Archive for the ‘Uncategorized’ Category

Why EFF Supports CSISAC’s Decision Not to Endorse the OECD Communique on Internet Policy-Making Principles

Thursday, June 30th, 2011
Yesterday we reported that EFF and the other civil society members of the Civil Society Information Society Advisory Committee to the Organization for Economic Co-operation and Development (CSISAC) had declined to endorse a draft Communique on Internet policy-making principles produced by the OECD. Since then, the OECD and key government representatives reopened negotiations with civil society, business and the technical industry stakeholders, in an effort to find mutually acceptable text to accommodate our concerns. Unfortunately that was not successful, and EFF and other members of the OECD’s Civil Society Information Society Advisory Council have declined to endorse the full and final version of the Communiqué released on 29 June. EFF and CSISAC are committed to continuing to participate in the OECD’s multistakeholder policy development process. EFF has been actively involved in providing input into OECD’s policy work through CSISAC for the last two years. We believe that OECD is a vital place for civil society to work and appreciate the genuine commitment of all involved in creating the Communique to engage with civil society and listen to our perspectives and concerns. EFF was involved in CSISAC’s negotiation efforts over the last few weeks to find mutually acceptable text for ...

FIRE President on ‘Stossel’ Tonight

Thursday, June 30th, 2011
FIRE President Greg Lukianoff will be on tonight's episode of Stossel on Fox Business at 10 p.m. Eastern. The theme for tonight's show is "The College Scam." Greg will discuss speech codes, enforced political correctness, and kangaroo courts on campus, while host John Stossel and guests--including Indoctrinate U director Evan Coyne Maloney, economist Richard Vedder, and author and journalist Naomi Schaefer Riley--will examine whether college is worth the high price. Tune in to Fox Business tonight for what is sure to be an interesting show!

Sorrell Means Business

Thursday, June 30th, 2011
Last week’s Supreme Court decision in Sorrell v. IMS Health Inc.  signified a subtle yet important shift in commercial speech interpretation that may precede increased corporate strength in the legal arena.  The opinion, by Justice Kennedy, argues that Vermont did not have grounds to ban pharmaceutical data-mining as it is a form of non-deceptive commercial [...]

EFF Files Comments with PTO in Support of Streamlining Reexamination Procedures

Wednesday, June 29th, 2011

Along with Professor Mark Webbink, Executive Director of the Center for Patent Innovations at New York Law School, today EFF filed comments in response to the Patent Office's Proposals on Streamlined Patent Reexamination Proceedings.

We applaud the Patent Office's (PTO) efforts to streamline the reexamination process, which can be slow and expensive. Patent reexaminations can serve as a crucial check when the PTO has issued an overbroad patent that is harmful to the public interest. That's one reason EFF launched its Patent Busting Project, which has been successful in narrowing and, in some cases, invalidating harmful and overbroad patents.

It’s especially important to make sure that the PTO hears the voice of third parties – individuals and businesses that don’t often apply for patents or otherwise interact with the PTO but whose day-to-day activities may be profoundly affected by PTO decisions. In many instances, those third parties have an important perspective on how to best implement processes that reject bad patents and allow innovation to thrive. EFF will continue to be a voice for those third parties before the Patent Office and support policies and reforms that will spur innovation.

Thousands More Does Dismissed in Copyright Troll Cases — But the Trolls Are Trying New Tactics

Wednesday, June 29th, 2011

The copyright trolling world has been hopping in the past several weeks, and some developments seem to bode well for the protection of due process. All in all, we’ve seen the number of total Does sued rise to over 190,000, and we estimate that the number of Does remaining after the various dismissals is over 140,000. The following are the cases in which Does have been dismissed since we last reported.

In the Northern District of Illinois, attorney John Steele dismissed two of his cases (Boy Racer, Inc. v. Does 1-22 and Boy Racer, Inc. v. Does 1-17) post-haste after learning that they had been assigned to a judge who had thrown out one of his previous cases. In his memo, Judge Milton I. Shadur makes it clear that for anyone who has received notification of a subpoena for case number 1:11-cv-02984 or 5:11-cv-01958, the case has been dismissed, and can only be filed again against them as individuals.

In the Northern District of California, Judge Samuel Conti denied the plaintiff’s request to issue subpoenas in the case of Millennium TCA, Inc. v. Does 1-21. In his opinion, Conti states that the plaintiff’s argument for early ...

Virginia Tech Vice President Worries about New OCR Guidance

Wednesday, June 29th, 2011

Fighting for civil liberties on campus can sometimes be a lonely job, but FIRE has been buoyed by the outpouring of concern in recent weeks about the new mandates handed down in April by the federal Department of Education's Office for Civil Rights (OCR). It seems like we're not the only ones concerned by the rights-eroding regulations coming out of Washington, D.C.; just ask these commentators what they think about the threats to due process and free speech presented by the new regulations. And it's not just FIRE and the punditocracy speaking outadd Virginia Tech Vice President for Student Affairs Ed Spencer to the growing chorus of concerned voices. 

Last week, Spencer told Roanoke, Virginia's local NBC affiliate WSLS that he was concerned about the implications of the new guidance for both student speech and student due process rights:

And the new requirements allow for the alleged victim to appeal any university decision.  That's something that concerns administrators like Ed Spencer.

"In a student conduct system or in any system, that's pretty unusual.  And there's some concerns that there might be some double jeopardy kinds of issues," said Spencer, who is the Vice President for Student Affairs at ...

Security For Whistleblowers

Wednesday, June 29th, 2011
In the wake of the Wikileaks controversy, the Obama administration has increased its efforts to punish government officials accused of leaking classified information to the news media. While the Justice Department has the right to hold FBI, NSA and CIA employees to the confidentiality agreements in their contracts and keep certain information classified, these initiatives [...]

