Google Books Fosters Intellectual, Legal Crossroads: Via Threat Level.

Nobody in their right mind opposes the intellectual soundness of digitizing the world’s books – even titles gathering dust in the stacks of university libraries — and making them available online.

Yet Google will encounter stiff resistance in a Manhattan federal court Thursday during a marathon hearing that could grant Google the keys to free the written word from a business and intellectual model as old as paper and ink.

“The benefits of approval are bounded only by the limits of human creativity and imagination,” Google told U.S. District Judge Denny Chin in a recent court filing ahead of Thursday’s hearing.

The final word on the so-named “Google Books” plan won’t rest with Judge Chin, and instead likely could fall on the U.S. Supreme Court. [ Read more ... ]

Facebook Denies ‘All Wrongdoing’ in ‘Beacon’ Data Breach: Via Threat Level.

Facebook is denying it illegally breached the privacy of its users in a proposed $9.5 million settlement to a class action challenging its program that monitored and published what users of the social-networking site were buying or renting from Blockbuster, Overstock and other locations.

To settle allegations that the social networking site’s “Beacon” program breached federal wiretap and video-rental privacy laws, Facebook is agreeing to seed what the agreement is calling a “Digital Trust Fund” that would issue more than $6 million in grants to organizations to study privacy. Facebook would have a seat on the fund’s three-member board — a move raising some eyebrows in the privacy community.

A fairness hearing on the issue is set for Feb. 26 in a San Jose, California, federal court. The judge presiding over the case, Richard Seeborg, gave preliminary approval to the deal three months ago. [ Read more ... ]

Be Careful What Your Bumper Sticker Says: Via Threat Level.

“No More Blood For Oil.”

Bumper stickers with that phrase were synonymous with opposition to the Iraq War, during the George W. Bush administration.

Simply hosting that message on one’s bumper was cause enough to remove two attendees at Bush’s 2005 speech at the Wings Over the Rockies Museum in Colorado. The White House had a policy of excluding those who did not agree with the president from his public appearances. It’s a policy a federal appeals court is upholding in a decision a dissenting judge decried as “simply astounding.”

The 10th U.S. Circuit Court of Appeals’ 2-1 ruling means, in short, that the would-be attendees who were ousted from the event had no First Amendment constitutional right to remain at the speech. The two plaintiffs obtained the free tickets from a local Colorado representative, and sued the government for giving them the boot. [ Read more ... ]

Courts, Congress Shun Addressing Legality of Warrantless Eavesdropping: Via Threat Level.

Heads spun four years ago this weekend, when AT&T was accused of funneling every one of its customers’ electronic communications to the National Security Agency — without warrants.

A Jan. 31, 2006, lawsuit alleged major violations of the Fourth Amendment right to be free from warrantless searches and seizures. Such a sweeping breach seemed far-fetched.

Yet months after the lawsuit was lodged, the Electronic Frontier Foundation produced internal AT&T documents allegedly outlining secret rooms in AT&T offices connected to the NSA, which was siphoning all internet traffic, from e-mails to Voice Over Internet Protocol phone conversations.

But four years and a mountain of court briefs and rulings later, the legal system has never addressed the merits of the allegations — and likely never will. Even Congress has weighed in and passed legislation to prevent the allegations from being heard.

And many — including the former AT&T technician who produced the documents in the case and the EFF — believe the alleged dragnet surveillance program continues unabated today.

“Nothing has stopped the dragnet,” said Cindy Cohn, the EFF’s legal director, whose case had grown to include all of the nation’s leading internet service providers. [ Read more ... ]

Lawyers Challenge Lowered Amount of ‘Shocking’ File Sharing Award: Via Threat Level.

Lawyers for a music file sharer said Monday they would challenge a judge’s order reducing from $1.92 million to $54,000 the amount their client, Jammie Thomas-Rasset, must pay the recording industry for copyright infringement of 24 songs.

The appeal concerns Friday’s head-spinning order by U.S. District Judge Michael Davis. The Minnesota federal judge dramatically lowered the amount a jury in June ordered Thomas-Rasset to pay — after being found liable in what at the time was the nation’s first Recording Industry Association of America file sharing case to reach trial. Most of the RIAA’s 30,000 lawsuits were settled out of court for a few thousand dollars during the record companies’ six-year litigation campaign, which is winding down.

