[DMCA-Activists] MPAA vs. EFF in California

[Seth Johnson]

(Forwarded from Interesting People list)

-------- Original Message --------
Subject: [IP] MPAA vs. EFF in California
Date: Tue, 15 Jul 2003 05:03:08 -0400
From: Dave Farber <address@hidden>
To: ip <address@hidden>


Studios Stage Fight Against Internet Bill
By Jon Healey
Times Staff Writer

July 15, 2003

The Hollywood studios are fighting a behind-the-scenes battle in Sacramento
to derail a bill they say would promote online piracy - though the bill has
little to do with downloading movies.

Actually, the fight may have more to do with who's behind the legislation:
the Electronic Frontier Foundation, a civil liberties and technology
advocacy group that frequently opposes the studios' anti-piracy initiatives.

The measure by Assemblyman Joe Simitian (D-Palo Alto) would help Internet
users maintain the anonymity they have in chat rooms and elsewhere on the
Internet when sued in state court for something they said or did online.

Passed by the Assembly on June 2 and scheduled for a Senate Judiciary
Committee hearing today, AB 1143 would require Internet services to notify
customers of subpoenas seeking their identities and give customers 30 days
to challenge the requests in court.

Because it would apply to lawsuits in state courts, the bill wouldn't affect
people accused of pirating movies or other copyrighted works online.
Copyright cases are heard in federal court.

Still, lobbyists for the movie, video game and retail industries argue that
AB 1143 would take away one of the tools they need to ferret out Internet
users who violate trade secrets, offer counterfeit goods or steal
intellectual property.

The battle is the latest in a series between entertainment companies and
privacy and consumer advocates. It's a near replay of the fight between the
Recording Industry Assn. of America and Verizon Communications Inc. over the
RIAA's use of federal court subpoenas to obtain the names of alleged music
pirates who used Verizon's Internet services. Verizon released the names on
a federal judge's order, but it is appealing the ruling.

For the studios' trade organization, the Motion Picture Assn. of America,
the Electronic Frontier Foundation's support for AB 1143 is a main reason to
work to block the bill, said Vans Stevenson, MPAA senior vice president for
state legislative affairs. Alternatively, the group wants to exempt
subpoenas related to intellectual property, a change the EFF says would gut
the bill.

Stevenson said AB 1143 was part of the EFF's agenda "to make sure people
have unfettered free access to everything on the Internet."

"It's clear that they have a legislative agenda, both defensively and
offensively, to undermine the ability of the intellectual-property community
to legitimately protect its work from theft."

Nonsense, said Cindy Cohn, legal director of San Francisco-based EFF. The
purpose of AB 1143, she said, was to protect people from abusive "John Doe"
lawsuits that aim to silence users online.

"You don't have the right to use the cover of anonymity to protect yourself"
when breaking the law, Cohn said. But as it is, "the law is not giving a
fair shake to those who are wrongly accused or who are accused for the
purpose of shutting them up."

Simitian, whose Silicon Valley district has thrived on patents and other
intellectual property, said both sides have legitimate concerns.

"I would hope that people would consider the bill based on merits, not
motives, and based on consideration of the policy, not the players," he
said. "I'm interested in doing good policy work. I'm not much interested in
getting caught up in a spitting match between competing interest groups."

The EFF and the MPAA have been spitting at each other frequently in the last
year.

They have faced off in state legislatures across the country over
MPAA-sponsored bills to expand laws against the theft of services, which the
EFF argued would weaken free-speech and privacy rights. They have butted
heads at the Federal Communications Commission over a proposed regulation to
bar retransmission of digital television broadcasts over the Internet, and
in Congress over a bill to require anti-piracy technology in an array of
digital devices.

The EFF is defending the distributors of a file-sharing program and the
makers of DVD-copying software against copyright-infringement lawsuits
brought by the MPAA. In the appeal of the Verizon case, the two groups are
clashing over the ability of accused infringers to fight for their anonymity
in court.

In Sacramento, AB 1143 is opposed by industries beyond the studios, the
Screen Actors Guild and the Directors Guild of America. Several
California-based video game companies - including Electronic Arts Inc.,
Eidos Interactive Ltd. and Capcom USA Inc. - weighed in against the bill
this month, contending that it would interfere with their ability to bring
cases against pirates. And Yahoo Inc., which has won several changes in the
bill, said in a letter to the Senate Judiciary Committee last week that it
couldn't support the bill unless more changes were made to clarify and limit
the obligations of Internet services.

In a letter to Simitian, Yahoo lobbyist John Scheibel said his company
expected to receive 600 subpoenas in 2003, up 50% from last year.

Yahoo, like many large Internet services, voluntarily alerts users when it
receives a subpoena. Under current law, Internet services have to turn over
the requested name and address within 10 days, leaving little time for a
user to challenge the subpoena in court. Simitian's bill is designed to give
users 30 days to challenge a subpoena.

Cohn said her office gets two to five requests for help each month from
individuals or groups who want to fight a subpoena in a "John Doe" case. One
such request came from four people sued in 2001 by an Arizona-based
ambulance company, which accused them of making false statements about the
company and said they might be in a position to reveal trade secrets on a
Yahoo message board.

One of the four, who asked not to be identified, said the message board was
filled with comments criticizing the company's management for causing its
stock price to plummet. The company went "on a fishing expedition with
subpoenas and shut people up," he said.

"If I hadn't had the EFF on my side, financially I'd be devastated," he
said. The EFF's intervention protected the group's anonymity and led the
company to drop the lawsuit, he said, but by that time the message board had
been silenced.

The California bill was drafted for the EFF and Simitian by law students at
the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley. Deirdre
K. Mulligan, director of the clinic, said Virginia adopted a similar statute
two years ago, causing no apparent damage to the enforcement of
intellectual-property rights there.

But the MPAA's Stevenson said the bill would diminish the studios' ability
to protect their copyrighted works against theft, hacking and other online
perils by giving violators a 30-day warning. "All we're seeking is a name,
that's it," Stevenson said. "We're seeking a name behind the Internet
address. We have a long history, in California and elsewhere, of protecting
people's 1st Amendment rights, and we're clearly on that side."

Besides, he said, California already provides plenty of protection against
frivolous or abusive lawsuits. But Mulligan noted that those penalties
typically don't kick in until after someone's identity is revealed.

"That's the problem with privacy," she said. "Once it's been disclosed, you
can certainly get money back, but you can't get your privacy back."

If you want other stories on this topic, search the Archives at
latimes.com/archives.
Click here for article licensing and reprint options

Copyright 2003 Los Angeles Times





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