Press Releases: February 2015
Lawmakers Must Reform Flawed System that Enables Demand Letter Abuse
Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Vera Ranieri will testify Thursday at a congressional hearing on patent demand letters. Lawmakers will consider what they should do to reform the flawed patent system, which currently allows unscrupulous patent assertion entities, or trolls, to use unfair and deceptive demand letters to extort undeserved settlements from legitimate businesses.
Armed with vague and overbroad patents that never should have issued, patent trolls pressure small businesses to pay unjustifiable licensing fees. Businesses receiving these demand letters often lack the resources to fight back or to coordinate with others faced with similar demands. In her testimony Thursday, Ranieri will urge Congress to enact measures to protect small businesses from abusive and deceptive demand letters, including enacting disclosure requirements that would help both lawmakers and the public to understand the damage patent trolls do to America's economy.
Thursday's testimony is part of EFF's long-running activism against bad patents and abuse of the patent system. Earlier this week, EFF released its “Defend Innovation” whitepaper, explaining two-and-a-half years' worth of research on the challenges facing innovators under the current patent regime, along with concrete suggestions of measures policymakers should take in the coming year.
The patent demand letter hearing is scheduled to be webcast at https://energycommerce.house.gov/hearings.
WHAT: Congressional hearing: "Update: Patent Demand Letter Practices and Solutions" House Committee on Energy and Commerce, Subcommittee on Commerce, Manufacturing, and Trade
WHO:
EFF Staff Attorney Vera Ranieri
WHEN:
Thursday, February 26
10:15 am ET
WHERE:
2322 Rayburn House Office Building
Washington, DC
For more on the hearing:
https://democrats.energycommerce.house.gov/index.php?q=hearing/hearing-on-update-patent-demand-letter-practices-and-solutions-subcommittee-on-commerce-manu
For the Defend Innovation whitepaper:
https://www.eff.org/document/defend-innovation-how-fix-our-broken-patent-system
Contacts:
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
Rebecca Jeschke
Media Relations Director
Electronic Frontier Foundation
press@eff.org
New ‘Defend Innovation’ Whitepaper Addresses Vague Software Patents, Patent Trolls
San Francisco - The U.S. patent system is in crisis, but there are clear steps Congress and the White House can take to mitigate the impact of vague patents, patent trolls, and a weak legal process to protect competition and creativity, the Electronic Frontier Foundation (EFF) explains in a new report released today.
The "Defend Innovation" whitepaper is the culmination of two-and-a-half years worth of research, drawing from the stories, expertise, and ideas of more than 16,500 people who agree that the current patent system is broken. Split into two parts, the report covers both the challenges facing innovators under the current patent regime, as well as concrete measures that policymakers must take in the coming year.
"Fixing the current patent mess will require concerted action, but it can be done," EFF Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents Daniel Nazer said. "Now more than ever, there is both the need and the will for real and lasting reform."
In the first part of the report, EFF provides in-depth analysis of how overbroad and vague software patents, combined with an insufficient review process by the U.S. Patent and Trademark Office, have hindered rather than supported innovation. This broken regime has created an environment ripe for abuse by patent trolls, also known as "patent assertion entities," that sue or threaten to sue businesses for patent infringement, even though these entities don't make or sell a product themselves. The explosion in software patents has also led to a patent arms race, in which companies acquire broad patents for defensive purposes.
"The U.S. Patent and Trademark Office is issuing far too many weak and overbroad patents, particularly on software," EFF Staff Attorney Vera Ranieri said. "Instead of promoting innovation, these patents become hidden landmines for companies that bring new products to market."
In the second part of the report, EFF prescribes six legislative reforms that would begin to fix the patent system. These include:
- Ensuring there are inexpensive and efficient tools for challenging the validity of issued patents
- Passing a comprehensive patent reform bill, such as the Innovation Act
- Ending the Federal Circuit's exclusive jurisdiction over patent cases
- Passing legislation to discourage bad actors from sending frivolous demand letters
In addition, EFF is calling on private companies to adopt alternative patent licensing schemes that can help prevent patent abuse.
