<-- The Filter --> January 2000, 2

January 31, 2000
No. 2.9  .  The Filter  .  01.31.00

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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> DOJ Says It Isn't So: Government plaintiffs in the Microsoft antitrust case responded last week to Microsoft's proposed conclusions of law with a withering rebuttal charging the company with addressing "strawmen" rather than the findings of fact. Arguing that Microsoft "relies on a legal standard that would allow all hobbling of competition that did not completely destroy it," the government filing pointed repeatedly to the findings of fact for evidence to support the claim, including documented instances of monopoly maintenance, tying, and exclusionary agreements. The next steps? Microsoft gets a final response, amici will file briefs for each side, and the parties will make oral arguments before Judge Thomas Penfield Jackson in mid February. Provided there is no settlement, Judge Jackson's verdict and hearings on a remedy will follow.



Berkman Professor and former Special Master Lawrence Lessig has been tapped by Judge Jackson as a "friend of the court" in the case; his amicus brief, which focuses on the issue of technological tying, comes due as Filter 2.9 goes to press. For continuing updates on the case, tune in to the Microsoft Case site, developed as part of a Harvard Law School course jointly taught by Lessig and Berkman Center Executive Director Jonathan Zittrain:


> The (Encryption) Rules of the Game: The relief—even jubilation—with which the technical community greeted the Clinton administration's recent lifting of virtually all US restrictions on the export of strong encryption technology is being tempered by criticism from a group of civil liberties organizations. The group, which includes the ACLU, contends that the new export rules remain sufficiently cumbersome as to pose a serious threat to free speech on the Internet. It cites in particular the regulations' requirement that the US government be notified of each instance in which there is electronic "export" of publicly available encryption source code, as well as the restriction on "exporting" to certain countries—even though the same information can freely be sent anywhere on paper.


> The (Encryption) Rules of the Game, Part II: In the wake of the US government's relaxation of the restrictions on encryption export, the Chinese government is putting into effect sweeping regulations designed to tighten its encryption control. The regulations require all foreign and Chinese companies or individuals using encryption technology to register with the Chinese government—something widely considered unworkable (and unenforceable) due to the technology's ubiquity in such common communications devices as cellular telephones and desktop software. Originally announced in October but taking effect this week, the new rules are already under attack by members of the US Congress opposed to China¹s inclusion in the World Trade Organization (WTO).


In tandem with the move, the Chinese government released a more broad-based policy statement banning the publishing of state secrets on the Internet. Despite its poor reception in the international business community, release of the policy did not prevent President Clinton from rallying support for China's acceptance into the WTO at the annual World Economic Forum meeting in Davos, Switzerland.



> Hollywood v. the Internet, or the Great DeCSS Debate: The DVD Copy Control Authority, which brought suit last month against website operators who either posted or linked to DeCSS—a software program designed to decrypt and read the data encoded on commercial DVDs—has not only won a preliminary injunction in California against the site operators but been joined in its fight by the Motion Picture Association of America (MPAA), which filed a similar suit in New York. In addition, police in Norway arrested 16-year old Jon Johansen, credited with authoring DeCSS, seizing his computers, equipment and cellular telephone. The suits are attracting widespread media attention not only because they're likely to clarify a number of critical, perplexing issues involving free speech, copyright, and intellectual property on the Internet, but because they pit the interests of powerful corporations against those of a less well-represented group: the Linux community, and arguably—by extension—the Internet community at large.




> How Free Does Music Want to Be?: The Recording Industry Association of America (RIAA) is suing MP3.com for copyright infringement over its new "Beam-It" service, which allows listeners to "beam" CDs from their personal collection to a password-protected online listening room. Although MP3.com takes steps to ensure that users have indeed purchased the CDs they access through "Beam-It," RIAA contends that the service amounts to unauthorized copying of copyrighted material, and further, encourages piracy. MP3.com CEO Michael Robertson responded to the suit last week with an open letter to the RIAA arguing that "Beam-It" simply allows users to exercise fair use rights over music they already own.

      http://www.boston.com/dailyglobe2/028/living/MP3_com_s_cool_new_service_... music_industry+.shtml

MP3.com, meanwhile, sent an email to users encouraging them to enlist friends to the service, on the premise that "With each music fan that adds their CDs to My.MP3.com, our position against the record companies grows stronger."


***EXTRA: The Berkman Center and the Electronic Frontier Foundation are teaming up for a conference to explore the intersection between digital technology, music, and public policy. See your invitation, below in BERKMAN NEWS.

> The Age of Big Browser (Doublespeak by DoubleClick): Internet advertising company DoubleClick Inc. was hit last week with a suit that accuses the company of gathering personal information from Internet users—such as names, addresses, and patterns of online browsing and buying—without their knowledge or consent. The suit alleges that DoubleClick, despite a privacy policy stating that Internet users' privacy is of "paramount importance," is cross-referencing general data collected from users with identifying information accessed through Abacus Direct Corp., a direct marketing firm the company acquired last year.



Berkman Fellow Simson Garfinkel's recently published Database Nation examines in depth the challenge to privacy that a networked online environment poses. Follow the links below for a recent review and to check out the author's book site.



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> Signal or Noise? The Future of Music on the Net: Will record labels be replaced by URLs? Is the new Walkman (TM) a Palm Pilot (TM)? Why is a company called SpectraDisc making CDs that self-destruct?

The Berkman Center cordially invites Filter readers to join us on February 25 for a conference to explore the legal and policy issues confronting us as Internet technology transforms the music industry. Co-sponsored by the EFF, the daylong event features panel discussions with activists and thinkers, demonstrations of cutting-edge technologies, and addresses by leaders in law, technology, and the music industry. It culminates in an informal reception and a concert at Cambridge's House of Blues featuring bands enthusiastic about digital distribution.

Confirmed speakers, moderators and panelists include:

    * John Perry Barlow, Berkman Fellow, EFF Co-founder, former lyricist for the Grateful Dead
    * Chuck D, "Hip-hop Activist and Public Enemy #1"
    * Eric Hellweg, Senior Editor, Business 2.0
    * Christopher Lydon, Host, WBUR's The Connection

Click on the link below for details on our developing agenda and to register online:


> Kudos for E-series 2000: The Berkman Center's experimental online lecture and discussion series, now in its third year, recently garnered notice from the Boston Bar Association, which named the series' site its "BBA site of the week." Registration for the set of series, which begin on February 7, remains open; we encourage you to check out the offerings and sign up now.



> Harvard's Internet & Society 2000 Conference—"Changing Our Lives":The economy is being driven by the Internet—but where is the Internet headed? And how is the ride affecting the passengers? The Third International Harvard Conference on Internet & Society, taking place in May, examines the opportunities and ethical dilemmas the development of the Internet is bringing about. We invite you to visit the conference site to learn more and get involved.


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This week we're featuring a recent Slate discussion between Lawrence Lessig and Richard Epstein on libertarianism and the future of the Internet.


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* The Online Publication Page @intelproplaw.com


A terrific guide to online publications on IP law.

* The Virtual Activist


How-to for the netizen with a cause.

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"A person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention [...]."

—Excerpt from Section 1201(f) of the 1998 Digital Millennium Copyright Act.


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Comments? Questions? Opinions? Submissions? Send a letter to the editor at filter-editor@cyber.law.ha rvar d.edu

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A publication of the Berkman Center for Internet & Society at Harvard Law School

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Last updated

January 15, 2008