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<-- The Filter --> December 2001

No. 4.7  .  The Filter  .  12.20.01

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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> Dmitry's Free—To Tell the Truth, the Whole Truth and Nothing But the Truth: Russian programmer Dmitry Sklyarov, criminally charged for violating the controversial Digital Millennium Copyright Act (DMCA), reached an agreement last week with US authorities that frees him to return home to Russia on the condition that he testifies "truthfully" in the ongoing prosecution of his employer, ElcomSoft Co. Ltd. of Moscow. Sklyarov, who wrote a program that unlocks the encryption on Adobe e-Book files, was arrested five months ago while visiting the US to speak at the DEF CON "hacker" conference. His arrest sparked widespread protest by DMCA critics, including a series of impassioned pleas by Stanford law professor Lawrence Lessig for his release.

While some media reports have suggested that Sklyarov's agreement represents an exchange of testimony against ElcomSoft for his freedom, Sklyarov and his attorney, John Keker, say this is a serious mischaracterization. "I am extremely disappointed with any implication that I am, in any way, cooperating with the (US) government," Sklyarov told reporters at a recent press conference. "I am a man of integrity and as such am doing nothing more than telling the truth, not for or against anyone." Keker echoed the sentiment in an interview with The Recorder, stressing that Sklyarov's testimony would be neutral. "They're basically dropping the charges, and he gets to go home."

"From the company's standpoint, Dmitry's agreement serves ElcomSoft well," says ElcomSoft Chief Executive Alex Katalov. "It provides us with the freedom and flexibility to pursue our best legal strategy without worrying about the possibility that Dmitry could face jail."

> Online News—Straight Up, No Ice: In a case Berkman Center Faculty Director Charles Nesson calls "the New York Times v. Sullivan for the Internet," the New York Supreme Court found on December 5 that the online news publication Narco News Bulletin did not libel the Bank of Mexico when it published articles linking the bank's general director and chairman to narcotics trafficking. "Narco News, its website, and the writers who post information are entitled to all the First Amendment protections accorded a newspaper/magazine or journalist in defamation suits," wrote Justice Paula Omansky. She further noted that the website's capacity to "accept readers' comments, or letters to the editor...only strengthens the need for First Amendment protections for the medium." (See the decision.)

"Banamex attempted to squash Narco News Bulletin's right to freely report public interest news," said Narco News attorney Thomas Lesser in a press statement. "By ruling that bare allegations alone cannot support a defamation lawsuit, the judge properly dismissed the case outright, recognizing that defamation lawsuits by their nature chill First Amendment rights."

What impact will the ruling have on future libel cases brought against online news publications? While legal experts may be divided over whether the decision constitutes a significant precedent, some suggest that it nevertheless demonstrates that courts are beginning to engage in nuanced thinking about Internet-related cases. "The truly precious nugget in this opinion is Justice Omansky's statement that a news website may be entitled to strengthened First Amendment protections because of its interaction with its readers," says Berkman Center Executive Director Eric Saltzman. "It recognizes that the core Constitutional conception of the role of the press as key to participatory democracy may be enhanced by the Internet's potential for connecting each to all."

> How Many Forum Shopping Days 'Til Reform?: This past summer University of Ottowa law professor Michael Geist released a study that galvanized debate over whether the Uniform Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN) is systemically biased toward trademark holders. "Although ICANN initially accredited three arbitration providers in order to foster a competitive environment, many commentators anticipated that complainants would engage in forum shopping by rationally selecting arbitration providers who tended to rule in their favor," wrote Geist. "Those fears were realized almost immediately." His analysis of domain name disputes was damning, revealing that the majority of UDRP cases went to the two most complainant-friendly arbitration providers—despite their charging higher fees.

ICANN-watchers sounded a call for UDRP reform, arguing that the policy tramples on the rights of the "average Joe" domain name holder. In response, apologists pointed out that the UDRP explicitly does not prevent either party from submitting a dispute for consideration before a court with proper jurisdiction—something that presumably would give "average Joe" an avenue for recourse. The controversy sharpened last winter when a ruling in the closely-watched case of Sallen v. Corinthians suggested otherwise: the plaintiff, having lost rights to under the UDRP, brought the case in a bid to have his use of the domain name declared legal under the Anticybersquatting Consumer Protection Act (ACPA)—but the Court summarily dismissed it, citing lack of jurisdiction.

