2008 was another tough year for proponents of digital rights management (DRM). As we have pointed out in years past, the infamous Darknet assumptions — three big reasons that DRM copy protection will never work, as set forth in 2002 by a team of Microsoft engineers — continue to be proven true by events. Let's review the three Darknet assumptions one at a time, and see how they fared in 2008. 1. Any widely distributed object will be available to a fraction of users in a form that permits copying. 2008 may be remembered as the year online music went DRM-free. But other industries remain enamored with DRM, and in 2008 their customers continued to circumvent copy protections and make unauthorized copies for free. When the PC game Spore was released, fans were outraged to find the program installed a separate program called SecuROM intended prevent copying of the game, and many protested by quickly posting cracked versions of the game. Spore soon became the most pirated game on the Internet — no surprise, since most new games are available almost immediately for free over P2P sites. Some users say downloading cracked copies is the only way the games will play properly on their systems. Meanwhile, DVD ripper software remains popular (despite Hollywood's attempt to sue the software makers out of business). Even the supposedly unbreakable Blu-ray and DVD-HD DRM was easily cracked — twice in 2008 — by SlySoft. And for all the effort that the rightsholders' lobby to restrict regular consumers' technology, what are the most sought after, and therefore most widely-distributed infringing files on underground sites? Screener DVDs, pristine copies of currently showing films which emerge from Hollywood itself. 2008 also saw a rise in the sharing of expensive textbooks online, showing that with enough incentive (and a lack of convenient ebook equivalents), individuals will spend hours scanning, OCRing and correcting thousands of physical printed pages. 2. Users will copy objects if it is possible and interesting to do so. P2P filesharing continued to grow in popularity in 2008, and even showed signs of joining the mainstream. Pirate Bay claimed to be the world's largest P2P network, with over 22 million users. Comcast claimed that vast amounts of P2P traffic was choking their networks (leading them to surreptitiously block BitTorrent traffic). While it's hard to find accurate figures for P2P usage, there is no evidence that filesharing networks are declining, and anecdotal evidence suggests the opposite. An informal student poll cited by an LA Times Blog found that 64% of students enrolled in a media business course regularly download entertainment through unauthorized sources. 43% were "not concerned" about getting caught. 3. Users will share copies as long as they are connected by high-bandwidth channels. With the failure of DRM to prevent copying, and the continuing popularity of file sharing, that leaves only one way for the entertainment industry to try to prevent copying: filtering content at the point of connection to the Internet. That's why in 2008 we saw the RIAA and other industry voices dropping attempts to prosecute individuals and shifting towards calls for ISPs to filter content — as well as legislation with a similar purpose. The rise of filtering may make sense to content industries, given the fact that the Darknet appears most vulnerable at point #3. But the filtering strategy relies on ISPs making a regular practice of inspecting packets coming across their networks, a practice that does not bode well for the right of privacy, as Professor Paul Ohm warned in a 2008 paper. ISP filtering will simply trigger a new privacy arms race, as users fortify their encryption methods and ISPs step up surveillance. Then there is the worry that sharing of files could move off the net entirely. Already, the exponential increase in size and speed of digital storage is making it easier than ever for files to be traded outside of P2P networks, simply by passing flash drives hand to hand. ISP filtering could end up simply driving the Darknet further underground, making it harder than ever to track and monetize online sharing. As of January 2009, an external terabyte of storage costs around $180. Even relatively pessimistic estimates of the future cost of drives suggest that the terabyte drive will drop below $100 in the next three years. The next generation of file-sharers may be as likely to swap the entire corpus of modern music by hand as they will pick off individual songs online. Like other attempts to stop digital files from doing what digital files do best — make copies — these attempts will do nothing to get artists, musicians or game designers paid. As EFF and others have been arguing for years, the relative ease of copying digital information is a fact of life in the digital world. Attempts to prevent widespread copying are doomed to failure. Rather than make criminals out of fans, we can work to create systems that help get artists paid while delivering content to more homes than ever before. That's a better way forward.

