<-- The Filter --> November 2001

November 26, 2001
No. 4.6  .  The Filter  .  11.26.01

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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> Commons Sense: In the spring of 1998 Berkman Center Faculty Director Charles Nesson greeted attendees at Harvard's Second International Conference on Internet & Society with a challenge. "Is cyberspace to be a global commons or just a mall?" asked Nesson. He urged attendees to take responsibility for maintaining a balance between private and public interests on the Internet. "Now is the time to build global parks in cyberspace—to open, nurture and maintain vibrant non-commercial spaces where people can freely create, learn, and play."

At the time few appeared to listen; after all, conventional wisdom said that there was infinite "space" on the Internet in which to freely create, and that the private sector would continue to lead—and further, to nurture—innovation.

Now Stanford law professor Lawrence Lessig has published The Future of Ideas: The Fate of the Commons in a Connected World, in which he elaborates upon the notion of a shared digital commons, painstakingly documenting what has since become known as the "second enclosure movement." "Under the guise of protecting private property, a series of new laws and regulations are dismantling the very architecture that made the Internet a framework for global innovation," writes Lessig in an article summarizing key arguments from the book. "[T]he Internet took off precisely because core resources were not 'divided among private owners.' Instead, the core resources of the Internet were left in a 'commons.' It was this commons that engendered the extraordinary innovation that the Internet has seen. It is the enclosure of this commons that will bring about the Internet's demise."



On November 9-11 Professor James Boyle of Duke convened the "Conference on the Public Domain," at which participants discussed the full range of issues surrounding digital property rights and the public domain. Among the presentations was a roundtable discussion on the "Creative Commons" project, a new initiative headed by Boyle, Lessig, MIT's Hal Abelson, Villanova Law School's Michael Carroll, and Berkman Center Executive Director Eric Saltzman. (See Berkman News below for details.) Follow the links below to access the webcast archive of the conference and to delve into the treasure trove of conference focus papers.



What's next? The Berkman Center will shortly present its Winter 2002 Internet Law Program of Instruction, the residential segment of which will take place on January 2-4 in Singapore. Lessig and Nesson are among the outstanding educators assembled to teach the program. It's not too late to register; visit the URL below for details.


> Cipro—a Cure for Patent Madness?: Two weeks after the September 11 terrorist attack, James Love of the Consumer Project on Technology visited Harvard Law School to participate in a panel discussion on the impact American trademark and patent law has on the distribution of essential medicines to HIV/AIDS-ravaged regions of Africa and South Africa. "We need to examine the cost of imposing IP protections," Love told Filter reporter Adam White. "If you are okay with massive loss of life in Africa, then, okay, we'll keep IP protections where they are. But that question is not an exaggeration. Currently, four to five million people are infected with HIV/AIDS [in South Africa]. Their access to these life-saving medicines are severely limited by American IP protections, and it is illegal to sell the non-trademarked equivalent in the South African market."

A month later Love was back in the ring, again publicly advocating for compulsory licensing of essential medicines—only this time the medicine in question was the anti-anthrax drug Ciprofloxacin.

Now, after tough negotiations among participants at its Fourth Ministerial Conference in Doha, Qatar, the World Trade Organization (WTO) has issued a declaration affirming the rights of developing countries to override patents in the interests of public health. "We agree that the Trips [trade-related aspects of intellectual property] agreement does not and should not prevent members from taking measures to protect public health," the declaration states.

Despite initial resistance, US trade representatives have endorsed the declaration. Why the change of heart? Love argues that developing countries may have gained leverage in the negotiations after US "hypocrisy" was exposed. "The Cipro thing was timely," Love told the San Francisco Chronicle. "When the US did not like the price of a medicine, we were very fast to say we might override patent rights. When Brazil did the same thing(for AIDS drugs), they were savaged."


      http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/11 /08/MN181543.DTL


> Microsoft Settles—for Market Share: Proving that irony is far from dead, Microsoft last week unveiled a proposal to settle numerous private antitrust suits against the company by supplying more than $1 billion in training, support, hardware and software to the nation's poorest schools. The package includes generous helpings of such popular Microsoft products as Windows and Office—and there's the rub. While Microsoft CEO Steve Ballmer was quick to point out that "the money can be used for non-Microsoft software," critics contend that with virtually unlimited supplies of the company's software at their fingertips, schools would be unlikely to purchase products by Apple and other software providers. "While we applaud Microsoft for raising the idea of helping poorer schools as part of the penalty phase of their conviction for monopolistic practices, we do not think that the remedy should be a mechanism by which Microsoft can further extend its monopoly," said Matthew Szulik, CEO of open-source software provider Red Hat. So what's the solution? Red Hat has offered to distribute open-source software to every school district in the US for free, proposing that Microsoft redirect the money that would have been spent on its software donation to the purchase of additional hardware.