Joe Sibley, Thomas-Rasset’s attorney, said in a telephone interview that even the reduced amount of damages is unconstitutionally excessive. It’s a penalty of 2,250 times an assumed $1 cost of a music download. [ Read more ... ]

Judge Tosses NSA Spy Cases: Via Threat Level.

A federal judge is dismissing lawsuits accusing the government of teaming with the nation’s telcos to funnel Americans’ electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker’s decision was a major blow to the two suits testing warrantless eavesdropping and executive branch powers implemented following the 2001 terror attacks. The San Francisco judge said the courts are not available to the public to mount that challenge.

“A citizen may not gain standing by claiming a right to have the government follow the law,” (.pdf) Walker ruled late Thursday.

He noted that the plaintiffs include most every American connected to the internet or to have used a telephone — meaning the lawsuits boil down to a “general grievance” and are barred. The decision came days after a government audit showed the telecom companies and FBI collaborated for four years, between 2003 and 2007, to violate federal wiretapping laws. [ Read more ... ]

Court Reduces ‘Shocking’ File Sharing Award: Via Threat Level.

A federal judge on Friday reduced a $1.92 million file sharing verdict to $54,000 after concluding the award for infringing 24 songs was “shocking.”

A federal jury in June found Jammie Thomas-Rasset liable in what at the time was the nation’s only Recording Industry Association of America file sharing case against an individual to go to trial. The Minnesota federal jury dinged her $1.92 million for infringing 24 songs. She asked the judge to set aside or reduce that $80,000 per song in damages.

U.S. District Judge Michael Davis agreed on Friday, and said the RIAA may have a retrial if it does not accept his ruling.

“The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music,” Davis wrote. “Moreover, although plaintiffs were not required to prove their actual damages, statutory damages must bear some relation to actual damages.” [ Read more ... ]

EFF Plans Appeal of Jewel v. NSA Warrantless Wiretapping Case: Via EFF.org Updates.

San Francisco - A federal judge has dismissed Jewel v. NSA, a case from the Electronic Frontier Foundation (EFF) on behalf of AT&T customers challenging the National Security Agency's mass surveillance of millions of ordinary Americans' phone calls and emails.

"We're deeply disappointed in the judge's ruling," said EFF Legal Director Cindy Cohn. "This ruling robs innocent telecom customers of their privacy rights without due process of law. Setting limits on Executive power is one of the most important elements of America's system of government, and judicial oversight is a critical part of that." [ Read more ... ]

Judge Slams MPAA ‘Cartel’ Allegations: Via Threat Level.

A federal judge is slamming the door on RealNetworks’ argument the Hollywood studios are a “price-fixing cartel” illegally preventing the distribution of DVD-duplicating wares.

The Seattle-based electronics concern made the anti-trust argument in a failed bid to convince U.S. District Judge Marilyn Hall Patel in San Francisco to lift a distribution ban (.pdf) of its RealDVD software. It allows consumers to make copies of DVDs to hard drives.

The Motion Picture Association of America and others sued RealNetworks more than a year ago, claiming the software is illegal because it circumvents technology designed to prevent copying.

Patel’s decision means that, at least for the foreseeable future, it remains unlawful in the United States to market devices that copy DVDs. Despite a huge black market for them, the MPAA feared that, under a contrary ruling, it would lose control of the DVD as the music industry did the CD, which was not encrypted and protected by the Digital Millennium Copyright Act. [ Read more ... ]

Torrent Search Engines Unlawful, U.S. Judge Says: Via Threat Level.

The operator of a popular BitTorrent search site said Monday he will likely challenge last week's landmark decision by a U.S. judge declaring such sites unlawful and no different from conventional peer-to-peer piracy services.

"We do think from our preliminary review there are a number of issues for appeal," said Ira Rothken, attorney for popular torrent search engine ISO Hunt, the defendant in the case.

