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...an lllinois court will apply a three part test to determine whether or not Doe's statements reasonably implies the existence of a provably false fact. Hopewell v. Vitullo. 299 Ill.App.3d 513, 518-19 (1998). Cohn. Decl., Exh. W. First the court will "consider whether the language of the statement has a precise and readily understood meaning, while bearing in mind that the first amendment protects overly loose, figurative, rhetorical, or hyperbolic language, which negates the impression that the statement actually presents facts." Id. Second, the court will consider "whether the general tenor of the context in which the statement appears negated the impression that the statement has factual content." Id.Third, the court will consider "whether the statement is susceptible of being objectively verified as true or false." Id

This is from a Motion to Quash submitted by EFF, against the CEO of an Illinois company who, as plaintiff in a libel suit, was trying to "unmask" one of their anonymous critics on a Yahoo! message board . EFF ultimately prevailed, and the John Doe remained anonymous. See http://www.eff.org/cases/e-van-cullens-v-john-doe

• First test: "Seems like you're very willing" obviously conveys a subjective opinion
• Second test: general tenor is confrontational, emotional, rather than a cool, impassionate relating of fact
• Third test: Arguably fails, since the "facts" alleged are actually susceptible to objective verification (although "willingness" per se is perhaps somewhat more subjective).

I believe, however (again, IANAL), that if any of the tests pass, then the underlying libel suit is "obviously without merit" and does not entitle the plaintiff to unmask the defendant.

There are several steps to qualify for safe harbors, and we will follow each of them to the letter. We have not yet had to reply to any DMCA takedowns yet - all the content on the website must have a share-friendly license before content can be uploaded.

In such a situation, we will both defend the rights of our customers and provide them all the information possible to resolve the issue. I disagree the FAQ is slanted toward "IP-thieves". This does not represent the ethos of LegalTorrents.

Fred von Lohmann from the EFF provides an excellent .pdf review for service providers; there is a recently updated version here:
http://www.law.depaul.edu/centers_institutes/ciplit/niro_symposium_09/pdf/paper_cohn1.pdf
plus EFF has a wiki page with additional details: http://ilt.eff.org/index.php/Copyright:_Digital_Millennium_Copyright_Act

No it wasn't.

Um... Yes it was.

Well, at least the opinion of the Supreme Court appears to support "anonymous free speech" being covered under the 1st amendment. And their opinion seems a pretty credible and meaningful counter to your opinion on Thomas Jefferson's motives.

EFF has an excellent write-up on the topic, including references to precedent set by 'founding fathers': http://www.eff.org/issues/anonymity

Check out: https://ssd.eff.org/your-computer/protect/passwords

In particular, under the "Carry your passwords on paper, in your pocket." section, there are some additional ideas that may help you decide whether keeping passwords on a list in your wallet is for you.

The identity of the journalist may possibly be considered protected if the journalist is anonymous, but I highly doubt it.

With regards to defamation, courts generally hold that anonymous people remain anonymous until the plaintiff can prove that defamation occurred, ie the identity of the messenger has nothing to do with the truth or falsehood of the message (for a randomly selected example see this which itself cites other cases on page 8 (lol scanned pdf)).

In the general case, anonymity has existed since before Publius, who the Supreme Court is generally fond of referencing when upholding anonymity.

The information requested in the subpoena is the same data listed in the statute listed.

Going back to my other post, if the law said that you can subpoena for my unicorns, would you look any less stupid if you went to court to demand my unicorns? Absent mod_psychicpowers, unicorns are as likely as SSNs and bank account numbers to be in the webserver logs.

Please explain what part of the First Amendment is being violated.

The other half of the right to speak without government interference: the right to listen without government interference. Upheld multiple times.

Please explain how the gag order is unconstitutional, including the relevant sections of the Constitution and other law.

Generally speaking, issuing a gag order directly against a journalist is not permissible. This is why gag orders are generally restricted to parties involved, to keep them from talking to the press. Other cases cited at the EFF link above.

The subscriber, commenter, etc. has no standing under the Fourth Amendment because the property of the subscriber, commenter, etc. is not being searched.

Well, good thing IndyMedia was the one objecting to the search, making this line of argument pointless.

