<-- The Filter --> May 2002

May 29, 2002
No. 5.1  .  The Filter  .  05.29.02

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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> Supreme Court Mani-Festo: The US Supreme Court yesterday overturned parts of a lower court ruling that had limited a patent's scope. The Court ruled that patent holders can exert the "doctrine of equivalents" in certain cases, which allows a patent owner to assert rights that go beyond the scope of an original claim if the product performs an equivalent function. The case, Festo v. Shoketsu Kinzoku Kogyo Kabushiki, has been closely watched by the biotech industry.




***EXTRA: For background on Festo, see: http://www.gigalaw.com/articles/2001/kirsch-2001-03.html

> The Little Copyright Case That Could: Until recently Eldred v. Ashcroft—a challenge to Congress's most recent 20-year extension of the term of copyright—was considered by many legal scholars to be an academic exercise at best. "It came as quite a surprise," writes University of Chicago law professor Richard Epstein in a Washington Post forum, "that the Supreme Court took a case that most people thought was going to die in the Circuit Court."

Now, far from dead, the Eldred case has become something of a cause celebre, winning the support of a number of high profile individuals and associations. Last week plaintiff attorneys filed opening briefs in the case, joined by numerous friends of the court. Among these: Intel Corporation, the Free Software Foundation, the National Writers Union, 53 intellectual property professors, 17 economists, 15 library associations, five constitutional law professors, the Eagle Forum, and Hal Roach Studios.

"The Supreme Court is now poised to determine whether, essentially, anything will ever enter the public domain again," says Jonathan Zittrain, a faculty director of the Berkman Center and a lead counsel on the case. "It's particularly important now because the Net will be able to breathe new life into old works that have long since earned their keep for the original authors and the companies to whom the authors sold their rights."

Check out the links below for the new Eldred v. Ashcroft website—containing case background, legal documents, and latest news—plus a selection of recent media coverage of the case.







***EXTRA: After the Supreme Court decided to hear the case, supporters of the Eldred challenge have made headlines nationwide—and around the globe—with op-ed pieces criticizing the CTEA for extending the term of copyright to an "absurd" length. But how are CTEA proponents reacting?

Follow the links below for two articles that provide insight into proponents' perspectives on the case: "Split IP Bar Feuds Over Copyright Law," from The Recorder, and "Finding That IP Sweet Spot," from Corporate Counsel.



> Commons Cause: In related news, a new collaborative initiative called Creative Commons was officially unveiled on May 16 at the O'Reilly Emerging Technology Conference. The Web-based project, still in its beta stage, will offer tools to enable artists and other creators to share their work with the public on generous terms that permit copying, redistribution, and creative reuses. The goal? To create an "alternate reality" in which affirmative enrichment of the public domain can exist in tandem with the intellectual property protection afforded by traditional copyrights.

What's the response to the project so far? The Progress and Freedom Foundation, which bills itself as a "market-oriented think tank," issued a press release on the day Creative Commons was introduced. While not criticizing the project directly, the release points to a newly published review of board chair Lawrence Lessig's book, The Future of Ideas: The Fate of the Commons in a Connected World. The message: Lessig's assessment of the problem of preserving creativity and innovation on the Internet is wrongheaded, while his proposed remedies are "counter-productive."

Meanwhile, however, the reaction from another corner has been no less than overwhelmingly enthusiastic. During the project presentation O'Reilly & Associates President Tim O'Reilly stepped forward to announce plans to place the company's books under a 14-year copyright—the original term of copyright specified by the Founding Fathers. The announcement was reportedly met with a standing ovation. In addition, a number of conference participants who "blogged" the session—including Doc Searls and Cory Doctorow, among others—gave both the concept and the technology demonstration high marks.

Follow the links below to access a video recording of the session, as well as a compendium of links to real-time weblog commentary.



What's next? The Berkman Center will shortly present its Summer 2002 Internet Law Program, the residential segment of which will take place July 1-5 on the Harvard Law School campus. On the agenda: IP rights, the evolution of copyright, the future of peer-to-peer, and more. Among the highlights will be a debate between Lawrence Lessig and a representative of Microsoft Corporation on the merits of open source software; a session on ICANN and the future of Internet governance; and a discussion of Eldred v. Ashcroft featuring principals in the case.

It's not too late to register; visit the URL below for details.


> From the "Great Minds..." Files: The Creative Commons group isn't the only one out there working to strengthen the public domain. Read about the "Information Commons," an initiative spearheaded by the public-interest groups Public Knowledge and the New American Foundation, at the below URL.


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On May 13, the Supreme Court ruled in Ashcroft v. ACLU, leaving untouched an injunction barring enforcement of the Child Online Protection Act (COPA). Three days later, the Ninth Circuit Court of Appeals rendered a sharply divided ruling in Planned Parenthood v. ACLA, finding that the controversial "Nuremberg Files" anti-abortion website constituted a true threat to abortion providers. Both decisions ignited fresh rounds of debate over the limits to free speech on the Internet.

