Here’s the deal: right now, there’s a petition demanding reform to the Electronic Communications Privacy Act (known by its acronym, ECPA), a would-be privacy law passed in 1986. The Justice Department has argued this outdated law gives them the right to read your old emails and the documents you store in the cloud with a simple subpoena, rather than a judge-issued warrant. That’s crazy—and unconstitutional—but we’ve got a chance to fix it. If we can get 100,000 signatures on this petition before December 12, President Obama will be forced to go on the record on this issue.
ECPA reform is within our reach. It’s got momentum in Congress and a ton of support from industry. And although this is a very different issue from NSA mass spying, the attention on over-reaching surveillance has brought new life to the debate. Now we just have to show there’s grassroots support for protecting the privacy of our documents and emails. Signing this petition is the first step.
Related Issues: Privacy
Share this: || Join EFF
Despite the U.S. Trade Representative's concerted efforts to push through a deal, the Trans-Pacific Partnership Agreement (TPP) will not be completed by the self-imposed deadline of the end of this year. That announcement, made in Singapore today at a closed press conference, is welcome: the U.S. Trade Representative's accelerated timeline has served as yet another means of restricting transparency, and a key pressure point in its campaign to get the U.S. Congress to abdicate its oversight role by granting "fast track authority." If you're in the U.S., you can contact your legislators and tell them to oppose that effort.
The closed press conference itself was representative of the needless secrecy surrounding the negotiation of this agreement. While the TPP ministers laid out the new timeline and opened the floor to questions, public interest groups were limited to the lobby of the building—not even allowed to stand in the back of the room and watch.
Of course, the announcement also comes just days after a leaked document showed major rifts in the positions of different countries and highlighted a number of substantive proposals where the United States has failed to secure international support for its stances. The TPP ministers announced "substantial progress" in the agreement, but no firm explanation of how the situation had changed since the release of those documents.
Without such an explanation, the public continues to rely on leaks to get important information about the agreement. And while they have been very helpful, leaks are no substitute for transparency. With both this most recent and earlier disclosures—such as the WikiLeaks publication last month of an entire draft proposal for the chapter titled "Intellectual Property"—the public gets just a snapshot, which may be out of date and incomplete.
There is one surefire way for negotiating countries to eliminate these leaks. They could simply release these documents, which are, after all, being negotiated in the public's name. Instead, the public has gotten glances only through the efforts of whistleblowers and groups like WikiLeaks. Even absent substantive complaints about the text—which are many—the completely opaque negotiation process is enough to strip the agreement of its legitimacy.
For the U.S. Trade Representative to ask for fast track authority against that backdrop is audacious, and for Congress to even consider it is irresponsible. Even without public text, the pushback against this agreement has been overwhelming. In just the past week we've seen Chilean legislators demanding their government provide more transparency to negotiations, Nobel prize-winning economist Joseph Stiglitz raise 12 "grave risks" presented by the leaked chapter, and even the Holy See take a stance against the policy-laundering associated with opaque multinational agreements.
Efforts to rush the agreement to completion despite those complaints are misguided at best, so it's a good thing that those efforts have stalled for the time being. But any reprieve is likely to be short, and in the new year negotiators are likely to ramp up the pressure.
The U.S. Trade Representative has been negotiating as if it already had fast track authority; our best hope in the U.S. of getting some oversight for this agreement is to ensure it doesn't get it. Contact your legislators today and tell them: no fast track authority for shady backroom deals.Related Issues: Free SpeechInternationalTrans-Pacific Partnership AgreementTransparency
Share this: || Join EFF
Commercial unmanned aerial systems are set to start flying over US airspace in 2015. In November the Federal Aviation Administration released its final privacy rules for the six drone “test sites” that the agency will use to evaluate how drones will be integrated into domestic air traffic. These new privacy requirements were issued just days after Senator Markey (D-MA) introduced a new bill, the Drone Aircraft Privacy and Transparency Act, intended to codify essential privacy and transparency requirements within the FAA's regulatory framework for domestic drones and drone test sites.