Did Fox Noise cover this incident? Check their search engine. The answer is no (although they did cover a similar issue with Indymedia in 2004). Why not? Maybe, just maybe, no one except /. readers and 1st Amendment lawyer types thought it was a very interesting story. You'll notice that the link in the story is to a blog that covers 1st Amendment issues on a CBS News site, an outfit that is not exactly a darling of the right. Also, RTFA! EFF tried to discuss the issue of the gag order in a letter filed at the end of May. Given it has been 5 months with no response from DOJ, maybe Indymedia and EFF are only just now considering it safe and legal to release the story.

Not everything is a left-wing media conspiracy except to reality-challenged bozos like yourself who can't be bothered to think beyond whatever sound bite you were handed this morning.

Ok. The news article is new, but the content is anything but.

The subpoena was withdrawn in a one sentence letter in late Feburary 2009 after the EFF sent a letter to the DOJ pointing out the problems with the subpeona.

We're only hearing about all of it now. It is troubling that the DOJ will not come out and say what the original motivation for even sending the subpoena in the first and is being mum about it all.

On top of that, the dates are all mixed up. The subpoena was sent in June 2008, according to the CBS article. However, the EFF says it wasn't received until January 30th 2009. This is important to note as Obama took office the 20th. The EFF's letter was sent Feb. 13th, with a return letter from the DOJ on the 25th.

My guess, it was probably a rookie lawyer who sent a badly worded request to SysAdmin during the confusion of a new president taking office.

Ok. The news article is new, but the content is anything but.

The subpoena was withdrawn in a one sentence letter in late Feburary 2009 after the EFF sent a letter to the DOJ pointing out the problems with the subpeona.

We're only hearing about all of it now. It is troubling that the DOJ will not come out and say what the original motivation for even sending the subpoena in the first and is being mum about it all.

On top of that, the dates are all mixed up. The subpoena was sent in June 2008, according to the CBS article. However, the EFF says it wasn't received until January 30th 2009. This is important to note as Obama took office the 20th. The EFF's letter was sent Feb. 13th, with a return letter from the DOJ on the 25th.

My guess, it was probably a rookie lawyer who sent a badly worded request to SysAdmin during the confusion of a new president taking office.

No, you're still misunderstanding.

The DMCA provides no protection for signing keys, because they cannot be used to circumvent any copy protection (and in fact TI doesn't even have copy protection on its OS, nor would it be productive to include it).

The EFF has some stuff to read to read on the issue; specifically, the EFF's letter to TI regarding the takedown notice explains in detail why the DMCA does not apply here.

No, you're still misunderstanding.

The DMCA provides no protection for signing keys, because they cannot be used to circumvent any copy protection (and in fact TI doesn't even have copy protection on its OS, nor would it be productive to include it).

The EFF has some stuff to read to read on the issue; specifically, the EFF's letter to TI regarding the takedown notice explains in detail why the DMCA does not apply here.

Is this a more reliable source: http://www.eff.org/deeplinks/2009/11/leaked-acta-internet-provisions-three-strikes-and-

Although they are quoting him and one other invalid source.

This is not legal advice. I am not your lawyer. I am actually not a lawyer (I may become one this week when I get bar results back). I am not your lawyer. This is merely a summarization of the law as provided in the link below and as provided to me in a software licenses class.

There is a possible error in your analysis: Covenants vs. Conditions of a EULA.

Basically, there are different impositions in a license. Some are classified as covenants, and some are classified as conditions. A covenant is something a licensee agrees to do or else he breaches a contract. A condition is something that a licensee agrees to or else there is no license at all.

So if the no-clones term in the OS X EULA imposes a covenant, then Psystar would be liable under state law for breach of contract (and damages would be calculated based on loss of sales and other things). Someone who purchases from Psystar would not be liable for anything, having never entered into such a contract with Apple.

However, if the term in the OS X EULA imposes a condition, then Psystar will have voided the license completely. This means they have no legitimate authorization to install, use, etc. a copy of OS X. Therefore, they do not have a copy they can install. Psystar would be liable for copyright infringement for making unauthorized copies.

Furthermore, anyone who purchases from Psystar would also be liable for copyright infringement for using unauthorized copies.

So you can see why this is not an open-and-shut issue like the armchair lawyers on Slashdot would have you believe.

