<-- The Filter --> August 2000

August 1, 2000
No. 3.5  .  The Filter  .  8.01.00

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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> DeCSS Code—Free as in Speech?: At the end of trial testimony last week in the case of Universal City Studios, Inc. v. Eric Corley A/K/A "Emmanuel Goldstein," Judge Lewis Kaplan announced his preliminary determination that DeCSS is expressive speech protected by the First Amendment, whether in source code or an executable binary. The plaintiff movie studios brought suit against 2600 Magazine in December, seeking under the Digital Millennium Copyright Act to enjoin publisher Goldstein from posting or linking to DeCSS—a program to decrypt and read the data on commerical DVDs. While Judge Kaplan's conclusion that DeCSS is expressive speech represents an advance in the case for the defendants, the question remains as to whether the speech can be prohibited under a form of lesser scrutiny. Further, the court has yet to address the question of whether Congress may permit copyright owners to block fair use with digital content control. Both sides will submit post-trial briefs by August 8, addressing issues including the applicable First Amendment test, the likely futility of an injunction in stopping dissemination of DeCSS, and evidentiary and burden-of-proof issues.


*** EXTRA: For more on the implications of the New York DeCSS case, check out BERKMAN NEWS below.

> Napster Escapes RIAA Crosshairs—For Now: The last-minute reprieve granted MP3 file-swapping site Napster.com on Friday may be quelling the file-downloading frenzy among Internet users but not debate on the issue of contributory copyright infringement on the Internet. Ordered Wednesday by US District Court Judge Marilyn Patel to shut down its file-trading service by Friday at 12:00 a.m. PDT, Napster immediately lodged an appeal with the 9th Circuit Court in San Francisco, which then granted the company a stay of injunction on the grounds that "substantial questions" had been raised as to the injunction's merits and form. While the stay allows Napster to continue operations until the Recording Industry Association of America's case against it is decided, the company's long-term prognosis remains questionable. "Napster is an attractive target for RIAA copyright enforcement efforts because its centralized directory is the closest thing to a choke point on distributed file sharing activity," says Berkman Fellow Wendy Seltzer. "While Napster may be capable of 'substantial noninfringing use' under the Betamax rule, judges are likely to believe that only by blocking Napster can the large proportion of infringing uses be put to an end."



> Can Scour Come Out Clean?: A week prior to Judge Patel's ruling in the Napster case, the Motion Picture Association of America in concert with the National Music Publishers Association and the RIAA filed suit against Scour Inc., a company that while providing the same basic tools as Napster to enable peer-to-peer file exchange, positions itself as a multimedia search engine rather than an "Internet Service Provider." The difference, though perhaps primarily one of semantics, may be key to its defense. "When we built Scour Exchange, we studied all of the laws that we would need to follow. We feel that the Digital Millennium Copyright Act was very specific on what you are responsible for doing as a search tool provider," said Scour president Dan Rodrigues to Wired. In addition to posting a copyright violation policy, Scour has from the outset driven licensed content through the site—some of it, in fact, licensed by corporate plaintiffs in the case.

      http://www.mpaa.org/press/ScourC omplaint.htm

      http://www.wired.com/n ews/culture/0,1284,37884,00.html

> Data Can Run—And Now It Can Hide, Too: In the wake of the premature Napster post-mortem, media focus turned to alternatives—like Napigator—that deny legal authorities an easy target for liability. Now, AT&T and NYU researchers are developing Publius, a tool that slices and dices data and spreads it across multiple servers, thereby protecting the information from censors or hackers. Developer Dr. Avi Rubin hopes Publius will be used to elude censorship efforts by powerful organizations like the Church of Scientology—which now relies primarily upon copyright, trademark and trade secret law to suppress publication of Church documents online. While Publius could also be used for nefarious purposes, Rubin suggests that this may be a small price to pay: "One of the tenets of free speech is that it allows for uncomfortable speech. [. . .] It would be a tragedy if we let the potential for abuse limit all the good that this technology can do."

      http: //www.nytimes.com/library/tech/00/07/circuits/articles/27next.html


> The "Other" Election: The Internet Corporation for Assigned Names and Numbers, which recently concluded its membership registration, now has nominations from its Nominating Committee: a slate of 18 nominees from which will be chosen five At-Large board members. The election will take place online from October 1-10. The At-Large membership program is intended as a means for Internet users to have a voice in ICANN's technical policymaking structure. Among the nominees is Berkman Center Advisory Board Chair Lawrence Lessig.