In 2012 Obama signed the Federal Aviation Administration Modernization and Reform Act, which mandated that the FAA implement “test sites” to fly domestic drones before opening the door to nationwide regulations and licensing for commercial drone flying. 24 states have applied to be FAA drone test sites. While the FAA's rules do establish minimal transparency guidelines for the new drone test sites, the new rules apply only to the test sites and do not apply to the drones that are already authorized to fly.
While we appreciate the steps the FAA has taken so far, the agency could and should go further to require similar transparency from all drone operators. The FAA has already authorized almost 1,500 permits for domestic drones since 2007, but, despite our two Freedom of Information Act lawsuits for drone data, we still don’t know much about where these drones are flying and what data they are collecting.
It is especially important for the FAA to define basic data collection procedures for domestic drones because the technology enables a kind of surveillance not achievable by manned aerial or ground-based law enforcement or commercial entities. Some drones are capable of staying in the air for 16-24 hours at a time, much longer than a manned aircraft ever could. Drones can fly altitudes above 20,000 feet with super high resolution cameras and can monitor and track many people at once or intercept phone calls and text messages. Drones also cost far less to purchase, operate and maintain than helicopters and planes.
A number of drone bills have been introduced in Congress over the last two years, but Senator Markey's proposed legislation is demanding of both the FAA and drone operators when it comes to protecting the constitutional rights of Americans. The Drone Aircraft Privacy and Transparency Act calls for the FAA to institute and enforce guidelines for all licensed domestic drone flights—not just test sites—that include clear data minimization procedures, as well as transparency rules that require drone test site operators to disclose their data collection practices and how drone operators use, retain, and share all collected data.
Markey's bill requires the FAA to create a publicly searchable database of all awarded drone operator licenses, the logistical details of their operation, and each drone operator's data collection and minimization statement. Creating a database like this is within the FAA’s purview. The agency already runs other databases about aircrafts in national airspace, listing who is in the air, accident reports, and safety information.
Law enforcement agencies across the country are already flying drones without set national privacy guidelines in place. But at this point our most successful tactic for learning more about drones has been to sue for access to information. The American public shouldn't have to submit a FOIA request just to know if drones are overhead. Senator Markey’s bill is a strong start to what needs to be an ongoing conversation about the future of American privacy standards in light of the coming age of domestic drones. We need more lawmakers to speak up for greater transparency and accountability of both government and commercial operation of drones in our national airspace.
Until there are laws in place that mandate transparency, we encourage you to submit requests to your local law enforcement agency and city council to learn more about drone flights in your area. We've partnered with MuckRock, an open government organization dedicated to helping people send requests for public records, to campaign for greater transparency about drones that are already flying in the United States. If you're wondering what your own police agency may be doing with drones, go here and fill out this simple form so MuckRock can send in a public records request for you.
Related Issues: PrivacySurveillance DronesTransparencyRelated Cases: Drone Flights in the U.S.
Share this: || Join EFF
Please join us at the Willard Hotel in Washington, DC on December 16th for a conference launching the year-long project, “FTC: Technology and Reform.” With complex technological issues increasingly on the FTC’s docket, we will consider what it means that the FTC is fast becoming the Federal Technology Commission.
The FTC: Technology & Reform Project brings together a unique collection of experts on the law, economics, and technology of competition and consumer protection to consider challenges facing the FTC in general, and especially regarding its regulation of technology.
For many, new technologies represent “challenges” to the agency, a continuous stream of complex threats to consumers that can be mitigated only by ongoing regulatory vigilance. We view technology differently, as an overwhelmingly positive force for consumers. To us, the FTC’s role is to promote the consumer benefits of new technology — not to “tame the beast” but to intervene only with caution, when the likely consumer benefits of regulation outweigh the risk of regulatory error. This conference is the start of a year-long project that will recommend concrete reforms to ensure that the FTC’s treatment of technology works to make consumers better off.
