<-- The Filter --> June 2000

June 16, 2000
No. 3.3  .  The Filter  .  06.16.00

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


Berkman News  |  In the News  |  Dispatches  |  Bookmarks  |  Quotable  |  Talk Back  |  Subscription Info  |  About Us  |  Not a Copyright

• • • • • • • • • •


> Can Linking Be Illegal?: If to the hammer every problem looks like a nail, then it's certainly possible for a judge deliberating in a case heavily weighted with corporate interests to see the posting of a link as trafficking. On May 30, participants in the Berkman Center's Openlaw/DVD forum filed an amicus brief in the case of Universal City Studios, Inc. v. Eric Corley a/k/a "Emmanuel Goldstein", opposing the movie studio plaintiffs' motion to enjoin defendants from linking to DeCSS—a program to decrypt and read the data on commercial DVDs. The brief argues that the proposed restriction on linking is an impermissible prior restraint on speech. Follow the links below for a New York Times article on the case and to read the brief:



> Berkman Congrats—and a Fond Farewell: Jonathan Zittrain, co-founder and executive director of the Berkman Center, has just been appointed Assistant Professor of Law at Harvard Law School. A Lecturer on Law at Harvard since 1997, Zittrain has led the Berkman Center's innovative Internet research projects while teaching courses on a broad range of cyberlaw issues, including Internet governance, electronic privacy, cryptography, and the control of digital property and content. He will continue with the Berkman Center as a faculty co-director.


Professor Lawrence Lessig, meanwhile, has taken a new position at Stanford University and will begin teaching there in the Fall. Lessig, the first Jack N. and Lillian R. Berkman Professor of Entrepreneurial Legal Studies and the guiding force behind many of the Berkman Center's core projects, will become chair of the Berkman Center Advisory Board.

> Access v. Privacy?: How do we balance the benefits of the Internet's "openness" with its drawbacks? Is privacy on the Internet already dead? What kinds of access should we allow to information in an environment proven vulnerable to such attacks as the one by the "I love you" virus? Follow the links below for articles on Professor Jonathan Zittrain's panels on privacy and access at the recent Third International Harvard Conference on Internet & Society:




• • • • • • • • • •


> (Tactical) Advantage: Microsoft?: A rapid-fire filing of briefs following last week's historic final judgement in the Microsoft antitrust case—in which Judge Thomas Penfield Jackson ordered the company split in two—resulted Tuesday in a development that may be pivotal to the case's ultimate resolution: a decision by the US Court of Appeals for the District of Columbia Circuit to hear Microsoft's challenge of the order before a full panel of judges. At issue is the question of jurisdiction: while Microsoft angles for a repeat victory in the same appeals court circuit that overturned a separate ruling by Jackson in 1998, the government plaintiffs and Jackson seek to bypass the court entirely and bring the case directly before the Supreme Court. Which party has the upper hand? Although the jury is still out among legal experts as to where the case will be heard, at least one likely scenario would give Microsoft the advantage: rejection of the case by the Supreme Court upon Jackson's expedition.



> ICANN Parent the Net: The Internet Corporation for Assigned Names and Numbers (ICANN) posted the agenda Wednesday for an upcoming public meeting at which it will consider adopting a policy to add new top-level domains to the Internet's existing structure in a "measured and responsible manner." The policy, which proposes a "well-controlled, small-scale introduction as 'proof of concept' for possible future (top-level domain) introductions," is intended to further ICANN's mission of bolstering competition in domain name registration services—and enhancing the DNS' general utility—while sidestepping a potentially destabilizing gold rush for domain name territory. Details on the policy—including how to give your input on it—are at the below URL:


***EXTRA: ICANN has since inception alternately been criticized for moving too quickly or too slowly in assuming and carrying out its mandated tasks. What do ICANN cognoscenti have to say about the organization's handling of its critical responsibilities? For the answer, check out "The Debate Over Internet Governance: A Snapshot of the Year 2000," linked below from DISPATCHES.

> With Friends Like These...: In the latest chapter of the MP3 file-swapping battle, the Recording Industry Association of America filed a motion Monday asking for a preliminary injunction against Napster that if granted would force the site to suspend operations until the copyright infringement suit against it is settled. In addition to such usual suspects as Motion Picture Association of America (MPAA) head Jack Valenti, the RIAA recruited newly label-friendly MP3.com CEO Michael Robertson for a declaration on its behalf. Stated Robertson, who after losing his own copyright infringement fight with the RIAA signed licensing agreements last week with members Warner Music and BMG Entertainment, "In my view, Napster is not designed to promote or share the music of unknown or lesser known artists. The only way to find a song on Napster is to enter the name of the song and/or artist that the user wants to find." Napster's response? It hired David Boies—the Justice Department's special counsel in the Microsoft antitrust case—to litigate its side of the case.



