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MoveOn.org, Brave New Films Dismiss Lawsuit Over Colbert Parody

Viacom Endorses Excerpting Video for “Creative, Newsworthy or Transformative Use”

San Francisco - Responding to Viacom’s willingness to take steps to protect the free speech rights of those who post videos to YouTube and similar video sharing sites, the Electronic Frontier Foundation (EFF) and Stanford Law School’s Fair Use Project (FUP) today dismissed a lawsuit filed on behalf of MoveOn.org Civic Action and Brave New Films (BNF).

The lawsuit was filed in federal court last month, after a parody of “The Colbert Report” was removed from YouTube following a meritless copyright complaint by Viacom. The humorous video, called “Stop the Falsiness,” was created by MoveOn and BNF using clips from the Comedy Central television series. It was a tongue-in-cheek commentary on Colbert’s portrayal of the right-wing media and parodied MoveOn’s own reputation for earnest political activism.

Viacom initially denied sending the Digital Millennium Copyright Act (DMCA) takedown notice that resulted in the removal of the video from YouTube, while saying it had no objection to “Stop the Falsiness.” However, Viacom later conceded it was the source of the demand and admitted error in taking action against the parody.

In the course of discussions with EFF and FUP, Viacom described the steps it endorses for protecting fair use and free expression as it targets copyright infringement on Internet video sites. This includes: manual review of every video that is a potential DMCA takedown target, training reviewers to avoid issuing takedown requests for fair use, and publicly stating that it does not challenge use of Viacom materials that are “creative, newsworthy or transformative” and are “a limited excerpt for non commercial purposes.”

Furthermore, in reaction to the MoveOn/BNF suit, Viacom moved the ball forward for Internet users’ rights. In order to address any similarly erroneous takedown notices in the future, Viacom has agreed to set up a website and email “hotline,” promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.

In light of these disclosures and commitments — designed to protect the fair use and free speech rights of Internet users who rely on video sharing sites like YouTube — MoveOn and BNF have dismissed their claims against Viacom.

“If copyright owners are going to be sending hundreds of thousands of DMCA takedown notices, they also have a responsibility to protect the legitimate free speech rights of the citizen creators who rely on platforms like YouTube,” said EFF Senior Intellectual Property Attorney Fred von Lohmann. “By choosing to respect newsworthy and transformative uses of their materials — and establishing a simple process that lets improperly targeted users get their material back up quickly — Viacom has taken important steps toward meeting that responsibility. We hope other media companies will follow Viacom’s lead.”

“This new endorsement of Internet users’ rights is a victory for the little guy,” said Eli Pariser, Executive Director of MoveOn.org Civic Action. “Online sites like YouTube have revolutionized political expression and can give the little guy an audience of millions for a political point of view. A corporate powerhouse like Viacom must not be allowed to erase political content or muzzle political expression.”

“Following these practices will not curb all DMCA copyright abuse,” said EFF Staff Attorney Corynne McSherry. “But they are several much-needed steps in the right direction. If a major content owner like Viacom can recognize this, other content owners should be able to do the same.”

For Viacom’s letters outlining its policies:
http://www.eff.org/legal/cases/moveon_v_viacom/falsiness_letter_032707.pdf
http://www.eff.org/legal/cases/moveon_v_viacom/0411_letter_fvl.pdf”
http://www.eff.org/legal/cases/moveon_v_viacom/0417_letter_fvl.pdf

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

Anthony Falzone
Executive Director, Fair Use Project
Stanford Law School
anthony.falzone@stanford.edu

Adam Green
MoveOn.org Civic Action
adamgreen@moveon.org

Illegitimate Patent Inhibits Innovation in Market for Mobile Information Access

San Francisco - The Electronic Frontier Foundation (EFF) took aim today at a bogus patent threatening innovative technologies that enhance consumer awareness, requesting a reexamination by the United States Patent and Trademark Office (PTO).