I appreciate your fear and concern about government run communications networks, but there are constitutional and other laws in place to ensure that whatever the government does in terms of snooping or investigating is available to public scrutiny. One way the government uses to get around this is by asking non-government entities to do the spying for them.

You mean like AT&T/NSA?

One of the listed takedown notices in TFA is an ad criticizing gay marriage.
http://www.eff.org/takedowns/npr-forces-takedown-political-ad-weeks-critical-vo

There is no bias in their defense of freedom of speech - it just happens that the people who tend to infringe on that right most often are *shocked* predominantly conservatives.

They [Fox -mi] don't deal in news, but rather in propaganda.

Good to see more brave Americans joining the President in his War on Fox News! The enemy will be crushed!

That said, I fail to see, how their being news or not is relevant to the issue. DeBeers and Ralph Loren most certainly aren't news organizations, but they do have their listings anyway.

[...] a pathetic, lost-looking pack of redneck cretins?

That's right, comrade!.. That's a bit of objective fact-delivery, that all true news organizations must try to emulate...

They [Fox -mi] don't deal in news, but rather in propaganda.

Good to see more brave Americans joining the President in his War on Fox News! The enemy will be crushed!

That said, I fail to see, how their being news or not is relevant to the issue. DeBeers and Ralph Loren most certainly aren't news organizations, but they do have their listings anyway.

[...] a pathetic, lost-looking pack of redneck cretins?

That's right, comrade!.. That's a bit of objective fact-delivery, that all true news organizations must try to emulate...

The EFF has an email address for just such a purpose. You can find the link at the bottom of TFA. Perhaps you should let them know about it.

That kind of people was bound to think that of EFF regardless of this new effort. Just look at all the mischief they do ; )

Your premise seems to be unfunded.

For everybody else's luck, EFF was impartial and also added a same silence attempt from the same-sex marriage opponents.

The EFF even covered scientology takedowns!

Also, project chanology is a steaming mess of faggotry. The EFG masks and microsoft voice synthesized youtube videos reek of internet tuff guy.

How about this?

Ringtones are not public performances. Here, have an article from an obviously biased but generally honest source: http://www.eff.org/deeplinks/2009/10/court-rules-phones-ringing-public-dont-infringe-co

I'm surprised this hasn't been mentioned already, but there was legislation introduced this year to allow the president to shut down the internet in an emergency. The bill is called the Cybersecurity Act of 2009. Imagine if they wanted to shut down the phone system or TV/Radio systems in an emergency. Read about it here and here.

The official statement of Godwin's Law is:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

Not reference, comparison. Source

ASCAP are trying to push just that sort or nonsense. Thankfully they got a bloody nose trying it, but it's indicative of the way they think:

http://www.eff.org/deeplinks/2009/10/court-rules-phones-ringing-public-dont-infringe-co

Thanks for the explanation. I did some more research and understand now. Here's a good writeup by the EFF: http://www.eff.org/issues/anonymity

I wold imagine they want to keep the lid on the techniques they are looking at for anti-counterfeiting.

Hmmh, seems like they could simply obscure that part of it by saying, "We got hyper-secret, techniques we refuse to talk about." That is almost plausible. Some of the criticism sugest that it will allow police-state powers to be mobilized against ordinary people for having backups of their music and software. The IP cartel is steadfastly opposed to such things.

What are the enforcement provisions? We don't know, and aren't going to be allowed to know--until it's too late. This is a mockery of any and all democratic principle. They are spitting in our faces. Of course, the non-democratic, and anti-democratic nations will love this, as it will strengthen their grips on their respective societies.

Furthermore, there seem to be provision aimed at setting up an independent ACTA organization which will above and not accountable to any national supervision. Copyright Geheime Staatspolizei anyone? If they are so afraid of going public, that everything must be hidden behind an iron curtain of secrecy, anything is plausible.

Miscellaneous links: Wikipedia ACTA criticism, EFF, KEI Patry. Patry observed that "extensive changes" would be necessary to U.S. law to bring it into compliance. How many years in prison would accused music downloaders be facing under ACTA? None of us knows. It's secret!!

Remember this?

http://homes.eff.org/~barlow/Declaration-Final.html

Oh well.

