[IP] EFFector 19.09: Tell AOL To Drop Its Pay-To-Send Email Plan]
EFFector Vol. 19, No. 9 March 3, 2006 editor@xxxxxxx
A Publication of the Electronic Frontier Foundation
ISSN 1062-9424
In the 370th Issue of EFFector:
* Tell AOL To Drop Its Pay-To-Send Email Plan
* New House Bill Would Cripple Digital Radio Devices
* EFF Files Brief in P2P File Sharing Case, Fights
Expansion of Copyright Holders' Rights
* Support EFF: Fourth Amendment Shipping Tape and Mini-
Flashlights now Available From the EFF Store
* Summer Legal Internships at EFF
* Come See EFF at eTech, March 7-9, and SXSW, March 12-14
* "Cultural Environmentalism at 10" Symposium at Stanford,
March 11-12
* miniLinks (15): DRM Down Under
* Administrivia
For more information on EFF activities & alerts:
<http://www.eff.org/>
Make a donation and become an EFF member today!
<http://eff.org/support/>
Tell a friend about EFF:
http://action.eff.org/site/Ecard?ecard_id=1061
effector: n, Computer Sci. A device for producing a desired
change.
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* Tell AOL To Drop Its Pay-To-Send Email Plan
We're extremely troubled by AOL's plan to introduce a pay-
to-send email system that will guarantee access to AOL
customers' inboxes for senders who pay $0.0025 per mail to
escape anti-spam filters. Last week, we helped assemble a
coalition to persuade AOL to drop this misguided scheme.
Our worry is that AOL is trying to sell preferred access to
something that it does not own -- its members inboxes -- and
creating a delivery charge to email senders. The system
creates a perverse incentive for AOL to lower the benefits
of free email delivery and let its spam filters languish,
encouraging senders to switch to the for-pay alternative.
The company's first steps confirmed this, as they declared
(then hurriedly denied) that they would be dropping their
Enhanced Whitelist, a free service for trusted email
senders.
One might trust that the market will eventually sort this
out: rewarding ISPs that do not sell access to their users'
inboxes and that work to improve deliverability for
everyone, not just senders who pay. But the market speaks
slowly -- in the meantime, this system will push small
speakers into a choice of paying or not being sure that
their messages are getting through to their members. And
recipients often won't know what mail they are not
receiving, making it difficult for the market to work.
Many AOL users have significant impediments to moving away
from their provider, with its proprietary and closed
software. Meanwhile, other mail providers, like Yahoo!, are
already eyeing the revenue opportunities of pay-to-send.
Microsoft's Bonded Sender is actually worse in many ways.
Since AOL's members are also the members of the nonprofits
and other groups that would be hurt by this program, we
thought it should hear from them. That's why we pulled
together a diverse coalition of email senders to oppose
AOL's pay-to-send system. Over fifty groups with nearly 15
million members joined with us, including Free Press, the
U.S. Humane Society, the Gun Owners of America, MoveOn.org,
RightMarch.com, the AFL-CIO, and Computer Professionals for
Social Responsibility. Around 30,000 individuals have signed
our petition, including Tim O'Reilly, Michael Geist and
Chris Pirillo.
Earlier today, AOL made its first concessions in this
battle. We're sure that, with your support, it will make
more. If you'd like to help, visit Dear AOL, and help us
help AOL avoid making a terrible mistake.
Take Action, and Sign our Letter:
<http://www.dearaol.com/>
AOL Announces it is Dropping its Whitelist:
<http://www.the-dma.org/cgi/dispnewsstand?article=4405+++++>
Our Deep Link on AOL's system:
<http://www.eff.org/deeplinks/archives/004398.php>
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* New House Bill Would Cripple Digital Radio Devices
Yesterday, Rep. Mike Ferguson (R-N.J.) introduced the "Audio
Broadcast Flag Licensing Act of 2006," H.R. 4861, a House
companion bill to the Senate's broadcast flag bill.
This bill would require that all future digital radios (both
terrestrial, like HD Radio, and satellite, like XM and
Sirius) "include prohibitions on unauthorized copying and
redistribution of transmitted content." The FCC would be
tasked with working out the details.
This is the culmination of months of lobbying by the RIAA to
lock down the "record" button on your next radio. Despite
the fact that, under existing copyright law, building and
using digital radio recorders is clearly legal, thanks to
the Audio Home Recording Act.
H.R. 4861 is chilling in at least three ways. First, the
bill forces technology creators to get a license from the
FCC to build a radio receiver and incorporate DRM if the
receiver has a record button. In other words, satisfying the
Code of Federal Regulations would come before satisfying
customers.
Notice that "unauthorized" copying and redistribution will
be prohibited, rather than unlawful copying and
redistribution. Translation: unless you get permission, it's
forbidden, even if it would be a fair use or perfectly legal
under the AHRA.
The bill also says that the restrictions "shall not be
inconsistent with the customary use of broadcast content by
consumers to the extent such use is consistent with the
purposes of this act and other applicable law." This freezes
fair use based on yesterday's "customary uses," rather than
leaving room for tomorrow's innovators. Remember, time
shifting with your VCR was not "customary" in 1976, nor was
platform-shifting CDs to your iPod in 1997.