The long-awaited decision, while not unexpected, was the first in the United States in which a federal judge found that BitTorrent search engines are an unlawful avenue (.pdf) to free movies, music, videogames and software. A contrary ruling likely would have sparked a gold rush of BitTorrent prospectors in the United States.

Targeted in the case was Gary Fung, a Canadian who operates ISO Hunt and other torrent search engines. Among other things, he argued that U.S. laws did not attach to him, and if they did, that his websites were protected under the Digital Millennium Copyright Act. [ Read more ... ]

Court Rejects Request to Consolidate TJX Hacker Cases: Via Threat Level.

A federal judge in Massachusetts has rejected a request from U.S. attorneys to consolidate a New Jersey case against Albert Gonzalez, who has admitted hacking more than 120 million credit card numbers from Heartland Payment Systems, with two other cases against him in Massachusetts.

Gonzalez, a former Secret Service informant known by the online nicks “segvec” and “Cumbajohnny,” was charged in New Jersey in August with stealing more than 130 million debit and credit cards. The feds say Gonzalez, along with two unnamed Russian hackers, stole the card from New Jersey-based card processor, Heartland Payment Systems, and networks for Hannaford Brothers, 7-Eleven and two other unnamed national retailers. [ Read more ... ]

Judge Calls Bull on ‘Psycho-Acoustic’ Beatles Covers: Via Threat Level.

A federal judge dealt what may be a death blow to a Santa Cruz, California, company marketing Beatles music and other tunes as 25-cent downloads, despite the company’s claim that the tracks were computer-generated cover versions produced by a process called “psycho-acoustic simulation.”

EMI and other labels sued BlueBeat a month ago, and a federal judge late Wednesday blocked sales from the site after declaring BlueBeat’s technical claims suspect. BlueBeat’s defense rested, in part, on copyright law allowing musicians to produce cover versions of songs for a licensing fee. [ Read more ... ]

Judge Sides With RIAA in ‘Sham’ Litigation Class Action: Via Threat Level.

A judge has dealt a major blow to a proposed class-action lawsuit alleging that the Recording Industry Association of America’s nearly 6-year-old courthouse campaign against file sharers amounts to nothing more than “sham” litigation.

The judge ruled that the RIAA has the right to bring civil lawsuits and is protected under a legal doctrine allowing trade groups to protect the interests of their members. The RIAA, the judge added, had an “objective basis” to bring lawsuits against individuals (.pdf) connected to IP addresses over which file sharing is occurring.

“The court, therefore, concludes on this record that plaintiff has not established defendants filed a series of lawsuits based on a policy of initiating legal proceedings without regard to the merits,” U.S. District Judge Anna J. Brown of Oregon wrote Thursday.

Brown, however, did not immediately dismiss the proposed class action that represents the estimated 30,000 individuals the RIAA has sued, although her ruling seems to suggest that a dismissal is coming. [ Read more ... ]

A court decision that reflects what type of country the U.S. is: Via Salon: Glenn Greenwald.

It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).  Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal's McGill University, he has lived in Canada since he's 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was "rendered" -- despite his pleas that he would be tortured -- to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I've appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria. [ Read more ... ]

Judge Refuses to Lift 5-Year-Old Patriot Act Gag Order: Via Threat Level.

A federal judge on Tuesday declined to remove a gag order imposed on the president of a small ISP who wants to reveal the contents of a national security letter he received from the FBI.

The NSL demanded the president of the New York company provide the government with e-mails from a customer the government deemed a threat. An NSL, a type of self-issued subpoena fortified by the Patriot Act, allows the FBI to obtain telecommunication, financial and credit records relevant to a government investigation without a court warrant.

The case last hit the courts in December, when the 2nd U.S. Circuit Court of Appeals, in a decision with Sonia Sotomayor in the majority, narrowed the standard by which recipients of NSLs must keep mum.

Those supplying the requested data to the government are forbidden from disclosing their mandatory cooperation, and face up to five years in prison for breaching the gag. The government issues about 50,000 NSLs each year, and an internal audit showed widespread government abuse in connection to them. [ Read more ... ]

Federal Court Denies Government Attempt to Delay Release of Telecom Records. Again.: Via EFF.org Updates.

