<-- The Filter --> May 2000

May 7, 2000
No. 3.1  .  The Filter  .  5.7.00

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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> Microsoft, Part I—A (Government) Remedy Worse than the Disease?: Government plaintiffs in the Microsoft antitrust case filed their proposed remedy with the District Court last Friday, asking Judge Thomas Penfield Jackson to break the company in two. The remedy plan, endorsed by the Department of Justice and 17 of the 19 plaintiff states, proposes that Microsoft be divided into an "Operating Systems Business" and an "Applications Business." Government plaintiffs also request that Microsoft's conduct be strictly regulated until the breakup is achieved. While proponents say the plan would effectively remove Microsoft's power to leverage its operating system monopoly to crush competition in other markets, critics argue that it might well simply replace one monopoly with two in related markets—and further, set an unhealthy precedent for government involvement in the still-developing Internet industry.




> Microsoft, Part II—Staying the (Slow and Steady) Course: While speculation runs wild as to the effects on Microsoft and the benefits for consumers of a breakup, company representatives are embarking on by-now-familiar public relations and legal strategem: arguing for Microsoft's "freedom to innovate" while building its case for appeal. The "wait and see" approach has traditionally worked to Microsoft's advantage, notably in 1998 when an appellate court overturned a lower court's ruling for the US government, finding that courts are inadequately prepared to judge software design and therefore couldn't place restrictions on Microsoft's "bundling" of its Internet Explorer browser with the Windows operating system. Chairman Bill Gates' response to Friday's proposal reprises the theme: "Dismantling Microsoft would hurt the company's ability to continue to innovate [...] This was not developed by anyone who knows anything about the software business." Microsoft revealed on Tuesday plans to ask Judge Jackson for broad authority to scrutinize the government's records in the case to respond to details in the breakup plan—a request that if granted could delay conclusion of the remedy phase.



What's next? Microsoft's own remedy proposal is due by May 10 and remedy hearings are scheduled for May 24. Stay tuned to the Berkman Center's Microsoft Case site for updates:


***EXTRA: The US government's proposal that Microsoft be broken up is polarizing debate over how to preserve free competition and innovation on the Internet—as well as who has the authority to speak to the issue. Berkman Professor Lawrence Lessig, tapped by Judge Jackson as a "friend of the court" in the case, argues the question with open source movement oracle Eric Raymond in the American Prospect forum linked below from DISPATCHES.

> ICANN Under GAO Scrutiny: The legal status of the Internet Corporation for Assigned Names and Numbers (ICANN) is under review by Congress's General Accounting Office (GAO). The study, requested in a 1999 conference report attached to the FY 2000 appropriations bill for the departments of Commerce, Justice, State and federal judiciary, focuses on the US government's interaction with the organization. Among the issues to be addressed are: (1) the legal basis for the selection of US representatives to ICANN's interim board; (2) whether US participation in ICANN proceedings is consistent with US law, including the Administrative Procedures Act; and (3) whether the Department has the legal authority to transfer control of the authoritative root server to ICANN. In addition, the conferees seek GAO's evaluation and recommendations regarding placing responsibility for US participation in ICANN under the National Institute of Standards and Technology rather than NTIA. Although some news sources are mischaracterizing the review as an "investigation," there will be no subpoenas or document requests. Instead, the GAO's report—due on June 30—will be drawn from readily available public documents and interviews with people close to the organization.

      http ://www.nytimes.com/library/tech/00/05/cyber/capital/02capital.html


> RIAA Ready to Make Peace...: A US District Court's terse ruling last Friday that MP3.com was liable for copyright infringement prompted new efforts by the company to negotiate an out-of-court settlement with the Recording Industry Association of America (RIAA). The court found the requirement that a user of MP3.com's "Beam-it" service prove possession of a CD before accessing it in the "my.MP3.com" library insufficient to shield the service from liability for making those unauthorized copies to the library. An open letter flame war between MP3.com CEO Michael Robertson and RIAA head Hilary Rosen, begun shortly after the January launch of "my.MP3.com," led to a countersuit by Robertson, who claimed that Rosen's letters were defamatory and thus a threat to his company's trade. In the wake of Friday's ruling, however, both parties are dousing the fires of their public rhetoric. Said a source close to RIAA on Monday, "We absolutely do not want to see MP3.com shut down." Affirms Robertson, who recently dropped his defamation suit, "We're making great progress. And we hope to negotiate a way to offer the service [with content from the major labels represented by RIAA]."


