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We've conducted an interview with Fred Von Lohmann, Senior Intellectual Property Attorney for the Electronic Frontier Foundation. The Electronic Frontier Foundation (EFF) is an membership organization that has spearheaded many technology-related causes and legal battles, with civil liberties being on the forefront. In cases such as the halt of US encryption method publishing, the 2600/DeCSS case, Morpheus, ReplayTV and constant clashes with the Motion Picture Association of America and the Recording Industry Association of America, the Electronic Frontier Foundation has been one of the most active organizations representing technology.
We fielded questions from visitors along with some of our own, and Fred Von Lohmann took the time to discuss the issues with us. Some of his work with the EFF includes his work on the MGM vs. Grokster case, which threatens to set legal precedent on peer-to-peer (P2P) file sharing. He is also involved in the Newmark vs. Turner Broadcasting case, which involves the use of ReplayTV to skip commercials, record content and share the content with others.
We appreciate the questions from our visitors, and would particularly like to thank Fred Von Lohmann and the Electronic Frontier Foundation for taking the time to discuss important issues in the industry, and for consumers!
"In the Metro-Goldwyn Mayer v. Grokster case, the Electronic Frontier Foundation argues that US courts hold no jurisdiction over regulation of the Kazaa product, as it is located in the island-nation of Vanuatu. The EFF contends that as there are no contacts of substantial value within the US, and as such the courts do not have the authority to regulate or impose fines upon Kazaa. Therefore, does this claim indicate a trend developing in which software companies under legal fire move from jurisdiction to jurisdiction to avoid financial liability or injunction?"
First, EFF does not represent Kazaa and has taken no position on the jurisdiction questions regarding Sharman Networks, which now controls the Kazaa software. Sharman's position is that they have no business contacts with the United States, and therefore should not be dragged into court here. Their chief place of business is in Australia, and they have plainly stated that they would submit to jurisdiction in Australia (not exactly a copyright rogue state).
I think too much has been made of the Vanuatu angle regarding Kazaa. Although the various Kazaa entities are off-shore, they have been located in the Netherlands and Australia. There's no difficulty in litigating in their home countries. In fact, copyright owners have sued (and so far have lost) in the Netherlands. The increase in off-shore developers in P2P is simply a function of the very expensive, hostile environment in the US, where entertainment companies have made it clear that they will sue any company that enters offers general-purpose P2P tools. In the Napster case, moreover, the entertainment companies dropped hints that they might actually sue Napster's investors (Hummer Winblad), a development that has chilled investment in the entire P2P industry sector.
Is it any surprise that US innovators have given up the mantle to other countries? So Blubster is apparently located in Spain, Xolox in the Netherlands, Kazaa in Australia.
"In the case of Newmark v. Turner, EFF argues that the SendShow feature and commercial-skipping using the ReplayTV DVR (Digital Video Recorder) are features which in themselves do not constitute infringement or engage in piracy. If this is true and a user does utilize the commercial skipping technology, then distributes the DVR'd content over the internet using Kazaa somehow, who should be prosecuted for the action if it is found to be an illegal use of copyrighted content?"
The Copyright Act, like most of our laws, has been built on the premise that you go after the guy who actually breaks the law. Sure, sometimes we extend the reach of the law to get the wheel-man, too. But no one has ever suggested that Ford should be liable for every bank robbery committed with one of its cars. Yet the entertainment industries appear to want to let all the bank robbers run free and *only* punish the car makers.
It makes you wonder whether the fight is actually about piracy, or if it's instead about asserting control over new technologies.
If someone uses a PVR (or computer, or crow bar, or car, for that matter) to break the law, then by all means go after them. Find the guys who are distributing "the Sopranos" to their friends who don't pay for HBO. Once you've rounded those couple dozen PVR owners up, then leave the hundreds of thousand other, innocent American PVR owners alone. Stop calling them thieves, stop trying to cripple their cool gadgets, and stop threatening innovative companies like SonicBlue.
Oh, and by the way, once you've busted all the "Sopranos" sharers, don't be surprised if you see a drop in new HBO subscriptions, as you've ended up killing off a free, viral marketing channel that most consumer-products companies would have given their right arm for. But hey, it always pays to ignore your marketing staff and let the lawyers run the show, doesn't it?
"Recently HP threatened legal action under the guise of the Digital Millenium Copyright Act in order to subvert the disclosure of flaws within it's Tru64 operating system. This was also the methodology behind Adobe's initial complaint against Elcomsoft employee Dmitry Skylarov, done in order to squelch disclosure of flaws in their eBook software. What effect overall does the DMCA realistically have over the disclosure of bugs and security holes, and is it positive or negative for the consumer?"
