<-- The Filter --> April 2000

April 18, 2000
No. 3.0  .  The Filter  .  4.18.00

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—the Ruling: Judge Thomas Penfield Jackson issued his long-awaited conclusions of law in the Microsoft antitrust case on April 3, finding that the company violated the Sherman Antitrust Act. The ruling holds that Microsoft used anticompetitive means to maintain its operating system monopoly and attempted to extend it to the Web browser market in violation of Section 2, and illegally tied the Internet Explorer browser to Windows in violation of Section 1. Jackson rejected plaintiffs' claim, however, that the company engaged in unlawful exclusive dealing. The parties are slated to return to court on May 24 for remedy hearings, and Jackson has indicated that he wants to see plaintiffs' proposed remedies by April 28. Microsoft has already announced plans to appeal after the remedy phase and final decree. Jackson, in turn, is urging the parties to use the Expediting Act to take appeals directly to the Supreme Court.



> Microsoft, Part II—the Rhetoric: Are Microsoft's legal troubles related to the NASDAQ's recent nose dive? Or is the drop part of an inevitable market cool down? Whatever the truth may be, the issue is fast becoming a political football. A volley of pro- and anti-Microsoft political rhetoric greeted DOJ antitrust head Joel Klein at last week's House Judiciary antitrust oversight hearing, prompting him to protest that "Law enforcement shouldn't be a partisan matter." Despite considerable pressure to do so, Klein declined to rule out proposing a breakup of Microsoft as a remedy in the case. Will the current political climate nevertheless impact the development of a remedy? What are the likely elements of the government plaintiffs' forthcoming proposal, and what influences will it reflect? Join Berkman Center affiliates in our Openlaw forum to discuss possible remedy scenarios and offer your own perspective on the issues at stake:


> Microsoft, Part III—the Response: If the outcome of Microsoft's battle with the US government over its business practices remains unclear, the company's fate in the court of public opinion—and the stock market—is also increasingly uncertain. While the ruling against Microsoft and its perceived negative impact on the value of Internet stocks is rousing a predictably sympathetic response from the public toward the company, Microsoft's recent hiring of Ralph Reed, a senior consultant to Governor George Bush's presidential campaign, to lobby Bush on behalf of the company substantially undercuts its newly-acquired underdog status. In addition, reports of a security hole in Microsoft's FrontPage 98, with an obscured password denigrating competitor Netscape, bolstered critics' longstanding argument that the company subsumes security to competitive concerns like time-to-market. Last week's precipitous drop in Microsoft stock value, however, is more likely due to fallout from a hard-headed Goldman, Sachs analyst's report predicting a drop in the company's revenue than it is to Microsoft's public relations pratfalls.




> Bidder's Edge—Trespassing on eBay's (Intellectual) Property?: Internet auction company eBay, which filed suit in December for an injunction to stop "auction agglomerator" Bidder's Edge from accessing and using its listings database, may soon get its wish. While no ruling was made, a US District court judge on Monday said he is leaning toward issuing the injunction on the grounds that "(What) Bidder's Edge was doing was potentially slowing down eBay servers and trespassing in a way that permission had not been granted." Auction agglomerators enable users to search across multiple auction sites for the same items via the use of web "spiders," which gather data from companies like eBay. At issue in the judge's forthcoming decision is the legality of spidering: Does it constitute trespass against a company when the spider returns non-copyrighted material from that company's site?



> Code == Speech: Computer software source code qualifies as "expressive" speech and is therefore protected under the First Amendment, according to a ruling on April 3 in the Federal 6th Circuit Court. Likening the language of programmers' source code to "the artwork of Jackson Pollock,the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll," the 6th Circuit held that the lower court would have to consider explicitly the restriction on this speech in determining the constitutionality of the US government's regulations preventing export of encryption programs. Plaintiff Peter Junger, a professor at Case Western University School of Law, brought the suit in 1997 when he was told by US authorities that posting his computer law textbook—which contains encryption source code—constituted impermissible export.



The challenged encryption export rules have since been revised. Follow the link below for the Electronic Privacy Information Center's recently released, "Cryptography and Liberty 2000," an illuminating report on the state of cryptography policy worldwide:


> Code v. Speech: In a case with far-reaching implications for free speech on the Internet, a federal judge in Boston last month rejected the ACLU's request to temporarily lift the court's injunction barring site operators from posting or linking to CPhack, a software program that reveals which sites Internet filtering program Cyber Patrol blocks. The strongly-worded injunction states that whereas the Constitution protects those who disseminate "even evil ideas" from government control, parents nevertheless have the right to "screen and, thus, prevent noxious and insidious ideas from corrupting their children's fertile and formative minds." Critics of the order counter that Cyber Patrol, frequently installed in computer systems at public schools and libraries, has been shown to block not only sites that contain adult content but those that question or reveal what the program censors. The ACLU request was denied on the grounds that the organization isn't a party in the case and therefore has no legal standing in it. Responds ACLU staff attorney Chris Hansen, who represents three clients who created CPhack mirror sites to discuss and critique the injunction, "Our clients want to speak, and they're being prevented from speaking [...] When a court issues an injunction prohibiting speech, it seems to us that it's a somewhat urgent matter."



