EFF is a member-supported organization and
maintains one of the most linked-to Web sites in the world:
http://www.eff.org

_________________________________________________________________

EFF Questions Pacifica's SLAPP Tactics

EFF letter to Pacfica Foundation board

questioning Pacfica's attempt to silence critics by taking away their
domain names

The following is an electronic copy of a letter to the Pacifica
Foundation board of directors from the Electronic Frontier Foundation.
__________________________________________

Board of Directors
Pacifica Foundation
2390 Champlain St. NW
Washington, DC 20009

March 1, 2001

An open letter to the Board of Directors of the Pacifica Foundation
from the Electronic Frontier Foundation:

It has come to the attention of the Electronic Frontier Foundation
(EFF) that counsel for the Pacifica Foundation (Pacifica) has been
systematically threatening Web sites that are critical of Pacifica or
some of your member stations with domain name lawsuits. While EFF is
not representing any of those sites being threatened at the present
time, we have been a vocal opponent to such anti-speech tactics and
are representing defendants in a similar lawsuit filed by the Ford
Motor Company. (See http://www.eff.org/Legal/Cases/Ford_v_GreatDomains
.)

We write to you today because it has also come to our attention that
you are displaying EFF's blue ribbon on the homepage of your Web site,
http://www.pacifica.org . We are proud of our Blue Ribbon Campaign,
and we are happy to see that Pacifica, at least in theory, believes in
the principles of free speech that our blue ribbon symbolizes.

EFF's blue ribbon is displayed on tens of thousands of Web sites
throughout the Internet as a symbol of support for the essential human
right of free speech, a fundamental building block of a free society.
This right was affirmed by the U.S. Bill of Rights in 1791 and by the
U.N. Declaration of Human Rights in 1948. The Blue Ribbon Campaign has
been one of EFF's ways of raising awareness of online censorship and
freedom issues, both locally and globally.

We at EFF feel that free speech is such an important part of our
humanity that no one, no company and no government, should have the
right to abridge it. We also think that free speech has
responsibilities such as being truthful and non-oppressive. We don't
always agree with the speech we protect. So long as the blue ribbon is
used simply to support our campaign, we would not bar its use based on
whether or not we agree with the opinions of the user. That would
contradict what the symbol is about. We would be concerned if the
ribbon were used to imply endorsement of parties or ideas we don't
support.

EFF believes that Internet domain names impact greatly on this
fundamental right to free speech. It is through Internet protocol
addresses and domain names that individuals and organizations place
their speech on the Internet and give titles to that speech, or to
collections of that speech. And it is through these addresses that
others locate that speech to read and use it. A domain name is in some
ways like a book title. A company does not have the right to stop
publication of a book with their name in the title which says
something negative about them, so why they should they be able to stop
an online publication with what amounts to the same kind of title.

When individuals or groups choose to use domain names that identify
things of which they are critical, that is a protected free speech
right. Courts have upheld this use of speech as protected time and
time again, and courts have upheld utilizing domain names for this
purpose. It is only when there is true confusion that courts have
intervened and ruled that free speech does not rule the day. The
question EFF poses is "How should critical Web sites name themselves,
if not in reference to what they criticize?" It's a serious question
all people trying to block a domain should answer.

The sites that you have targeted are not confusing anyone. You seem to
be systematically targeting them because you disagree with the
criticisms they make of Pacifica. Pacifica has a history of being an
ally of free speech and EFF asks you to be guided by your own mission
statement, which states that you will "promote freedom of the press
and serve as a forum for various viewpoints." We have come into the
age of an electronic press and EFF asks you to promote these same
values on the Internet. Though EFF is not taking a position on the
issues that caused this domain name dispute, we urge you to do the
right thing and have your lawyers cease attempts at censorship while
the courts of law and public opinion come to their conclusions.

Thank you for your prompt attention to this matter. Together, we can
ensure that the civil liberties we hold so dear are protected in this
digital arena.

Respectfully,

Henry Schwan
Electronic Frontier Foundation
[email protected]

_________________________________________________________________

Administrivia

EFFector is published by:

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Editor: Stanton McCandlish, EFF Technical Director/Webmaster
([email protected])

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