<-- The Filter --> March 2002

March 11, 2002
No. 4.9  .  The Filter  .  03.11.02

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


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

• • • • • • • • • •


> Mickey Rattles the Bars: In 1999 the Berkman Center embarked on an unusual experiment that had onlookers scratching their heads: It launched an ambitious legal challenge to recent changes in copyright law using an entirely untested method. The case was Eldred v. Reno (now Eldred v. Ashcroft), a Constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA). The method was "Openlaw," a system for crafting legal argument using the principles of open source code software development. The working hypothesis? The Berkman Center would match the considerable resources of CTEA proponents—including the deep-pocketed Walt Disney Co.—by mining an alternative resource: the Internet community itself. How? By "open sourcing" the Eldred case—that is, by posting case documents and briefs in an open, online forum and inviting Internet users to brainstorm ideas, critique drafts of briefs, and "debug" legal argument as necessary.

The move was controversial for two reasons: Not only was the Openlaw method untested, the case itself was considered a long shot. The issue of whether Congress's power to extend copyright is limited by the First Amendment or the Constitution's Copyright Clause had never before been directly litigated. In addition, the fight to allow copyrighted materials to re-enter the public domain seemed to have little resonance with the general public. "Thanks to these extensions, for close to a hundred years people have just gotten used to thinking that intellectual property is just plain old property," explains professor Jonathan Zittrain, a Berkman Center faculty co-director and one of the plaintiff attorneys. "[I]t makes no sense to imagine somebody after a certain time coming in and taking your rug or your chair and saying 'Sorry, your ownership expired.'" For the next two years, the courts appeared to agree, and the Eldred team—anchored by Stanford law professor Lawrence Lessig—lost a series of actions and appeals.

Late last month, however, the US Supreme Court agreed to hear the case, a decision that provoked a wide range of reactions. American University law professor Peter Jaszi told the New York Times that he was "flabbergasted and delighted" that the Supreme Court took the case, while Harvard University law professor and Berkman Faculty Fellow Arthur Miller—who wrote a friend-of-the-court brief in support of the CTEA in 1999—said he thought the case was long dead. "My view on this was then and is now that this is a matter for Congress to decide," Miller said. "This is not a matter for courts to decide." Motion Picture Association of America head Jack Valenti echoed the sentiment, issuing a press statement asserting his "absolute confidence" that the Supreme Court will uphold "the decision of the US Circuit Court of Appeals and the wisdom of the Congress."

Whatever the final outcome of the case, says Berkman Faculty Director Charles Nesson, taking it into an open forum and then having the case picked up by the Supreme Court has brought the issues at hand to a much wider audience. "The very process of having this question validated and on the intellectual agenda of interested constituencies for the period of time it takes until the court speaks...in itself is of tremendous value."







Last year, Jonathan Tasini won a landmark copyright case before the Supreme Court affirming authors' rights in the digital sphere. Now Tasini has written a Los Angeles Times op-ed piece supporting the plaintiffs in Eldred v. Ashcroft—asserting that, contrary to popular belief, copyright term extensions generally benefit corporations, not authors.

***EXTRA:Interested in learning more about projects like Openlaw? Follow the link below for a New Scientist article that profiles public interest initiatives inspired by open source code software development.


> ICANN No Longer Thinks It Can: Just when the Internet community had seemingly fallen asleep to the drone of endless debates over its role in policymaking by the Internet Corporation for Assigned Names and Numbers (ICANN), the domain name organization's president, M. Stuart Lynn, sounded a startling wake-up call. Late last month, Lynn announced a proposal for reforming ICANN that, among other things, calls for the elimination of direct elections for the board members that represent the Internet community "At-Large"—i.e., the rank-and-file Internet users. Rather than carry out elections, proposed Lynn, the corporation should recreate the board as a group of "trustees," with the voice of the people represented not by nine directly elected representatives—as was originally contemplated—but by five government-nominated trustees. "[G]overnments, or bodies appointed with government involvement, can, it seems to me, certainly stake a better claim to truly reflect the public interest than a few thousands of self-selected voters scattered around the world," wrote Lynn in an open letter to the community.

The proposal is provoking a mixed reaction among ICANN critics. On the one hand they generally agree that, as critic David Post writes, "ICANN, ver. 1.0, is broken." On the other, however, they contend that Lynn's proposed fixes would simply make matters worse. "Lynn's notion of 'reform' is to jettison all those aspects of ICANN that were innovative and unique to the Internet community: the private sector basis, the At-Large membership as a proxy for the global Internet community, the grounding in bottom-up consensus development, etc.," writes Milton Mueller. "That is a real tragedy, for a rhetorical (and occasional substantive) commitment to self-governance, however much it was honored in the breach, was ICANN's only saving grace."