NeoMedia Technologies, Inc., claims to own rights to all systems that provide information over computer networks using database-like lookup procedures that rely on scanned inputs, such as a barcode. NeoMedia has used these claims not only to threaten and sue innovators in the mobile information space, but also to intimidate projects focused on increasing awareness among consumers about the social and environmental impact of the products they buy. For example, the Consumer Information Lab at the College of Natural Resources at the University of California at Berkeley uses such technology to examine how health, environmental, and social information affects consumers’ shopping behavior and decision-making. Were NeoMedia to control the patent rights to this technology, such projects could be severely limited and potentially shut down.

“NeoMedia should not be allowed to use this bogus patent to inhibit consumer awareness, education, or research into the impact of information on consumer choice,” said EFF Staff Attorney Jason Schultz. “This is the opposite of ‘progress,’ something the patent laws are supposed to promote.”

EFF’s reexamination request shows that the functionality covered by NeoMedia’s bad patent was repeatedly included as part of prior patent applications from other companies — demonstrating that the idea of forming a network connection from scanned items was well-known before NeoMedia made its claim. EFF, in conjunction with Paul Grewal and James Czaja of Day Casebeer Madrid & Batchelder, ask the PTO to revoke the patent based on this and other evidence.

“Our patent system is supposed to protect innovation, not block it. Everyone loses if the Patent Office allows these kinds of abuses to continue,” said Grewal, a partner at the Day Casebeer firm.

The challenge to the NeoMedia patent is part of EFF’s Patent Busting Project, which combats the chilling effects bad patents have on public and consumer interests. So far, the project has helped kill a bogus patent covering a system and method of creating digital recordings of live performances. The PTO has also granted another EFF reexamination request for an illegitimate patent for online test-taking.

For the full NeoMedia patent reexamination request:
http://www.eff.org/patent/wanted/patent.php?p=neomedia

For more on EFF’s Patent Busting Project:
http://www.eff.org/patent/

For more on Day Casebeer Madrid & Batchelder:
http://www.daycasebeer.com

For more information on the Consumer Information Lab at UC Berkeley’s College of Natural Resources:
http://nature.berkeley.edu/infolab/projects/informationtoolsdevelopmentproject

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Paul Grewal
Partner
Day Casebeer Madrid & Batchelder
pgrewal@daycasebeer.com

Chemical Company on Quest to Identify Online Speaker

San Francisco - The Electronic Frontier Foundation (EFF) and the California First Amendment Coalition (CFAC) have asked a California appeals court to scrutinize a chemical company’s attempt to strip the anonymity from a participant in an online message board.

The participant posted information that H.B. Fuller Co. claims could only have been obtained through a company “town hall meeting,” in violation of an employee confidentiality agreement. However, the poster has submitted a declaration to the court swearing that he or she is not an employee and that the information posted on the message board could have been gleaned from any follower of Fuller’s business practices.

A lower court ruled the message board poster should be identified to Fuller. In an amicus brief filed Wednesday, however, EFF and CFAC argue that the lower court undervalued the right to anonymity and set a dangerously low threshold for stripping Internet users of its protection.

“Liberal protection for the right to engage in anonymous communication – to speak, read, listen, and associate anonymously – is fundamental to a free society,” said EFF Staff Attorney Corynne McSherry. “That is why courts must strike the appropriate balance between the competing interests of subpoenaing parties and the anonymous speakers they seek to unmask, recognizing that once an online user’s anonymity and privacy have been eviscerated, they cannot be repaired.”

EFF and CFAC urged the appeals court to adopt a test for this case and others that would protect the rights of Internet critics. That test should include notice to the anonymous speaker, an assessment of the merits of the legal claims and other alternatives for finding the source of harm, and careful consideration of the balance of harms.

For the full amicus brief in Fuller v. Doe:
http://www.eff.org/legal/cases/fuller_v_doe/fuller_v_doe_amicus.pdf

For more on anonymity on the Internet:
http://www.eff.org/Privacy/Anonymity

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@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 and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

Alameda County Faces Sanctions for Failure to Preserve E-Voting Data

Oakland, Calif. - On Friday, May 4, at 9 a.m., a California judge will consider potential sanctions against Alameda County for failing to preserve critical voting machine-related data in a lawsuit challenging the county’s recount procedures following a close race conducted on Diebold electronic voting machines in the 2004 general election.