Convened by TechFreedom and the International Center for Law & Economics, the FTC Technology & Reform Project includes academics, practitioners, policy experts and several former FTC Commissioners and staffers. Our initial report, to be released around the December 16th event, will identify critical questions facing the agency, Congress, and the courts about the FTC’s future and will propose a framework for addressing them.
FTC Commissioner Joshua Wright will kick off the half-day conference with a luncheon keynote. Following his remarks, Project members will discus principal aspects of our initial report. The event will conclude with a networking reception. Attendees will include a wide variety of practitioners and scholars with expertise working at the Commission or counseling businesses about it.
Monday, December 16, 2013
11:30 – Registration opens
12:00 – 5:30 pm – Luncheon keynote & conference
5:30 – 6:30 p.m. – Reception
The Willard Hotel
1401 Pennsylvania Ave NW
Washington, DC 20004
The following is a guest post by Jessica Smith, National Copyright Officer for the National Copyright Unit of Australia. She ran the Copyright 4 Educators (AUS) course with Delia Browne as part of the School of Open’s second round of facilitated courses in 2013.
The School of Open is a community of volunteers focused on providing free education opportunities on the meaning, application, and impact of “openness” in the digital age and its benefit to creative endeavors, education, research, and more. Volunteers develop and run online courses, offline workshops, and real world training programs on topics such as Creative Commons licenses, open educational resources, and sharing creative works.
Self portrait by Jessica Smith / CC BY
Self portrait by Delia Browne / CC BY
The National Copyright Unit (NCU) of Australia ran its second cycle of the School of Open’s Copyright 4 Educators (AUS) course in August. The course ran for seven weeks, with a two-week introduction period and five weeks of substantive group work. We took on 60 learners, with enrollments filling up in less than two days, plus a wait list of around 15 people. At the end of the course, we only had 3 drop-outs, a 95% retention rate!
On top of those stellar results, we also had very happy learners as well as great results in terms of the uptake and understanding of the information. We have an ongoing wait list for the course as well as teachers and librarians continuously enquiring about the course. We’re also in the process of obtaining accreditation for the course through larger teacher organizations so that it can be used to fulfill specific professional learning requirements of Australian educators.
We believe our course has succeeded for three reasons:
- We made it easy for the students to participate.
- The course was associated with the NCU, an official government division.
- We assigned small groups based on commonalities, such as profession and field.
Making it easy for students is of utmost importance in an online environment, especially if the course is targeted to people who may not be familiar with online learning. We know this may sound obvious, but it’s so important that it’s definitely worth mentioning and expounding on. If you don’t nail this, you’re not going to retain your students.
So how do you make it easy for the students? Have everything (eg, communication tools and assignment submission entrypoints) set up for them and support them to the nth degree. What this means: you have to put the time in before the course starts and you, as the course facilitator/organizer, must be very comfortable with the course layout and tools in order to be able to give ample support as well as troubleshoot when issues arise.Tutorials for Tools
For our course, we had heaps of information on our P2PU course site (outlining essentially everything they’d need to get through the course), but we also created tutorials and sent out additional information through email on all the essential parts of the course (ie. using the discussion tool Disqus, submitting group assignments, leaving peer review, etc). We really wanted the students to feel supported and to answer questions and issues BEFORE they arose. It’s too easy to drop out of an online course, so we wanted to preemptively take care of as many issues as possible. We had one student state they were “very nervous and uncomfortable” to take an online course who later reported how great the course was set up and how easy it was in terms of knowing what to do and how to do it. It’s key students feel like this from the start of the course, or they won’t stick with it.Tools we used
We used Google docs for our course. We had every group’s Google doc set up for every single week, and we linked to the docs from both the course on P2PU as well as in emails that we sent out every week. The weekly emails make it very clear what was expected of our learners as well as where to go to complete their tasks. See an example below:Hi all,
It’s the last week already! You’ve all done a great job getting here. We’ve been very impressed with the calibre of all the groups’ work in this cycle. In Week 7, you’ll be using everything you’ve learnt throughout the course to help a peer.