iPhone application developers have until February 2, 2009 to submit comments to the Copyright Office in support of EFF's proposal for a DMCA exemption for iPhone owners who want to "jailbreak" their iPhones to gain the freedom to install applications of their choice. If you're an iPhone app developer, and you have a story about your frustration with Apple's chokehold over iPhone apps, please share it with the Copyright Office. Legalizing jailbreaking is a critical step in loosening Apple's grip and creating an open market for iPhone applications. Apple uses "software locks" to prevent applications other than those sold from the iTunes App Store from running on the iPhone. The process of modifying an iPhone to run applications from other sources is known as "jailbreaking" (this is different from "unlocking," which generally refers to modifying an iPhone to operate with a different network carrier). Although hundreds of thousands of iPhone owners have already jailbroken their phones, Apple is likely to argue that the act of jailbreaking violates the DMCA's ban on circumventing software locks. In an effort to lift this legal cloud, EFF has proposed that the Copyright Office grant a 3-year exemption from the DMCA to permit jailbreaking. Apple's shackling iPhone owners to the iTunes App Store has nothing to do with protecting Apple software from piracy. Instead, it's all about limiting competition and innovation on the iPhone platform. For example, Apple has refused to approve iPhone apps that compete with Apple's own software, such as Mail, Safari, and iTunes. Apple has also censored ebooks from the App Store. And developers of iPhone VoIP applications have also encountered inexplicable delays in app approval. So, if you're an iPhone developer, and you are frustrated with Apple's iPhone app approval process, please consider sharing your experience with the Copyright Office and supporting EFF's proposed DMCA exemption for jailbreaking.

In a scenario that has become depressingly familiar, a news organization has again used the Digital Millennium Copyright Act ("DMCA") to censor legitimate political speech. Citizen Media Law Project reports that YouTube cancelled Progress Illinois' YouTube channel after Fox News had sent three notices of copyright infringement demanding the takedown of Progress Illinois' videos. In the videos, Progress Illinois, a union-sponsored blog, apparently used short clips of Fox News coverage of local and national political events to set up political commentary about those events. Progress Illinois sent a counternotice asking YouTube to restore the video, but that won't happen for several days, i.e. long after public interest in the event Progress Illinois is talking about has waned. We haven't been able to view the videos, but from what we've heard it seems likely that the uses in question were fair, and therefore noninfringing. If so, it is especially shameful that a news organization, which itself depends heavily on fair use to do its own reporting and commentary, should ignore fair use and thereby chill the free speech of others. Moreover, Fox News may have lost sight of its own best interest in another way. As CMLP put it: Fox's heavy-handed response to Progress Illinois' use of its clips highlights the network's myopic view of the media ecosystem in which it operates. Rather than seeing Progress Illinois as a competitor attempting to steal website traffic from WFLD-TV, the network should be grateful that its political coverage is generating buzz in the blogosphere. It's also disappointing that YouTube hasn't already restored the videos. When similar shenanigans took down campaign videos by Senators McCain and Obama during the presidential election season, we called on YouTube to take steps to protect online speech, among them human review of videos that have been subject to a counternotice, and immediate restoration of videos that are clearly noninfringing fair uses. Fox News bears the primary blame here, but we've said it before and it bears repeating: the Internet can continue to revitalize our political lives in exciting and unforeseen ways—if, and only if, service providers, users and content owners all do their parts to protect free speech.

At this week's Macworld Expo, Apple announced that by April, music from the iTunes Store will no longer be shackled by digital rights management (DRM). Finally, DRM is good and fully dead for digital music -- gone from CDs, gone from downloads, and largely dead for streaming. Apple's announcement comes nearly a year after Amazon.com's DRM-free MP3 deals went live, demonstrating that the record labels were holding the DRM card until they could wring business concessions from Apple (in the form of variable pricing). This just underscores that DRM is not really about stopping piracy, but rather about leverage over authorized distributors. In fact, an inventory of Apple's remaining DRM armory makes it vividly clear that DRM (backed by the DMCA) is almost always about eliminating legitimate competition, hobbling interoperability, and creating de facto technology monopolies: Apple uses DRM to lock iPhones to AT&T and Apple's iTunes App Store; Apple uses DRM to prevent recent iPods from syncing with software other than iTunes (Apple claims it violates the DMCA to reverse engineer the hashing mechanism); Apple claims that it uses DRM to prevent OS X from loading on generic Intel machines; Apple's new Macbooks feature DRM-laden video ports that only output certain content to "approved" displays;. Apple requires iPod accessory vendors to use a licensed "authentication chip" in order to make accessories to access certain features on newer iPods and iPhones; The iTunes Store will still lock down movies and TV programs with FairPlay DRM; Audiobook files purchased through the iTunes Store will still be crippled by Audible's DRM restrictions. The majority of these DRM efforts do not have even an arguable relation to "piracy." And even where things like movies and audiobooks are concerned, DRM is not only futile, but will likely be counter-productive, making the "legitimate" alternative less attractive than the Darknet options. This week's announcement is another step in the meltdown of DRM for music. But it is also a stark reminder that Apple remains at the forefront of employing DRM to shove competitors to the fringes and wrest control out of the hands of users.