"All three branches of government, as well as individuals and companies, have a part to play when it comes to patent reform," EFF Activist Adi Kamdar said. "Right now, we need legislation that clamps down on litigation abuse by patent trolls and bad actors, and empowers those on the defensive end of frivolous lawsuits to fight back swiftly and cheaply."
The "Defend Innovation" report is one part in EFF's multifaceted campaign to reform the patent system, which also includes the website TrollingEffects.org, the "Stupid Patent of the Month" blog series, and legal effort to invalidate the so-called "podcasting patent."
For the full report visit: https://www.eff.org/document/defend-innovation-how-fix-our-broken-patent-system
For more information on EFF's Defend Innovation project: https://defendinnovation.org
Contacts:
Adi Kamdar
Activist
Electronic Frontier Foundation
adi@eff.org
Daniel Nazer
Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
daniel@eff.org
New Brief Urges Justices to Protect Citizens from Warrantless Analysis of Genetic Material
San Francisco - People have a Fourth Amendment right to privacy when it comes to their genetic material, the Electronic Frontier Foundation (EFF) argues in an amicus brief filed this week with the Supreme Court of the United States.
EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze "inadvertently shed" DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.
"As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be," EFF Senior Staff Attorney Jennifer Lynch said. "The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance."
Glenn Raynor's genetic material was collected and tested without his knowledge or consent after he agreed to an interview at a police station as part of a criminal investigation. The police didn't have probable cause to arrest Raynor, and he refused to provide a DNA sample. After he left the station, police swabbed the armrest of the chair where he had been sitting to collect his skin cells without his knowledge. The police then extracted a DNA profile from the cells and used it to connect him to the crime. The Maryland Court of Appeals ruled that this collection was lawful, and Raynor petitioned the Supreme Court for review. EFF's brief supports Raynor's petition.
The sophistication and speed of DNA analysis technology is advancing exponentially as the costs of the technology drop. These advances, EFF argues, raise significant questions for privacy and civil liberties. DNA can reveal sensitive personal health information and can allow police to identify a person's relatives, turning family members into inadvertent "genetic informants" on each other. Some researchers have also postulated that DNA can determine race, sexual orientation, intelligence, and even political predispositions.
"Law enforcement should not be able to amass giant databases of genetic material they find lying around," EFF Senior Staff Attorney Hanni Fakhoury said. "The Supreme Court should review this case and consider it within the context of emerging technologies that could significantly affect the privacy rights of every American."
For EFF's amicus brief:
https://www.eff.org/document/amicus-brief-27
Contact:
Jennifer Lynch
Senior Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
EFF’s Clients’ Identities Must Remain Secret, But Still Speak Out About Unconstitutional Gag Orders
San Francisco - Two companies who must remain anonymous about their fight against secret government demands for information known as national security letters (NSLs) are backing Twitter's lawsuit over its rights to publish information about NSLs it may have received. The companies—a telecom and an Internet company—are represented by the Electronic Frontier Foundation (EFF).
Twitter filed its suit in October, saying users deserved to know certain basic facts about NSLs that the government did or did not serve on the social media company. NSLs—issued by the federal government but not approved by a judge—almost always contain a gag order barring the companies from notifying their customers or the public that any demands have been made.
The companies represented by EFF also want to go public with some details of their fights against NSLs, including their corporate identities and what they have done to protect their customers from unreasonable collection of information. In an amicus brief filed today, they argue that the gag orders are an unconstitutional prior restraint on free speech and a serious infringement of their First Amendment rights. However, the government continues to maintain that even identifying EFF's clients as having received an NSL might endanger national security.
"The Supreme Court as well as courts across the land have recognized that a prior restraint—preventing speech in the first instance instead of imposing a penalty after the speech—is a serious and dangerous step," said EFF Legal Fellow Andrew Crocker. "Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review. Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures."
In 2013, a federal district court judge in San Francisco agreed with EFF and its clients that the NSL provisions were unconstitutional, and barred any future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced additional NSLs while EFF is arguing the case in the United States Court of Appeals for the Ninth Circuit.
