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The entire family of devices built on the iPhone OS (iPhone, iPod Touch, iPad) have been designed to run only software that is approved by Apple—a major shift from the norms of the personal computer market. Software developers who want Apple’s approval must first agree to the iPhone Developer Program License Agreement.

So today we’re posting the “iPhone Developer Program License Agreement“—the contract that every developer who writes software for the iTunes App Store must “sign.” Though more than 100,000 app developers have clicked “I agree,” public copies of the agreement are scarce, perhaps thanks to the prohibition on making any “public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple’s express prior written approval.” But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules controlled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement.

UPDATED: we are now also posting the most recent version of the agreement, dated January 2010.

This “license agreement” is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office’s ruling regarding jailbreaking of the iPhone.

So what’s in the Agreement? Here are a few troubling highlights:

Ban on Public Statements: As mentioned above, Section 10.4 prohibits developers, including government agencies such as NASA, from making any “public statements” about the terms of the Agreement. This is particularly strange, since the Agreement itself is not “Apple Confidential Information” as defined in Section 10.1. So the terms are not confidential, but developers are contractually forbidden from speaking “publicly” about them.

App Store Only: Section 7.2 makes it clear that any applications developed using Apple’s SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you’re prohibited from distributing it through competing app stores like Cydia or Rock Your Phone.

Ban on Reverse Engineering: Section 2.6 prohibits any reverse engineering (including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law), as well as anything that would “enable others” to reverse engineer, the SDK or iPhone OS.

No Tinkering with Any Apple Products: Section 3.2(e) is the “ban on jailbreaking” provision that received some attention when it was introduced last year. Surprisingly, however, it appears to prohibit developers from tinkering with any Apple software or technology, not just the iPhone, or “enabling others to do so.” For example, this could mean that iPhone app developers are forbidden from making iPods interoperate with open source software, for example.

You will not, through use of the Apple Software, services or otherwise create any Application or other program that would disable, hack, or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone operating system software, iPod Touch operating system software, this Apple Software, any services or other Apple software or technology, or enable others to do so

Kill Your App Any Time: Section 8 makes it clear that Apple can “revoke the digital certificate of any of Your Applications at any time.” Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That’s pretty remarkable, considering that Apple holds a developer’s reputational and commercial value in its hands—it’s not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That’s not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it’s a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it’s only because Apple still “owns” the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform.

In short, no competition among app stores means no competition for the license terms that apply to iPhone developers.

If Apple’s mobile devices are the future of computing, you can expect that future to be one with more limits on innovation and competition (or “generativity,” in the words of Prof. Jonathan Zittrain) than the PC era that came before. It’s frustrating to see Apple, the original pioneer in generative computing, putting shackles on the market it (for now) leads. If Apple wants to be a real leader, it should be fostering innovation and competition, rather than acting as a jealous and arbitrary feudal lord. Developers should demand better terms and customers who love their iPhones should back them.

Google, Yahoo, Facebook and Ebay, along with the UK's largest internet service providers, are arguing that changes to the UK Digital Economy bill poses a theat to free speech.

We’re pleased to announce that, on Friday April 9, 2010, the Citizen Media Law Project and Berkman’s Cyberlaw Clinic are hosting a conference at Harvard Law School to celebrate the launch of the Online Media Legal Network (OMLN).  OMLN supports promising ventures and innovative thinkers in online and digital media by providing access to legal help that would otherwise be unavailable.

Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” the program will bring together panels of academics, legal practitioners, and journalists. Topics will include the legal issues arising from news aggregation and managing online communities, as well as the question of what comes next for journalism, and how the legal profession can assist (or hinder) journalism’s digital transition.

Please visit the OMLN website for more information on the conference agenda, registration, and logistics and lodging.

We hope that you will join us in Cambridge for an opportunity to meet members of OMLN and to learn more about the legal issues faced by journalists working online. A discounted registration fee is available for registration forms received by March 22nd.  Law students should contact us to see about a fee waiver.

If you or your organization is interested in becoming a sponsor of the conference, please contact OMLN staff attorney Kimberley Isbell for details. Sponsors will receive a limited number of free registrations, tickets to a dinner with Harvard Law School Professor and Berkman Center Faculty Co-Director Jonathan Zittrain as the Keynote Speaker, as well as prominent acknowledgement on the OMLN website and at the conference.