While supporters of the RIAA claim the Napster suit is to protect the artist, detractors point out that the likely beneficiaries of a court victory aren't individual artists but the corporations that control the distribution of their work. Despite aligning herself with Napster-foe Lars Ulrich of Metallica, rock star Courtney Love lambasted the RIAA in a speech posted this week on Salon exploring the realities behind the rhetoric in the file-swapping debate.


> ..You Need "Competitors" Like These: Digital movie distributor SightSound.com announced plans Wednesday to use Napster clone Gnutella's file-swapping software to sell its content online—a move some legal experts argue may bolster Napster's chances against the RIAA in court.

      http://www.wired.com/news/bu siness/0,1367,36990,00.html

      http://news. cnet.com/news/0-1005-200-2080146.html?tag=st.ne.ron.lthd.ni

> Whither First Sale?: The ongoing controversy over sites like Napster.com that enable the swapping of MP3 files containing copyrighted content prompted the startling declaration last month by RIAA-associated Edgar Bronfman Jr. that "...'intellectual property' is property, period." If so, ownership may increasingly be consigned to publishers rather than the public. In a move that raises a red flag for members of the legal and technical communities concerned about the trend toward "medialess" transactions, Microsoft in April ceased shipping full-featured installation CDs for the Windows operating system along with new PCs. Instead, the company provides a specialized "recovery CD" that will work only with the system with which it was shipped or a "recovery image" of the operating system that can be loaded onto a separate partition of the hard drive. While Microsoft defends the practice as simply a protection measure against software piracy, critics argue that it evades the traditional—and necessary—restrictions of copyright. "If software and other online publications are increasingly 'released,' 'rented,' or 'licensed' rather than sold, how do we safeguard the public's side of the copyright bargain?," asks Berkman Fellow Wendy Seltzer. "What happens to claims of fair use, first sale, and free use of non-copyrightable material?"

      http://www.info world.com/articles/op/xml/00/05/01/000501opfoster.xml

      http://slashdot.org/yro/00/06/08/0647 212.shtml

What are your thoughts on the first sale doctrine? The motion picture industry—as represented by the MPAA—seeks to restrict through encryption and provisions in the Digital Millennium Copyright Act the manner in which consumers can view DVDs they have purchased. Now the Copyright Office of the Library of Congress is soliciting public comments in its rulemaking regarding first sale and archival copying under the DMCA. For more details—and to submit your comments—follow the link below:

      http://www.loc.gov/copyright/fedr eg/65fr35673.html

• • • • • • • • • •


What is the difference between government and governance? What does John Perry Barlow mean when he says he supports "techarchy"? Find out the answers to these questions and more in "The Debate Over Internet Governance: A Snapshot of the Year 2000," a study on ICANN that offers interviews with members of the Internet community closely involved in its activities:


• • • • • • • • • •


* The Internet Fraud Complaint Center


Who you gonna call? A joint project by the FBI and the National White Collar Crime Center, this site is set up for receiving and analyzing complaints about Internet fraud and make referrals as appropriate to law enforcement.

• • • • • • • • • •


"Just as the FBI needs to protect its agents, sources, and methods, so as to safeguard their safety and effectiveness, so too the MPAA needs to protect those engaged in its anti-privacy operations."

—Freudian slip courtesy of Kevin A. Jacobsen, former FBI agent turned Director of Anti-piracy for the MPAA.


"We must restrict the anonymity behind which people hide to commit crimes [...] As citizens, we have a right to privacy. We have no such right to anonymity."

—Edgar Bronfman, Jr., chief executive of RIAA-associated Seagram Company Ltd., at the Real Conference 2000 on May 26 in San Jose, California.


• • • • • • • • • •


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

• • • • • • • • • •


Click here to subscribe or unsubscribe from the list.

• • • • • • • • • •


Read The Filter online at http://cyber.harvard.edu/filter/

Who we are: http://cyber.harvard.edu/filter/index_about.html

• • • • • • • • • •


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

You may—and please do—forward or copy this newsletter to friends and colleagues. 

Last updated

January 15, 2008