The RIAA's filings with the FCC on this topic back in 2004
are suggestive of what it considers permissible. Among the
many restrictions they've asked for:
* preprogrammed recordings must be for no less than 30
minutes;
* recordings cannot be divided into individual songs, nor
will you be allowed to jump between songs;
* recordings must be encrypted and locked to the individual
recording device (no transfers to your iPod!);
* recordings can only be triggered by a human pressing a
"record" button or by pre-programmed date-and-time (like
your old VCR!), which means no smart metadata driven
features like TiVo's "Wishlist."
"RIAA believes that these rules appropriately balance the
interests of users in recording material off-the-air while
protecting the interests of the music industry...."
Neither EFF nor the Copyright Act agrees.
For the House bill:
<http://eff.org/IP/Video/HDTV/fergus_bill.pdf>
To voice your opposition to the Senate companion bill:
<http://action.eff.org/site/Advocacy?id=205>
For more on the RIAA's attempts to cripple digital radio:
<http://www.eff.org/IP/Video/HDTV/?f=digitalradioflag.html>
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* EFF Files Brief in P2P File Sharing Case, Fights Expansion
of Copyright Holders' Rights
Last week, EFF filed an amicus brief on behalf of Denise
Barker, one of the more than 19,000 Americans who have been
sued by the record labels for file sharing. Ms. Barker,
represented by Ray Beckerman, is fighting back in court.
EFF's brief makes one narrow but important point: P2P file
sharing does not infringe a copyright owner's "distribution
right."
The major record labels have been suing file-sharers for
infringing both the reproduction right (for downloading) and
the distribution right (for uploading). Because most of
these lawsuits settle or go undefended, simply alleging
infringing copying should be enough. So why sue on both
grounds?
Answer: the record labels are hoping to quietly expand the
"distribution right" to include Internet transmissions. In
other words, the major labels are trying to rewrite the
rules on the backs of people like Denise Barker, hoping to
get new leverage in other contexts.
The labels are aiming to stretch the distribution right in
two ways. First, they are claiming that "merely offering" to
upload a file infringes the distribution right, even if no
one ever takes you up on the offer. In other words, the
labels are hoping to fool a court into conjuring a brand new
beast: attempted copyright infringement. Judge Patel
rejected exactly this notion in the Napster case.
But even more importantly, the labels are hoping that the
courts will extend the distribution right to include
transmissions over the Internet. When a file-sharer uploads
a file, the file is transmitted and a copy retained at the
other end. While that may look like a "distribution," the
Copyright Act does not give a copyright owner control over
all distributions, but rather only distributions of
physical, material objects ("copies and phonorecords"). So,
unless a file-sharer has unscrewed her hard drive and handed
it to another person, she is not infringing the distribution
right, because that right only extends to distributions of
physical objects.
Why does it matter? If transmission plus reproduction equals
distribution, then suddenly lots of people start looking
like distributors. When XM and Sirius sell you a receiver
that can record their broadcasts, or Comcast provides DVRs
to subscribers, they might find themselves running afoul of
this new, expanded "distribution right." This, in turn,
would give the movie and music industries another weapon in
their fight against new technologies.
After decades of lobbying in Congress, the entertainment
industries already have plenty of weapons at their disposal.
Bullying individual file-sharers shouldn't get them new
ones.
For EFF's brief:
<http://eff.org/IP/P2P/RIAA_v_ThePeople/elektra_v_barker/elektra-amicus-efiled.pdf>
For more on the RIAA's lawsuits:
<http://www.eff.org/IP/P2P/riaa-v-thepeople.php>
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* Support EFF: Fourth Amendment Shipping Tape and Mini-
Flashlights now Available From the EFF Store
Grab some all new swag from the EFF Store!
*Fourth Amendment Shipping Tape*
Declare your right to privacy with new EFF shipping tape,
and remind prying eyes to stay out of your packages,
presents, suitcases, and more.
*Mini-Flashlights*
Last year, EFF exposed how many popular laser printers embed
tiny tracking dots on printouts. Using EFF pocket-sized
mini-flashlights, you can see these normally invisible dots
for yourself.
T-shirts, hats, and more are also available. All proceeds go
to support EFF.
To visit the store:
<http://secure.eff.org/shop>
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* Summer Legal Internships at EFF
EFF invites outstanding law students to apply for summer
internship positions at our high-energy office in San
Francisco. Interns assist in all aspects of litigation and
advocacy, including legal research, factual investigation,
and drafting of memoranda and briefs, while also helping
with policy research, client counseling, and the development
of public education materials. EFF's docket ranges across
the technological and legal landscape, from file sharing to
electronic voting to the USA PATRIOT Act.
Summer internships are full time and last 10-12 weeks. First
and second-year law students are encouraged to apply,
including students enrolled in non-US schools. The deadline
to apply is March 15.