"The district court in our case against national security letters was right—the First Amendment forbids the FBI from gagging service providers from openly discussing such invasive, secretive, and unaccountable activities," said EFF Deputy General Counsel Kurt Opsahl. "On behalf of our clients, we are asking this court to reach the same conclusion, and allow the public to get information they need about law enforcement activities."
For the full brief in Twitter v. Holder:
https://www.eff.org/document/amicus-brief-26
For more on NSLs:
https://www.eff.org/issues/national-security-letters
Contacts:
Kurt Opsahl
Deputy General Counsel
Electronic Frontier Foundation
kurt@eff.org
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
andrew@eff.org
EFF Asks Court to Invalidate Junk Patent on 'Vote-for-Your-Favorite' Online Competitions
San Francisco - The Electronic Frontier Foundation (EFF), together with Durie Tangri LLP, is defending a photo hobbyist against an outrageous patent suit from a company that claims to hold the rights to online competitions on social networks where users vote for the winner.
“It’s part of our job to identify stupid patents and to try to get rid of them, and this is one of the silliest I have ever seen,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client has been running ‘vote-for-your-favorite-photo’ polls for years, just for fun and the love of photography. The idea that you could patent this abstract idea—and then demand a settlement to go away—goes against both patent law and common sense.”
EFF’s client runs Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent, U.S. Pat. No. 8,209,618, takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.
In September of last year, Garfum used this patent to accuse EFF’s client of infringement, and filed suit. In the motion to dismiss the complaint, EFF argues that the patent should be declared invalid.
“Patents like this improperly interfere with the ability of people to use the Internet to do things they’ve been doing in the analog world for generations. Here, this patent is interfering with the age-old tradition of like-minded enthusiasts getting together to celebrate their hobbies,” said EFF Staff Attorney Vera Ranieri. “Demanding a payout for infringement on an obviously bad patent like this one isn’t just unfair. It acts as a chilling effect against those who would want to use the Internet to expand their community.”
“Patent bullies sue with weak patents and pick on defendants that can’t afford to prove their innocence,” said Nazer. “We’re glad we can help our client fight back against Garfum’s abuse.”
Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.
For the full motion to dismiss:
https://www.eff.org/document/motion-dismiss-3
For more on this case:
https://www.eff.org/cases/garfum-v-reflections-ruth
Contacts:
Daniel Nazer
Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents
Electronic Frontier Foundation
daniel@eff.org
Vera Ranieri
Staff Attorney
Electronic Frontier Foundation
vera@eff.org
Justice Department Must Provide Records of Aircraft-mounted Cell Tower Simulators
San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit to shine light on the U.S. Marshals Service's (USMS) use of small aircraft mounted with controversial cell-phone tracking systems.
The Wall Street Journal revealed last year that the Marshals have been flying small, fixed-wing Cessna planes mounted with IMSI catchers—devices that emulate cell phone towers and are able to capture the locational data of tens of thousands of cell phones during a single flight. The planes—in the air since 2007—reportedly were based out of five metropolitan airports and shared by multiple agencies within the U.S. Department of Justice, even as sources within the agency questioned the legality of the program.
In the press, IMSI catchers are also known as "stingrays," a name taken from the "Stingray II" device manufactured by Harris Corporation, or "dirtboxes," a nickname for Boeing subsidiary Digital Receiver Technology's "DRT" devices. Across the country, the Justice Department has intervened in local public records battles to prevent the release of information about these technologies, employing tactics such as signing nondisclosure agreements with state and local law enforcement agencies, seizing records held by those agencies, and withholding key pieces of information about the technology from judges and criminal defendants.
A week after the Wall Street Journal story kicked off a media firestorm, EFF filed a comprehensive FOIA request with Justice Department and FBI over the USMS program, seeking a wide variety of records, including policies, procedures, training materials, communications about the legality of the program, and documentation of each use of the spy planes. As of this filing, the Justice Department has produced no records in response to the request or offered a timeline for release of the documents.