In addition to rubbing critics the wrong way, Lynn's proposal comes on the eve of this week's ICANN meeting in Accra, Ghana, at which the organization plans to vote on At-Large representation. If those plans are derailed, warns the Center for Democracy and Technology, the average Internet user faces the de facto end of direct representation in the organization. "If preparations are not made [to approve new elections], then an election will not take place this year," states a recent CDT policy post. "This would effectively terminate the role of the At-Large membership at ICANN."

These concerns notwithstanding, At-Large representation remains on the meeting agenda, and ICANN has been careful to stress that Lynn does not have the final say about the organization's future. "This is still malleable," ICANN spokeswoman Mary Hewitt told Newsbytes. "It can still be fixed and improved." Both At-Large representation and Lynn's proposal are slated for discussion on Wednesday the 13th.




***EXTRA: Berkman Center affiliates are in Ghana this week for a three-pronged effort: to participate in the ICANN meetings, to further work for our Open Economies project for bridging the global digital divide, and to chronicle events-in-progress by producing, gathering and presenting multimedia content for Internet and "terrestrial" radio. For details on the trip and to tune in to the radio broadcasts, check out this URL, also linked below from BERKMAN NEWS.

> Unfair.com: In related news, University of Ottawa law professor Michael Geist released an update last week to his study of ICANN's Uniform Dispute Resolution Policy (UDRP), presenting further evidence that the policy is systemically biased toward trademark holders.


• • • • • • • • • •


Early this month Senator Ernest "Fritz" Hollings (D-South Carolina) convened a Senate Commerce Committee hearing on the controversial Security Systems Standards and Certification Act (SSSCA)—draft legislation often described by critics as "the DMCA on steroids." The legislation, which has yet to be introduced, proposes outlawing the creation, distribution, or sale of "any interactive digital device that does not include and utilize certified security technologies."

Below, we feature "Taming the Consumer's Computer," a New York Times op-ed piece on the SSSCA by Berkman's own professor Jonathan Zittrain.


• • • • • • • • • •


> Public Interest on Berkman Agenda in Ghana: Berkman affiliates are in Accra, Ghana this week for a three-pronged public interest mission: to participate in the ICANN meetings, to further work for our Open Economies project for bridging the global digital divide, and to chronicle events-in-progress by producing, gathering and presenting multimedia content for Internet and "terrestrial" radio.

ICANN: Berkman Fellows John Perry Barlow and Diane Cabell are attending the ICANN meetings to participate, observe, and report on critical issues including the Lynn restructuring proposal; details are available.

Open Economies: Dr. James Moore, a senior fellow at the Berkman Center, and Sarah Guerrero, the new legal director of the Open Economies project, are in Ghana to meet with project partners and engage in case study work, interviews, and research; details are available.

Internet Radio: Berkman Affiliates Christopher Lydon, radio journalist, and Benjamen Walker, producer, are in Ghana to engage in the second local/global radio initiative of Berkman Internet Radio Direct (BIRD). The pilot BIRD project took place in Jamaica in December 2001; Lydon's report on that project with audio excerpts can be found on Transom.org. Details on the Ghana project, including how to tune in to radio broadcasts, are available.

> Guerrero Named Legal Director of Open Economies Project: In related news, the Berkman Center is proud to announce the appointment of Sarah Guerrero (HLS '00) as legal director of the Open Economies project. "Sarah joining the Berkman Center means that our Open Economies project will be better able to take an active, hands-on approach to its mission," says Eric Saltzman, the Berkman Center's executive director. "This will take the research and collaboration- building already underway to a new level."

Guerrero will direct the project's legal team, working with leaders from developing countries' public and private sectors to evaluate and create the legal and regulatory conditions needed to catalyze digital entrepreneurship and innovation. She will lead Open Economies in its effort to build cross-sector collaborations among governments, businesses, academics and nonprofit organizations, and will also oversee the development of Open Economies' virtual policy center and its online platform for shared learning.

Guerrero joins the Berkman Center from Skadden Arps, Slate, Meagher & Flom LLP, where she was a corporate and technology law associate. While at Skadden, she forged a partnership between the firm's Boston, New York and Washington, D.C. offices and the Berkman Center, working closely with members of the Open Economies project to guide the two groups on how to best achieve project goals. Welcome aboard, Sarah!

> BOLD Debuts 'Privacy in Cyberspace 2002': Today marks the start of a new Berkman Online Lecture and Discussion (BOLD) series: "Privacy in Cyberspace 2002," led by John Nockleby, professor of law at Loyola Law School. This six week-long series will examine the many contemporary instances in which Internet technology has increased the risk that intimate or private information about individuals will be collected, stored, sorted, manipulated, and disclosed. It will also explore the utility (or not) of current schemes to regulate these putative invasions, in the name of protecting privacy.

