<-- The Filter --> February 2001, 2

February 28, 2001
No. 3.12  .  The Filter  .  02.28.01

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the Berkman Center for Internet & Society at Harvard Law School


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> Microsoft, Part Deux—Pride and Prejudice: If Microsoft's hubris was its Achilles heel in Judge Thomas Penfield Jackson's courtroom, Jackson's penchant for discussing the case outside the courtroom may prove to be a similar weak spot. Pushing the envelope of the code of conduct that bars judges from public discussion of pending cases, Jackson spoke out about Microsoft both prior to and after rendering his decision, reportedly comparing its executives to inner-city gang members. Why would Jackson have taken such an unusual step? "He said that all he was doing was talking for history, for the historical record," says Ken Auletta, the New Yorker reporter who scored four lengthy interviews with Jackson in preparation for his newly-published book, World War 3.0: Microsoft and Its Enemies. Now, as Microsoft argued this week for an appeal of the breakup ruling, company lawyers cited Jackson's conduct as grounds for returning the case to another judge. "By airing freely with journalists his personal views about Microsoft and its executives," states a Microsoft brief, Jackson "not only violated the code of conduct for US judges, but also raised profound doubts about his impartiality and the fairness of the trial he conducted."



      http://www.nytimes.com/2001/02/27/technology/27CND-SOFT.html (Free registration required.)

***EXTRA:Oral arguments were broadcast live over the Internet by ABC News and C-Span on Monday and Tuesday. Listen to the audio archives at the following URL, also linked below from DISPATCHES.


> Peer-to-Peer Pressure: With the not-unexpected ruling two weeks ago by the Ninth Circuit Court of Appeals that Napster can be held liable for copyright infringement perpetrated by its users, speculation is on the rise as to what the ultimate tradeoff of interests will be between the established music industry and the backers—and beneficiaries—of Napster and other peer-to-peer (P2P) service providers. While Napster's offer last week to settle for $1 billion was promptly rebuffed by the major record labels, some industry analysts suggest that it is nevertheless unlikely a long-lasting cold war will ensue. "If the labels join together and aggressively develop a 'Napster II' subscription service, to which they can transition existing Napster users, they will attract millions," writes Eric Scheirer in a recent Forrester Research brief. "But if they destroy Napster's value too soon, [...] they'll drive music fans to other services that they can't control, like Gnutella and Aimster, squandering this opportunity." Others, however, aren't so sure. "Many of you are telling yourself, that was about Napster, we're about P2P. Nothing about the Ninth Circuit Court decision was about us," said Stanford law professer Lawrence Lessig at last week's O'Reilly P2P Conference. "I promise you, as a lawyer, I know something about law violators. There are law violators in your space."




How is the music industry putting the squeeze on P2P "space"? In addition to filing a proposal with US District Court Judge Marilyn Hall Patel to narrow the Napster injunction according to its specifications, the Recording Industry Association of America (RIAA) last week unleashed a pack of about 60 legal notices on the ISPs that provide Web connections for so-called Open Napster servers. Follow the links below for Wall Street Journal coverage of the story and an illuminating Industry Standard piece exploring how such legal notices can be used strategically to control activity on the 'Net.



What's next? Already slated to appear at a March 2 hearing to determine precisely how the injunction against it will be narrowed, Napster last week petitioned the Ninth Circuit for a full-court rehearing of its appeal.



> Hard Copy Control: In a speech last summer predicting Napster's demise, Sony executive Steve Heckler told an audience of educators, researchers and computing experts that the music industry was willing to "take whatever steps it needs to protect itself and protect its revenue streams"—including developing "technology that transcends the individual user." It turns out that a group of hardware producers called the 4C Entity was already doing just that. While the Napster controversy over the past year stole headlines, the 4C quietly developed a plan to incorporate CPRM (Content Protection for Recordable Media) in computer hard drives—something that would make it nearly impossible for an individual user to copy digital media without permission from the content provider. Last week, however, 4C member IBM withdrew the plan, which had been under consideration by the industry committee that sets the ATA hard disk standard.

Why abandon a scheme promising the holy grail of complete content control? Not only did the plan spark protest among members of the Internet community concerned that it would effectively consign copyright exclusively to corporations, potential technical difficulties—including compromised data-sharing between CPRM compliant and non-compliant systems—threatened its practical deployment. "People are not going to buy crippleware," says Electronic Frontier Foundation (EFF) technical director Stanton McCandlish. So is the 4C ready to give up the ghost (in the machine)? Not by a long shot. Follow the links below for details on a proposed alternative scheme and a thoughtful essay by EFF Co-Founder John Gilmore exploring the pitfalls of copy protection measures that hamstring end users.