The Supreme Court has granted certiorari in Snyder v. Phelps, the funeral picketing "God Hates Fags" case involving the kooky Phelpsian Westboro Baptist Church.  Albert Snyder, the father of a U.S. marine killed in Iraq, won a $10.9 million jury verdict for intrusion and intentional infliction of emotional distress against the Phelps clan as a result of their picketing his son’s funeral carrying offensive, unpatriotic, and antigay messages, as well as their publication of "The Burden of Marine Lance Cpl. Matthew A. Snyder" on the church’s website.

The trial court reduced the jury verdict to $5 million, and the Fourth Circuit Court of Appeals reversed the award of damages altogether, holding that the Phelps’ speech—while repugnant—is constitutionally protected.  The case raises fascinating questions about whether the intrusion and intentional infliction of emotional distress torts may constitutionally be applied to speech on matters of public concern without creating all sorts of gnarly overbreadth, vagueness, and viewpoint discrimination problems. 

UCLA law professor Eugene Volokh has several brilliant posts exploring all of this in great detail and with great eloquence. I highly recommend these posts to anyone interested in the First Amendment (or just this crazy case).

After a month of snarky letter and email exchanges, Republican U.S. Congressional candidate Joe Walsh recently removed a campaign video from his website that used a song by the Eagles band member also named Joe Walsh. Candidate Walsh called the copyright controversy "a distraction" in late January but vowed that he was "not backing down on this." Ultimately, though, he did. 

The campy video features musician and political supporter Joe Cantafio performing his take on the 1971 classic "Walk Away." Cantafio used the same, or substantially similar, music from the song to create “Lead the Way,” an ode to Walsh’s campaign. When Walsh the Rocker found out a Republican used his music as part of a campaign video, an entertaining—though misguided—discussion on copyright law began.

Attorney for Walsh the Rocker, Peter Paterno, began his initial letter by saying that it "might be beneficial" for Walsh the Candidate to freshen up on his copyright knowledge. "You’re not allowed to take someone’s song and change the lyrics," he wrote. "This is not to say you’re not allowed to write silly lyrics, you just have to write them to your own music. Now, I know why you used Joe’s music—it’s undoubtedly because it’s a lot better than any music you or your staff could have written. But that’s the point. Since Joe writes better songs than you do, the Copyright Act rewards him by letting him decide who gets to use the songs he writes."

Candidate Walsh called the song a parody and replied: "I’m writing for myself, Joe Walsh, a Republican Candidate for Congress in Illinois 8th District. You know where that is, don’t you? It’s that wide-open part of the country you fly over on your way from Los Angeles to New York." Realizing the political opportunity now present, Walsh continued, "I hope the Democratic National Committee and Nancy Pelosi didn’t put you up to this. As the frontrunner to take on Nancy’s Democrat Incumbent Melissa Bean this year, I wonder if I’m a threat to a whole bunch of liberal interests here who want to take down a tea party candidate."

Artists have taken issue with the unauthorized use of their music in campaigns for many election cycles now, but the case of the two Walshes is different than most. Unlike other campaigns that used original versions of songs in their entirety, Candidate Walsh turned "Walk Away" into "Lead the Way," changing lyrics from "Seems to me, you just turn your pretty head and walk away" to "Seems to me, Joe Walsh is just the perfect guy to lead the way." There are also references to Bean and Speaker of the House of Representatives Pelosi.

Once informed of Candidate Walsh’s video, Rocker Walsh issued takedown demands to YouTube made possible through provisions in the Digital Millennium Copyright Act, 17 U.S.C. § 512. Candidate Walsh insisted the video is an example of fair use. Because the song features new lyrics, it does stand in contrast to previous high-profile legal bouts between the Foo Fighters and John McCain or Don Henley and Republican Charles DeVore. But the fair use defense in this case is still questionable. 

Courts consider four well-known factors when determining if fair use applies: (1) The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work. 

On factor 1, courts do consider parody as an example of fair use like Candidate Walsh suggested. “Lead the Way,” however, probably doesn’t qualify as a parody.  Courts in the copyright sphere have drawn a distinction between parody and satire. A parody pokes fun at the copyrighted work, while satire uses that copyrighted work as a vehicle to comment on something else altogether. Parody, unlike satire, needs to mimic the original to make its point and
can use as much of the copyrighted work as is necessary to do so.  While it is certainly not necessary to create a parody in order to qualify as a fair use, this form of social and literary criticism gets special solicitude from the courts because of the First Amendment values at stake.