It would be nice to see this linked from the article but.... the EFF has a page up to send your reps a request to call senate hearings on this issue:

https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=383

I have been forwarding the link to everyone that I know, I recommend that everyone else who cares about transparency in the legal process to do the same.

-Steve

This is super important, thanks for posting. I have also begun sending it to everyone I know. Can we get this as an update to the main article, please?

That bill would allow the President to shut down the private internet in the event of an emergency--a phrase so broad as to allow any excuse he chooses--along with unrestricted access to data by the Secretary of Commerce under regular conditions. The EFF has an informative overview of the legislation. It's currently in a committee, but that doesn't mean it should be ignored. Thankfully, the EFF has done a good job of keeping an eye on things like this.

It would be nice to see this linked from the article but.... the EFF has a page up to send your reps a request to call senate hearings on this issue:

https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=383

I have been forwarding the link to everyone that I know, I recommend that everyone else who cares about transparency in the legal process to do the same.

-Steve

So what's their interest in this?

That's what I was wondering, so I peeked. Initially when I saw this article, I was a bit disturbed, since people don't donate to the EFF for this purpose--that's what contributions to research organizations and universities are for. However, it turns out the money comes from a private individual specifically for this purpose; the EFF merely administers the award. It's free publicity for 'em in a good cause, a Good Thing by my reckoning.

The money does not come from regular donations.

http://www.eff.org/awards/coop

(Prize money comes from a special donation provided by an individual EFF supporter, earmarked specifically for this project. Prize money does NOT come from EFF membership dues, corporate or foundation grants, or other general EFF funds.)

http://www.eff.org/helpout here is the link so people can help out the eff.

You mean like:
http://www.eff.org/deeplinks/2009/01/iphone-developers-support-effs-dmca-exemption-jail

What about all the similar crap that goes on with other devices? iPhone, XBOX, Wii, NDS, plus loads others?! EFF, why aren't you defending user's rights there?

They issued a press release about the calculators.
They have done way more than that for the iphone and ipod - http://www.eff.org/press/mentions/2009/7/23
They supported the "Hacking the Xbox" book by using it as a prize for people who donated to the EFF.

Yeah, neither argument holds water. Tthe owner already has license to access the copyrighted software that is the TI operating system. The garage door opener case pretty much closes off that avenue of logic.

Dangit, second link was supposed to be this: http://www.eff.org/deeplinks/2009/10/it-s-still-duck-court-re-affirms-first-sale-doctri

PDF: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

Related article at eff.org: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

PDF: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

Related article at eff.org: http://www.eff.org/files/gov.uscourts.vernor.opinion.pdf

That is exactly what they were FORCED into providing by threat of lawsuit.

Everything you see there are those opensource projects that Apple has "borrowed" and must, by the terms of the license provide source for.

Yet for years they stonewalled this. They were finally forced to put this up

Have you been to:
http://www.pcworld.com/article/163909/apple_is_sued_after_pressuring_opensource_itunes_project.html
http://www.eff.org/cases/odioworks-v-apple

Why is different just because somebody else (another team) is doing the power-grabbing and warmongering and denigrating the opposition?

One candidate was singing about bombing Iran, one was saying diplomacy should be brought back, you call them both warmongers?

Yes: Obama is still saber-rattling over Iran. You claim one was "singing about bombing Iran", but I challenge you to actually find either that actually said anything like that. If anything, the rhetoric has stepped up, now claiming "substantiated intelligence" that they have another secret uranium enrichment facility. He's shifted troops from one middle eastern theatre to another, but they're all still there, with no end in sight.

You've got blinders on. Obama was the lesser of two evils: he's not undoing the increments-to-fascism that Bush enacted, but he's not pushing for more.

Actually, he is. Don't you think taking over car companies, greater authority for the Fed, and $3 billion worth of Byrne Grant funding is more increments toward fascism?

Wake up to that already.

I'm well aware of what's going on, because I know both teams are doing all the same stuff. How about you?

Does any know of any list of more recent printer models that do or don't print tracking dots on the pages? Looks like the EFF's list at http://w2.eff.org/Privacy/printers/list.php/ hasn't been updated in a while.

Solaris and FreeBSD don't run on workstations? Better tell Nvidia, better tell people who use it as such.