The DMCA is having a very negative impact on computer security research. Don't take my word for it -- Richard Clark, the Bush Administration's Cyber-Security Czar, recently called for DMCA reform for this very reason. For more examples of the chill imposed on legitimate activities by the DMCA, see EFF's white paper, "Unintended Consequences: Four Years Under the DMCA" (google: "DMCA unintended consequences"). To take only the most recent example, Lexmark just filed a DMCA lawsuit against a company that makes chips that permit third-party toner cartridges to be used in their laser printers. I don't think that, when it passed the DMCA, Congress intended to help Lexmark shut out legitimate competition in the toner market.
"Internet Service Providers have begun warning and enforcing portions of their user agreements which forbid subscribers from sharing their wireless internet access with others. In response specifically to Time-Warner Cable's specific warning to customers not to do so, the Electronic Frontier Foundation compiled a list of ISP's who it deemed unlikely to enforce or encroach on this networking method. What methods of discovery and enforcement can ISP's legally take to insure that customers are not using their bandwidth via wireless networking?"
Well, it's not easy to predict what kinds of enforcement options ISPs may undertake to prevent community 802.11 networks. Whatever measures they undertake, however, the right answer is to abandon ISPs that don't provide you the service you want. Choose an ISP that gives you the real Internet, not their port-blocked, bandwidth-shaped, you-can't-run-a-server version of the Internet. We at EFF have compiled a list of ISPs that do not forbid connection sharing. We hope it will help consumers vote with their pocketbooks to support ISPs that are not interested in limiting your Internet options.
"Which US Senator would you consider to be the strongest voice for consumers in regards to the "Fair Use" doctrine? Which US Congressman?"
As a nonprofit, nonpartisan 501(c)(3) organization, EFF cannot endorse particular politicians or engage in direct campaigning. But we certainly do take positions on legislation. For two of the worst pieces of legislation in the last Congress, you might want to check the Hollings Bill (aka CBDTPA, S. 2048), the Berman Bill (aka P2P Vigilante Bill, H.R. 5211). For examples of legislation heading the right direction on copyright, you might want to check out the Boucher-Doolittle DMCRA (H.R. 5544), Zoe Logren's Bill (H.R. 5522) and the Cox-Wyden Fair Use Bill of Rights (H. J. Res. 116). I expect many of these measures to be reintroduced in the new Congress.
"Most of my letters to legislators and organizations about intellectual property go unanswered or I receive formletters. What are the most effective ways I can make a difference in intellectual property policy and law?"
Keep writing. We at EFF have even set up an Action Center to make it easy to write and fax your members of Congress.
Just because you get a form letter doesn't mean you're not making a difference. I used to work for a Senator handling constituent mail, and it can make a big difference. When only a few letters come in, they get a generic "thanks for writing" note. Once it's a steady stream, a staffer looks into the issue, brief his boss, and composes an issue-specific form letter. Once it's a torrent, them members of Congress start calling each other and asking whether there's any legislation they can sign onto to take credit for fixing the problem.
So keep writing.
"What kind of support or help can the average user provide which is most helpful, in assisting the EFF in their efforts, monetarily or otherwise?"
Become a member, make a steady donation. Set up a $10 monthly recurring payment on your credit card. We're a membership-supported organization, with no fat endowment or corporate support. Without our members, we simply cease to exist.
Second, tell 5 of your non-technical family, friends or acquaintances about EFF issues and about why they matter. Holding the interest of the mainstream is critical to making real change. In 10 years, I want every elementary school child to have as much sympathy for digital freedom issues as they do today for environmentalism.
Third, drop us a note if you're able to volunteer. We need all kinds of help -- sometimes we need office furniture, sometimes envelope stuffing, sometimes web design, sometimes strong crypto programming. If you're prepared to devote some real time and make a commitment, we'd love to hear from you.
And keep writing to your representatives, where ever you may live.
"If you were to write one piece of legislation, what would it be, and why?"
Surprisingly enough, it's already been written, and not by me. It's called the DMCRA, H.R. 5544 in the last Congress, sponsored by Rep. Boucher and Rep. Doolittle, and it would reform the DMCA. It fixes the most egregious aspects of the DMCA, making sure that our traditional copyright law balance is restored. If it were law, it would ensure that there were no more Sklyarov cases, no more Felten cases, no more DeCSS cases. That'd be a fine start.
"What do you think is the single most compelling reason why the average person should support the EFF's intellectual property fight?"