San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate music patent from the U.S. Patent and Trademark Office (PTO). This was the sixth reexamination request filed by EFF's Patent Busting Project and the sixth time the PTO has granted EFF's request. Seer Systems was awarded this patent for a system and method for joining different musical data types together in a file, distributing them over the Internet, and then playing that file. In the reexamination request, EFF, along with the law firm Day Casebeer Madrid & Batchelder, show that descriptions of this technology were published a number of times before Seer Systems made its claim—including in a book written by Seer's own founder and the named inventor of the patent, Stanley Jungleib. "Mr. Jungleib encouraged others to use the techniques he described in his book and sought patent protection only after those ideas had entered the public domain," said EFF Senior Intellectual Property Attorney Michael Kwun. "It's unfortunate that Seer Systems didn't call Mr. Jungleib's book and the other prior art we cited to the PTO's attention before the patent issued." Seer Systems now has the opportunity to file comments defending the patent, and then the PTO will determine whether to invalidate the patent. The PTO has narrowed or revoked roughly 70% of patents it has decided to reexamine. "Unmeritorious patents can place significant barriers in the way of innovation in the digital age," said Paul Grewal of the Day Casebeer firm. "The PTO quite rightly concluded that there are substantial questions of patentability raised by our request, and we look forward to the PTO's ultimate decision on this patent." Students from the Cyberlaw Clinic at the Berkman Center for Internet and Society at Harvard Law School provided substantial assistance on this reexamination request, carrying out detailed research, preparing an initial claim chart, locating and analyzing a critical piece of prior art cited in the request, and drafting the prior art description that EFF posted on its website. The Seer patent being challenged is U.S. Patent No. 5,886,274, and the reexamination has been assigned the control number 90/009,299. This reexamination request 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 killed one patent covering a system and method of creating digital recordings of live performances. Five more patents are under review by the PTO due to the Patent Busting Project's efforts. For the full reexamination order: http://w2.eff.org/patent/wanted/seer/seer-reexam-granted.pdf For more on the Patent Busting Project: http://www.eff.org/patent/ Contacts: Michael Kwun Senior Intellectual Property Attorney Electronic Frontier Foundation michael@eff.org Paul Grewal Partner Day Casebeer Madrid & Batchelder pgrewal@daycasebeer.com

Over the holidays, video hosting site Veoh won another victory under the DMCA safe harbors, this time against Universal Music Group (UMG). The ruling should put to rest the argument that transcoding and other activities necessary for making content accessible on the web are not covered by the DMCA's Section 512(c) safe harbor for storing material on behalf of users (i.e., hosting user-generated content). This is good news not just for Veoh, but also for YouTube and every other site that hosts material uploaded by users. Like many other companies that host content on behalf of users, Veoh has been bedeviled by copyright lawsuits. The copyright owners make the same argument in each of these suits: the hosting service should be liable for every infringing bit uploaded by naughty users and responsible for the full cost of policing for infringement. Fortunately, Congress enacted the DMCA's safe harbor provisions back in 1998 to protect service providers from exactly these risks, offering immunity from copyright damages to those who implement a notice-and-takedown system. In August 2008, Veoh won a big victory against adult video purveyor Io Group, relying on these provisions. Veoh's latest victory was against UMG, which sued Veoh because Veoh users allegedly uploaded UMG music videos without authorization. The issue before the court was whether the DMCA safe harbor for hosting only covers the actual act of storing bits on a server, or whether it also covers related activities, such as: automatically transcoding video files uploaded by users into Flash format; automatically creating copies of uploaded video files that are comprised of smaller “chunks” of the original file; allowing users to access uploaded videos via streaming; allowing users to access uploaded videos by downloading whole video files. Relying on the statutory language, as well as the legislative history, the court concluded that all of these activities are covered by the DMCA Section 512(c) safe harbor. Lots of online service providers will greet this ruling with relief. If the court had accepted UMG's arguments, every web host would lose the safe harbor as soon as it made web pages available to the public. The ruling should also help YouTube in its ongoing battle with Viacom, which also turns on the continuing strength of the DMCA safe harbors. But the Veoh ruling also points out a surprising irony: while YouTube and Viacom are fighting their interminable litigation trench war, many interesting DMCA legal questions are being resolved in smaller, faster-moving cases involving companies like Veoh. At this rate, the highly-anticipated Viacom v. YouTube lawsuit may end up a footnote in the legal fights that define the rules governing user-generated content.

