Court Must Vacate Kentucky Court's Baseless Domain Name Seizure

Battle Over Online Gambling Sites Puts Free Speech, Commerce at Risk

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.

For the full amicus brief:
http://www.eff.org/files/filenode/ky_v_domainnames/amicusbriefky.pdf

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-nam...

Contact:

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

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EFF Asks Judge to Block Unmasking of MySpace User

Battle Over 'Spoof' Profiles Must Not Circumvent First Amendment, Federal Law

Cook County, IL - The Electronic Frontier Foundation (EFF) asked a judge in Illinois Wednesday to reject an attempt to identify an anonymous MySpace user who allegedly posted fake profiles of an Illinois official because the request would violate both the First Amendment and federal statute.

In May, Cicero Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identities of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. In its amicus brief, however, EFF argues that the petition violates the First Amendment right to remain anonymous until a litigant can demonstrate a viable legal claim.

"The First Amendment protects not only the right to speak but to speak anonymously," said EFF Senior Staff Attorney Matt Zimmerman. "If Mr. Dominick's claims are legitimate, he may be able to obtain the identifying information that he seeks. Until he meets his burden, however -- including, among other things, attempting to notify the author of this court action and identifying the allegedly defamatory statements at issue -- the court should not grant his request. The First Amendment requires courts to guard against attempts to unmask critics who have simply made statements litigants don't like, especially when such requests are made by elected officials."

In addition, federal law also bars Mr. Dominick's request. Passed to protect the communications and records of users of services such as MySpace, the Stored Communications Act categorically prohibits government entities from obtaining identifying customer information through the ordinary civil discovery process.

"Federal law imposes stiff penalties on government entities that violate the privacy of online users without meeting strict requirements," said Zimmerman. "So far, Mr. Dominick -- bringing this action in his official capacity as town president -- hasn't met those standards."

For the full amicus brief:
http://www.eff.org/files/filenode/dom_v_myspace/Motion%20AC%20filed.pdf

For more on this case:
http://www.eff.org/cases/dominick-v-my-space

Contact:

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

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FBI Withdraws Unconstitutional National Security Letter After ACLU and EFF Challenge

Gag Order Lifted on Internet Archive, Allowing Founder to Speak Out for First Time

San Francisco - The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive's founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library's work. That's why Congress passed a law limiting the FBI's power to issue NSLs to America's libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "While it's never easy standing up to the government -- particularly when I was barred from discussing it with anyone -- I knew I had to challenge something that was clearly wrong. I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."

The NSL was served on the Archive -- a digital library recognized by the state of California -- and its attorneys in November of 2007. The letter asked for personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records pertaining to the user. Kahle, who is also a member of EFF's Board of Directors, decided to fight the NSL because it exceeded the FBI's limited authority to issue such demands to libraries.

The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter. This lawsuit is the first known challenge to an NSL served on a library since Congress amended the national security letter provision in 2006 to limit the FBI's power to demand records from libraries.

The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI's misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "It appears that every time a national security letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records. In the absence of much needed judicial oversight – and with recipients silenced and the public in the dark – there is nothing to stop the FBI from abusing its NSL power."

"A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag," said EFF Staff Attorney Marcia Hofmann. "The big question is, how many other improper NSLs have been issued by the FBI and never challenged?"

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.

Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. EFF's investigations have uncovered multiple NSL misuses, including an improper NSL issued to North Carolina State University.

Last year Representative Jerrold Nadler (D-NY) introduced H.R. 3189, the "National Security Letters Reform Act of 2007." Senator Russell Feingold (D-WI) introduced a Senate bill of the same name (S. 2088). Both bills are aimed at narrowing the statute by enacting limits on when and how NSLs can be used and bringing the gag order provision in line with the Constitution.

In addition to Goodman and Hofmann, attorneys on the case are Jameel Jaffer and Danielle Tully of the ACLU National Security Project, Ann Brick of the ACLU of Northern California, and Kurt Opsahl of EFF.