CBLDF Looks to Canada Customs Case

Wednesday, June 29th, 2011

Last week, CBLDF announced that we are forming a coalition to defend a new case involving an American citizen facing charges in Canada that could result in a minimum sentence of one year in prison and registering as a sex offender.

In 2010, an American citizen, computer programmer, and comic book enthusiast in his mid-20s was flying from his home in the United States to Canada to visit a friend. Upon arrival at Canadian Customs, a customs officer conducted a search of the American and his personal belongings, including his laptop, iPad, and iPhone. The customs officer discovered manga on the laptop and deemed it child pornography. Consequently, the American has been charged with both the possession of child pornography as well as its importation into Canada. As a result, if convicted at trial, the American faces a minimum of one year in prison.

Since the announcement, more information about the case emerged in the ensuing media coverage. Brigid Alverson delved into the details for Comic Book Resources:

Charles Brownstein, executive director of the CBLDF, said that the materials that led to the arrest of the man, whose identity is being withheld both as a matter of legal strategy ...

Supreme Court to rule on FCC indecency policy

Wednesday, June 29th, 2011

The US Supreme Court on Monday added 11 more cases  to its 2011-2012 docket. In FCC v. Fox Television Stations, Inc., the Court will rule on whether the Federal Communications Commission (FCC)  current indecency enforcement regime violates the First or Fifth Amendment  to the US Constitution. The FCC sought Supreme Court review after the US Court of Appeals for the Second Circuit ruled last year that the FCC’s indecency policy, which places restrictions on profanity and nudity during television broadcasting, is unconstitutionally vague and could have a “chilling effect” on speech. The case hinges on indecency issues raised in two separate broadcasts, one in which a nudity scene appeared in a television crime show during prime-time hours, and the other involving celebrities using expletives during live broadcasting events.

Read full article.

Righthaven Cheerleader Wanted by Irony Police

Tuesday, June 28th, 2011

Sherman Frederick is the former CEO of Stephens Media, former publisher of the Las Vegas Review Journal, and one of Righthaven’s biggest cheerleaders. When the litigation campaign of Stephens Media's copyright enforcer Righthaven first got underway, Frederick famously wrote “So, I'm asking you nicely once again—don't steal our content. Or, I promise you, you will meet my little friend called Righthaven.”

In the wake of last week’s ruling against Righthaven in Righthaven v. Democratic Underground, Frederick wrote an unintentionally ironic column for Stephens Media entitled “Content protection -- Night of the unthinking commentator.” Frederick starts out with an ad hominem attack, comparing bloggers commenting in favor of the Nevada federal court’s ruling to “a bunch of kids camping out in the backyard, sticking a flashlight under their chin and telling each other scary stories.”

Following his strained and somewhat nonsensical metaphor, Frederick suggests that readers should instead look at three posts by GametimeIP blogger Patrick Anderson. Frederick links to the three posts, and then copies, verbatim, from each. Five sentences from the first article, three from the second, and ten sentences from the third. The quotes are not denoted as such, but basically everything after "Article ...

Naomi Schaefer Riley in ‘Chronicle’ on Academic Freedom and Courage

Tuesday, June 28th, 2011

The Chronicle of Higher Education ran a captivating feature on the death of Princeton University lecturer Antonio Calvo, who committed suicide in April after being relieved of his faculty duties and forbidden from entering the campus or contacting colleagues or students pending an investigation of his alleged "troubling and inappropriate behavior." Robin Wilson's article describes the criticism by several students and faculty of the secrecy surrounding the process. A number of Princeton faculty refused to speak with the Chronicle, or would only do so anonymously, due to fear of retaliation. This prompted a critical response from Naomi Schaefer Riley, whose short entry states:

[T]he most revealing quote in the piece was this:

"To have this intrusion of a corporate-style firing come into the halls of Princeton was shocking in its brutality," says one tenured professor of languages at Princeton who, concerned about the reaction the remarks might draw from administrators and colleagues, asked not to be named.

Oh come on. If tenure doesn't even allow you to make this remark openly, then what is its purpose? You're so worried your colleagues might disagree with you that you'll only provide this thought anonymously? Where is the courage? Where is the ...

Help EFF Topple a Troll

Tuesday, June 28th, 2011

Copyright Troll

Over the past two weeks, EFF has won the dismissal of two bogus infringement lawsuits filed by notorious "copyright troll" Righthaven LLC. In the first case, a federal judge ruled that Righthaven had no standing to sue an online political forum for a five-sentence excerpt of a news story posted by a user, because EFF sleuthing revealed that Righthaven did not own the copyright. Last week, the court relied on the evidence presented in the first case and dismissed Righthaven's lawsuit against a non-commercial blog that provides prosecutor resources for difficult to prosecute "no body" homicide cases.

These victories are sweet, but Righthaven and copyright trolls like them have filed thousands of additional lawsuits across the country, using the threat of massive damages available under copyright law to pressure defendants into quick settlements. One copyright troll is attempting to subpoena the identities of thousands of BitTorrent users and sue them collectively to minimize their own court costs, while another is targeting alleged adult film downloaders with hopes of exploiting the additional threat of embarrassment associated with porn. We need your financial support to bring an end to this awful business model.

EFF's hard work has provided the facts and ...

Supreme Court Protects First Amendment Rights for Entertainment & New Media in Brown v. EMA Decision

Tuesday, June 28th, 2011

“California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors.”
Justice Antonin Scalia in the majority opinion on
Brown v. EMA

CBLDF is delighted to be celebrating the resounding victory in Brown v. EMA that came with yesterday’s 7-2 Supreme Court decision, a victory that dismantles the same pseudoscience that fueled the attacks on comic books in the 1950s.