If you care about culture, radio, television, literature, music, art, information or knowledge, then you should be supporting our fight on intellectual property. EFF is not against intellectual property. We are fighting for a return to a balanced form of copyright, one that respects the owners and the public equally. After all, copyright law is made, ostensibly, for the benefit of the public. If you, as a member of the public, think that our culture should not be regulated exclusively by high-priced lobbyists working for the entertainment industry, and if you don't believe our copyright law system today is working in the best interests of the public, you should be supporting EFF.
"If you were king for a day and could make one single change to anything concerning intellectual property in the United States, what would you change?"
Striking the right balance in intellectual property is not a matter of making a single change. It's a matter of making lots of changes to adjust to new technologies on an ongoing basis. Today, reform of the DMCA, reduction of copyright term, and fighting to preserve a healthy fair use doctrine are at the top of my list.
"Has there been a court case where more than any other, you think that the "good guys" have lost? What was the reason for their loss?"
The biggest defeats for the public interest in the last decade came not in court cases, but rather in the legislative arena, with the passage of the Sonny Bono Copyright Term Extension Act and the DMCA.
But, in the long run, the Napster decision may well end up being the biggest courtroom defeat. Not because it put down Napster, but rather because it did so in a way that created a dangerous precedent for all technology companies. In the name of stopping P2P file sharing, lots of bad copyright law is being made in the courts right now, law that effectively puts entertainment companies in charge of technological innovation. If the precedents being made today were on the books 20 years ago, we would never have seen the photocopier, the VCR, or the CD recorder. I'm afraid, the bad copyright precedents will be with us long after Napster is a dim memory.
"What is your stand on the concept of intellectual property? Eg, should it be abolished altogether or is there a way to make it work?"
I'm a copyright lawyer. I like copyright, and I think it is plenty flexible enough to see us through the transition to a digital media world. The basic challenge hasn't changed -- we need to strike a fair balance between an author's need to get paid and the public's right to have access to its cultural and media heritage. In order to make it work, we may need to let go of the obsession with perfectly counting and controlling "reproductions" of copyrighted works. Fortunately, there are historical precedents for that. After all, in response to the last revolution in distribution, namely broadcast radio and television, copyright owners learned to let go of the need to control and count every single listener and viewer. And it turned out to work pretty well for all concerned.
Our thanks to Fred Von Lohmann and the Electronic Frontier Foundation for their time!
We've conducted an interview with Fred Von Lohmann, Senior Intellectual Property Attorney for the Electronic Frontier Foundation. The Electronic Frontier Foundation (EFF) is an membership organization that has spearheaded many technology-related causes and legal battles, with civil liberties being on the forefront. In cases such as the halt of US encryption method publishing, the 2600/DeCSS case, Morpheus, ReplayTV and constant clashes with the Motion Picture Association of America and the Recording Industry Association of America, the Electronic Frontier Foundation has been one of the most active organizations representing technology.
We fielded questions from visitors along with some of our own, and Fred Von Lohmann took the time to discuss the issues with us. Some of his work with the EFF includes his work on the MGM vs. Grokster case, which threatens to set legal precedent on peer-to-peer (P2P) file sharing. He is also involved in the Newmark vs. Turner Broadcasting case, which involves the use of ReplayTV to skip commercials, record content and share the content with others.
We appreciate the questions from our visitors, and would particularly like to thank Fred Von Lohmann and the Electronic Frontier Foundation for taking the time to discuss important issues in the industry, and for consumers!
"In the Metro-Goldwyn Mayer v. Grokster case, the Electronic Frontier Foundation argues that US courts hold no jurisdiction over regulation of the Kazaa product, as it is located in the island-nation of Vanuatu. The EFF contends that as there are no contacts of substantial value within the US, and as such the courts do not have the authority to regulate or impose fines upon Kazaa. Therefore, does this claim indicate a trend developing in which software companies under legal fire move from jurisdiction to jurisdiction to avoid financial liability or injunction?"
First, EFF does not represent Kazaa and has taken no position on the jurisdiction questions regarding Sharman Networks, which now controls the Kazaa software. Sharman's position is that they have no business contacts with the United States, and therefore should not be dragged into court here. Their chief place of business is in Australia, and they have plainly stated that they would submit to jurisdiction in Australia (not exactly a copyright rogue state).
I think too much has been made of the Vanuatu angle regarding Kazaa. Although the various Kazaa entities are off-shore, they have been located in the Netherlands and Australia. There's no difficulty in litigating in their home countries. In fact, copyright owners have sued (and so far have lost) in the Netherlands. The increase in off-shore developers in P2P is simply a function of the very expensive, hostile environment in the US, where entertainment companies have made it clear that they will sue any company that enters offers general-purpose P2P tools. In the Napster case, moreover, the entertainment companies dropped hints that they might actually sue Napster's investors (Hummer Winblad), a development that has chilled investment in the entire P2P industry sector.