This week you should:
*read the Week 7 Readings;
*collaborate with your group to complete Week 7’s assignment;
*post (ie by copying and pasting) your final group answer to your group’s google doc HERE by COB this Sunday, September 22nd;
*leave peer review for Week 7 by COB Tuesday following the assignment due date, September 24th;
*and remember you should also have your peer review for Week 3 finished by COB tomorrow Tuesday, September 17th.
Please note this assignment is only asking you to point to helpful resources – ie, you don’t actually have to answer the question – you simply need to demonstrate that you’re able to find, compile and share helpful copyright resources.
You will peer review the exact same groups every week. Just as a reminder see below:
* Group 1 will review Groups 2 and 3.
* Group 2 will review Groups 1 and 3.
* Group 3 will review Groups 1 and 2.
Since you’ve all now completed Week 6’s assignment, you can apply for the Copyright Exceptions badge HERE.
For more information on P2PU badges, see HERE.
As always, if you have any questions or concerns, just let us know! Following up
We also sent out individual group chase-ups the Monday following a Sunday due date as well as a chase-up Wednesday following the peer review due date. See below for an example of this:Hi Group 7,
It doesn’t look like you’ve done your peer review for Week 6. Remember this is a requirement of the course. Your group is responsible for leaving peer review for Groups 8 and 9. I can see your group has left feedback for 8 already, so only Group 9 to go!
Let me know if you have any questions or concerns. If you want to see some examples of peer review, you can take a look at some of the other groups’ docs. It doesn’t have to be anything long – just something to show you’ve had a look at the other groups’ work. If it works best for your group, you can also nominate one person per week to represent your group and do the peer review.
Please review Group 9 ASAP. We will leave our facilitator feedback on the docs this afternoon, and it would be most beneficial for you as well as the group you leave feedback for if your reviews were left before we post our comments.
The link to Week 6’s google folder is HERE.
Let me know if I can help in any way!
Its also very important to understand that the first two to three weeks are a bit rough for learners – they’re confused and they have lots of questions and issues. We received anywhere from 15 to 30 emails a week and at least five calls, asking general questions about the course, the platform, google docs, etc. We nearly always responded to these on the same day and offered as much support as needed. A quick response to a simple question can be the deciding factor between a learner getting frustrated and dropping out or being satisfied and feeling supported and staying in the course.Onboarding
This initial confusion is also why we went with a two-week introduction period, and we think this really helps with the retention rate. It gave the learners a chance to ask questions, sort out their issues and concerns and get comfortable with the course, the platform, the collaboration tools, and their groups.2. Associate a course with a known, respected entity
Our course was associated with the NCU of Australia, which is very well known and respected. We deal with teachers on a daily basis, and most of our NCU affiliated teachers/librarians were the first to sign up for the course and have been our biggest supporters and promoters.
In addition to past participants spreading the word, we promoted the course through our school connections in Australia – through teachers whom we’ve given advice, the Copyright Advisory Group (each State/Territory in Australia as well as each sector has a representative), teacher organizations, and our website (http://www.smartcopying.edu.au/) which is the official guide to copyright issues for Australian Schools and Technical and Further Education (TAFE) institutions. Once we did our initial promotional blitz, the promotion largely took off on its own, making its way onto numerous listservs and teacher associations that we didn’t previously know existed.
So the association helped with the initial promotion of the course, but we also believe the reputation of the NCU encouraged teachers to sign up for the course: it made teachers feel more comfortable asking questions/contacting us, it decreased the numbers of dropouts, and we also found that many employers, such as school deans, required their teaching staff to take the course.