Brown v. EMA (formerly Schwarzenegger v. EMA) pertains to a California law that restricted the sale of violent video games to anyone under age 18, citing that violence is harmful to minors. Previous decisions in the case ruled the law unconstitutional under the First Amendment. California appealed these decisions to the Supreme Court.

CBLDF filed an amicus brief on the case, arguing that the law was unconstitutional and a response akin to the moral panic that fomented around comic books during the 1950s. Justice Scalia’s majority opinion both referenced the CBLDF amicus brief and called to mind past concerns over comic books:

Many in the late 1940s and early 1950s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading ...

Speech Codes at Private Colleges Debated at ‘PolicyMic’

Tuesday, June 28th, 2011

Over at PolicyMic, where I am a contributing writer, Jordan Wolf and Jason Orr are debating the propriety of speech codes on private college campuses. Naturally, I follow this debate with great interest. Wolf in particular makes a number of points in favor of speech codes that are worth discussing, and worth more space than the 900 characters we're permitted for the comments section at PolicyMic; hence I discuss them here.

Wolf states that "private universities can condition attendance on observing a speech code. However, that does not mean it is wise for them to do so." He says later in his article that "[p]rivate colleges are a market like any other, and students have the choice to go elsewhere." Broadly speaking, of course, he is correct. Indeed, private universities can condition attendance on adherence to any number of strict university policies, including speech codes. They also must, as he says, weigh the pros and cons of doing so.

As it happens, whatever the virtues of enacting speech codes to try to shape campus dialogue, the vast majority of colleges decide that they would rather project the image of themselves as bastions of free thought and expression, where no idea ...

First Amendment Rodeo 6/15-06/27/11

Tuesday, June 28th, 2011

Lawmakers Seek Limits on Location Data Use

New Patriot Act Controversy: Is Washington Collecting Your Cell-Phone Data?

Justices to decide police use of GPS devices on suspects’ cars

Backward at the F.B.I.

Free Speech
Redding’s limits on leafleting at library blocked

Blue Mtn. School District to appeal Myspace case to high court

CBLDF Forms Coalition To Defend American Comics Reader Facing Criminal Charges in Canada

Should Kids Be Allowed to Rent R-Rated Movies From the Library?

The Ninny State The danger of overprotecting your kids from technology

Supreme Court Overturns California Violent Video Games Statute
See also

Supreme Court may reconsider radio, TV indecency rules – CNET News

Banned Books
On the banned wagon: Students investigate historic book banning

Shaking our heads again over Richland book policy

New Google Data Shows How Governments Seek To Control Online Content

Tuesday, June 28th, 2011
The Chinese government is notorious for censoring content on the web; to do so, it has created a cyber-security mechanism known colloquially as the Great Firewall. But in truth, many world governments are looking to control the information shown online in one way or another. An extraordinary set of data published today by Google gives insight into this process. In a major update to its Transparency Report, Google has displayed 18 months of data that shows how many “content removal requests” it has received from government authorities in a variety of countries. In the United States, for instance, courts and cops made 182 separate requests to remove content from a Google service. These requests cover all Google services: YouTube videos, Gmail, Blogger blog posts, and of course search results. Read article in full.

EFF Declines to Endorse OECD Draft Communiqué on Principles for Internet Policy-Making

Tuesday, June 28th, 2011

UPDATE: These comments relate to the DRAFT Communique distributed to all the participants at the High Level Meeting. The final Communique is scheduled to be released on 29 June at 13:00 pm

EFF has joined with a coalition of more than 80 global civil society groups which have declined to endorse a set of Internet Policy Principles presented today in Paris by the Organization for Economic Co-operation and Development (OECD). EFF and the other members of the OECD’s Civil Society Information Society Advisory Council (CSISAC) were unwilling to accept the high profile OECD Communiqué on Internet Policy-making because it could encourage states to use Internet intermediaries to police online content, undermining freedom of expression, privacy and innovation across the world.

EFF and CSISAC urge OECD member countries to adopt policies that protect the open Internet and affirm existing limits on the liability of Internet intermediaries. We oppose legal and policy frameworks that encourage Internet intermediaries to filter and block online content or disconnect Internet users under a “graduated response” system after alleged copyright violations. Civil society calls on OECD member states to defend free expression and support due process and procedural safeguards in the protection of intellectual property rights.

Following ...

Tor Challenge Level 3: Video Achievement

Monday, June 27th, 2011
At the beginning of June, EFF issued its Tor Challenge, calling on individuals and organizations to set up Tor relays to strengthen the Tor network and help Internet activists all over the world. Then we added the Poster Challenge, offering a Molly Crabapple poster to anyone who set up five or more relays. Today we’re unveiling the final achievement in our Tor Challenge: the Tor Video Challenge. Tor is a service that helps you to protect your anonymity while using the Internet. Internet activists depend on Tor to maintain their anonymity online and access websites that have been blocked by their governments. The Tor network depends on volunteers to operate relays, but setting up a relay for the first time can be a tricky and confusing process for some. That’s why EFF has launched the Tor Video Challenge. We’re asking for participants to create instructional videos that explain how to set up Tor relays on different operating systems – and compete to win awesome prizes and props from EFF. We’ve already made the first video, showing people how to set up a Tor relay on a Mac. Now we want other videos to explain how to set up ...

CBLDF General Counsel Robert Corn-Revere Weighs in on Brown v. EMA Decision

Monday, June 27th, 2011

Supreme Court Invalidates California Law Restricting Violent Video Games

(This article also available in MS Word and PDF.)

