<-- The Filter --> April 2002

April 10, 2002
No. 5.0  .  The Filter  .  04.10.02

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

• • • • • • • • • •


> The Politics of Discontent: With the introduction last month of Senator Ernest "Fritz" Hollings's (D-S.C.) Consumer Broadband and Digital Television Promotion Act (CBDTPA) and a corresponding House bill in the works, debate over whether the government should mandate copyright-protection technology in PCs and other "digital media devices" is heating up—with unusual results. Case in point: Disney head honcho Michael Eisner's recent Financial Times op-ed, in which he asserts that none other than Abraham Lincoln would have taken up his side in the debate. Calling Lincoln "my Internet guru," Eisner argues that he "would have loved the Internet" but also "hated the Internet pirates who commandeer its high-speed circuits to steal." He goes on to compare the Internet to the railroad and downloading digital files to stealing apples. Weighing in on the other side, meanwhile, "Infowarrior" Richard Forno published a piece called "Operation Enduring Valenti," in which he compares Hollings and other CBDTPA proponents to members of the Taliban.

Why the histrionics? Two years ago, the US Internet Council released a report advising world governments to "recognize the amazing benefits of the Internet and do nothing to cripple it." The message: Lay aside the regulatory axe while the goose is still laying golden eggs. The hands-off philosophy united diverse sectors in the nascent Internet industry, with one example of effective consensus being the industry's success in fighting federal legislation to tax Internet sales. Now, however, with fewer golden eggs to go around, content producers like Disney and DreamWorks are handing legislators the whetstone. The result is a bill poised to split the industry in two, pitting the interests of content producers (the film and music industries) against those of conduit providers (the software and hardware industries). And if content producers have their way, says Berkman Center Faculty Co-Director Jonathan Zittrain, the Internet of today could be transformed into a nearly unrecognizable Internet of tomorrow: a high-tech content delivery system, custom-designed by the US government for "Mickey Mouse and friends." (See New York Times op-ed.)

Given its inherent divisiveness, how likely is it that the CBDTPA will pass? According to cyberlaw experts, the bill—at least in its current form—is a hard sell. "I don't think this will pass any time soon," says Zittrain. "But it's nonetheless the opening salvo in a war that is very far from over." Jack Valenti, head of the Motion Picture Association of America and a staunch CBDTPA supporter, has hinted likewise; Valenti told CNET News that while he supports the bill, he also expects its focus to narrow "as the legislative process moves forward." That process, according to a recent Wired report, isn't likely to budge soon. David Carle, spokesman for Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), told Wired that Leahy is just as critical of Hollings's CBDTPA as he was of the draft bill that preceded it, and therefore has the same plans to prevent it from being enacted this year.





> And While You're At It, Say Hello to Mr. Bigglesworth: In related news, the Electronic Frontier Foundation (EFF) recently debuted its first-ever weblog, created for the express purpose of calling the public's attention to what it has dubbed the "mini-CBDTPA": an initiative by an industry standards group called the Broadcast Protection Discussion Group (BPDG) to "give force of law" to its privately developed digital TV standards. EFF's working hypothesis? Fully cognizant that the CBDPTA is a hard sell, Valenti et al. are working under the cover of a "semi-secret" standards group to advance similar goals.



***EXTRA: The current expansion of copyright introduces questions of public use that affect not only the Internet but also the culture as a whole. See the video archive of "Who Controls New Media?", a panel discussion at New York's Guggenheim Museum on a variety of contemporary projects that aim to reassert open protocols in what many perceive to be an increasingly closed society.

> Doing It for Money: Fresh from a legal tussle with the Church of Scientology that had Google removing links to Church critics' websites, the popular search engine has been slammed with a patent infringement suit by rival search provider Overture, which claims Google is using its patented "pay-for-performance" business method to sell advertising on its site. Google built its reputation on the accuracy of its searches; Overture, meanwhile, has been overt about letting advertisers bid for placement in Internet search results, with the highest bidder getting the top spot. What sparked the suit? Google's new "AdWords Select" program, which, while not skewing search results, allows advertisers to bid for higher placement on the pages displaying the results.



Google isn't the only search engine to feel the heat: in January, Overture filed a similar suit against FindWhat.com, which has hired the law firm of Baker Botts to challenge the validity of Overture's patent. "FindWhat.com respects the valid intellectual property rights of others," said FindWhat.com President and CEO Craig Pisaris-Henderson in a press statement. "[H]owever, we believe that Overture's patent was improperly obtained and should be found invalid and unenforceable."