Today a federal district court denied the government's latest emergency motion asking for a 30-day stay in last Friday's deadline to release records relating to telecom lobbying over last year's debate over immunity for corporate participation in government spying. The new deadline is October 16, at 4 p.m. Pacific time. We sought the records pursuant to the Freedom of Information Act.

On September 24, Judge Jeffrey White had ordered the Director of National Intelligence and Department of Justice to turn over many of the records we requested by Friday, October 9, 2009. Last week, the agencies asked him to postpone his order while the government de [ Read more ... ]

Judge Refuses to Punish Lawyer for Anti-RIAA Blogging: Via Threat Level.

An attorney defending against a music-piracy lawsuit didn’t cross ethical bounds by filing motions broadly attacking the recording industry and posting them on his blog, a magistrate judge has ruled, rejecting demands from the RIAA for monetary sanctions.

Attorney Ray Beckerman was “less than forthcoming at times” in defending a client against an RIAA lawsuit, but the music industry’s concerns were “largely overstated,” New York Magistrate Judge Robert M. Levy wrote Friday (.pdf).

“Although defendant’s counsel took an unusually aggressive stance and, at times, veered into hyperbole and gratuitous attacks on the recording industry as a whole, I do not find clear evidence of bad faith on counsel’s part,” [ Read more ... ]

Judge Orders Gmail Account Deactivated After Bank Screws Up: Via Threat Level.

A California federal judge has ordered Google to temporarily de-activate a Gmail account after a bank mistakenly sent sensitive data to the account.

U.S. District Judge James Ware also ordered Google to disclose the identity of the Gmail account holder.

The Rocky Mountain Bank of Wyoming sued Google to obtain the account holder’s name after a bank employee erroneously e-mailed an attachment to the account containing sensitive information on 1,325 individual and business bank customers. The attachment contained customer names, addresses, Tax ID and Social Security numbers and loan information. [ Read more ... ]

EFF Wins Release of Telecom Lobbying Records: Via EFF.org Updates.

San Francisco - A judge ordered the government Thursday to release more records about the lobbying campaign to provide immunity to the telecommunications giants that participated in the NSA's warrantless surveillance program. U.S. District Judge Jeffrey S. White ordered the records be provided to the Electronic Frontier Foundation (EFF) by October 9, 2009.

The decision is part of EFF's long-running battle to gather information about telecommunications lobbying conducted as Congress considered granting immunity to companies that participated in illegal government electronic surveillance. Telecom immunity was eventually passed as part of the FISA Amendments Act (FAA) of 2008, but a bill that would repeal the immunity -- called the JUSTICE Act -- was introduced in the Senate last week.

"Today's ruling is a major victory for government transparency," said EFF Staff Attorney Marcia Hofmann. "As the court recognized, it was unlawful for the government to deny Americans access to this information in the midst of the debate over telecom immunity last year. We're pleased these records will now be available to the public as Congress considers the JUSTICE Act." [ Read more ... ]

Obama Stands Behind ‘State Secrets’ in Spy Case: Via Threat Level.

SAN FRANCISCO – Hours after the Justice Department announced it would limit its use of the state secrets privilege in new cases, the administration appeared before a federal judge here Wednesday and continued to invoke that defense in a closely watched spy case.

The litigation at issue, now five years old, tests whether a sitting president may bypass Congress and adopt a warrantless surveillance program, as President Bush did in the wake of the 2001 terror attacks.

“We need to protect information concerning the manner and methods by which we seek to detect and prevent a terrorist attack,” Justice Department special counsel Anthony Coppolino said Wednesday while arguing to a federal judge to dismiss the case on the basis of state secrets.

The 5-year-old case, having a tortured procedural history, is the furthest along in challenging the Bush administration’s warrantless Terror Surveillance Program. [ Read more ... ]

Court Allows Woman to Sue Bank for Lax Security After $26,000 Stolen by Hacker: Via Threat Level.

An Illinois district court has allowed a couple to sue their bank on the novel grounds that it may have failed to sufficiently secure their account, after an unidentified hacker obtained a $26,500 loan on the account using the customers’ user name and password.