By a vote of 7-2, the Supreme Court held that a California law restricting the sale or rental of “violent” video games violates the First Amendment. Justice Scalia wrote the majority opinion for the Court, reasoning that the state legislature could not create new categories of speech that are unprotected by the Constitution, and that the California law failed to survive strict First Amendment scrutiny.  The Supreme Court decision applies broadly to all media and not just to video games.

The Court drew upon the history of comic book censorship in reaching its conclusion.  Citing the amicus brief filed by the Comic Book Legal Defense Fund, it noted the crusade against comics led by Dr. Frederic Wertham and observed that it was inconsistent with our constitutional traditions.  The Court traced the history of censorship that targeted various media directed toward the young and held that restricting depictions of violence could not be justified under established principles of First Amendment law.

The California law defined violent video games as those that permit a player to kill, maim, dismember, or sexually assault a ...

‘Free Speech Zone’ and Doublespeak Online at Vanderbilt

Monday, June 27th, 2011

On Vanderbilt University's Common Place, a blog maintained by the university for first-year students, a new feature named "Free Speech Zone" was recently added. This feature is essentially a forum in which students may post. However, there are three rules in this forum: "No hate speech," "No paid advertisements," and "No organized crime."

This new feature, while seemingly innocuous and a good idea as a place for students to post messages, poses a threat to students' understanding of free speech. For starters, members of the public cannot, consistent with First Amendment rights, be punished by the government for "hate speech," because most speech that is hateful or derogatory toward a given individual or group is constitutionally protected. However, university administrators often use the ambiguous term "hate speech" to punish students for speech they deem insensitive about any person or group based on an immutable characteristic such as race, gender, ethnicity, and so forth.

Vanderbilt is a private university and thus not bound by the First Amendment. But Vanderbilt's mission statement claims that it "values most highly intellectual freedom that supports open inquiry." The right to free speech is supposedly deeply valued at Vanderbilt, as evidenced in the student handbook...

Protect Your Computer and Phone from Illegal Police Searches

Monday, June 27th, 2011

San Francisco - Your computer, your phone, and your other digital devices hold vast amounts of personal information about you and your family. Can police officers enter your home to search your laptop? Do you have to give law enforcement officials your encryption keys or passwords? If you are pulled over when driving, can the officer search your cell phone?

The Electronic Frontier Foundation (EFF) has answers to these questions in our new "Know Your Digital Rights" guide, including easy-to-understand tips on interacting with police officers and other law enforcement officials.

"With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information," said EFF Staff Attorney Hanni Fakhoury. "That smart phone in your pocket right now could contain email from your doctor or your kid's teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data -- your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that's worth protecting from prying eyes."

The Fourth Amendment to the Constitution protects you from unreasonable government searches ...

Supreme Court Strikes Down California’s “Violent Video Game” Prohibition

Monday, June 27th, 2011
In a case in which the Thomas Jefferson Center filed a “friend of the court” brief, the U.S. Supreme Court struck down a California law that imposed restrictions and a labeling requirements on the sale or rental of “violent video games” to minors.  A few excerpts from the opinion:
  • Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.
  • The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.  That is unprecedented and mistaken.
  • Reading Dante is unquestionably more cultured ...

BREAKING — CBLDF Cheers Free Speech Victory in Brown v. EMA!

Monday, June 27th, 2011
UPDATED — The U.S. Supreme Court has just issued its decision in Brown v. EMA, striking down the California law that attempted to ban the sale and display of violent video games to minors in a 7-2 decision. The majority decision, written by Justice Scalia, affirms that video games are protected by the First Amendment, and that the statute is invalid. The Court writes:
The most basic principle—that government lacks the power to restrict expression because of its message, ideas,subject matter, or content, Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573—is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.
The court goes on to call the law’s aims “unprecedented and mistaken.” The Comic Book Legal Defense Fund was active in opposing the law, filing its own Amicus Brief arguing that the California law was unconstitutional by citing a history of moral panics, most notably the anti-comics fervor that nearly dismantled the comics industry in the ...

Monday’s IF activities at ALA 2011 Annual Conference

Monday, June 27th, 2011

Some of today’s activities at ALA Annual Conference in New Orleans involving intellectual freedom:


Hotel Monteleone, Queen Anne Ballroom

1:30-3:30 p.m.

IFC/Association of American Publishers program: Whose Common Sense? How Labeling Systems Hurt Young Readers


Morial Convention Center, Rooms 393-394

9:00 a.m. – 2:00 p.m.

Last chance to check out Carolyn Forsman‘s booth on the ALA exhibit floor (booth 1859) – proceeds from the sale of her unique and affordable jewelry benefit the Freedom to Read Foundation.

Talks to Calm Tension

Monday, June 27th, 2011
Vietnam and China will fast-track an agreement on the principles needed to solve maritime disputes.

Sunday’s IF activities at ALA 2011 Annual Conference

Sunday, June 26th, 2011

Some of today’s activities at ALA Annual Conference in New Orleans involving intellectual freedom:

1:30-3:30 p.m.

Committee on Professional Ethics program: “Promoting Ethical Literacy in Youth: How Librarians Can Partner with Parents and Teachers”

Morial Convention Center, Room 243

1:30-3:30 p.m.

ACRL Intellectual Freedom Committee program: Technology and Ethics: Supporting Privacy and Free Expression in the Digital Age

Morial Convention Center – Rm 274


Intellectual Freedom Committee/Freedom to Read Foundation Issues Briefing Session

Including an open hearing on self-service holds, an issue about which IFC is working on a resolution to ALA Council. Are libraries currently using best practices? What about privacy concerns?

Morial Convention Center, Room 354

 7:30-10:00 p.m.

LeRoy C. Merritt Humanitarian Fund “Reception for a Cause”/NMRT Awards Reception – combined event!