For details:
<http://www.eff.org/about/opportunities/legalinterns/>
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* Come See EFF at eTech, March 7-9, and SXSW, March 12-14
EFF will be at the O'Reilly Emerging Technologies Conference
in San Diego, California. Please visit our booth and grab
some EFF swag during exhibit hours -- we look forward to
seeing you!
Tuesday, March 7, 2006
6:00PM - 7:30PM (Sponsor Reception)
Wednesday, March 8, 2006
10:00AM - 11:00AM
12:00PM - 2:00PM
3:00PM - 4:30PM
Located in the Exhibit Hall
Staff Attorney Jason Schultz and Activism Coordinator Danny
O'Brien will also discuss the policy and legal challenges
facing innovators, presenting a session entitled "America's
Next Top Tech Lawsuits."
Thursday, March 09
2:35pm - 3:20pm
Located in Madeleine AB
And if you're heading down to Austin, Texas for the South-
by-Southwest (SXSW) conference and festival, stop by EFF's
booth on March 12-14.
For more information about eTech:
<http://conferences.oreillynet.com/etech/>
For more information about SXSW:
<http://2006.sxsw.com/>
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* "Cultural Environmentalism at 10" Symposium at Stanford,
March 11-12
Ten years ago, Professor James Boyle helped launch the
movement for more balanced intellectual property laws. In an
insightful article, Boyle suggested that the
environmentalist movement provided important lessons for
those who sought to protect the public's right to access
culture.
On March 11-12, the Stanford Center for Internet and Society
will host a symposium on "cultural environmentalism." The
symposium will feature many leading scholars, including EFF
Board Members Pam Samuelson and Lawrence Lessig as well as
EFF Advisor Mark Lemley. The symposium is free, though
registration is required.
For more information:
<http://cyberlaw.stanford.edu/conferences/cultural/index.shtml>
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* miniLinks
miniLinks features noteworthy news items from around the
Internet.
~ DRM Down Under
Australian report examines flaws in America's DMCA, hoping
to implement less misguided anti-circumvention law.
<http://www.aph.gov.au/house/committee/laca/protection/report.htm>
~ Poll: Americans Reject Government Spying on Searches
Though split about Google turning over search data to the
feds, 65% of Americans oppose government monitoring.
<http://www.uconn.edu/newsmedia/2006/February/rel06011.html>
~ How Will the Chinese Remember America?
Journalist Rebecca Mackinnon considers how Internet
companies' (in)action today will impact tomorrow's Chinese
citizens.
<http://www.thenation.com/doc/20060313/mackinnon>
~ Yahoo! Music Exec: Dump the DRM!
Refreshing common sense from David Goldberg at the Music 2.0
conference.
<http://news.com.com/2061-10799_3-6042756.html>
~ TIA Data Mining Program Proceeds in Secret
Item number 437 on the laundry list of surreptitious
government privacy invasions.
<http://nationaljournal.com/about/njweekly/stories/2006/0223nj1.htm>
~ Center for Democracy and Technology Releases Report on
Digital Surveillance
Proposes stronger privacy protections in light of new
technology.
<http://www.cdt.org/press/20060222press.php>
~ RIAA and Broadcasters to Huddle on Audio Broadcast Flag
Nothing like negotiating about the future of digital radio
devices without a technology company or consumer advocate in
the room.
<http://billboardradiomonitor.com/radiomonitor/news/business/digital/article_display.jsp?vnu_content_id=1002034785
>
~ The Benefits of MySpace
While the media panics about the site's dangers, danah boyd
takes a much-needed look at social networking's value.
<http://www.danah.org/papers/AAAS2006.html>
~ Reflections on "Cultural Environmentalism"
James Boyle reflects on his seminal article about extreme
intellectual property laws, ten years after its publication.
<http://news.ft.com/cms/s/cc8e24ce-a242-11da-9096-0000779e2340,s01=3D1.html>
~ Copyright, a new Open Access Journal
"Peer-reviewed journal ... seeks papers on all aspects of
copyright in the Internet age."
<http://www.copyrightjournal.org/index.php/Copyright>
~ Shareholder Value and Human Rights Aren't Mutually
Exclusive
Boston Common Asset Management pushes companies to improve
conduct in China.
<http://www.socialfunds.com/news/article.cgi/article1931.html>
~ The Illustrious Employment of "Sue Hollywood"
She's EFF's Fifth Beatle, but with more office chairs. At
least that's what Zoominfo told us.
<http://www.zoominfo.com/Search/PersonDetail.aspx?PersonID=231235436>
~ Tormap: A View Into Your Privacy Protection
Tormap is a visual representation of the Tor network.
<http://www.0x2a.at/projects/tormap/>
~ U.C. Berkeley Deems Google Desktop 3 Unsafe
Campus security warns that "Search Across Computers" could
put private data on Google's servers.
<http://istpub.berkeley.edu:4201/bcc/Fall2006/905.html>
~ The Power of the Playlist
WashingtonPost.com highlights the cultural benefits of
allowing music fans to share their tastes.
<http://www.washingtonpost.com/wp-dyn/content/article/2006/03/01/AR2006030100635.html?referrer=emailarticle>
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* Administrivia
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derek@xxxxxxx
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