The series is free and open to the public, and it's not too late to join in. Follow the link below for more details, including instructions for how to register:


***Please note that this is a non-credit offering. Questions should be directed to BOLD@cyber.harvard.edu

> ChillingEffects.org Launches...: On February 25, the Berkman Center announced the official launch of Chilling Effects, a project and website to counter the chilling effects of legal threats. Conceived by Berkman Fellow Wendy Seltzer, the project works by providing the basic legal information Internet users need to understand their rights in the face of cease-and-desist letters designed to restrict online speech and activity. Filter readers had a sneak peek at the beta version of the Chilling Effects site this past July, and now the rest of the Web knows— the website received over a million hits within the first week of its launch. "The fact that we're seeing so much traffic bolsters our suspicions that a lot of people have been facing legal bullying on the Net," says Seltzer. "In this case, though, the bad news is also good news, as the project will grow in educational value to visitors and researchers each time an Internet user adds a C&D notice to the database."

In addition to leading the Chilling Effects project, Seltzer works as an intellectual property and litigation associate with Kramer Levin Naftalis & Frankel and as an adjunct professor—teaching cyberlaw—at St. John's University School of Law. Follow the links below for a selection of news articles on the Chilling Effects project:





> ...While CreativeCommons.org Gears Up: As reported in Filter 4.6, the Berkman Center is participating in a new collaborative project called "Creative Commons." Headed by Stanford law professor Lawrence Lessig, Duke law professor James Boyle, MIT's Hal Abelson, Villanova Law School's Michael Carroll, and the Berkman Center's Eric Saltzman, the project aims 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, and is now readying it for launch. Check out the URL below for a SF Gate article on the project.


While the Creative Commons site has not yet launched, you can sign up now to be notified of any new developments.

• • • • • • • • • •


* The Jurist: Law School Webcasts


Website where users can download video and audio webcasts of major law school lectures, classes, conferences, panels, debates and special events, by the good folks at The Jurist.

* Lawtopic.com


An online clearinghouse for legal paper topics, founded and edited by UCLA law professor Eugene Volokh; categories include "Copyright" and "Internet Law."

* Make a Shorter Link


Website providing a service through which you can shorten and simplify URLs that are too long to paste into an email or other document.

• • • • • • • • • •


"Thought is different than a physical brain...Where can you access a dream? You can take your brain and cut it apart-- or, my brain, your honor--and you still won't have access to the dream. You can only get that in the mind. That's like wherever that server is, the software is only available on the Internet."

—Joseph Burton, attorney for ElcomSoft, the Russian company charged with violating the Digital Millennium Copyright Act (DMCA) for distributing software that unlocks Adobe's eBook files, arguing that jurisdiction for the distribution cannot be determined because cyberspace, like human consciousness, does not have a physical location.


"Rather than carry the water for an industry bent on impoverishing us in this lifetime and reaping the benefits long after we are gone, creators should embrace the principle that human knowledge advances when information is shared, that cultural expression belongs to the public and that the intellectual wealth of a nation, in the form of ideas and information, cannot--and should not--be locked up as the property of a few."

—Jonathan Tasini, who last year won a landmark case before the Supreme Court affirming authors' rights in the digital sphere, on why he thinks the Court should rule against legislation that extends the term of copyright.


"No question the most insidious virus in our midst is the illegal downloading of music on the Net. It goes by many names and its apologists offer a myriad of excuses. This illegal file-sharing and ripping of music files is pervasive, out of control and oh so criminal. Many of the nominees here tonight, especially the new, less-established artists, are in immediate danger of being marginalized out of our business. Ripping is stealing their livelihood one digital file at a time, leaving their musical dreams haplessly snared in this World Wide Web of theft and indifference."

—Michael Greene, president and CEO of the National Academy of Recording Arts & Sciences, in a speech at this year's Grammy Awards ceremony.



"If the business people who rule the entertainment industry had been as powerful 25 years ago as they are today, you'd be breaking the law if you set your videocassette recorder to tape your favorite Olympic event for later viewing."

—San Jose Mercury News technology columnist Dan Gillmor, on the entertainment industry's latest legal offensive against the makers of personal video recorders (PVRs).


"The First Amendment applies against government actions. In the software world...it's perfectly appropriate to say, 'In the context of a review, come talk to us.'"

—Kent Roberts, general counsel of Network Associates, a software company that was sued by the New York State attorney general's office over licensing language that precludes customers from publishing product reviews or the results of benchmark tests without first asking the company's permission.


"One of AiboPet's biggest hits was the program that teaches Aibos to two-step. Like Kevin Bacon in the movie Footloose, he won gratitude for the gift of dance—and Sony discovered what the town fathers in that film learned: forbidding dancing is really, really bad for public relations."

—Excerpt from a Scientific American article chronicling the trials and tribulations of "AiboPet," a hacker whose cracking of source code to reverse engineer software programs for Sony's Aibo robot dog had the company pursuing legal action against him under the DMCA.


• • • • • • • • • •


Comments? Questions? Opinions? Submissions? Send a letter to the editor at filter-editor@cyber.harvard.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