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This week we're featuring "Whose Net Is It, Anyway?," a thoughtful Business Week article exploring the principle of openness in the digital economy:

      http://www.businessweek.c om/2000/00_31/b3692104.htm

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> Hollywood v. Innovation?: Do the Napster, Scour and DeCSS cases signal a growing trend toward blocking the development of new technologies that might engender new creative works—and new uses of existing works—simply because they threaten the MPAA/RIAA dinosaurs' intellectual property monopolies? Won't shutting down the technologies rather than prosecuting their illegal uses or developing models for licensing their legal use set a dangerous precedent against innovation? In the absence of an SDMI-style effort to develop open technical standards for the digital distribution of films, the MPAA is likely to continue using litigation as a stopgap strategy to control it—something that may have unintended, and certainly unwelcome, consequences. "If the MPAA is granted its reading of circumvention in the DeCSS case, we won't even be able to discuss, in code, the flaws in 'digital security' measures, nor make fair use of the works they enclose," says Wendy Seltzer, who moderates the Berkman Center's Openlaw/DVD forum. Follow the links below for an Industry Standard article on Hollywood's response to advances in digital distribution and the Openlaw/DVD forum's complete archive of the New York DeCSS trial:

      http://www.th estandard.com/article/display/0,1151,16963,00.html

      http://cyber.harvard.edu/openlaw/DV D/

> Eldred v. Reno Update—Free Mickey!: New developments are afoot in Eldred v. Reno, a challenge to Congress's recent 20-year extension of copyright that is being mounted using our innovative Openlaw forum. Launched last year, the case has supporters for both sides among Berkman Center affiliates, with Lawrence Lessig, Jonathan Zittrain and Charles Nesson weighing in with the challengers, and Arthur Miller the defense. In May, plaintiffs countered a summary judgement against them by filing an appeal in the DC Circuit.

Now, the government has filed its reply brief, responding to plaintiffs' arguments by characterizing the challenged Copyright Term Extension Act as the logical next step in a history of copyright term extensions and asserting that balancing the public's and coypright holders' interests is the province of Congress, not the courts. The brief goes on to argue that so long as the means adopted by Congress to promote the arts and sciences bear a "rational connection" to that end, the courts have no choice but to affirm the CTEA's constitutionality. Follow the links below for an insightful article on the case and to read the brief in full:

      http ://www.zdnet.com/smartbusinessmag/stories/all/0,6605,2598234,00.html

      http://c yber.law.harvard.edu/works/lessig/eldred/us_resp/us.doc.html

Interested in Eldred v. Reno and the Openlaw forum? To learn more—or to help develop arguments to counter the government reply—click on the link below:

      http://cyber.harvard.edu/op enlaw/eldredvreno/

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* Computer Professionals for Social Responsibility


Site for public-interest alliance of computer scientists and others concerned about the impact of computer technology on society.

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"The music industry will pay any price, bear any burden, meet any hardship, support any threat, oppose any foe to protect the integrity of their copyrights and the copyrights of their artists."

—Time Warner President Richard Parsons, sounding an awful lot like he's a candidate running for public office (via Ditherati.com).

      http://news.cnet.com/news/0 -1005-200-2335219.html

"notHarvard.com by definition is NOT Harvard and is in no way associated with Harvard University. In no way does our name intend to convey any association with Harvard University. In fact, it is the intent of notHarvard.com—by using the word NOT—not to be associated with Harvard University."

—Disclaimer posted by notHarvard.com—which after making a deal with Barnes & Noble.com and closing a $26 million venture round, got a little nervous over how much capital was at stake and decided to sue Harvard University in order to keep its domain name.



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January 15, 2008