Superior Court Judge Winifred Smith ruled last month that county officials violated both the Elections Code and the California Constitution when they refused to make audit logs and other relevant data available for a recount. The county also returned voting machines to Diebold Election Systems without preserving the corresponding data, despite the ongoing the legal battle over the recount for Measure R.

Measure R, a citizens’ initiative, would have made it easier for qualified medical marijuana dispensaries to operate in Berkeley. The measure lost by under 200 votes. Americans for Safe Access, a medical marijuana group, and three Berkeley voters asked to see the copies of the votes stored in the voting units, the audit logs from those machines, the results of Logic & Accuracy system tests, and the chain-of-custody records for system components. Although California Elections Code provides that a voter may examine “all ballots … and any other relevant material as part of any recount,” former Alameda County Registrar Bradley Clark refused to provide any of this “relevant material.” The voters filed suit.

“Judge Smith’s decision is potent vindication of the people’s right to control their elections and a firm rebuke of the culture of secrecy surrounding electronic voting,” said Gregory Luke of Strumwasser & Woocher LLP, attorney for Americans for Safe Access and the suit’s three other plaintiffs. “Having found that the county violated the voters’ right to a recount, the court must now address the shocking fact that the county disposed of the electronic copies of the votes while this lawsuit was still pending.”

The voter-plaintiffs have asked the court to order the county to return the $22,000 they were required to pay for the recount and, if the county is unable to locate the electronic copies of the votes, to place Measure R back on the ballot.

“Requirements to preserve the transparency of the electoral process are especially important when electronic voting systems are used,” said Electronic Frontier Foundation (EFF) Staff Attorney Matt Zimmerman. “Aside from the widespread problems that have been documented with these types of machines in the past, without the ability to review even the limited evidence that these machines generate, the public would lose further confidence in the process. The court has flatly rejected the shortsighted arguments of the county about its election-related obligations. The county should further be held accountable for any failures to safeguard the digital record of the 2004 election.”

What:
Americans for Safe Access v. County of Alameda

When:
9 a.m.
Friday, May 4

Where:
Alameda County Superior Court Department 31
201 13th St.
Oakland, CA

Contacts:

Matt Zimmerman
Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Gregory G. Luke
Attorney
Strumwasser & Woocher LLP
gluke@strumwooch.com

Kris Hermes
Legal Campaign Director
Americans for Safe Access
kris@safeaccessnow.org

Uri Geller Makes Bogus Copyright Claims to Silence YouTube Critic

San Francisco - The Electronic Frontier Foundation (EFF) filed suit Tuesday against Uri Geller — the “paranormalist” famous for seemingly bending spoons with his mind — on behalf of a YouTube critic who was silenced by Geller’s baseless copyright claims.

EFF’s client, Brian Sapient, belongs to a group called the “Rational Response Squad,” which is dedicated to debunking what it calls irrational beliefs. As part of their mission, Sapient and others post videos to YouTube that they say demonstrate this irrationality. One of the videos that Sapient uploaded came from a NOVA program called “Secrets of the Psychics,” which challenges the performance techniques of Geller.

Despite the fact that only three seconds of the over thirteen-minute video contain footage allegedly under copyright owned by Geller’s corporation Explorogist Ltd. — a classic fair use of the material for criticism purposes — Geller filed a takedown demand with YouTube under the Digital Millennium Copyright Act (DMCA). That violates the DMCA requirement that copyright holders only send takedown notices for infringing content.

“Uri Geller may not like it when people question his paranormal abilities. However, he is not allowed to stifle public criticism by misusing the law,” said EFF Staff Attorney Marcia Hoffman. “If the publication of a video does not infringe his copyright, then he cannot block its use — it’s as simple as that.”

Because of Geller’s unlawful DMCA notice, Sapient’s YouTube account was suspended, and his videos were not available for over two weeks. In the lawsuit filed Tuesday, EFF asks for damages due to Geller’s violation of the DMCA, a declaratory judgment that the NOVA video does not infringe Geller’s copyrights, and that Geller be restrained from bringing any further legal action against Sapient in connection to the clip.