You don't really have to care about the EULA of binary drivers if you have nothing to do with them. Nouveau isn't a licensee, doesn't use VDPAU, PhysX, or anything else that is intrinsically or defacto Nvidia's property.

EULA applies to the end users agreeing to the license (see where that acronym comes from?).

It doesn't, and can't, cover other scenarios. That'd be a bit like saying that Windows' EULA doesn't permit ReactOS or wine. It doesn't have to. Third party clean room interoperability/compatibility is generally allowed, expected for software, and without a EULA to violate, DMCA and any other provisions which would give company grounds to complain, don't apply.

http://www.eff.org/issues/coders/reverse-engineering-faq

Nouveau driver is already utilizing Gallium3D.

But, really, can you (or anyone else) say that AMD is trying completely independently of the quality of its own drivers vs. the competition? They haven't been improving and they likely understand that other people can probably do it better, by this point, assuming it's not hardware defects, like were well known with the original X*00 series and Radeon 32 series (and Nvidia had with certain 5, 8/9 [nearly entire second generation unified shader from G92 up], and MX cards).

Cookies are also hard to even browse without, most sites don't load if the cookie is rejected. After I read the EFF article about web privacy, http://www.eff.org/deeplinks/2009/09/online-trackers-and-social-networks I tried setting FF to ask me for cookies, it was such a hassle I had to just set it to delete them after I close out.

In some circumstances, even the exact set of commands used by the programmer is deemed functional rather than creative for purposes of copyright. "[W]hen specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement."

[...]

Sega's trademark security system (TMSS) initialization code not only enables video game programs to operate on the Genesis III console, but also prompts a screen display of the SEGA trademark and message. As a result, Accolade's inclusion of the TMSS initialization code in its video game programs has an effect ultimately beneficial neither to Sega nor to Accolade. A Genesis III owner who purchases a video game made by Accolade sees Sega's trademark associated with Accolade's product each time he inserts the game cartridge into the console. Sega claims that Accolade's inclusion of the TMSS initialization code in its games constitutes trademark infringement and false designation of origin in violation of [...] the Lanham Trademark Act. Accolade counterclaims that Sega's use of the TMSS to prompt a screen display of its trademark constitutes false designation of origin under Lanham Act section 43(a), 15 U.S.C. Section 1125(a). Because the TMSS has the effect of regulating access to the Genesis III console, and because there is no indication in the record of any public or industry awareness of any feasible alternate method of gaining access to the Genesis III, we hold that Sega is primarily responsible for any resultant confusion. Thus, it has not demonstrated a likelihood of success on the merits of its Lanham Act claims.

This legal issue was later revisited in a slightly different form (with mixed results) in Lexmark V. Static Control Components -- however, in that case, there was a lot more code involved than the boot ROM we're talking about here, so much more room for claims of expressive code.

The article you linked deals strictly with gathering intelligence on US citizens foreign communications. That's perfectly legal. And again you mention searches at the borders which again is outside the 4th amendment. The EFF lawsuit against AT&T has nothing to do with foreign traffic or boarder searching. The EFF is asserting that the government was tapping into ALL connections passing through AT&T. That clearly falls under the protection of the 4th amendment.

You would think that, with a Democratic majority, this sort of stuff would pass without much trouble.

Why would I think that? The current president, who happens to be a member of the party you mentioned, had his Justice Department advocate against letting the wiretap case go to court. He also voted for telecom immunity when he was a senator last year. So even if something like this passes Congress, they don't just need a majority, they need a veto-overriding majority.

Do you really think Democrats will "pass without much trouble" a bill that repeals the immunity that was passed last year by a Congress that already had a Democrat majority? Most of these guys have already come out in favor of telecom immunity. I'll be happy if this bill passes, but it's pretty surprising that it's even being considered.

If you want to find someone who disagrees with the Republicrats, then I wouldn't look to the Republicrat parties. You'll find some, but you'll find a lot more of them just about anywhere else.

Not all lawyers are bad.

It's highly unlikely that the factors of an RSA private key are subject to copyright protection. Therefore the groups may have a viable claim for DMCA misrepresentation under subsection (f):

(f) MISREPRESENTATIONS- Any person who knowingly materially misrepresents under this section--
    (1) that material or activity is infringing, or
    (2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Texas Instruments may just have Diebolded itself.