US District Judge J. Frederick Motz will consider the settlement proposal in a hearing on Tuesday.


Meanwhile, the Justice Department's settlement of the government case against Microsoft faces a "public interest" hearing. The Justice Department has filed its Competitive Impact Statement and invited public comment, as required under the Tunney Act. Nine states and the District of Columbia are still holding out for an alternative settlement.



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On October 26 President Bush signed the USA Patriot Act into law, a move that the ACLU's Laura Murphy argues goes "light years beyond what is necessary to combat terrorism" and is likely to result in "the mistreatment of immigrants, the suppression of dissent, and the investigation and surveillance of wholly innocent Americans."

How, specifically, is the USA Patriot Act and other new anti-terrorist legislation impacting citizens' rights? Below we feature University Week's Q & A session on the issue with Berkman Fellow Anita Ramasastry, an assistant professor of law and associate director of the Shidler Center for Law, Commerce and Technology at the University of Washington in Seattle.


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> Building a Creative Commons: The Berkman Center is participating in a new collaborative project called the "Creative Commons." The goal of the project is to enrich the public domain by encouraging and helping artists and other creators share their work with the public on generous terms that permit copying, redistribution, and creative reuses. Former Berkman Fellow Molly Shaffer Van Houweling is the project's executive director, readying it for launch in early 2002. For more information, contact Van Houweling at msvh@pobox.com

> Edelman Exposes Filter Flaws: In the course of its pending challenge to the Children's Internet Protection Act (CIPA), the ACLU asked Berkman Affiliate Benjamin Edelman to document the capabilities and flaws of four widely used Internet filtering programs. While a protective order limits distribution of some portions of his expert testimony, Edelman has posted a redacted version, complete with a description of testing methodology, results, and final conclusions. Check out the URL below to access a web page containing links to background information, study data, and the testimony itself.


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* Fifth Annual Cato Institute/Forbes ASAP Technology and Society Conference


Website where you can access video archives of this month's fifth annual Cato Institute/Forbes ASAP Technology and Society Conference. Features keynotes by Representative Rick Boucher (D-Va.) and EFF Co-Founder and Berkman Fellow John Perry Barlow, as well as panel discussions on digital rights management and criminal sanctions for hackers.

* Scripting News


Dave Winer's pioneer news website (weblog).

* Consumer Project on Technology


Ralph Nader-founded consumer rights organization headed by James Love. Focuses on "intellectual property rights and health care, electronic commerce (broadly defined) and competition policy."

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"GPL is just as much an expression of power over users as any proprietary license."

—Tim O' Reilly, founder and president of publishing company O' Reilly & Associates, on "Freedom or Power?", a new essay by free software evangelists Bradley Kuhn and Richard Stallman (via Scripting News).


"The only thing that keeps a given server on the air on any particular day is that no teenager with a $300 computer is angry enough at that server's operators to feel like punishing them."

—Internet veteran and top security expert Paul Vixie, in an email interview about his presentation at ICANN's recent annual meeting in Marina del Rey, California.


"Well...maybe we should convice [sic] some judge to create a new 'cyber congress' with extraordinary powers of resistance to soft money."

—Comment posted by Slashdotter "how_would_i_know," in response to news that Virginia Governor James Gilmore had proposed the establishment of a secret "cyber court" for online surveillance of suspected terrorists, modeled on the court created under the Foreign Intelligence Surveillance Act (FISA).



"You've seen a different version of that than I have."

—Justice Antonin Scalia during the Supreme Court's hearing of Ashcroft v. The Free Speech Coalition, responding to Justice John Paul Stevens' assertion that the movie "Romeo and Juliet" falls under the category of "great works of art that would be taken away from us if we were unable to show minors copulating."


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Last updated

January 15, 2008