<-- The Filter --> December 1999, 2

December 21, 1999
No. 2.7  .  The Filter  .  12.21.99

Your regular dose of public interest Internet news and commentary from
the Berkman Center for Internet & Society at Harvard Law School


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> (Open) Access Denied: Last week, four Massachusetts communities fought back against AT&T in an ongoing legal battle over open access, filing a request with the Commonwealth's Department of Telecommunications and Energy's (DTE) Cable Television Division for full hearings on whether open access is in the public interest. The communities had earlier refused to allow transfer of cable licenses from MediaOne to AT&T unless AT&T agreed to offer Internet Service Providers non-discriminatory access to the broadband network. Now, despite AT&T's recent high-profile "reversal" on the issue of open access (see Filter 2.6), the company is asking the DTE for a quick ruling to declare that local open access rules are unlawful.

Berkman Center Director Charles Nesson and attorney Kevin Conway of Conway, Crowley and Homer are representing these communities pro bono, and the Berkman Center is now preparing to take the case into the Openlaw forum to enlist help from the Internet community at large. Follow the links below to view the DTE's online case docket and tune in to the Openlaw site for more details on the case:



In related news, the National Press Club held a special debriefing on Tuesday on the issue of open access, featuring a talk by Berkman Professor Lawrence Lessig. Lessig and Mark Lemley filed testimony last month with the FCC in connection with the AT&T-MediaOne merger, asserting that closed access— promoted by the merger and the FCC's current deregulatory stance—threatens the future of the Internet and ignores its end-to-end architectural principles. Click on the following links for press coverage of the National Press Club event, then see DISPATCHES below to access the complete archived webcast of the event.

      http://www.techweb.com/wire/story/TWB19991221S0005?ls=twb_text nytimes.html

> Microsoft Objection to Lessig Overruled: Microsoft failed this week in a second attempt to remove Berkman Professor Lawrence Lessig from the antitrust case against it. Judge Jackson appointed Lessig Special Master in 1997 but was forced to withdraw the appointment. At the time, Microsoft dug through Lessig's personal email account in an attempt to demonstrate his "bias" against the company. Jackson found the charges "trivial," and the Court of Appeals subsequently ruled that appointment of a Special Master was beyond the District Court's power—without addressing the purported bias. Now, however, Jackson is sticking by his decision to include Lessig as a "friend of the court," noting drily in his reply to Microsoft that bias is not an issue in an amicus brief and that "The court is confident of its ability to assess Professor Lessig's submission critically without being affected by any occult bias of which he might be possessed."



Lessig's amicus brief, due January 31 (unless the case is settled first) will be an analysis of "technological tying"—whether Microsoft's inclusion of the Internet Explorer browser in the Windows operating system is a useful "integration" or an unlawful "bolting." For continuing updates on the case, tune in to the Microsoft Case site, developed as part of Lessig's and Berkman Center Executive Director Jonathan Zittrain's Harvard Law School course on the subject:


> Saturday School "Make-Up" Session: Did you miss our special webcast presentations of Berkman Center Co-Director Charles Ogletree's distinguished Harvard Law "Saturday School" lecture series? Tune in anytime to lectures by United States Supreme Court Justice Stephen Breyer, Judge Nathanial Jones, and Don King, archived at the below location.


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> NSI's Grinchly Turn (No Etoy for Christmas): Network Solutions, Inc. (NSI) stepped into what is fast becoming the most widely-discussed domain name trademark dispute to date when it recently shut down email for the group that ran the now-blocked etoy.com website. eToys.com, the largest online retailer of toys, won an injunction last month from a California court to shut down the website where a European art collective had featured electronic art projects subverting or criticizing the behavior of corporations. The decision angered many in the Internet community who saw it as a frightening indication that the courts regard the right to sell as outranking the right to speak freely on the Internet—a sentiment echoed and amplified last week in Berlin by Electronic Frontier Foundation Co-Founder and Berkman Fellow John Perry Barlow. NSI, meanwhile, offered no apologies, explaining only that it routinely shuts down contested domain names when court orders are issued.



> Making Money Out of Nothing at All: In the same week that unsubstantiated rumors of an imminent settlement in the Microsoft antitrust case resulted in an extraordinary surge in the value of the company's stock, two California men who made a collective profit of more than $300,000 simply by talking up the stock value of a bankrupt company on hot investment websites were charged by local authorities with conspiracy to commit securities fraud. Lest such easy Internet alchemy look appealing to copycat criminals, the Securities and Exchange Commission stressed publicly that the culprits were discovered within days of the crime—despite the fact that they used false online identities. The case is among the first securities cases to involve charges of Internet fraud.


> Linking is Illegal, but Photographs are Fair Game: In a striking demonstration of cyberlaw's piecemeal development in courts across the nation, two recent cases involving similar copyright protection issues resulted in wildly divergent outcomes. In the first case, a federal judge in Utah granted a preliminary injunction barring two critics of the Mormon Church from posting on their website links to other sites that featured passages from copyrighted Mormon texts. In the second, a California judge ruled against a photographer who sued the owners of www.ditto.com for copyright infringement when the site displayed his photographs via its "premier visual search engine." Although the search engine was copying protected images, the court held that reproduction in the search context was permitted under the Copyright Act's fair use exception.



> ICANN Makes Arbitration Decisions: The Internet Corporation for Assigned Names and Numbers (ICANN) this week accredited a second arbitration group as a provider of neutral arbitrators to implement its Uniform Dispute Resolution Policy. That policy, now a prerequisite for everyone who registers a domain name, requires that domain name owners formally arbitrate each dispute where a trademark owner raises claims of cybersquatting. The second arbitration group, the National Arbitration Forum (NAF), joins the World Intellectual Property Organization (WIPO) in providing panels to judge these disputes. Judging from the language the NAF uses to describe the cases it will try—"where one party abuses another party's rights by holding a domain name that is confusingly similar to the other party's trademark or service mark,"— the NAF may also join WIPO in becoming subject to attack by critics concerned about bias toward trademark holders.


> Y2K Problems? Don't Ask, Don't Tell: As the year rapidly draws to a close, the Marine Corps remains on guard about public inquiry into the potential failure of its computer systems. In a recent memo to its major commands, Marine Corps headquarters issued a detailed order spelling out precisely what its public affairs officials can and cannot say about possible Year 2000 problems. While no information is to be released about "failure of any of the Marine Corps' 71 mission-critical or 56 mission-support systems," problems "readily apparent through simple observation" are officially declassified.


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This week we're featuring the archived webcast of Tuesday's National Press Club briefing on open access: "Can We Preserve the Internet As We Know It? Challenges to Online Access, Innovation, Freedom and Diversity in the Broadband Era."


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* The Media Access Project


Online home of the 24-year old nonprofit public interest law firm working to protect the public's First Amendment right to speak freely via "the electronic media of today and tomorrow."

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"Internet protocol is what everyone's going to jump on. No one in their right mind would build anything not based on that."

—Richard Roscitt, president of AT&T's Business Services arm, on how contemporary business culture has created product out of process.


"Domain names are intended to be an addressing mechanism and are not intended to reflect trademarks, copyrights or any other intellectual property rights."

—The late Jon Postel, back when protocols weren't products, in a May 1996 IETF working draft on "New Registries and the Delegation of International Top Level Domains."

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January 15, 2008