“We’ve seen a rash of people abusing the DMCA lately, attempting to take down legitimate criticism and commentary online,” said EFF Staff Attorney Jason Schultz. “To allow thin-skinned public figures like Uri Geller to abuse this system forces critics to remain silent and creates unfair hurdles for free speech to thrive online.”

This lawsuit is part of EFF’s ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford’s Fair Use Project to develop a set of “best practices” for proper DMCA takedowns. At EFF’s suggestion, media giant Viacom set up an email “hotline” to help users who believe their videos have been improperly ensnared in a takedown campaign.

For the full complaint against Uri Geller and Explorogist Ltd.:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Brian Sapient
Rational Response Squad
infidelsapient@hotmal.com

EFF Supports Conservative Columnist Who Criticized Controversial Hip Hop Artist Akon

San Francisco - San Francisco – With the legal backing of the Electronic Frontier Foundation (EFF), nationally syndicated columnist and prominent blogger Michelle Malkin has contested music giant Universal Music Group’s (UMG’s) improper attempt to silence her online criticism of one of its artists.

In a recent episode of “Vent with Michelle Malkin” — an irreverent daily video podcast produced by Malkin’s conservative Internet broadcast network “Hot Air” — Malkin criticized Universal hip hop artist Akon, calling him a “misogynist” and his antics “vulgar and degrading.” She supported her criticism with excerpts from Akon’s music videos as well as controversial onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad. Malkin’s accompanying commentary condemned both Akon’s lyrics and his behavior.

On Thursday, May 3 — after Malkin appeared on a nationally syndicated talk radio show to put pressure on Akon’s sponsors — UMG claimed the podcast infringed its copyrights and submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing online video hosting site YouTube to pull the episode down. Yesterday, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. Under the DMCA, YouTube can repost Malkin’s video ten days after receiving her counter-notice.

“It is impermissible and irresponsible for copyright holders to use the DMCA as a pretext to squelch criticism,” said EFF Senior Staff Attorney Kurt Opsahl. “Ms. Malkin had every right under copyright law to criticize UMG and Akon, and to use footage of Akon to emphasize her point. Criticism and commentary are not only the core of fair use, but vital to our traditions of free speech.”

“We believe this is a clear attempt by UMG to hide the truth about Akon and intimidate critics,” said Malkin. “The Hot Air staff and I are grateful for EFF’s willingness to challenge a corporate bully wrapped in the DMCA cloak.”

YouTube’s message explaining the UMG takedown:
http://www.youtube.com/watch?v=YZL1IHw6ea8

“Vent” podcast (on hotair.com) that was removed from YouTube:
http://hotair.com/archives/2007/05/03/akon-story-gaining-steam

Michellemalkin.com post discussing the takedown:
http://www.michellemalkin.com/archives/007446.htm

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

Internet Forum Shielded by Federal Law Protecting Free Speech

Washington, D.C. - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) of the National Capital Area has asked a Washington, D.C., court to dismiss claims against a nonprofit watchdog organization and its operators, arguing that federal law and the First Amendment protect them from liability in a defamation lawsuit.

DCWatch is a government watchdog organization run by Dorothy Brizill and Gary Imhoff to monitor Washington, D.C., city politics and public affairs. DCWatch’s website, www.dcwatch.com, publishes articles and columns on local politics. Themail@dcwatch.com is an online newsletter and discussion forum devoted to reporting, analysis and commentary on local issues, past editions of which are archived on the DCWatch site.

In articles printed in themail@dcwatch.com, Washington journalist Jonetta Rose Barras reported that Roslyn Johnson, then Deputy Director of Programs for the D.C. Department of Parks and Recreation, had inflated her employment and salary history to secure her position. A subsequent formal investigation by the D.C. Inspector General concluded that Johnson did in fact submit an inflated resume and was improperly hired for her position. But in a lawsuit filed earlier this year, Johnson claims that these articles were defamatory, placed her in a false light, and resulted in the termination of her employment with the city. In addition to suing reporter Barras, she also sued DCWatch and its operators, claiming that their Internet publication of these articles made them responsible for their content.