 L’Entrepot Gallery, 527 Julia St. – in the Gallery District, a short walk from the Convention Center

All Day Long

And check out our new video interview with Carolyn Forsman, whose booth on the ALA floor (booth 1859) provides funding for the Freedom to Read Foundation. She’ll be here again today and tomorrow.

From ‘Hell to Heaven’

Saturday, June 25th, 2011
Freed Vietnamese dissident vows to continue fighting for human rights.

Saturday’s IF activities at ALA 2011 Annual Conference

Saturday, June 25th, 2011

Some of today’s activities at ALA Annual Conference in New Orleans involving intellectual freedom:

Carolyn Forsman‘s booth on the ALA floor (booth 1859)- proceeds from the sale of her unique and affordable jewelry benefit the Freedom to Read Foundation. All day long!

IFRT Immroth Award reception, 11:30 a.m.-1:00 p.m., Marriott at Convention Center, Blaine Kern B. Join us in celebrating Mike Blasenstein and Mike Iacovone for their support of the Hide/Seek exhibit

IFRT Program: “New Technologies: The Impact on Government Transparency” – featuring Rick Falkvinge, founder of the first Pirate Party, 1:30-3:30 p.m., Morial Convention Center, 288-290

“The Most Dangerous Man in America” – a documentary about Daniel Ellsberg and the Pentagon Papers – will be part of ALA’s Film Program. 6:00-8:30 p.m., Morial Convention Center, Auditorium A

The "Hot News" Doctrine After Fly On the Wall: Surviving, But On Life Support

Friday, June 24th, 2011

A federal appellate court this week issued a fascinating decision on whether the much-maligned “hot news doctrine” – which confers a quasi-property right in facts -- will survive in the digital age. The answer? Yes, but barely, and not as an easy way to defend an outdated business model.

The defendant in the case,, runs a financial news service that gathered and reported on stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley, and Lehman Brothers (the"Firms") and reported them on its website. The Firms claimed that the information was "hot news" and that Fly was free-riding on the firms' work in creating the recommendations. A federal court agreed, and ordered Fly to delay reporting of the information for two hours after the reports are released.

The Second Circuit Court of Appeals reversed that holding. After a lengthy disquisition on the history of the doctrine (including a detailed analysis of its own landmark decision in NBA v. Motorola, most of which it treated as dicta, or nonbinding), the court found that the tort survives only in the narrow circumstance (the opinion uses the term “narrow” repeatedly) where a party is truly “free-riding.” Otherwise it is preempted by ...

Free to Speak or Free to Seize?

Friday, June 24th, 2011
A recent surge in vulnerability to search and seizure, despite protection under the Fourth Amendment, is creating a climate of fear of punishment for constitutional free expression.  Multiple stories this week share the theme of government interpretation of the Fourth Amendment infringing on the rights of the public.  If professionals and the public must live [...]

This Week in the News: UNC Revokes Professor Emeritus’ Network Access; FIRE’s Opposition to New OCR Regulations Still Making Headlines

Friday, June 24th, 2011

The big story this week concerned the University of North Carolina at Chapel Hill (UNC) revoking Professor Emeritus Elliot Cramer's network access following outside complaints about a link on his website to an organization that advocates for animal welfare. (This occurred despite UNC General Counsel Leslie C. Strohm telling the complainant, Joseph Villarosa, that the dispute was "not a University matter.") Earlier this week, FIRE issued a press release criticizing UNC for giving in to the "heckler's veto." (If you'd like to encourage UNC Chancellor Holden Thorp to reinstate Cramer's network privileges, visit our Take Action page.)

Steve Kolowich of Inside Higher Ed ran a piece on Cramer's ordeal this week. However, as Peter pointed out on The Torch, the story overemphasized a non-issue: specifically, an earlier dispute concerning Cramer's involvement with the Friends of Orange County Animal Shelter (FOCAS) that was successfully resolved prior to the current controversy. 

The focus should have been on the current pressing issue, which is the fact that UNC has meekly acquiesced to Villarosa's demands that the university force Cramer to remove a link to a website that linked to another website that dealt with Cramer and Villarosa's earlier disputes. Fortunately, FIRE Senior ...

FIRE’s Shibley Raps UNC’s Punishment of Emeritus Professor in ‘Herald-Sun’

Friday, June 24th, 2011

The University of North Carolina at Chapel Hill's (UNC's) decision to revoke the network access of Professor Emeritus Elliot Cramer continues to draw headlines, most recently with today's column in the Chapel Hill newspaper The Herald-Sun by FIRE Senior Vice President Robert Shibley. 

For those unfamiliar with the case, Cramer's network access was revoked by UNC after an external critic, Joseph Villarosa (with whom Cramer had been in an ongoing, non-university related dispute), complained to UNC about a link Cramer posted on his university website. This link carried readers to a site for an animal welfare organization Cramer is affiliated with, through which readers could access a page containing information on their dispute. 

If this sounds like a private dispute that UNC shouldn't be getting into, you're right. What's more, UNC agreed: General Counsel Leslie Strohm told Villarosa to stop pestering the university, and that she saw "no reference ... whatsoever" to Villarosa on Cramer's cite. Nonetheless, Strohm also ordered Cramer to remove the link. Even though he complied with this request, his network access was removed a few days later.

Robert's column in today's edition of The Herald-Sun points out the larger consequences of UNC's action here:


Analysis: Is the High Court’s data-mining ruling a big change on commercial speech?

Friday, June 24th, 2011

Something big happened in First Amendment law yesterday, when the Supreme Court ruled in the case of Sorrell v. IMS Health Inc. But it may take awhile to figure out exactly what that something is.

By applying “heightened scrutiny” to a law regulating commercial speech, did the Court take a big step toward giving commercial speech the same First Amendment protection as political speech, as Justice Clarence Thomas has urged? Or, as one lawyer put it, how high is “heightened?” No one seems quite sure.