For the newly unsealed documents (still partially redacted):
http://www.eff.org/cases/archive-v-mukasey?docs

For more information about this case:
http://www.eff.org/cases/archive-v-mukasey

For more information on NSLs:
http://www.eff.org/issues/foia/07656JDB

Contacts:

For Brewster Kahle:
Paul Hickman
Internet Archive
info@archive.org

Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org

James Freedland or Rachel Myers
Media Relations
American Civil Liberties Union
media@aclu.org

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EFF and Sheppard Mullin Defend Wikipedia in Defamation Case

Federal Law Protects Popular User-Created Encyclopedia From Liability

San Francisco - The Electronic Frontier Foundation (EFF) and the law firm of Sheppard Mullin Richter & Hampton Thursday filed a motion to dismiss a lawsuit brought against the operator of the popular online encyclopedia Wikipedia, arguing that federal law immunizes it against suits over statements made by its users.

Literary agent Barbara Bauer filed a complaint in New Jersey Superior Court in January against Wikipedia posters as well as the site itself, claiming in part that the Wikimedia Foundation was liable for statements identifying her as one the "dumbest of the twenty worst" agents and that she had "no documented sales at all." In court papers filed Thursday, Wikimedia argues that under Section 230 of the Communications Decency Act, operators of "interactive computer services" such as Wikipedia cannot be held liable for users' comments. In addition, Wikimedia argues that the statements are protected speech under the First Amendment and New Jersey law.

The ability to utilize the collaborative input of its users without fear of costly lawsuits is essential to Wikipedia's ongoing success, said Wikimedia Foundation General Counsel Mike Godwin.

"We provide a platform through Wikipedia for smart citizens to give their knowledge back to a larger culture," Godwin said. "Our ability to offer citizens that platform is what's at stake in this case."

Since it was signed into law over a decade ago, courts across the country have consistently applied the protections of Section 230 broadly, fulfilling Congress' intent "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."

"Congress passed Section 230 of the Communications Decency Act in order to protect websites' operators like Wikipedia from suits like this one," said James Chadwick of Sheppard Mullin. "It's simple but it's fundamental: Congress has decided that Internet censorship isn't the answer, so websites aren't liable for statements posted by their users."

Section 230's blanket protection of sites like Wikipedia does not mean that alleged defamation on the Internet cannot be challenged in court. Instead, the law requires that litigants direct their efforts at the speakers themselves and not the forums where statements were made.

"Wikipedia continues to be a tremendous resource for people around the globe," added EFF Senior Staff Attorney Matt Zimmerman. "Without strong liability protection, it would be difficult for Wikipedia to continue to provide a platform for user-created encyclopedia content."

For the full motion to dismiss: http://www.eff.org/files/filenode/wikimedia/motiontoquashmemo-wikimedia....

Contacts:

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

Mike Godwin
General Counsel
Wikimedia Foundation
mgodwin@wikimedia.org

James Chadwick
Partner
Sheppard Mullin Richter & Hampton
jchadwick@sheppardmullin.com

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Judge Dissolves Wikileaks.org Injunction

First Amendment Rights of Internet Users Upheld in Today's Hearing

San Francisco - A federal district court judge in San Francisco today rescinded a controversial order that disabled the "wikileaks.org" domain name which had -- until two weeks ago -- pointed to Wikileaks, a website designed to give whistleblowers a forum for posting materials of public concern.

This week, the Electronic Frontier Foundation (EFF) moved to intervene in the case, along with the American Civil Liberties Union (ACLU), and the American Civil Liberties Union Foundation of Northern California and the Project on Government Oversight (POGO). In a hearing in federal court today, EFF and its fellow intervenors and amici argued that the order infringed on the First Amendment rights of Internet users who have an interest in accessing material of public concern on the site. Ruling from the bench, Judge Jeffrey White cited concerns about the First Amendment, the effectiveness of disabling the wikileaks.org domain name, and the court's own jurisdiction over the case as reasons to dissolve his previous orders.

"We're very pleased that Judge White recognized the serious constitutional concerns raised by his earlier orders," said EFF Senior Staff Attorney Matt Zimmerman. "Attempting to interfere with the operation of an entire website because you have a dispute over some of its content is never the right approach. Disabling access to an Internet domain in an effort to prevent the world from accessing a handful of widely-discussed documents is not only unconstitutional -- it simply won't work."

Wikileaks permits third parties to post corporate and government documents that they believe expose wrongdoing. For example, in the past year individuals have posted materials documenting alleged human rights abuses in China and political corruption in Kenya.

The lawsuit began earlier this month, when Swiss bank Julius Baer filed suit against Wikileaks for hosting allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.