As initially reported by legal blogger, David Johnson, Marsha and Michael Shames-Yeakel sued Citizens Financial Bank in 2007 in the northern district of Illinois on several grounds, including a claim that the bank failed to provide state-of-the-art security measures to protect their account.

U.S. District Judge Rebecca Pallmeyer refused last week to grant a summary judgment in favor of Citizens Financial, stating in her ruling (.pdf) that “assuming that Citizens employed inadequate security measures, a reasonable finder of fact could conclude that the insufficient security caused Plaintiffs’ economic loss.”

Larry Smith, an attorney for the Shames-Yeakels, told Threat Level that he’s surprised and happy by the judge’s ruling, particularly since the negligence claim was not the meat of their case against the bank. [ Read more ... ]

Want a Wiretap Warrant? No Problem, Court Says: Via Threat Level.

Despite refusing to “endorse” the government’s tactics in securing a warrant for a wiretap, a federal appeals court is ruling that authorities could use the fruits of their questionable eavesdropping in prosecuting an alleged drug dealer.

The 2nd U.S. Circuit Court of Appeals overturned a lower-court judge who last year suppressed the 50 grams of crack cocaine that was evidence in the case against a man originally suspected of plotting terrorism against the United States. The lower court said a magistrate judge erroneously issued the warrant, breaching the Omnibus Crime Control and Safe Streets Act of 1968, which was designed to strike a balance between law enforcement and “the privacy rights of the individual.” [ Read more ... ]

Defunct Airport Fast-Pass Company Banned From Selling Customer Biometrics: Via Epicenter | Wired.com .

Clear, the now-defunct airport security fast-pass company, was ordered Tuesday by a federal court judge not to sell the biometric data it collected from hundreds of thousands of customers. They had each paid $200 a year for membership in a program to speed them through airport screening lines.

Clear, founded by journalist-cum-entrepreneur Steven Brill, abruptly shut down on June 22, citing cash flow problems. It is now facing multiple lawsuits from angry customers who want refunds and want to force the company to destroy sensitive biometric data such as iris and fingerprints. That information was used to grant access to the company’s dedicated screening lanes at domestic airports.

Clear told customers on its website that it was looking to sell the data to another company that would take up its business model. [ Read more ... ]

Judge Rules Against RealDVD: Via EFF.org Updates.

UPDATE: Just one day after Judge Patel's ruling against RealDVD, a California appeals court has ruled against Kaleidescape, reversing the lower court and sending that case back for a fresh determination of whether Kaleidescape violated the terms of the DVD-CCA license. More bad news for innovators who want to bring legitimate consumers DVD jukebox products.

Judge Patel (who also handled Napster and Bernstein cases) has granted a preliminary injunction in favor of the major motion picture studios and DVD-CCA in their legal battle with Real Networks over its RealDVD products.

The case involves the legality of two products intended to allow DVD owners to make digital copies onto hard drives for later playback. One product, which Real briefly offered until being hit with a temporary restraining order in November 2008, was software intended for use on a personal computer. The second, which never made it out of prototype, was a "video jukebox" that combined DVD player and a hard drive -- what Real hoped would be a sub-$300 competitor for the fantastic (and fantastically expensive) Kaleidescape media server. [ Read more ... ]

RIAA File Sharing Trial Begins — Update: Via Threat Level.

Trial for the nation’s second file sharing defendant to go before a jury is beginning Monday in Massachusetts. The outcome is already shaping up to resemble the only other file sharing trial, which ended in a judgment in favor of the Recording Industry Association of America.

That’s because hours before opening statements were scheduled for late Monday, a federal judge in the case effectively gutted defendant Joel Tenenbaum’s defense. The 25-year-old Boston University student, represented by Harvard University professor Charles Nesson, claimed he had a fair use right to share copyrighted music on the file sharing network Kazaa.

U.S. District Judge Nancy Gertner, ahead of jury selection, rejected that defense. “It seems clear that some portion of paying consumers would shift to free downloads if this activity were deemed a fair use,” Gertner ruled. [ Read more ... ]