Read Tony Mauro’s analysis in full.

Doin’ the Love Game

Friday, June 24th, 2011
The Electronic Entertainment Expo (E3) is known for exhibiting a panoply of video game products and innovations, so IGN blogger Michael Tomeson recently quested to find video games dealing with sex. Despite a medium that presents simulated activities ranging from invading Normandy to designing entire civilizations, Tomeson noted the continuing informal ban on sexual content [...]

CBLDF Forms Coalition to Defend American Comics Reader Facing Criminal Charges In Canada

Friday, June 24th, 2011

The Comic Book Legal Defense Fund today announces that it is forming a coalition to support the legal defense of an American citizen who is facing criminal charges in Canada that could result in a mandatory minimum sentence of one year in prison for comics brought into the country on his laptop.  This incident is the most serious in a trend the CBLDF has been tracking involving the search and seizure of the print and electronic comic books carried by travelers crossing borders.

CBLDF Executive Director Charles Brownstein says, “Although the CBLDF can’t protect comic fans everywhere in every situation, we want to join this effort to protect an American comic fan being prosecuted literally as he stood on the border of our country for behavior the First Amendment protects here, and its analogues in Canadian law should protect there.”

The CBLDF has agreed to assist in the case by contributing funds towards the defense, which has been estimated to cost $150,000 CDN.  The CBLDF will also provide access to experts and assistance on legal strategy.  The CBLDF’s efforts are joined by the recently re-formed Comic Legends Legal Defense Fund, a Canadian organization that will contribute to the fundraising effort.  ...

Felony Penalties Proposed for "Illegal Streaming": Senate Bill 978

Friday, June 24th, 2011

Efforts to harness law enforcement resources in the service of copyright enforcement continue apace. Last Thursday, the so-called "illegal streaming” bill passed the Senate Judiciary Committee (although that's still some way away from becoming law). The bill would increase criminal copyright penalties to allow jail time of up to five years for infringing a copyright by “publicly performing” the copyrighted work, such as playing a sporting event broadcast or motion picture. (Currently, the maximum criminal penalty for unlawful public performance is a fine and/or prison sentence of up to one year.) Fortunately, there are limitations on when the new criminal penalties would apply. For example, only 10 or more unlawful public performances within a 180-day period would trigger the provisions. In addition, the current criminal statute contains basic thresholds such as a requirement that the infringement be willful.

The basis for the bill appears to derive from a list of legislative requests issued earlier this year by the Obama Administration’s IP Enforcement Coordinator, including a recommendation to establish that online streaming of infringing content can be punished as a felony. The push to increase penalties from misdemeanor (which they are now) to felony (which they would be under the ...

Do-Over, Please: EFF Asks Court to Revisit Ruling That Disloyal Employees Violate Hacking Law

Thursday, June 23rd, 2011

Today EFF filed a "friend of the court" brief (pdf) urging the Ninth Circuit Court of Appeals to reconsider its troubling decision (pdf) that employees face jail time when they access work computers for purposes that violate company policy.

In United States v. Nosal, the former employee of an executive recruiting firm convinced current employees to access the company's proprietary database and pass along information that he could use for competitive advantage. The company's computer-use policy, however, said that employees were only allowed to access the database to further the company's business interests. The government prosecuted the former employee under the federal Computer Fraud and Abuse Act (CFAA), arguing that his accomplices had authority to access the database for some purposes, but exceeded that authority when they accessed it for a purpose that violated corporate policy. Unfortunately, the Ninth Circuit agreed.

This is a dangerous precedent because it gives employers the power to make behavior illegal just by saying in a written policy that it's not allowed. For example, a worker could be sued or prosecuted for reading personal email or checking the score of a baseball game if her employer's policy says that company computers may be used ...

Program Update: “When it Leaks it Pours: WikiLeaks, National Declassification System, and Access to Government Information”

Thursday, June 23rd, 2011

The program “When it Leaks it Pours: WikiLeaks, National Declassification System, and Access to Government Information,” which was previously reported as cancelled is in fact not cancelled and will be presented as originally scheduled. Please join us and speaker Tom Blanton, director of the National Security Archive at George Washington University, on MONDAY, JUNE 27, at 10:30 a.m.–12:00 noon, in the Hotel Monteleone-Queen Anne Ball Room. We will discuss the state of classification system and librarians’ role as defenders of access to information.

This program is co-sponsored by the ALA Committee on Legislation.

Vt. can’t ‘hamstring’ drug companies with speech rules

Thursday, June 23rd, 2011

The U.S. Supreme Court affirmed a federal appeals court ruling striking down as unconstitutional a section of the Vermont Pharmaceutical Data Mining Law prohibiting the sale or use of data identifying health care providers’ prescribing patterns in the marketing or promoting of prescription drugs without the prescriber’s consent (Sorrell v. IMS Health Inc., No. 10-779 (U.S. June 23, 2011)).

In the 6-3 decision, the Court held that Vermont’s statute imposes content- and speaker-based burdens on protected expression and thus is subject to heightened judicial scrutiny under the First Amendment. The statute, the Court said, disfavors marketing — i.e., speech with a particular content — as well as particular speakers — i.e., detailers engaged in marketing on behalf of pharmaceutical manufacturers, yet the law allows prescriber-identifying information to be purchased for other types of speech and by other speakers. Because the law imposes an aimed, content-based burden on detailers, the Court said, in practical operation it goes beyond mere content discrimination to actual viewpoint discrimination.

Read full article.

Australia Heads Down the Slippery Slope, Authorizes ISPs to Filter

Thursday, June 23rd, 2011

Starting next month, the vast majority of Australia’s Internet users will find their access censored, following a decision by the country’s two largest providers--Telstra and Optus--as well as two smaller ISPs (itExtreme and Webshield), to voluntarily block more than 500 websites from view.