Proving that turnabout is fair play, in February Overture itself became the target of a lawsuit—by Mark Nutritionals Inc., a Texas company alleging that when the search engine auctions off placement to the term "body solutions" in search results, it infringes upon and dilutes the company's trademark. "We find it to be extortion that we have to pay for our own name," plaintiff attorney Allen Baden told The Recorder. "[Search engines] are not the neutral gatekeeper. They are the infringer."



> CDs Designed to Crash, Not Burn: Learning first-hand what it means to be collateral damage in the war over copyright protection on the Net, purchasers of a new Celine Dion CD sold in Europe discovered last week that not only will the copy-protected CD not play in a computer hard drive, it will also crash the system. In addition, the CD won't eject properly and, according to some worried customers, may cause permanent harm to system firmware. Sony's response to the complaints? Company representatives point out that the CD carries a warning label clearly stating that it will not play on a PC or Macintosh, and dismiss the possibility that it could do lasting damage to a customer's computer. "The CD will probably cause a system to crash, but it will not alter anything," a Sony spokesman told the Hollywood Reporter. "And it won't eject properly, but that's just because the computer has crashed."



So does Sony expect CD purchasers to adapt instantly to the technology's new "rules," and give up listening to their CDs on a computer? Not exactly. Sony uses key2audio(TM) copy-protection technology, produced by a division of the company, Sony DADC. According to the key2audio website, customers who wish to listen to music on their PC or Mac can take advantage of the company's proprietary "music download and streaming option," key2audio4PC(TM).


> A CD by Any Other Name...Isn't a CD: Consumer-electronics giant Philips Electronics, co-creator of the CD format and owner of the trademarked term "CD," earned kudos from the EFF this past February after speaking out against copy-protected CDs, warning producers that they are not technically CDs. According to Gary Wurtz, general manager of the company's copyright office, Philips decided not to pursue legal action against producers of copy-protected CDs "because that would take years and we don't expect these [discs] to last that long." Now, however, major record label BMG has jumped into the copy-protected CD game, announcing plans to embed its promotional discs with copy-protection technology. Will Philips step up to the plate? The company may find it unnecessary: as is the case with the new Celine Dion CD, BMG promotional discs will likely be released sans official "CD" logo.




• • • • • • • • • •


The current expansion of copyright introduces questions of public use that affect not only the Internet but also the culture as a whole. Below we feature a trio of links—to a panel discussion, an article and an interview—that explore this theme.

      "Who Controls New Media?" (Guggenheim Conference)

      "Copyright's Next Chapter" (San Francisco Chronicle)

      "Lessig on the Future of the Public Domain" (O'Reilly Network)

• • • • • • • • • •


> Testimony Concludes in CIPA Trial: Should federally funded libraries be required by law to use Internet filtering programs to restrict children's access to sexually explicit or other "adult" content? What about when those programs have repeatedly been shown to block Constitutionally-protected material? These were key questions addressed at hearings last week in Multnomah County v. United States, an ACLU case challenging the constitutionality of the Children's Internet Protection Act (CIPA). Among those providing expert testimony for the ACLU was Berkman Affiliate Ben Edelman, who presented his study assessing the effectiveness of Internet filtering programs. "The Court seemed deeply concerned by the extensive overblocking brought to their attention during the course of the trial and acknowledged by even the defendant's own experts," says Edelman. "My work in the case—documenting persistent overblocking of rock bands and of flower stores, of AIDS information sites and of home-schooling portals, and of some six thousand other sites too—let the judges see a small portion of the specific errors at issue, and in the process it seemed also to solidify and reinforce their concerns about the errors too often made by blocking programs." Follow the links below to access Edelman's study and his recent updates, the ACLU's own courtroom report, and press coverage of the trial.





> California Supreme Court to Hear Intel v. Hamidi: The California Supreme Court has decided to hear Intel v. Hamidi, which like Eldred v. Ashcroft has been fought in part with the help of the Berkman Center's Openlaw forum. The defendant, Ken Hamidi of FACE Intel, sent email messages critical of Intel to its employees at their place of work; Intel responded by alleging "trespass to chattels," and went on to win a court order enjoining Hamidi from sending the messages. Follow the links below for current press coverage of the case, plus a 1999 New York Times piece by Carl Kaplan that examines its roots.