"These devices pose obvious privacy concerns, but the government has been opaque about its use of stingrays,” EFF Legal Fellow Andrew Crocker said. “It's time to do away with the secrecy."
For more information and documents related to the suit, visit:
https://www.eff.org/cases/us-marshals-airborne-imsi-catchers
Contacts:
Andrew Crocker
Legal Fellow
Electronic Frontier Foundation
andrew@eff.org
Jennifer Lynch
Senior Staff Attorney
Electronic Frontier Foundation
jlynch@eff.org
Copyright Office to Consider EFF’s Exemption Requests under Section 1201 of the Digital Millennium Copyright Act
San Francisco - The Electronic Frontier Foundation (EFF) filed petitions with the U.S. Copyright Office seeking to keep users who remix DVD content or jailbreak their devices from losing their legal safe harbors and to establish new rights for those who need to circumvent "access control" or "digital rights management" (DRM) technologies for activities such as conducting security research, repairing cars, and resuscitating old video games. The petitions were submitted as part of the complex, triennial rulemaking process that determines exemptions from Section 1201 of the Digital Millennium Copyright Act (DMCA).
With the passage of the DMCA in 1998, Congress created "anti-circumvention" measures, ostensibly designed to prevent people from undermining DRM for purposes of copyright infringement. Recognizing that the law could impede lawful and important uses of copyrighted works, Congress included a provision in which the Copyright Office and Librarian of Congress are tasked with deciding which activities should and should not be exempted every three years through a complicated legal process.
The rulemaking process allows organizations like EFF to fight for the rights that digital businesses and consumers should already have. Even when petitions are successful, groups such as EFF still need to fight for each exemption to be reinstated each cycle.
In the 2015 petitions, EFF focuses on these uses:
- Conducting security and safety research and performing repairs and customization on vehicles, where access to onboard computers is typically restricted (https://eff.org/r.knqu and https://eff.org/r.jb4u)
- Creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites (https://eff.org/r.bytr)
- Jailbreaking phones and tablets to run operating systems and applications not specifically authorized by the manufacturer (https://eff.org/r.7jpk and https://eff.org/r.tydf)
- Modifying older video games that require a centralized authentication server, after that server has been taken offline (https://eff.org/r.7vmq)
"The DMCA shouldn't keep vehicle owners from looking under the hood," said Staff Attorney Kit Walsh, lead drafter of the petitions relating to vehicles. "We all benefit when independent repair shops have the knowledge they need to compete, when experts are able to check for safety issues, and when enthusiasts can come up with car mods and share their knowledge with the world."
This rulemaking is the fifth held by the Copyright Office, and the fourth time EFF has fought for exemptions. In 2006, EFF did not participate and instead focused on revealing how ineffective and burdensome the process is for consumers, innovators, repairers, and creators.
"Section 1201 of the DMCA has essentially given the Librarian of Congress control over what we can and can't do with our own electronic devices," EFF Staff Attorney Mitch Stoltz, lead drafter of the jailbreaking petitions. "The DMCA was supposed to protect against copyright infringement, but the law, including the labyrinthine exemption process, chills all kinds of lawful activities completely unrelated to infringement."
Opponents to the exemptions have 45 days to file responses, after which EFF will have another 30 days to provide counter-replies. After that, the Copyright Office is expected to issue its recommendations in the fall, with the Librarian of Congress making final decisions.
In January, EFF separately launched the Apollo 1201 Project, in which author and digital-rights champion Cory Doctorow will work with EFF to repeal laws protecting DRM, assist EFF with DRM-related litigation, and partner with industry to develop viable, legal alternatives to digital restrictions.
EFF's remix petition was drafted and co-submitted with the Organization for Transformative Works. EFF’s remaining petitions received invaluable assistance from the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.
For more information on the 2015 rulemaking, visit:
https://www.eff.org/cases/2015-dmca-rulemaking
Contact:
Dave Maass
Media Relations Coordinator
Electronic Frontier Foundation
press@eff.org
eff.org/nsa-spying