Is it any surprise that US innovators have given up the mantle to other countries? So Blubster is apparently located in Spain, Xolox in the Netherlands, Kazaa in Australia.
"In the case of Newmark v. Turner, EFF argues that the SendShow feature and commercial-skipping using the ReplayTV DVR (Digital Video Recorder) are features which in themselves do not constitute infringement or engage in piracy. If this is true and a user does utilize the commercial skipping technology, then distributes the DVR'd content over the internet using Kazaa somehow, who should be prosecuted for the action if it is found to be an illegal use of copyrighted content?"
The Copyright Act, like most of our laws, has been built on the premise that you go after the guy who actually breaks the law. Sure, sometimes we extend the reach of the law to get the wheel-man, too. But no one has ever suggested that Ford should be liable for every bank robbery committed with one of its cars. Yet the entertainment industries appear to want to let all the bank robbers run free and *only* punish the car makers.
It makes you wonder whether the fight is actually about piracy, or if it's instead about asserting control over new technologies.
If someone uses a PVR (or computer, or crow bar, or car, for that matter) to break the law, then by all means go after them. Find the guys who are distributing "the Sopranos" to their friends who don't pay for HBO. Once you've rounded those couple dozen PVR owners up, then leave the hundreds of thousand other, innocent American PVR owners alone. Stop calling them thieves, stop trying to cripple their cool gadgets, and stop threatening innovative companies like SonicBlue.
Oh, and by the way, once you've busted all the "Sopranos" sharers, don't be surprised if you see a drop in new HBO subscriptions, as you've ended up killing off a free, viral marketing channel that most consumer-products companies would have given their right arm for. But hey, it always pays to ignore your marketing staff and let the lawyers run the show, doesn't it?
"Recently HP threatened legal action under the guise of the Digital Millenium Copyright Act in order to subvert the disclosure of flaws within it's Tru64 operating system. This was also the methodology behind Adobe's initial complaint against Elcomsoft employee Dmitry Skylarov, done in order to squelch disclosure of flaws in their eBook software. What effect overall does the DMCA realistically have over the disclosure of bugs and security holes, and is it positive or negative for the consumer?"
The DMCA is having a very negative impact on computer security research. Don't take my word for it -- Richard Clark, the Bush Administration's Cyber-Security Czar, recently called for DMCA reform for this very reason. For more examples of the chill imposed on legitimate activities by the DMCA, see EFF's white paper, "Unintended Consequences: Four Years Under the DMCA" (google: "DMCA unintended consequences"). To take only the most recent example, Lexmark just filed a DMCA lawsuit against a company that makes chips that permit third-party toner cartridges to be used in their laser printers. I don't think that, when it passed the DMCA, Congress intended to help Lexmark shut out legitimate competition in the toner market.
"Internet Service Providers have begun warning and enforcing portions of their user agreements which forbid subscribers from sharing their wireless internet access with others. In response specifically to Time-Warner Cable's specific warning to customers not to do so, the Electronic Frontier Foundation compiled a list of ISP's who it deemed unlikely to enforce or encroach on this networking method. What methods of discovery and enforcement can ISP's legally take to insure that customers are not using their bandwidth via wireless networking?"
Well, it's not easy to predict what kinds of enforcement options ISPs may undertake to prevent community 802.11 networks. Whatever measures they undertake, however, the right answer is to abandon ISPs that don't provide you the service you want. Choose an ISP that gives you the real Internet, not their port-blocked, bandwidth-shaped, you-can't-run-a-server version of the Internet. We at EFF have compiled a list of ISPs that do not forbid connection sharing. We hope it will help consumers vote with their pocketbooks to support ISPs that are not interested in limiting your Internet options.
"Which US Senator would you consider to be the strongest voice for consumers in regards to the "Fair Use" doctrine? Which US Congressman?"
As a nonprofit, nonpartisan 501(c)(3) organization, EFF cannot endorse particular politicians or engage in direct campaigning. But we certainly do take positions on legislation. For two of the worst pieces of legislation in the last Congress, you might want to check the Hollings Bill (aka CBDTPA, S. 2048), the Berman Bill (aka P2P Vigilante Bill, H.R. 5211). For examples of legislation heading the right direction on copyright, you might want to check out the Boucher-Doolittle DMCRA (H.R. 5544), Zoe Logren's Bill (H.R. 5522) and the Cox-Wyden Fair Use Bill of Rights (H. J. Res. 116). I expect many of these measures to be reintroduced in the new Congress.