Now, however, that ruling has been reversed on appeal. Early this month the US Court of Appeals for the First Circuit found that the ACPA "grants domain name registrants who have lost domain names under administrative panel decisions applying the UDRP an affirmative cause of action in federal court for a declaration of nonviolation of the ACPA and for the return of the wrongfully transferred domain names." Translation? The ACPA definitively trumps the UDRP.

But if UDRP critics see the ruling an important victory, ICANN representatives suggest that it simply confirms the status quo. The ruling "confirms a core feature of the it's nice to see a US federal appellate court reaching a consistent conclusion," writes ICANN Chief Policy Officer and CFO Andrew McLaughlin in an email to Dave Farber's IP list-serve. What's "notable," however, isn't what the ruling clarifies about the UDRP, but rather "the court's firm declaration that the Anticybersquatting Consumer Protection Act (ACPA) provides a cause of action in federal court for those who lose a UDRP proceeding." 0112.html

> Legitimacy Doesn't Pay the Bills: In related news, the ICANN-accredited arbitration provider identified by Geist as the "least complainant-friendly"—eResolution—has just folded. "The market share of eResolution kept on shrinking to a point where the proceeds no longer covered the costs of maintaining the service," said eResolution President Karim Benyekhlef in a press statement. "In the end, we were, for all practical purposes, financing the legitimization of a system we knew badly needed change."

> This Is Your Brain On the ACPA: If Sallen v. Corinthians lends clarity to the current state of netizens' domain name rights, other domain name conflicts have proven to do the opposite. One case in point is People for the Ethical Treatment of Animals v. Doughney, which was heard before the US Court of Appeals for the Fourth Circuit this past August. PETA, the animal rights organization, brought an infringement suit under the Anticybersquatting Consumer Protection Act (ACPA) against owner Michael Doughney after he created a website called "People Eating Tasty Animals." PETA prevailed, with the Court rejecting Doughney's argument that the website was a parody and therefore protected by the First Amendment.

How did a website entitled "People Eating Tasty Animals" fail to pass muster as a parody? Among its other findings, the Court determined that since a domain name is accessed independently from website content, it must be judged independently of the website. In this instance, the domain name contained nothing more than the trademark "Peta" and a top-level domain extension, so it did not of itself qualify as a parody, which must "convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody." (See the ruling.)

"The decision is a disheartening sign of the dwindling concept of fair use on the Internet," says Berkman Fellow Diane Cabell, who along with ICANN Names Council member Milton Mueller filed an amicus brief on behalf of the defendant. "The court is effectively eliminating parody from the Internet, since the use of any domain name that itself warns of the impending joke (such as '') will, by definition, prevent the delivery of contradictory messages."

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Last year the Berkman Center presented a webcast debate between two of the most powerful conflicting forces in the argument over rights to digital content in the Internet age: Motion Picture Association of America head Jack Valenti and Stanford law professor Lawrence Lessig.

Now the USC Annenberg School of Communication has brought the two together again for a re-match. Follow the link below to access the webcast archive of Valenti v. Lessig round two.

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> ILAW in the New Year: Building on the success of the inaugural Internet Law Program of Instruction (ILAW) in Cambridge this past July, the Berkman Center will present the second program on January 2-4 in Singapore. Berkman Center Faculty Co-Director Professor William Fisher III and law professors Lawrence Lessig (Stanford), Charles Nesson (Harvard) and Yochai Benkler (NYU) will engage with participants in a series of lectures and seminars on such topics as Internet security, challenges to copyright and emerging business models, cybercrime and jurisdiction, and speech and privacy online. It's not too late to register; see the website for details.

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* Cybernavigator

Excellent, exhaustive tech resources page by The New York Times on the Web.

* Spinsanity—Countering Rhetoric with Reason

Media watchdog website aiming to expose and analyze "the increasingly pervasive use of manipulative and subrational rhetoric in American politics."

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"There is no right to fair use...Fair use is a defense against infringement."

—Preston Padden, head of government relations for Disney, at the US Department of Commerce Technology Administration's recent workshop, "Understanding Broadband Demand: Digital Content and Rights Management.",1283,49201,00.html

"The software monopolist and the entertainment oligopolist are discovering that this can be the beginning of a beautiful, but socially obnoxious and oppressive friendship."

—Eben Moglen, chief counsel for the Free Software Foundation, on the unholy alliance of interests reflected in Senator Fritz Hollings's draft Security Systems Standards and Certification Act (SSSCA) bill.

"Yes, I think I'll be seeing those greedy billionaire swine in court again, but with the tables turned."

—Al Giordano, publisher of Narco News Bulletin, on whether he anticipates that the Bank of Mexico will file an appeal in its libel case against the publication.

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