***EXTRA: The California Supreme Court is offering free email updates on the case. Sign up to be notified of new developments.

> Registration Opens for "Violence Against Women on the Internet": Last month the Berkman Center debuted "Privacy in Cyberspace 2002," a Berkman Online Lecture and Discussion (BOLD) series that has attracted more than 1,000 participants from over 40 countries.

Now, registration has opened for "Violence Against Women on the Internet." Led by Berkman Fellow Diane L. Rosenfeld, this six week-long series will explore the various ways in which violence against women is facilitated through the use of the Internet, as well as ways in which the Internet may be used as a site of resistance to such violence. The series, which begins on April 16, includes such modules as "Campus Sexual Assault Policies," "Safety," and "Sex Trafficking."

"Violence Against Women on the Internet" is free and open to the public. 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

• • • • • • • • • •


* DigitalConsumer.org


Organization taking an active stance on protecting fair use rights in the digital arena; website includes an archive of news articles focusing on the fair use issue.

* Poynter.org: Copyright Issues and Answers


Resource page on copyright issues, from the Poynter Institute's online guide to "Doing Journalism."

* Do-It-Yourself DMCA Counter-notification Letter


The Chilling Effects DIY counter-notification letter, for use in combating false claims, under the Digital Millennium Copyright Act, of copyright or trademark violation.

* Microcontent News


A Corante.com weblog covering what they're calling the "microcontent" sector: weblogs, webzines, email digests, and the entire personal publishing sector. Offers incisive, timely feature-length articles on technology issues by editor/top blogger John Hiler.

• • • • • • • • • •


"The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. [...] This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."

—Justice Sandra Day O'Connor, writing for the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. (via DigitalConsumer.org).


"It's not the censorship that you can see that you have to worry about. The censorship to look out for is the censorship that you can't see."

—Author and journalist Hassan Fattah, on the danger of invisible censorship through online search engines like Google.


"Microsoft is not suing Lindows to prevent its use of the word 'windows' to refer to the windowing function used in many programs. Microsoft is suing to stop infringing use of 'Lindows' as the name of a competing operating system."

—Excerpt from Microsoft's motion for reconsideration in its trademark infringement case against Lindows.com, which sells an operating system that can run on both Windows(R) and Linux(R) software.


"Surprising as this might sound, Lindows.com is not about selling an operating system."

—Excerpt from the latest edition of "Michael's Minutes," the regular e-dispatch from Lindows.com CEO Michael Robertson.


"The history of search is that pundits declared the winner at the end of every lap. You have to be careful if you start to smoke your own stuff and believe you are the only one who can build a great search engine. There was a two-year window when Google was the only company focused on building search. No more."

—Evan Thornley, chief executive of LookSmart, suggesting that popular search engine Google—now the target of a lawsuit by competitor Overture—probably wasn't up on its game anyway.


"I am the author of a website, which as you note uses the domain names jerryfallwell.com and jerryfalwell.com, that parodies your client, Jerry Falwell. The parody both reminds the public of your client's hateful remarks about the causes of the September 11 terrorist attack on the United States, and evokes his criticism of the hypocritical attitudes that some Christians display toward compliance with biblical dictates, by suggesting that he himself ignores a significant biblical dictate. This is a completely non-commercial website, which exists for the sole purpose of expressing, through a parody, my opinion that your client is a jerk."

—Gary Cohn, who runs parody websites at jerryfallwell.com and jerryfalwell.com, responding to the recent UDRP complaint that Reverend Falwell has filed against him.



"There is no distinction in law between 'Jerry Falwell' and your dot com domain names with top level suffixes, whether spelled identically or misspelled confusingly similarly. Your continued use of Dr. Falwell's marks is unauthorized by him and is unauthorized by any of the organizations associated with him. Moreover, your conduct in using these marks creates a likelihood of confusion in the marketplace concerning the source and origin of the websites you offer under the marks and does and will diminish his reputation and good will."

—Excerpt from the cease-and-desist notice sent by Falwell, which has now been annotated by the Chilling Effects Clearinghouse, a Berkman Center-led organization that tracks threats to speech and expression online.


• • • • • • • • • •


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