EFF and the ACLU of the National Capital Area filed a motion to dismiss the lawsuit, pointing out that DCWatch and its operators are shielded by Section 230 of the Communications Decency Act, which expressly protects providers or users of interactive computer services from liability in order to encourage robust debate in online discussions. The motion also urged the court to dismiss Johnson’s claims, because the First Amendment protects statements about public officials that are substantially true.

“The Internet has played host to a renaissance of political speech, facilitating discussion on issues of local, national, and international importance,” said EFF Staff Attorney Marcia Hofmann. “It’s important that judges resist attempts by public officials to shut down online debate just because they don’t like the speech.”

Courts throughout the country have recognized the critical role Section 230 plays in enabling open discourse on the Internet and have shielded website operators from liability for comments made by others.

“The case against DCWatch must be dismissed. Congress has given online publications absolute immunity for claims based on third-party articles,” said EFF Senior Staff Attorney Kurt Opsahl. “An Internet intermediary should not be liable for what the speaker has said.”

“This is a concept that should be expanded into all media: books, newspapers, radio and television,” said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area. “A speaker or writer should be responsible for his or her words. A bookstore or newsstand should not be responsible for the content of what it distributes.”

For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras

For more on DCWatch:
http://www.dcwatch.com

For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Online Criticism of Hip Hop Artist Akon Drew Baseless Copyright Allegations from UMG

San Francisco - Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin’s online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of “Vent with Michelle Malkin” — an irreverent daily video podcast produced by Malkin’s conservative Internet broadcast network “Hot Air.” In the video posted on YouTube, Malkin called Universal hip hop artist Akon a “misogynist,” supporting her criticism with excerpts from Akon’s music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.

Despite Malkin’s legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF’s assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.

“We’re pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin’s video criticism,” said EFF Senior Staff Attorney Kurt Opsahl. “However, it remains inexcusable. UMG’s misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube’s extensive audience during a time when the controversy about Akon’s behavior was all over the news.”

After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a “terms of use” violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.

“My Hot Air staff and I are grateful for EFF’s invaluable aid in forcing UMG to retreat,” said Malkin. “Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use.”

Reposted episode of “Vent with Michelle Malkin”:
http://www.youtube.com/watch?v=YZL1IHw6ea8

More on the controversy from Michelle Malkin:
http://hotair.com/archives/2007/05/09/hot-air-eff-challenge-umg

More on intellectual property and free speech:
http://www.eff.org/IP/freespeech

Information about Hot Air:
http://hotair.com/about

Contacts:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Michelle Malkin
Founder
Hot Air Network
malkinblog1@gmail.com

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 and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

Agreement Ends Copyright Threats Over Non-Commercial Use of Popular Dance

San Francisco - The man who claims to have created “The Electric Slide” has agreed to call off his online video takedown campaign and to stop threatening people using the popular line dance for non-commercial purposes. Instead, he’s making the dance available for all noncommercial use.

The agreement settles a lawsuit filed by the Electronic Frontier Foundation (EFF) on behalf of videographer Kyle Machulis, who posted a concert video to YouTube that included a ten-second segment of audience members attempting to do the Electric Slide. Richard Silver sent a takedown demand to YouTube under the Digital Millennium Copyright Act (DMCA), alleging he owned the copyright to the Electric Slide and that the video infringed his rights. Machulis’s video was removed from the site.

“Mr. Silver’s misuse of the DMCA interfered with our client’s free speech rights,” said EFF Staff Attorney Corynne McSherry. “New technologies have opened multiple avenues for artists and their audiences to create, share and comment on new works. We cannot let absurd copyright claims squash this extraordinary growth.”

Under the terms of the settlement, Silver will license the Electric Slide under a Creative Commons license — allowing the performance, display, reproduction or distribution of any recorded performance of the dance in any medium for non-commercial purposes. Silver has agreed to post these terms on any of his current or future websites that mention the Electric Slide so that users are aware of the Creative Commons license.

“Often, ‘all rights reserved’ copyright is too restrictive and prevents people from being able to legally use and build upon other people’s creativity in any reasonable way,” said Eric Steuer, Creative Director of Creative Commons. “When that is the case, it makes sense to adopt a more flexible, ’some rights reserved’ approach to copyright. We couldn’t be happier that Mr. Silver is using a Creative Commons license to make the Electric Slide freely and legally available to anyone in the world to use for noncommercial purposes.”