Incorporating the course into NCU’s daily workload also allowed us to quickly and effectively respond to questions/issues with the course.3. Arrange groups to encourage conversation and cohesiveness Questionnaire
In the first week of the course, we only asked our learners to fill out a questionnaire and have a look around the course. With the information from the questionnaire, we created 15 groups of four. We also took group requests, which frequently came from teachers at the same school. If groups were not requested, we arranged groups based on school location, level and sector to encourage conversation and commonality between group members. In the second week of the course, we only asked our students to meet their group and to decide on how their group would collaborate. Group members got to know each other and supported each other over the course of the seven weeks, and we think this group cohesiveness really encouraged group members to stay committed to the group and the course (as well as have more fun!).Peer support
As an example, we had one student who was going to drop out because she needed to have surgery in the third week of the course, and she would be unable to type for a week or two. She consulted us, and we told her to first discuss the problem with her group to see if they could work something out. She did this, and they became somewhat of a support group for her and they worked out that she would lead discussion in the weeks leading up to her surgery (which they mainly did via email) and then the weeks she couldn’t type she participated via a weekly Skype session with her group.
We’ve also been told by a number of groups that they all plan to keep in touch with each other to discuss any copyright questions and what’s going on in their classrooms/schools.
Overall, we believe the course was very successful. Not only because of the retention rate but also because people enjoyed it! They’re telling others about the course, they learnt the information, and if they ever have any questions or issues they now know where to find the information.
Møt somalierne er en samling på 14 illustrerte fortellinger som viser opplevelser fra livet til somaliere i syv europeiske byer: Amsterdam, København, Helsingfors, Leicester, London, Malmø og Oslo.EnglishSuomi
FCC Tariff Decision Is Not Consistent with the IP Transition, the National Broadband Plan, or the Law
Yesterday’s decision requiring AT&T to continue offering seven-year term discounts on POTS lines while the FCC conducts a meritless investigation is more than a drag – it is a government shackle on the deployment of modern IP-based infrastructure to rural and low-income consumers.
In early 2010, the Federal Communications Commission (FCC) issued the National Broadband Plan (Plan) to ensure that all people of the United States have access to broadband Internet communications. The Plan concluded that “broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life” and urged that everyone “must now act and rise to our era’s infrastructure challenge.” (Plan at XI, XV) Yesterday the FCC threatened to turn its back on this call to action when it suspended revisions to AT&T tariffs that sought to stop offering term discount plans of five to seven years for 1960s era “Plain Old Telephone Service” (POTS) technology using circuit switched “special access” lines. The FCC suspended the tariff revisions for five months to investigate their “lawfulness” (even though the remaining tariff rates have already been conclusively presumed to be just and reasonable).
Ironically, at the open Commission meeting on Thursday, the Technology Transitions Policy Task Force will provide a status update on the National Broadband Plan’s recommendation that the FCC eliminate—within the next five to seven years—the requirement that AT&T and other carriers offer POTS technologies using circuit-switched networks (known as the “IP transition”).
Why would the FCC open a five-month investigation on Monday to determine whether it is “lawful” for AT&T to stop providing long-term discounts for services using outdated technologies the FCC will discuss eliminating altogether at its meeting on Thursday?
The most plausible answer is that the FCC intends to use its regulatory leverage to pressure AT&T into renegotiating its tariffed rates for outdated special access services while the agency decides how to proceed with the IP transition. That might provide some short-term benefits to AT&T competitors who would prefer to avoid investing in their own infrastructure, but in the long-term, the uncertainty created by this regulatory overreach might also forestall investment in the IP infrastructure necessary to fulfill the goals of the National Broadband Plan.
Neither possibility would benefit residential consumers in rural and low-income areas that don’t have access to broadband. The transition from POTS circuit-switched networks to all Internet Protocol networks was a key recommendation of the National Broadband Plan for achieving universal broadband access. The Plan noted that legacy regulation requiring certain carriers to maintain POTS—a requirement the Plan concluded is not sustainable—leads to investments in stranded assets that siphon funding away from IP networks and services. (Plan at 59) Consistent with previous technology transitions, the Plan recommended that the FCC ensure that legacy regulations and services do not become a drag on the transition to a more modern and efficient communications infrastructure while ensuring that consumers don’t lose services they need and businesses can plan for and adjust to the new standards. (Id.) “The challenge for the country is to ensure that as IP-based services replace circuit-switched services, there is a smooth transition.” (Id.)