The decision from the two ISPs comes after numerous failed attempts by the Australian government to set up a centralized filtering plan.

In the new voluntary scheme, ISPs will block sites containing “the appropriate subsection of the Australian Communications and Media Authority (ACMA) blacklist as well as child abuse URLs that are provided by reputable international organisations,” according to

The problem with such a plan is multi-layered: First, there is no transparency in the selection of URLs to be blacklisted, and no accountability from the regulatory bodies creating the blacklists. The “reputable international organizations” providing child abuse URLs have not been named, but may include the Internet Watch Foundation, a UK-based organization that in 2008 advised UK ISPs to block a Wikipedia page containing an album cover from the 1970s that they deemed might be illegal.

The ACMA itself has run into problems with its blacklist as well. After Wikileaks published the regulator’s blacklist ...

Ilya Shapiro on the Dangers of the April 4 OCR Guidance

Thursday, June 23rd, 2011

Yesterday over at Cato@Liberty, Senior Fellow in Constitutional Studies Ilya Shapiro blogged about the Department of Education's Office for Civil Rights' (OCR's) overreaching April 4 "Dear Colleague" letter, which requires federally funded colleges and universities to use a "preponderance of the evidence" (i.e., more likely than not) evidentiary standard when adjudicating claims of sexual violence and sexual harassment on campus. OCR's guidance adds yet another layer of regulation to the already overregulated campus environment, where protected speech is frequently grounds for punishment.

Among other things, Ilya points to Michael Barone's excellent article in The Examiner on the subject, reiterating the idea that the only thing to come out of kangaroo courts on campus will be "marsupial justice." We're very happy to see Cato continue to draw attention to the dangers of the new OCR guidance. The federal government is far more powerful than any individual university administration, so to win this battle it is going to take a strong coalition of liberty-minded people and organizations spreading the word about the grave threat this guidance poses to free speech and due process on campus.

New Changes to FBI Guidelines Call into Question Proposal to Extend FBI Director’s Term

Thursday, June 23rd, 2011

This month, the New York Times reported that the FBI has updated its internal domestic investigations guidelines to provide its agents with “significant new powers.” According to the Times, this update will provide agents with “more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.” These changes are especially troubling as they come on the heels of the Obama Administration’s efforts to extend FBI Director Robert Mueller’s term and on recent reports that the Bureau has once again engaged in controversial surveillance activities directed at “prominent peace activists and politically-active labor organizers.”

The FBI’s Domestic Investigations and Operations Guide (also known as the “DIOG”) is a collection of procedures, standards, approval levels, and explanations, created by the FBI, that implements current Attorney General’s Guidelines as they apply to Bureau investigations.

The Bureau most recently updated the DIOG in 2008, after then-Attorney General Mukasey introduced new AG Guidelines that reduced restrictions on certain surveillance protocols by allowing agents to open investigative “assessments” on Americans and American organizations. As we wrote in a blog post at the time, these assessments, which are still in use today, ...

Apple’s “Censoring” Patent Just a Sign of Things to Come

Thursday, June 23rd, 2011

Apple has been much maligned in the press recently for filing a patent application covering a camera system with infrared technology that could, among other things, allow the recording functionality to be shut off by a third party. For example, in its application, Apple shows how the technology could be used to "prevent illegal image capturing" at a rock concert.

To us, this sounds like a familiar story: one where the content industry pressures technology companies—or, Congress—to limit fans’ ability to access and share their content, even when that sharing is perfectly legal. As we’ve said before, it’s a real shame when the promise of innovation is stifled by Hollywood’s demands.

But this time, there is an even more real threat. The availability of mobile phones with video capability has allowed activists around the world the ability to capture and disseminate important footage, often in the absence of news reporting. If a government were to gain access to and utilize Apple’s technology, the result could mean disastrous consequences.

Of course, in merely prosecuting a patent application, Apple has not signaled any concrete plans to actually use this technology. And the technology does promise some exciting features, too, ...

Another Righthaven Copyright Troll Lawsuit Dismissed as Sham

Wednesday, June 22nd, 2011

Las Vegas - For the second time in a week, the Electronic Frontier Foundation (EFF) has won the dismissal of an infringement case filed by copyright troll Righthaven LLC.

EFF, along with the law firm of Wilson Sonsini Goodrich & Rosati and attorney Chad Bowers, represent Thomas DiBiase in Righthaven v. DiBiase. Righthaven had sued DiBiase, a former prosecutor, for a post on his blog that provides resources for prosecutors in difficult murder cases where the victim is presumed dead but no body is found. A document unearthed by EFF in a related case showed that the copyright assignment was a sham and that Righthaven was merely agreeing to undertake the Las Vegas Review-Journal newspaper's case at its own expense in exchange for a cut of the recovery.

Echoing his earlier decision, Judge Hunt ruled Wednesday that Righthaven did not have the legal authorization to bring a copyright lawsuit, because it never owned the copyright in the first place.

"We are pleased that the Court again saw through Righthaven's sham assignment of the copyright and dismissed its improper claim," said Kurt Opsahl, Senior Staff Attorney at EFF. "Now that the truth about its copyright ownership has been exposed, Righthaven's house ...

FIRE Corrects the Record on ‘Inside Higher Ed’ Reporting of UNC Case

Wednesday, June 22nd, 2011

Inside Higher Ed runs a story today on the case of Elliot Cramer, Professor Emeritus at the University of North Carolina at Chapel Hill (UNC), whose UNC network privileges were terminated by the university as a result of Joseph Villarosa's attempts to draw UNC into a private dispute between him and Cramer. (Villarosa is unaffiliated with UNC.) Inside Higher Ed's story is informed by our press release about the case, released yesterday, and we're grateful for its coverage of the situation.