“We are pleased that Mr. Silver has stepped up and recognized fair uses of the Electric Slide,” said EFF Staff Attorney Jason Schultz. “Copyright law is meant to encourage creativity. It must not be used to chill free expression.”

For more on the Electric Slide lawsuit:
http://www.eff.org/legal/cases/electricslide/

For more on Creative Commons:
http://creativecommons.org/about/licenses

Contacts:

Jason Schultz
Staff Attorney
Electronic Frontier Foundation
jason@eff.org

Eric Steuer
Creative Director
Creative Commons
eric@creativecommons.org

Organizations Will Jointly Lobby Governments and International Organizations

Novell to Support EFF ‘Patent Busting’ Initiative

San Francisco (Open Source Business Conference) - Novell and the Electronic Frontier Foundation (EFF) today announced they are teaming up to work on reforms to software patents worldwide.

“It is increasingly obvious that software patents are not a meaningful measure of innovation,” said Jeff Jaffe, executive vice president and chief technology officer at Novell. “As a long-time innovator in the industry and a holder of many significant patents, we understand the rationale behind the patent system in general. But we believe that software patent system reform is necessary to promote software innovation going forward.”

Novell and EFF will work to lobby governments and national and international organizations to develop legislation and policies around patents designed to promote innovation. A key area of focus will be the World Intellectual Property Organization (WIPO), where member governments of the United Nations meet to coordinate positions on intellectual property issues. Given the ease with which software ideas and code cross borders, a global approach to the issue is required.

In addition, Novell will contribute significant resources to EFF’s ongoing “Patent Busting” project. Launched in 2004, the project is designed to attack patents that impose particularly heavy burdens on software developers and Internet users by identifying prior art that can be used to invalidate those patents and by pursuing invalidation of those patents through re-examination efforts.

“EFF has long been at the forefront in addressing the key challenges of the digital age, including worldwide intellectual property issues,” said EFF Executive Director Shari Steele. “The support of Novell — a company founded on the proprietary software development model but now strongly embracing the open source approach — will be a great boon to our efforts to rid the industry of innovation-killing patents. We hope Novell’s example encourages other software vendors to join the effort.”

An early innovator in networking, word processing and messaging technologies, Novell holds more than 500 patents, many of which are fundamental to technologies in the market today. Having shifted its business to focus more on open source and open standards-based solutions, Novell recognizes the new model for innovation is open source, and the existing patent system is detrimental to open source development. Novell has already taken several steps to promote the use of patents to protect open source, including a 2004 pledge to use its own patents to defend against patent attacks on open source, and the contribution of patents and significant financial resources to Open Invention Network, an intellectual property company Novell co-founded in 2005 to promote Linux by using patents to create a collaborative environment.

“Today’s announcement is a logical next step for Novell in its efforts to make patents a non-issue for the software community,” said Nat Friedman, chief strategy and technology officer for open source at Novell. “Software patents hobble open standards and interoperability, impede innovation and progress, threaten the development of free and open source software, and have a chilling effect on software development. Our partnership with EFF is about creating a world where software developers and users do not to have to worry about patents.”

For more on EFF’s Patent Busting project:
http://www.eff.org/patent

Contacts:

Shari Steele
Executive Director
Electronic Frontier Foundation
ssteele@eff.org

Bruce Lowry
Director, Global Public Relations
Novell, Inc.
blowry@novell.com

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 and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

About Novell, Inc.:

Novell, Inc. (Nasdaq: NOVL) delivers infrastructure software for the Open Enterprise. We are a leader in enterprise-wide operating systems based on Linux and open source and the security and systems management services required to operate mixed IT environments. We help our customers minimize cost, complexity and risk, allowing them to focus on innovation and growth. For more information, visit http://www.novell.com.

Novell is a registered trademark of Novell, Inc. in the United States and other countries. Linux is a registered trademark of Linus Torvalds. All other third-party trademarks are the property of their respective owners.