It’s been nearly four years since the FCC recognized the need to ensure that legacy regulations and services do not become a drag on the IP transition. Yesterday’s decision requiring AT&T to continue offering seven-year term discounts on POTS lines while the FCC conducts a meritless investigation is more than a drag – it is a government shackle on the deployment of modern IP-based infrastructure to rural and low-income consumers. Most special access lines are not capable of providing broadband Internet services, and they are almost never used to provide services to residential consumers. Other carriers typically lease special access lines from AT&T at government-regulated rates in order to provide phone lines and narrowband data services to businesses – a regressive policy framework that subsidizes corporate telephony at the expense of investment in high-speed broadband services for residential consumers.
In addition to being bad policy, suspending tariff revisions in order to protect competitors and shift costs from corporations to consumers is bad law. The current AT&T tariffs have already been “deemed lawful,” which means that AT&T’s tariffed rates for special access services offered for terms of three years or less have been conclusively presumed to be “just and reasonable” within the meaning of section 201(b) of the Communications Act. (See Virgin Islands Tele. Corp. v. FCC, 444 F.3d 666 (DC Circ. 2006)) Those rates cannot be deemed unjust and unreasonable merely because AT&T is no longer offering discounts for longer-term arrangements. The Communications Act does not require a carrier to offer any term discounts at all. (See BellSouth v. FCC, 469 F.3d 1052 (D.C. Cir. 2006))
Of course, as noted above, I suspect the FCC’s decision to suspend this tariff was not driven by concerns about the reasonableness of AT&T’s rates (which have already been deemed lawful). It was likely driven by the desire to obtain additional regulatory leverage over services that benefit particular competitors and to buy time for an express decision on the timeline for the IP transition. Even if those were appropriate regulatory goals (and the former certainly is not), bending tariff laws and procedures is not an appropriate means of achieving them.
This Open Society report highlights the everyday experiences and sense of belonging for Somalis in the city of Oslo, Norway.
Today, there are full-page advertisements running in the New York Times, Washington Post, Politico, Roll Call, and The Hill. They all have the same message: big tech companies are calling on Congress to rein in the mass surveillance. You can read the full message on the newly-launched Reform Government Surveillance site.
This is a victory for users—with the companies taking a giant step forward in supporting their customers’ rights. The five basic principles they announced today include:
- Limiting Governments’ Authority to Collect Users’ Information
- Oversight and Accountability
- Transparency About Government Demands
- Respecting the Free Flow of Information
- Avoiding Conflicts Among Governments
While these are all valuable, the first one particularly heartened us: “Governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.” With these principles, the companies are joining digital citizens worldwide in demanding a stop to the unrestrained, mass surveillance of our digital lives.
This is an important moment in the fight for surveillance reform. Right now, the United States Congress is facing a fundamental decision about how it will handle mass surveillance confirmed by the Snowden disclosures. There are bills that would rein in the mass surveillance in a meaningful way and others that would entrench the worst of the NSA’s surveillance practices into law. The primary bill championing reform is the USA FREEDOM Act, which EFF has praised as a strong step in the right direction even if it doesn’t go as far as we’d like. On the other hand, Senator Feinstein is pushing the so-called FISA Improvements Act, which attempts to legalize the bulk data collection of the NSA. (Join EFF in killing the bill.)
The events of the last six months have shown that pressure from the general public can help change things for the better. Since June, users around the world have been demanding an end to bulk collection of our digital communications—and have been calling on companies to join us in the fight. Just after the world began to see internal NSA documents exposing massive unchecked spying, EFF and Access Now launched a petition calling on big companies to demand surveillance reform. We targeted it at those companies that had been named in the Washington Post and Guardian articles about PRISM, the code-name for a secret NSA surveillance program.