How do free speech issues play out in the context of the Internet? Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998 ostensibly to protect the interests of copyright owners on the Internet. Its anticircumvention provision, however, can be used to restrict the fair use of content that copyright law presently allows. Berkman Professor Lawrence Lessig's "Battling Censorware" explores this theme as it relates both to the CPhack injunction and the standing order preventing site operators from posting DeCSS, a program to decrypt and read the data on commercial DVDs—something necessary to viewing for users on unsupported operating systems.


***EXTRA: With contributions from participants in the Berkman Center's Openlaw/DVD forum, Copyright's Commons recently filed a reply comment with the Copyright Office of the Library of Congress in its rulemaking on exemptions from the DMCA's anticircumvention provision. Follow the link in BERKMAN NEWS below to read the full document.

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This week we're featuring "Battle Brews on Rights to Web Content," a thoughtful piece by the Boston Globe's Sam Allis that explores how technology designed to protect copyright on the Internet—and the legislation that backs it—may be jeopardizing legitimate, noncommercial uses of online content: criticism, commentary, news, teaching, scholarship, and research.


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> Circumvention Intervention: Does the DMCA give copyright holders the kind of rights in cyberspace that they do not—and should not—have in realspace? Copyright's Commons recently added its voice to those of public interest groups, librarians, universities, programmers, and researchers in critiquing the DMCA's anticircumvention provision. Concerned that "access control devices" could too easily become use limitations, it filed a comment urging the Copyright Office of the Library of Congress to grant a broad exemption for the circumvention of any devices that control use of works along with access to them.


> Arguing the Violence Against Women Act—Two Views: Is Congress's creation of the "civil right to be free from gender motivated violence" under the Violence Against Women Act constitutional? This civil rights remedy, considered enormously important to the women's movement, has been challenged in a case currently pending in the US Supreme Court. The Court heard arguments in the case of U.S. v. Morrison on January 11, 2000, and a decision is expected in June.

To fully explore the critical questions regarding equal protection from gender-based violence and Congressional authority to regulate under the Commerce Clause, the Berkman Center is hosting a live webcast discussion of the case, featuring 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 Violence Against Women Act. Moderated by Berkman Fellow Diane Rosenfeld, leader of our Violence Against Women online series, the event takes place at 7:30 p.m. EST on May 1, 2000. In addition, an online discussion will be moderated by Yale Law School Professor Jack M. Balkin, a constitutional law and cyberlaw professor and a contributor to the United States brief in the Violence Against Women Act case.

Click on the link below for further details, including registration information, background readings, and instructions on how to participate in our moderated discussion forum.


> Digital Discovery—the New Rules of the Game: Electronic communication is increasingly recordable, and, as such, discoverable. As the Microsoft antitrust case demonstrates, all communication is now at risk of being subpoenaed in the process of legal discovery and, potentially, used as evidence against authors—and their employers. A powerful tool of total transparency for those whose interest is exposing wrongdoing; a dangerous tool of total infringement for those whose interest is protecting privacy.

In the sphere of digital discovery, few guidelines have thus far been established. On May 3, 2000, the Berkman Center is holding a webcast panel discussion to create the agenda, name the relevant issues, and engender the terms of debate. Follow the link below for details:


> E-Tax Debate Update: Did you miss the Harvard Journal of Law and Technology's symposium on the pros and cons of taxing Internet sales? Check out the below URLs for press coverage of the event and Berkman Center Executive Director Jonathan Zittrain's recent testimony before the Senate Commerce Committee on the issues at stake.



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* ArsDigita


Online home of the ArsDigita Foundation, an organization dedicated to fostering the development of "interesting, tasteful, pleasant, innovative, non-commercial Web services." Has just announced a tuition-free post-baccalaureate program in computer science, to which any and all may apply.

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"When you're frightened of hyenas all the time, all you think about are hyena defenses."

—Geek God Neal Stephenson, on how paranoia over Big Brother distracts the technical community from more real and significant dangers, at this year's Computers, Freedom and Privacy conference.


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January 15, 2008