"Most of my letters to legislators and organizations about intellectual property go unanswered or I receive formletters. What are the most effective ways I can make a difference in intellectual property policy and law?"
Keep writing. We at EFF have even set up an Action Center to make it easy to write and fax your members of Congress.
Just because you get a form letter doesn't mean you're not making a difference. I used to work for a Senator handling constituent mail, and it can make a big difference. When only a few letters come in, they get a generic "thanks for writing" note. Once it's a steady stream, a staffer looks into the issue, brief his boss, and composes an issue-specific form letter. Once it's a torrent, them members of Congress start calling each other and asking whether there's any legislation they can sign onto to take credit for fixing the problem.
So keep writing.
"What kind of support or help can the average user provide which is most helpful, in assisting the EFF in their efforts, monetarily or otherwise?"
Become a member, make a steady donation. Set up a $10 monthly recurring payment on your credit card. We're a membership-supported organization, with no fat endowment or corporate support. Without our members, we simply cease to exist.
Second, tell 5 of your non-technical family, friends or acquaintances about EFF issues and about why they matter. Holding the interest of the mainstream is critical to making real change. In 10 years, I want every elementary school child to have as much sympathy for digital freedom issues as they do today for environmentalism.
Third, drop us a note if you're able to volunteer. We need all kinds of help -- sometimes we need office furniture, sometimes envelope stuffing, sometimes web design, sometimes strong crypto programming. If you're prepared to devote some real time and make a commitment, we'd love to hear from you.
And keep writing to your representatives, where ever you may live.
"If you were to write one piece of legislation, what would it be, and why?"
Surprisingly enough, it's already been written, and not by me. It's called the DMCRA, H.R. 5544 in the last Congress, sponsored by Rep. Boucher and Rep. Doolittle, and it would reform the DMCA. It fixes the most egregious aspects of the DMCA, making sure that our traditional copyright law balance is restored. If it were law, it would ensure that there were no more Sklyarov cases, no more Felten cases, no more DeCSS cases. That'd be a fine start.
"What do you think is the single most compelling reason why the average person should support the EFF's intellectual property fight?"
If you care about culture, radio, television, literature, music, art, information or knowledge, then you should be supporting our fight on intellectual property. EFF is not against intellectual property. We are fighting for a return to a balanced form of copyright, one that respects the owners and the public equally. After all, copyright law is made, ostensibly, for the benefit of the public. If you, as a member of the public, think that our culture should not be regulated exclusively by high-priced lobbyists working for the entertainment industry, and if you don't believe our copyright law system today is working in the best interests of the public, you should be supporting EFF.
"If you were king for a day and could make one single change to anything concerning intellectual property in the United States, what would you change?"
Striking the right balance in intellectual property is not a matter of making a single change. It's a matter of making lots of changes to adjust to new technologies on an ongoing basis. Today, reform of the DMCA, reduction of copyright term, and fighting to preserve a healthy fair use doctrine are at the top of my list.
"Has there been a court case where more than any other, you think that the "good guys" have lost? What was the reason for their loss?"
The biggest defeats for the public interest in the last decade came not in court cases, but rather in the legislative arena, with the passage of the Sonny Bono Copyright Term Extension Act and the DMCA.
But, in the long run, the Napster decision may well end up being the biggest courtroom defeat. Not because it put down Napster, but rather because it did so in a way that created a dangerous precedent for all technology companies. In the name of stopping P2P file sharing, lots of bad copyright law is being made in the courts right now, law that effectively puts entertainment companies in charge of technological innovation. If the precedents being made today were on the books 20 years ago, we would never have seen the photocopier, the VCR, or the CD recorder. I'm afraid, the bad copyright precedents will be with us long after Napster is a dim memory.
"What is your stand on the concept of intellectual property? Eg, should it be abolished altogether or is there a way to make it work?"
I'm a copyright lawyer. I like copyright, and I think it is plenty flexible enough to see us through the transition to a digital media world. The basic challenge hasn't changed -- we need to strike a fair balance between an author's need to get paid and the public's right to have access to its cultural and media heritage. In order to make it work, we may need to let go of the obsession with perfectly counting and controlling "reproductions" of copyrighted works. Fortunately, there are historical precedents for that. After all, in response to the last revolution in distribution, namely broadcast radio and television, copyright owners learned to let go of the need to control and count every single listener and viewer. And it turned out to work pretty well for all concerned.
Our thanks to Fred Von Lohmann and the Electronic Frontier Foundation for their time!