As we prepared this issue of The Filter for release, Judge Jed S. Rakoff issued an opinion explaining Friday's ruling—calling MP3.com's fair use claim "indefensible":

      http://www.nysd.usco urts.gov/courtweb/pdf/00-04756.pdf

> ...And War: If MP3.com is reaching a new detente with the RIAA, Napster, Inc.—a company that distributes software for MP3 file swapping—remains in the recording industry's crosshairs. Unlike MP3.com, Napster doesn't host MP3 files but simply provides a protocol and directory to allow users to search for and download files from one another's computers; technically speaking, the company copies nothing. The RIAA contends, however, that Napster software is a "burglar's tool" and that therefore the company should be held liable for the illegal copying it potentially enables. Under pressure from the RIAA, a number of universities have already banned its use; Napster clones like the open-source Gnutella are staging a counteroffensive. In the latest chapter of the MP3 file-swapping battle, rock band Metallica, which has joined the ranks of anti-Napster plaintiffs, hand-delivered to the company the usernames and IP addresses of 335,435 users it believes are infringing Metallica's copyrights.



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Should public policy support the development of open source software? Or would government just get in the way? And what does this have to do with the Microsoft antitrust case? This week we're featuring a broad-ranging, heated debate between Berkman Professor Lawrence Lessig and open source movement leader Eric Raymond over how society can—or should—support free competition and innovation on the Internet.


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> Step Away From the Virtual Shredder, Sir: Despite its increasingly significant impact on the legal process, there are few legal guidelines for so-called digital discovery. Among the provisions outlined in the US government's remedy proposal is an order for Microsoft to retain for a minimum of four years "...the email of all Microsoft officers, directors and managers engaged in software development, marketing, sales, and developer relations related to platform software." Microsoft's request to see the government's "off-the-record" records on the case may include examining email messages. What showing should requesters have to make to pursue digital searches? What rubric should courts use to sift out what is public versus what is private on the Internet? Follow the links below to read a provocative New York Times article on the issues at stake and to access the multimedia archive of "Digital Discovery," a May 3rd Berkman Center webcast panel discussion aimed at giving them clarity.



> MacKinnon, Fried Argue Merits of Violence Against Women Act: The Berkman Center recently held a webcast conference to debate the constitutionality of Congress's creation of the "civil right to be free from gender-motivated violence" under the Violence Against Women Act—an issue now pending in the US Supreme Court. Professor Charles Fried, former Solicitor General of the United States and co-author of the brief for the Respondent, and Professor Catharine MacKinnon, leading feminist legal scholar and a key advocate behind the passage of the VAW Act, gave their perspectives on critical questions regarding equal protection from gender-based violence and Congressional authority to regulate it under the Commerce Clause. Follow the link below to access the complete multimedia archive, including video keyed to conference session and real-time discussion logs.


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* Oyez, Oyez, Oyez


Northwestern University's online guide to US Supreme Court history.

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"Long before the DOJ lawsuit, the open-source movement developed its shared values and exuberant energy in significant part as a conscious reaction against the attempted cornering of computing technology by monopolies and governments and other power groups. We are the Internet's antibody response against all would-be Microsofts (and against the NSA [National Security Agency] as well). We trust the invisible hand of the market partly because we are the invisible hand. And most (though not all) of us believe we can punish Microsoft's misbehavior and hubris more effectively and more ethically than could be done through government action...The best advice on Internet policy remains 'Laissez faire, laissez passer.'"

—Eric Raymond

"This movement has got to graduate from Philosophy 101; it has got to realize that objectivism is just a stage to get through. It's got to learn that "no regulation" is not on the table--indeed the very idea of a "free market" without regulation is just a confusion--and that in a democracy, one must battle to preserve the kind of regulation that does good...Reject kings, presidents, voting, and slogans in French. Let's get back to rough consensus and running code.

—Lawrence Lessig


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January 15, 2008