EFF Weighs in On Behalf of Innovators in Remote Computing

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of public interest groups, trade associations, and businesses urged a federal appeals court Friday to overturn a damaging lower court ruling that puts companies that provide remote computing technologies at risk of copyright infringement liability.

The case involves a remote “digital video recorder” (DVR) developed by Cablevision — the fifth largest cable television provider in the U.S. — that allows customers to record programs provided through their Cablevision subscription for later viewing, much like many other DVR offerings. However, instead of storing the recorded programs using a DVR at home, Cablevision’s remote DVR stores the recorded programs on equipment located on Cablevision’s premises. Twentieth Century Fox, the Cartoon Network, and other television networks filed suit, and a district court in New York ruled against Cablevision, reasoning that Cablevision, not its customers, was making the copies. That ruling has now been appealed by Cablevision.

“The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows,” said Fred von Lohmann, EFF Senior Intellectual Property Attorney. “It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters.”

In an amicus brief filed the with 2nd U.S. Circuit Court of Appeals Friday, EFF and the coalition argued not only that the lower court ruling is at odds with copyright law, but also that it poses a threat to innovation in remote computing services more generally. Consumers often have remote access to digital services that provide better performance more conveniently than devices they could buy for their home, but this decision opens the door to more lawsuits that could shut these services down.

“Both consumers and the enterprise are increasingly enjoying the benefits of remote computing capabilities, relying on services like Amazon’s EC2, Google Apps, and Apple’s .Mac, for processing power, applications, and data hosting,” said von Lohmann. “It can’t be the case that these companies are automatically liable for every copyright infringement committed by every user, whether they know about it or not.”

For the full amicus brief filed in the case:
http://eff.org/legal/cases/studios_v_cablevision/CDF_et_al_amicus.pdf

For more on protecting technology innovations:
http://www.eff.org/innovate

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

More Bogus Copyright Claims in Uri Geller’s Frivolous Lawsuit

San Francisco - The Electronic Frontier Foundation (EFF) urged a judge Monday to dismiss a frivolous lawsuit filed by Uri Geller — the “paranormalist” famous for seemingly bending spoons with his mind — because of its blatant attempt to silence critic Brian Sapient with bogus copyright claims.

Geller’s quest to shut down Sapient’s criticism started when Sapient uploaded video to YouTube challenging Geller’s assertions about his mental powers. The 14-minute segment came from a NOVA television program, but Geller and his corporation Explorologist Ltd. claimed the video infringed its own copyrights and had the video removed from YouTube. Sapient filed a counter-notice under the Digital Millennium Copyright Act (DMCA), had the video restored to YouTube, and sued Geller for misrepresentation.

As Sapient was challenging Geller’s meritless claims, Explorologist filed a separate lawsuit against Sapient. The suit includes more bogus charges, with many of them based on the assertion that Explorologist has the copyright to eight seconds of the introductory footage in the NOVA video. EFF’s motion to dismiss the case points out the numerous holes in this claim, arguing that even if it were true, eight seconds is a classic fair use — especially given the critical purposes of the use. The brief also argues that Section 230 of the Communications Decency Act protects Sapient from infringement claims and other charges in Explorologist’s complaint, immunizing Sapient as the publisher of third-party content.

“Copyright law is meant to protect creative artists, not hypersensitive public figures who don’t like criticism,” said EFF Senior Staff Attorney Jason Schultz. “The First Amendment does not allow Geller or his corporation to silence legitimate discussion of his abilities.”

Meanwhile, Sapient’s lawsuit against Geller is still pending before the Northern District of California. The suit asks for damages due to Geller’s DMCA violation, a declaratory judgment that the NOVA video does not infringe Geller’s copyrights, and Geller to be restrained from bringing any further legal action against Sapient in connection to the clip.

For the full motion to dismiss Geller’s suit:
http://eff.org/legal/cases/sapient_v_geller/sapient_motiontodismiss.pdf

For more on Sapient v. Geller:
http://eff.org/legal/cases/sapient_v_geller

Contacts:

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

Jason Schultz
Senior Staff Attorney
Electronic Frontier Foundation
jason@eff.org