However, Inside Higher Ed's article overemphasizes the role of an earlier dispute involving the Friends of Orange County Animal Shelter (FOCAS), with which Cramer is associated as a board member, in UNC's actions against Cramer. I summarized the incident in this way yesterday, and readers can follow the link to read more of the primary documentation:

According to records posted by Cramer, Villarosa contacted FOCAS in November 2010, raising questions about FOCAS' tax status in conjunction with the organization's efforts raising funds to support a lawsuit against an animal shelter in Robeson County. Villarosa also questioned the presence of a FOCAS email address with a '' domain, and whether this implied some kind of endorsement from ...

Robert Tackles OCR’s Threat to Campus Rights on WGN Radio

Wednesday, June 22nd, 2011

FIRE Senior Vice President Robert Shibley will be featured on Chicago's WGN Radio 720 at 11:05 a.m. EDT tomorrow morning. Tune in or listen live as Robert tackles the federal Department of Education's Office for Civil Rights' (OCR's) controversial guidance for universities in its April 4 "Dear Colleague" letter, which threatens student rights on our nation's campuses.

Robert will also be discussing pundit Michael Barone's recent take on the OCR letter in his latest column for The Examiner. OCR's mandate, which continues to foster concern in the media, requires colleges and universities receiving federal funding to employ the low "preponderance of the evidence" evidentiary standard ("more likely than not") when adjudicating complaints of sexual harassment and sexual violence.

Reminder! Intellectual Freedom Programs and Related Events at ALA Annual Conference

Wednesday, June 22nd, 2011

The ALA Annual Conference officially begins tomorrow, June 23, in New Orleans. We hope to see you there!

All of OIF’s conference programs, meetings, and events are listed under Initiatives & Projects on the OIF home page.  (Please note that the IFRT Preconference and “When it Leaks it Pours: WikiLeaks, National Declassification System, and Access to Government Information,” have been cancelled).  In addition, here are some other related programs of interest to intellectual freedom advocates:


Dan Savage at the Opening General Session

4:00 to 5:15 PM

DAN SAVAGE is the author of the syndicated column, “Savage Love,” and the Editorial Director of The Stranger, Seattle’s weekly newspaper. Last fall, Savage and his husband, Terry Miller spearheaded the “It Gets Better” campaign by downloading a video on YouTube after a rash of gay teen suicides: youths who took their own lives because of bullying. Six months later, has evolved into a nonprofit organization and a national movement, with over 10,000 videos and growing. President Barack Obama, The Salt Lake City Library, Free Philadelphia Public Library, politicians such as Secretary of State Hillary Clinton, British Prime Minister David Cameron, and celebrities like Tim Gunn, Ellen DeGeneres are ...

CBLDF Heads to the ALA Annual Conference with Exclusive Babymouse Print

Wednesday, June 22nd, 2011

The Comic Book Legal Defense Fund is excited to announce its plans for the 2011 American Library Association Annual Conference, taking place this weekend in New Orleans, Louisiana! You’ll find CBLDF at booth 1749 in the Graphic Novel Pavilion throughout the weekend!

As part of our ongoing educational programming and outreach into the Library community, the CBLDF has planned a number of exciting programs throughout the weekend.

On Friday night, during the Exhibits Opening Reception from 5:30 – 7:30 p.m., we will be kicking off the conference weekend in the Graphic Novel Pavilion with an incredible Live Art event, co-sponsored by First Second Books and hosted by First Second Editorial Director and Cartoonist Marc Seigel. Artists will include Dave Roman (Astronaut Elementary), Raina Telgemeier (The Babysitters Club), Jim Ottaviani (Feynman), Ben Hatke (Zita the Spacegirl), and Eric Wight (Frankie Pickle). These talented and popular cartoonists will be drawing onstage, and the artwork created will be available for bidding in a silent auction throughout the event, with all proceeds supporting the CBLDF.

Over the course of the weekend, we will be accepting donations at our booth in exchange for several ...

Michael Barone Takes on OCR’s Erosion of Campus Due Process

Wednesday, June 22nd, 2011

Add pundit Michael Barone to the steadily growing list of those concerned about the new federally mandated standard of evidence for campus judicial procedures involving allegations of sexual harassment and sexual violence.

Barone's latest column for The Examiner, where he is the senior political analyst, takes on the Department of Education's Office for Civil Rights' (OCR's) recent decision to require colleges and universities receiving federal funding (in other words, virtually all institutions of higher learning) to employ the "preponderance of the evidence" evidentiary standard (i.e., more likely than not) when adjudicating complaints of sexual harassment and sexual violence.

This new mandate, announced in an April 4 "Dear Colleague" letter from Assistant Secretary for Civil Rights Russlynn Ali, will be very familiar to Torch readers and should be of deep concern to any citizen concerned about fair hearings on campus. As Barone writes:

The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

That's far short of the ...

Sidewalk chalk messages at White House not protected speech

Wednesday, June 22nd, 2011

There is no absolute constitutional right to write chalk messages on the sidewalk as a means of political protest, a federal appeals court ruled today.

Rev. Patrick Mahoney had contended that a District of Columbia statute unfairly limited his First Amendment rights to draw a protest message in chalk on the pedestrian portion of Pennsylvania Avenue in front of the White House in 2009. That stretch of Pennsylvania Avenue has been closed to vehicles for several years for security reasons.

The appeals court, balancing Mahoney’s right to freedom of speech and petition versus a government duty to prevent defacement of public property, upheld a lower court ruling approving the chalk ban as long as it was “content-neutral.”

Read full story.