The leading case dealing with what qualifies as a parody is Dr. Seuss Enterprises v. Penguin Books, USA, Inc., 109 F.3d 1394 (9th Cir. 1997).  In that case, an author used Dr. Seuss characters and expression to comment on the O.J. Simpson murder trial. The Ninth Circuit held that "The Cat NOT in the Hat! A Parody by Dr. Juice" did not qualify as parody for copyright purposes because it did not comment on or criticize Dr. Seuss’s original work, but simply used Dr. Seuss’s work to make an unrelated point.

By way of contrast, the Supreme Court held in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), that 2 Live Crew’s use of Roy Orbison’s “Pretty Woman” to ridicule the original as “bland and banal” was an example of parody.

Rocker Walsh’s attorney is incorrect when he says that Candidate Walsh cannot take someone else’s song and change the lyrics. Candidate Walsh can with a parody, though in this case, he didn’t. Instead, he used the music to “Walk Away” as a vehicle to communicate his campaign platform. The new lyrics speak only to his candidacy and don’t comment on the original song in any way. Because he could have just as easily communicated this platform by using his own music, his fair use defense is considerably weakened.

It is helpful that Candidate Walsh used different lyrics and created the video with a political, rather than commercial, intent; but this isn’t likely to meet the “transformative” standard needed for fair use. Ultimately, it’s still Rocker Walsh’s music being used.

The remaining fair use factors require less extensive discussion. Factor 2 offers more protection for highly creative—rather than factual—works, so the fair use scale would tip against Candidate Walsh here as well. And because Cantafio plays the music in its entirety, factor 3 also favors Rocker Walsh.

On factor 4, it’s not likely that Candidate Walsh’s campaign video itself will harm the market for Rocker Walsh’s original musical work. But allowing unfair copying of copyrighted material could undercut the demand for derivative works. See Roger v. Koons, 960 F.2d 301, 312 (2nd Cir. 1992) (artist Jeff Koons’ use of plaintiff’s "Puppies" photograph could undercut the licensing market for derivative works, weighing against fair use). If Candidate Walsh is allowed to use the music to “Walk Away” without permission, it could reduce the incentive of others to license that same music. This would pose the type of economic harm that copyright aims to prevent.

But this probably isn’t Rocker Walsh’s first concern. It seems more likely that the real offense here is not the use of “Walk Away,” but instead the candidate who used the song.
Wrote Paterno to Candidate Walsh: "Given that your name is Joe Walsh, I’d think you’d want to be extra careful about using Joe’s music in case the public might think that Joe is endorsing your campaign, or, God forbid, is you."

Now, that’s not likely to happen.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded the law school’s Suffolk Media Law student group and its SuffolkMediaLaw.com blog in 2009.) 

Thomas O’Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania.  In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for "information that would disclose the true identities" of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him.  The United States District Court for the Western District of Pennsylvania denied McVicker’s motion to compel the newspaper to turn over identifying information. 

The case presents a different posture from most cases dealing with the First Amendment right to anonymous speech because McVicker wanted to unmask the posters in order to make them witnesses in his case, not to make them defendants (e.g.s, the Liskula Cohen saga, Swartz v. Does, Solers, Inc. v. Doe, and Independent Newspapers, Inc. v. Brodie).  Given this posture, the ordinary test for unmasking a commenter—whether the plaintiff has made "a substantial legal and factual showing that the claims have merit"—is not appropriate. 

The McVicker court’s basic premise makes a lot of sense: "it is clear that a party seeking disclosure must clear a
higher hurdle where the anonymous poster is a non-party." McVicker, slip op. at 7.  This makes sense because the speaker is an innocent third party, not alleged to have violated the plaintiff’s rights or engaged in unprotected speech in any way, so it seems fair to demand a stronger showing to overcome the speaker’s choice of anonymity.

But, despite this starting point, the court ultimately adopted a test that doesn’t look a whole lot more rigorous than the Doe-defendant standard.  If anything, it looks weaker.  The court asks:

whether (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

McVicker, slip op. at 10. Don’t get me wrong; I’m not necessarily faulting the court.  The only real precedent out there adopts the same test. See Doe v. 2TheMart.com,
140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008). And the 2TheMart.com court that crafted the test drew from reporters’ privilege cases, an entirely rational source of inspiration given some of the parallels.

But there’s no denying that this test looks rather permissive in comparison to the Doe v. Cahill or Dendrite International v. Doe standards we now commonly see adopted in Doe-defendant cases.  Plus note how it only considers the plaintiff’s needs, not the defendant’s interest in remaining anonymous, which is more compelling in these Doe-witness cases. I don’t have an alternative test at my fingertips, but it seems like something worth pondering. 