In addition to dissolving the permanent injunction, which permits the wikileaks.org domain name to be reactivated, the court also declined to extend a previous temporary restraining order requiring Wikileaks to disable access to 14 disputed Julius Baer documents.

Joining the EFF, ACLU, and POGO motion to intervene was Wikileaks user Jordan McCorkle. The papers were filed in consultation with and on behalf of the intervenors by Steven Mayer of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. Other attorneys on the case include Christopher Kao and Shaudy Danaye-Elmi of Howard Rice; Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden Fine and Ann Brick of the ACLU and ACLU-Northern California, respectively.

For the full order:
http://www.eff.org/files/filenode/baer_v_wikileaks/wikileaks102.pdf

For more on the Wikileaks case:
http://www.eff.org/cases/bank-julius-baer-co-v-wikileaks

Contact:

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

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EFF, ACLU Move to Intervene in Wikileaks Case

Domain Name Shutdown Harms First Amendment Right to Access Information

San Francisco - The Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), and the American Civil Liberties Union Foundation of Northern California (ACLU-Northern California) Tuesday filed a motion to intervene in a lawsuit where a federal judge ordered the disabling of one of the domain names associated with "Wikileaks," a website designed to give whistleblowers a forum for posting materials of public concern.

In early February, Swiss bank Julius Baer filed suit in federal district court against Wikileaks for hosting 14 allegedly leaked documents regarding personal banking transactions of Julius Baer customers. Also sued was Wikileaks' domain name registrar, Dynadot LLC. On February 15, following a stipulation between Julius Baer and Dynadot, the court issued a permanent injunction, disabling the wikileaks.org domain name and preventing that domain name from being transferred to any other registrar.

"Dynadot's private agreement to disable access to its customer's domain name -- and the court's endorsement of that agreement -- raise serious First Amendment concerns," EFF Senior Staff Attorney Matt Zimmerman. "This unwarranted injunction should remind everyone who hosts critical information on the Web that such information may only remain accessible as long as your service provider or registrar is willing to stand up for you against obviously overreaching legal attacks."

Wikileaks permits third parties to post corporate and government documents that they believe expose wrongdoing. For example, in the past year individuals have posted materials documenting alleged human rights abuses in China and political corruption in Kenya. The court's order effectively prevents readers who are only familiar with Wikileaks through the wikileaks.org domain name from accessing any material on the site.

"Julius Baer's private dispute regarding a former employee's alleged violation of a confidentiality agreement does not warrant this attempt to block access to all material hosted on Wikileaks," said Zimmerman. "The First Amendment rights of readers who have a legitimate interest in the materials posted on the website simply cannot be treated as acceptable collateral damage to the bank's claims."

In the papers filed Tuesday, the intervenors -- including the EFF, the ACLU, the Project on Government Oversight (POGO), and Wikileaks user Jordan McCorkle -- asked the court for permission to intervene in order to dissolve the injunction disabling the wikileaks.org domain name. The papers were filed in consultation with and on behalf of the intervenors by Steven Mayer of the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. Other attorneys on the case include Christopher Kao and Shaudy Danaye-Elmi of Howard Rice; Zimmerman, Cindy Cohn, and Kurt Opsahl of EFF; and Aden Fine and Ann Brick of the ACLU and ACLU-Northern California, respectively.

At 9:00 a.m. on Friday, February 29, a federal judge in San Francisco will hear arguments regarding a related issue: whether to extend a temporary restraining order aimed at preventing the further distribution of the 14 disputed Julius Baer documents. A hearing to address Tuesday's motion to intervene and subsequent motion to dissolve the domain name permanent injunction has not yet been scheduled.

For information regarding the February 29 hearing, please contact press@eff.org.

For the full motion to intervene:
http://www.eff.org/files/filenode/baer_v_wikileaks/motiontointervene.pdf

For more on this case:
http://www.eff.org/cases/bank-julius-baer-co-v-wikileaks

Contact:

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

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CAIR Asks Judge to Throw Out Radio Host's 'Baseless' Lawsuit

Muslim Group Files Motion, Answer to Michael Savage in Federal District Court

***This press release is from the Council on American Islamic Relations (CAIR) and EFF is distributing it on its behalf***

Washington, D.C. - Washington, D.C. - The Council on American-Islamic Relations (CAIR) today asked a federal judge in California to throw out what it termed a "baseless" lawsuit by syndicated radio talk show host Michael Savage.