The leaked files indicated the government had access to servers of nine major U.S. companies, including Facebook, Google, and AOL. The companies dispute that they had cooperated with the government in allowing direct access to millions of peoples’ digital communications, though sometimes with strange phrasings in their denials. We asked questions about the program, and then launched a grassroots campaign in partnership with Access Now demanding that US tech companies join individuals in calling for surveillance reform.
More recently, we learned that the NSA was getting direct access to major service providers, by stealing information off of links between the companies’ data centers—without the companies’ knowledge. This shows that policy reform is not the only thing necessary. While policy reform can protect against unconstitutional surveillance orders coming through the front door, encryption is just as important, protecting the backdoor against warrantless spying. In response, EFF called for tech companies to take steps to encrypt their data, as well as take the policy fight to Congress and the courts.
Over the last few weeks, several major companies have announced plans to increase encryption (see Encrypt the Web Report). Companies like Twitter, Facebook, and Google already had many of the encryption measures we think should be standard across the board; companies like Microsoft and Yahoo have committed to taking definite steps the near future.
But notably absent from the coalition are telecom companies, like Verizon and AT&T. These companies have long been considered the weak link when it comes to government access request. AT&T just announced that it would not respond to shareholder requests to be transparency about its relationship with the NSA.
So while this is a moment to celebrate, the battle is far from won. We’re looking forward to encouraging these companies to engage even more in fighting for users’ privacy rights in Congress even as they increase their digital security. We also urge companies to sign onto our robust international surveillance and human rights principles, which are in alignment with the five principles published by the tech companies, but include more protections for users.Related Issues: NSA SpyingRelated Cases: First Unitarian Church of Los Angeles v. NSA
Share this: || Join EFF
Today, EFF—along with Engine, the App Developers Alliance, and Public Knowledge—filed a brief asking the Supreme Court to retain some sanity in the law and tighten up the rules around fee shifting. Fee shifting, sometimes called "loser pays," is already in the Patent Act. While the statute currently says that "the court in exceptional cases may award reasonable attorney fees to the prevailing party," the Federal Circuit has created a standard that makes this law essentially meaningless—fees are granted in but the smallest fraction of cases.
Properly applied, fee shifting can be an important tool to reign in patent trolls. Those trolls use the ballooning cost of patent litigation to extort quick settlements from potential defendants. Facing years in court and millions of dollars in legal fees, it's no wonder that so many defendants chose to not fight back. Of course, not fighting back only emboldens the trolls.
As we wrote in our brief:
The consequence of the Federal Circuit's withering of Section 285 protection is the creation of an industry of patent abusers, decimating the very small businesses and startups that drive American innovation. The intimidating cost of patent litigation is often sufficient to defeat those small parties before they even enter the courthouse door. These costs are not just legal fees: they are also the stress associated with litigation; employee time lost in deposition, discovery, and trial; and the stifling of productive output during the pendency of litigation. Thus, facing the threat of a lawsuit, a potential defendant finds itself with virtually no choice but to settle, even if it believes it has a meritorious noninfringement or invalidity case. And the proverbial analogy continues full-circle: feeding a troll just emboldens that troll to act again, while blighting the innovators upon whom the trolls feed.
Enter fee shifting. If defendants had reason to believe they might recover their costs and fees, even in some cases, it only stands to reason that more companies would join the ranks of those taking the fight back to the trolls.
The Supreme Court is not alone in looking into fee shifting. The Innovation Act, which just passed out of the House of Representatives, includes a provision that would strengthen fee shifting. And the White House, too, has explicitly endorsed expanding fee shifting. We'll be watching closely in the coming months and continue to petition courts and policy makers to level the playing field by giving those who face the threat of patent trolls tools to fight back.Files: octane_v_icon_eff_amicus_brief.pdfRelated Issues: Patents
Share this: || Join EFF
Noted documentary photographer Robert Nickelsberg’s photographs help bring into focus the day-to-day consequences of war, poverty, oppression, and political turmoil in Afghanistan.