> Who You Gonna Call? Harvard Prof Says He's the KeyMaster: If industry cannot use computer hard drives to control content, why not turn to unbreakable encryption? Harvard professor Dr. Michael Rabin made national headlines last week when he announced the invention of what he claims to be the first perfectly secure code. While current cryptography employs the public key/private key method and relies on calculations assumed to be too extensive for anyone—or any computer—to reasonably complete, Rabin's system instead uses a steady stream of random numbers generated by satellite or some other source, captured at an agreed-upon point by the sender and receiver of the encrypted file, and plugged into the key. These numbers disappear without a trace immediately upon use, which means that even if an eavesdropper retains an encrypted message for future decryption, the key has vanished—making decryption impossible. While the concept itself isn't new, Rabin's scheme may be the first to be supported by a mathematical proof.


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This week we're featuring audio archives of the oral arguments in Microsoft's appeal of the breakup ruling against it, which on Monday and Tuesday were streamed live via the Internet by ABC News and C-Span:


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> E-Development Expert James Moore Named Senior Fellow: We are proud to announce that Dr. James Moore, a leading expert on business strategy, technology and leadership, has joined the Berkman Center as a Senior Fellow. Chairman of GeoPartners Ventures and author of the best-selling book The Death of Competition: Leadership and Strategy in the Age of Business Ecosystems, Moore is Chair of the Policy Board of Hewlett-Packard's business unit serving the rural poor, HP World e-Inclusion, and the organizer of its International Advisory Board. At the Berkman Center, he will undertake research on government policies that encourage the use of information technology to promote global economic development and human rights. Welcome aboard, Jim!


> Legal Theory Workshop on Criminal Justice and the Internet: The Berkman Center is launching a workshop exploring legal theory relating to criminal justice and the Internet as well as the nexus between the two. The workshop, which kicked off on February 20 with a presentation by 2001 Berkman Fellow Dan Markel, will generally meet on Tuesdays from 6:30 p.m. to 8:00 p.m. here at the Berkman Center on the Harvard Law School campus. Next up is Georgetown University professor Orin Kerr. Professor Kerr, who in addition to teaching at Georgetown is a trial attorney at the US Department of Justice's Cybercrime and Intellectual Property Division, will present "Rethinking the Fourth Amendment in Cyberspace" on Tuesday, March 6. The workshop is free and open to the public; visit the below URL for further details.


> Eldred v. Reno—the Battle Continues: In a case challenging Congress's recent 20-year extension of the term of copyright protection, the DC Circuit on February 16 handed down its decision in Eldred v. Reno, rejecting plaintiffs' claim that the Sonny Bono Copyright Term Extension Act is unconstitutional. The Berkman Center's first "Openlaw" case, Eldred v. Reno, is being fought with the help of the Internet community through an innovative open forum that allows users to log in, brainstorm, and edit briefs online. An appeal is now underway; plaintiffs will either seek a rehearing en banc in the DC Circuit, or bypass that step and appeal directly to the Supreme Court. Follow the links below to listen to a discussion of the case on NPR's "All Things Considered" and to access the "Copyright's Commons" site exploring the issues at stake.



> Berkman Fellow Diane Cabell to Talk ICANN at CFP: Diane Cabell, who last year led the Berkman Center's online lecture and discussion series on ICANN's UDRP, will serve as a panelist at "The ICANN Election(s?) and Beyond," a March 7 session at this year's Computers, Freedom and Privacy (CFP) conference. Cabell joins former DOC administrator Becky Burr, ICANN At-Large director candidate Emerson Tiller, and ICANN critic Professor Michael Froomkin. The session will be moderated by ACM's Barbara Simons.


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* 02/26/01-03/02/01, ongoing in cyberspace—ADR Cyberweek 2001


* 03/06/01, Cambridge, MA—Berkman Legal Theory Workshop

* 03/06/01-03/09/01, Cambridge, MA—Computers, Freedom & Privacy 2001

* 03/10/01-03/13/01, Melbourne, Australia—ICANN Meetings

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* Open P2P


An O'Reilly & Associates site devoted to P2P; features sign-up for a free e-dispatches on P2P developments.

* Corante - Tech News. Filtered Daily.


News site that offers free daily email updates on late-breaking news about an impressively wide range of subjects, including e-commerce, biotech, and Internet law and policy.

* Technology Empowerment Network


Unveiled at last month's World Economic Forum in Geneva, Switzerland, TEN is a global network of organizations and individuals founded to identify, support and empower projects that contribute to improving the state of the world—with a particular focus on those that do so through technology.

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"Open source is an intellectual-property destroyer...I can't imagine something that could be worse than this for the software business and the intellectual-property business."

—Microsoft Windows OS chief Jim Allchin, who back in 1998 allegedly helped prepare the infamous "Halloween Document," proving that the company still finds open source pretty scary.


"I have a deep respect for users of Linux/Unix and know they are sometimes the most hard core devoted programmers out there. We are looking for the best and brightest to join our team to produce the next generation of Windows."

—Excerpt from a widely-circulated Microsoft recruitment email, demonstrating the company's "If you can't beat 'em, recruit 'em" philosophy.


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January 15, 2008