Late last year, Savage sued CAIR for copyright infringement after the Washington-based civil rights and advocacy organization posted brief audio clips from his October 29, 2007, program on its website.

In those clips, Savage, whose "The Savage Nation" program airs on more than 300 radio stations nationwide, screamed attacks on Muslims, Islam and the Quran. CAIR called on radio listeners of all faiths to contact companies that advertise on Savage's program to express their concerns about the host's anti-Muslim bigotry.

A community and interfaith coalition, called Hate Hurts America, was also formed in response to Savage's rhetorical attacks on Muslims and Islam.

CAIR filed an answer to Savage's suit as well as a motion for judgment on the pleadings in the U.S. District Court for the Northern District of California. A hearing is set for March 7, 2008 in that court.

In its motion, CAIR stated, in part:

"Viewed in its entirety, Savage's Complaint is simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims...Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric. As the nation's largest civil rights organization for Muslims, CAIR appropriately characterized Savage's own words as an 'Anti-Muslim Tirade' and publicly communicated a detailed response as part of its advocacy work."

"Michael Savage's frivolous and baseless lawsuit is a direct attack on First Amendment freedoms and on any citizen's right to comment on public issues," said CAIR Legal Counsel Nadhira Al-Khalili. "His suit is an abuse of the judicial system and a transparent attempt to punish those who challenge his hate-filled rhetoric."

She added that CAIR's public criticism of Savage's remarks is clearly protected by both the First Amendment and copyright law.

CAIR is represented in this case by the law firms Davis Wright Tremaine LLP, and the Electronic Frontier Foundation (EFF).

For CAIR's Motion for Judgment on the Pleadings:
http://www.cair.com/Portals/0/pdf/CAIR_Savage_motion.pdf

For Hate Hurts America:
http://www.hatehurtsamerica.com/news.php

Contacts:

Ahmed Rehab
Media Relations Director
CAIR
arehab@cair.com

Amina Rubin
Communications Coordinator
CAIR
arubin@cair.com

About CAIR:

CAIR, America's largest Islamic civil liberties group, has 35 offices and chapters nationwide and in Canada. Its mission is to enhance the understanding of Islam, encourage dialogue, protect civil liberties, empower American Muslims, and build coalitions that promote justice and mutual understanding.

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Watchdog Organization Battles Bogus Online Defamation Case

Internet Forum Shielded by Federal Law Protecting Free Speech

Washington, D.C. - The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) of the National Capital Area has asked a Washington, D.C., court to dismiss claims against a nonprofit watchdog organization and its operators, arguing that federal law and the First Amendment protect them from liability in a defamation lawsuit.

DCWatch is a government watchdog organization run by Dorothy Brizill and Gary Imhoff to monitor Washington, D.C., city politics and public affairs. DCWatch's website, www.dcwatch.com, publishes articles and columns on local politics. Themail@dcwatch.com is an online newsletter and discussion forum devoted to reporting, analysis and commentary on local issues, past editions of which are archived on the DCWatch site.

In articles printed in themail@dcwatch.com, Washington journalist Jonetta Rose Barras reported that Roslyn Johnson, then Deputy Director of Programs for the D.C. Department of Parks and Recreation, had inflated her employment and salary history to secure her position. A subsequent formal investigation by the D.C. Inspector General concluded that Johnson did in fact submit an inflated resume and was improperly hired for her position. But in a lawsuit filed earlier this year, Johnson claims that these articles were defamatory, placed her in a false light, and resulted in the termination of her employment with the city. In addition to suing reporter Barras, she also sued DCWatch and its operators, claiming that their Internet publication of these articles made them responsible for their content.

EFF and the ACLU of the National Capital Area filed a motion to dismiss the lawsuit, pointing out that DCWatch and its operators are shielded by Section 230 of the Communications Decency Act, which expressly protects providers or users of interactive computer services from liability in order to encourage robust debate in online discussions. The motion also urged the court to dismiss Johnson's claims, because the First Amendment protects statements about public officials that are substantially true.

"The Internet has played host to a renaissance of political speech, facilitating discussion on issues of local, national, and international importance," said EFF Staff Attorney Marcia Hofmann. "It's important that judges resist attempts by public officials to shut down online debate just because they don't like the speech."