Maybe the answer is that the courts should just be stringent in policing the requirements of the test. That’s what the court did here, finding that the identities of the commenters and information in their possession were not necessary for McVicker to impeach the city council members effectively and that the same or similar information might be obtained through "normal, anticipated forms of discovery." McVicker, slip op. at 11. 

O’Toole’s post mentions some additional points about the case that are worth noting: 

First, the court held that YourSouthHills.com had standing to assert the First Amendment rights of its commenters, following the Enterline case. This is not a huge surprise but it’s potentially significant from a procedural perspective as more and more news sites see it in their interest to protect the vitality of their online communities by asserting the rights of users. 

Second, the court engaged in a bit of a lark, discussing how the YourSouthHills.com’s privacy policy might have impacted the commenters’ expectations of privacy, without really making clear how this affects the First Amendment analysis. O’Toole chides the court and another recent case for "plant[ing] the notion — as they did — that online intermediaries can
expand or diminish via website terms the First Amendment right to
engage in anonymous speech."  Well said, though to be fair the court appears to have addressed this issue more to dispense with one of McVicker’s arguments than to suggest it was independently relevant to the First Amendment analysis.

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief today urging a federal court judge to block two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication, bringing the threat of criminal sanctions for private, lawful speech.

At issue are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records — including copies of drivers’ licenses, the dates and times images were taken, and all URLs where images were posted — and often force public disclosure of a creator’s home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. While these statutes regulate the commercial pornography industry, they also likely apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.

“The plain language of the statute subjects ordinary Americans, who are using emerging communications technologies at an ever-increasing rate, to onerous record-keeping and inspection requirements for lawful speech. They could face up to five years in prison if they don’t follow the statutory requirements to the letter,” said EFF Senior Staff Attorney Matt Zimmerman. “Speakers who engage in private, expressive activity protected by the First Amendment should not be at risk of criminal sanctions for violating an overbroad statute that they likely know nothing about.”

A coalition of artists, producers, distributors, and educators filed suit against the provisions last year, arguing that the law censored their artistic and educational work. In its amicus brief in support of the coalition filed today, EFF asked the judge to throw out the record-keeping regulations as an unconstitutional chill on adult free expression in the digital age.

“Digital cameras, camcorders, and the Internet make it easy to create and share lawful adult material in a wide variety of ways. Thousands of ordinary Americans are doing just that, only to find themselves subject to these record-keeping and inspection requirements,” said EFF Civil Liberties Director Jennifer Granick. “This just doesn’t square with the Constitution.”

For the full amicus brief:
http://www.eff.org/files/filenode/fsc_v_holder/EFF%20Amicus%20Brief.pdf

For more on Free Speech Coalition v. Holder:
http://www.eff.org/cases/free-speech-coalition-v-holder

Contacts:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

The Obama Administration has been slowly ramping up its attention to intellectual property issues. Over the past few months, we’ve seen an IP “summit” at the White House. We’ve seen the successful nomination of a new cabinet-level “IP Czar” position. We’ve seen the announcement of a new DOJ task force for IP issues. What does it all portend?

Unfortunately, many signs suggest that the administration is paying far more attention to the interests of the entertainment industry than to the public good. At the same time, there are a few positive efforts and indications, so we’re holding out hope that things could improve.

The first bad omen came last December, when Vice President Biden invited the RIAA, MPAA and other representatives of the mainstream entertainment industry to a closed-door “Piracy Summit” at the White House. Although Biden’s office sold the summit as “bringing together all the stakeholders” in the piracy debate, it failed to invite a single representative of the public interest or the technology industry.

One outcome previewed at the summit was the formation of a new Department Of Justice “Intellectual Property Task Force”, which was formally announced in February. Unfortunately, the Department of Justice already has a history of coming down disproportionately hard on victims of the copyright conflict. And while the task force’s announcement stressed that IP crime “threatens not only our public safety but also our economic wellbeing,” it didn’t even pay lip-service to the harms to privacy, free speech, and innovation in the industry’s long war on piracy.

Later in February, the government’s new IP Enforcement Coordinator (IPEC), Victoria Espinel, announced that “the Federal Government is currently undertaking a landmark effort to develop an intellectual property enforcement strategy” and asked for public input into what this strategy should look like. A major component of the request seeks information about “the costs to the
U.S. economy resulting from intellectual property violations,” which in the past has mainly been expressed through skewed, erroneous accounts of the supposed effects of piracy from entertainment industry lobbyists. However, the IPEC is also demanding an unprecedented level of rigor from these studies:

Submissions directed to the economic costs of violations of intellectual property rights must clearly identify the methodology used in calculating the estimated costs and any critical assumptions relied upon, identify the source of the data on which the cost estimates are based, and provide a copy of or a citation to each such source. [Emphasis mine.]