Today, Chief Judge Vaughn Walker of the United States District Court in San Francisco denied the government's third motion to dismiss the Al-Haramain v. Bush litigation. The ruling means that the case can proceed and the court also set up a process to allow the Al Haramain plaintiffs to prosecute the case while protecting classified information. Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). In late 2007, the 9th Circuit Court of Appeals ruled that despite the disclosure, the "Sealed Document" itself was a state secret, but sent the case back to the District Court to determine whether the FISA law nonetheless allowed the case to go forward, under a doctrine called "preemption." Last summer, the Court had ruled that FISA does preempts the state secrets privilege, and gave Al-Haramain the right to amend its complaint to show that they were "aggrieved persons" within the meaning of FISA through evidence other than the Sealed Document. If they could do so, the case could proceed. In today's ruling, the Court held that in their amended complaint the Al-Haramain plaintiffs had presented sufficient evidence that they were "aggrieved persons" and rejected the Government's claims to the contrary, saying: "Without a doubt, plaintiffs have alleged enough to plead 'aggrieved persons' status so as to proceed to the next step in proceedings . . ." In order to allow litigation to proceed while keeping the secrets under wraps, the Court ordered the government to arrange security clearances for Al-Haramain's attorneys. The Court also ordered the government to allow Judge Walker to review the Sealed Document in his chambers by January 19th. Finally, the Court required the government to review the classified submissions in the case, and declassify as much as possible. The Court will schedule a hearing later this month to plan next steps.

On Wednesday the 7th, EFF will be celebrating our 18th year of defending digital rights with our biggest bash yet! Special guest DJ Spooky will be rocking the DNA Lounge in San Francisco, with help from mashup party pioneers Bootie, copyfighter and Surya Dub DJ Kid Kameleon, and EFF's Tones and Qubitsu. Party with us from 8 p.m. until late. We'll be asking for a $25 donation at the door to fund our work defending your digital freedom, but no one will be turned away for lack of funds. 21+ only, cash bar. The first 400 people through the door will receive a free mix CD from DJ Spooky. For a special meet and greet opportunity with DJ Spooky, RSVP to our VIP pre-party. The first 40 people to RSVP at the VIP level will receive a copy of Sound Unbound, DJ Spooky's lastest book. Thanks for your support of EFF! We look forward to seeing you there!

The well-known Scientology protester Keith Henson has filed an appeal to the Appellate Division of the Riverside County Superior Court of his criminal conviction in 2001 of misdemeanor "interfering with a religion" for picketing in front of a Scientology "base" in Hemet, CA. The ruling was roundly criticized as inconsistent with Henson's First Amendment rights to criticize Scientology: much of the evidence used against him consisted of general statements he made online that were very critical of Scientology but fell far short of the sort of "true threat" required to overcome his First Amendment rights. The trial court also limited his ability to explain his actions or present contrary evidence. The Court of Appeal should take a hard look at the case and reverse the conviction. Scientology watchers will recall that Henson sought, and temporarily obtained, political asylum in Canada right after the verdict, then was arrested upon his return to the US in 2007. The Church of Scientology has been one of the earliest, and most aggessive users of intellectual property and other claims to silence the speech of its online critics. This year Scientology supporters launched a raft of copyright complaints aimed at removing anti-Scientology videos on YouTube. In the Henson case there is a serious concern that the criminal law was misused in an effort not to respond to any real threats, but instead to silence one of the Church's loudest and most persistent online critics. It's time to undo that injustice.

Obama's Total Information AwarenessThe New Republic says no campaign in history has ever compiled more information on its supporters. FBI Turning Cell Phones Into Eavesdropping DevicesBy remotely activating the microphone in mobile phones, the FBI has been able to eavesdrop on suspects. Analysis of the 2nd Circuit Decision on NSLsEugene Volokh goes deep inside the 2nd Circuits decision to ask whether the ruling is good for free speech. RIAA President SpeaksIn an interview, Cary Sherman answers questions on the new RIAA plan to collaborate with ISPs to block users accused of piracy. Apple Bans Edgy Books From iPhoneApple is refusing to allow what it considers "objectionable content" to be sold through its App Store, even in book form. Fooling Speed CamerasHigh School students in Maryland have been tricking speed cameras into sending fines to innocent drivers. NSA on FacebookThe National Security Administration wants to be your "friend."