Courts throughout the country have recognized the critical role Section 230 plays in enabling open discourse on the Internet and have shielded website operators from liability for comments made by others.

"The case against DCWatch must be dismissed. Congress has given online publications absolute immunity for claims based on third-party articles," said EFF Senior Staff Attorney Kurt Opsahl. "An Internet intermediary should not be liable for what the speaker has said."

"This is a concept that should be expanded into all media: books, newspapers, radio and television," said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area. "A speaker or writer should be responsible for his or her words. A bookstore or newsstand should not be responsible for the content of what it distributes."

For the full motion to dismiss and other legal documents:
http://www.eff.org/legal/cases/johnson_v_barras

For more on DCWatch:
http://www.dcwatch.com

For more on the ACLU of the National Capital Area:
http://www.aclu-nca.org

Contacts:

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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Eli Lilly Loses Effort to Censor Zyprexa Documents Off the Internet

Judge Rescinds Injunction Against Wiki, Other Websites

New York - A U.S. District Court judge today refused Eli Lilly's request to ban a number of websites from publishing leaked documents relating to Zyprexa, Eli Lilly's top-selling drug. Although the judge rejected the First Amendment arguments made by a variety of individuals eager to publish the documents, the court concluded that "it is unlikely that the court can now effectively enforce an injunction against the Internet in its various manifestations, and it would constitute a dubious manifestation of public policy were it to attempt to do so." The order is a victory for the Electronic Frontier Foundation (EFF), which represents an anonymous individual who was previously barred by the court's earlier orders from posting links to the Zyprexa documents on the zyprexa.pbwiki.com wiki.

The Zyprexa documents were leaked from an ongoing product liability lawsuit against Eli Lilly. The internal documents allegedly show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were the basis for a front-page story in the New York Times in December of last year, and electronic copies are readily available from a variety of Internet sources. EFF's client posted links to one set of copies on a wiki devoted to the controversy that were part of extensive, in-depth analysis from a number of citizen journalists.

"This ruling makes it clear that Eli Lilly cannot invoke any court orders in its futile efforts to censor these documents off the Internet," said EFF Staff Attorney Fred von Lohmann. "We are disappointed, however, that the judge failed to appreciate that its previous orders constituted prior restraints in violation of the First Amendment."

The court stayed its ruling for 10 days in order to permit an appeal. Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

For the full order:
http://eff.org/legal/cases/zyprexa/zyprexa_judgement.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

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EFF Fights to Unmuzzle Citizen Journalists

Free Speech Rights At Stake in Legal Battle Over Controversial Drug Zyprexa

New York - The Electronic Frontier Foundation (EFF) told a judge Wednesday to remove the legal muzzle on citizen journalists caught up in a court battle over documents relating to the controversial prescription drug Zyprexa. EFF argues that the injunction against publication of the documents online is prior restraint on their free speech and a violation of First Amendment rights.

EFF's client posted links on a "wiki" to electronic copies of damaging internal Eli Lilly documents about Zyprexa. The documents leaked from an ongoing product liability lawsuit against Eli Lilly over Zyprexa and were the basis for a front-page story in the New York Times in December of 2006. Eli Lilly has since obtained an injunction that forbids 11 individuals and five websites from posting or linking to the documents. In a brief filed with the court Wednesday, EFF explains that this is the digital equivalent of a "stop the presses" order on individuals who were not involved in the leak. The documents remain readily available on the Internet from a variety of sources.

"The millions of patients who use Zyprexa, and their doctors, deserve access to these documents," said EFF Staff Attorney Fred von Lohmann. "The First Amendment guarantees citizen-journalists the right to publish truthful information on matters of public concern, just as it does for newspapers."

Zyprexa is Eli Lilly's best selling drug, used to treat schizophrenia and bipolar disorder. According to news reports, the internal documents show that Eli Lilly intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). Eli Lilly has paid more than $1.2 billion to resolve lawsuits involving Zyprexa.

The matter has been submitted to U.S. District Court Judge Jack B. Weinstein in the Eastern District of New York. A decision is expected shortly.

For the full brief:
http://eff.org/legal/cases/zyprexa/brief_opposing_injunction.pdf

For more on the Eli Lilly Zyprexa litigation:
http://www.eff.org/legal/cases/zyprexa/

Contact:

Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org

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