Since some of these poorly executed studies have appeared to successfully persuade members of Congress to change copyright law only in ways that favor the entertainment industry, it’s refreshing to see the IPEC pushing for greater validity. To that end, we look forward to seeing the Obama Administration publicly debunk the empty rhetoric that circulates around questions of unauthorized file sharing and its economic effects.

There are other bright points. Late last year, the Administration supported looser international copyright protections for reading materials for the blind. Limitations and exceptions to copyright are a critical “safety valve” in copyright that helps preserve free expression, access to knowledge, and other human rights, and we hope to see them defended by the Administration in other contexts as well.

While IP enforcement appears to have center stage, there are other double-standards and unintended consequences in copyright and trademark law, all of which could benefit from some attention from the White House. The orphan works conundrum remains unsolved. Copyright term and licensing issues stymie creators and archivists. The anti-circumvention provisions of the DMCA still obstruct innovators.

But will the Obama Administration and Congress choose to face these tough, important issues? At the next IP summit, will advocates for questions like these have a seat at the table? Or will the public interest side of intellectual property law and policy continue to languish unaddressed? Time will tell.

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I’m sure that I could sell that time elsewhere). A SLAPP suit is a “Strategic Lawsuit Against Public Participation.” In other words, it is a lawsuit that some hosebag files against a critic — not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys’s fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

SLAPPs frequently end in settlement, conditioned on silence, apology or retraction, so important ideas are excised from the debate, and critical information - about health, safety, economic security, civil rights and liberties, and government abuse - is withheld from the public. Would-be participants in public life see the devastating effects of lawsuits - on life savings, employment, reputation and even staying insured - and think twice before speaking out.

Judge Nicholas Colabella, Jr., famously said of SLAPPs that a greater threat to First Amendment rights can scarcely be imagined. SLAPPs chip away at the will and ability to speak out, person by person, group by group, issue by issue. James Madison cautioned that “there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations,” and his words ring true in the SLAPP context. (source)

About half of the states have some form of legislation against this, but only California and Oregon have anti-SLAPP statutes that are worth a damn. Flori-duh’s is so watered down that it may as well only apply when a Unicorn shits on the Defendant’s lawn. However, in California and Oregon, if a Plaintiff files a lawsuit that implicates the Defendant’s First Amendment rights, the Defendant can file a “special motion to strike.” Then, the Plaintiff will need to show that his suit is not just a baseless and harassing claim. If the Plaintiff can’t do that, then the case is dismissed and the Plaintiff has to pay the Defendant’s attorneys fees.

Congressman Cohen’s bill is very similar to the California law (Cal. Code Civ. Proc. 425.16), and provides the right kind of remedies. One would think that the Republicans would line up behind this — as it provides much-needed “tort reform.” The Democrats… well, there was a time when the Democratic party seemed like the party that favored free speech. I am starting to doubt that, but Mr. Cohen should be able to marshall some of his Democratic colleagues to support this bill.

I can not stress how important a bill like this is. If you can, please write a letter to your Representative urging their support for HR 4364.

Copy this post, if you like. You don’t even need to attribute, if you don’t want to. (I hereby release the copyright in this post to the public domain). Distribute the news far and wide. If you ever use your First Amendment rights, then this bill matters to you.

And… to really make the other congressmen stand up and take notice, if you can afford to, send Congressman Cohen a campaign contribution with a note stating that you only sent it because of his sponsorship of this bill. I sent him a hundred bucks today.

Also… if you want help writing your congressman, click here.

Hat Tip to Eric Goldman

Last month, we celebrated the 20th anniversary of the founding of EFF at the DNA Lounge in San Francisco, joined by Adam Savage, the founders of EFF and dozens of other Internet luminaries. For non-local EFF supporters, we’ve put the gorgeous photos that John Adams and Johnny Grace captured at the event up on our Flickr page.

Don’t forget to check out EFF’s 20th Anniversary commemorative t-shirt and poster designed by EFF senior designer Hugh D’Andrade! These are still available in our shop and through our donation page. You can also download hi-res versions and wallpaper from our flickr page here.

(photo by John Adams)

(photo by Johnny Grace)

(photo by John Adams)

(Photo by John Adams)

(Photo by Johnny Grace)

Thanks to everyone who joined us or donated — and here’s to another 20 years!