Below, we feature five recent articles that illuminate the legal issues surrounding speech in the online environment.

      "Anti-abortionists Try a New Weapon"

      "A Libel Suit May Establish E-Jurisdiction"

      "Besieged ISP Restores Pearl Vid"

      "Analyzing the Supreme Court's Opinion on the Child Online Protection Act"

      "The First Amendment, Junk Faxes, and Spam"

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> Edelman Blows the Whistle on Domain "Porn-Napping": In casual web surfing, many an Internet user has stumbled upon a seemingly innocuous domain name that, startlingly, presents a screen full of sexually explicit images. Typically, the incident is quickly forgotten and the user moves on. But when it happened to Berkman Center Affiliate Ben Edelman upon accessing bicyclebills.com, he decided to investigate the "Tina's Free Live Web Cam" operation to which bicyclebills.com had redirected him. The result: he discovered that 4,525 distinct domains led to the same pornographic website, and that a majority of the domains had previously been registered by others—domain name owners who had allowed their registrations to expire.

Alarmed, Edelman proceeded to document the phenomenon, then posted his findings online.

"By scooping up expired domains as soon as they become available, the operators of Tina's Webcam amassed a list of thousands of domains that continued to receive large numbers of visits—from search engines, web directories, 'click-throughs' from remaining links on other pages, and manual type-ins," says Edelman. "And many of these domain names suggest content appropriately viewed by kids, such as childrens-media.org or americanmuseumofnaturalhistory.com."

According to Edelman, the policy implications are serious. "If a Massachusetts homeowner fails to pay a water bill, her water won't get turned off for some months, even years. But if she fails to renew her domain name, a porn site might grab it within as little as a couple weeks. Worse yet, dozens of registrars and others mine or buy registrant contact info from the WHOIS database and use this info to send solicitations that look much like official and important renewal notices from a registrant's actual registrar—making it hard to know which bill to pay and which to throw out. This process is far harder than it needs to be; ICANN and the registrars have their work cut out for them in straightening it out."

Follow the links below for Edelman's study, "Domains Registered for Distribution of Unrelated Content: A Case Study of Tina's Free Live Web Cam," plus selected media coverage.





***EXTRA: [Note from the editor: I (Donna Wentworth) recently began a new weblog column at Corante.com; among the first entries is a short piece on the "Tina's Webcam" study, here.]

> Opening Brief Filed in Email "Trespass" Case: As reported in Filter 5.0, the California Supreme Court decided last month to hear Intel v. Hamidi, which like Eldred v. Ashcroft has been brought 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.

Lawyers for Hamidi have now filed the opening brief, which argues that calling an email message a "trespass" is "unprecedented and dangerous." Berkman Center Faculty Co-Director Jonathan Zittrain agrees. "[The lower court's trespass analysis] forces us to realize that the public and private are configured much differently online than they are in real space," says Zittrain. "A simple 'copy and paste' of 19th century doctrines grounded in the King's land really doesn't suit in many instances."



> Greplaw—Where Cyberlaw Cuts Loose: The world of weblogs has recently been thrust into the limelight, with traditional press outlets taking turns weighing in. Among the sites garnering increased attention: law-related 'blogs, or "blawgs."

Now, the Berkman Center is pleased to announce the opening of Greplaw, a new community forum for news, commentary, and discussion about developments and trends in Internet law and policy. Established and run by Harvard Law School students and alumni, Greplaw aims to help readers get a daily handle on "patterns and themes in information technology law," then print "matches to the Web, via Slashcode."

Tune in, scan the latest headlines, or weigh in with your own news and opinions, here.

> Berkman Center Bids Farewell to Eric Saltzman: Eric Saltzman, the Berkman Center's dynamic executive director, is ending his term this month.

Eric joined the Berkman Center in the fall of 2000 and has made a profound impact on its activities. During his term, the Berkman Center extended its reach in the international community, taking on the role of advisor to policy-making bodies engaged in digital divide issues, and designing the legal structure for an open knowledge network for developing countries. It also established new working collaborations with other major Internet research and policy organizations.

Among the projects launched in 2000-2002: Creative Commons, Chilling Effects, the Internet Law Program, Open Economies, Digital Expression, the Berkman Center Student Think Tank, and Greplaw.

Eric will continue work with the Berkman Center—including his role as a director of Creative Commons—as a 2002-2003 Fellow.


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* Greplaw


'Nuff Said.

* Electronic Frontier Foundation Action Center: "The Tinsel Town Club"


A satiric short animated film by the EFF on the CBDTPA; a guaranteed giggle.

* Chilling Effects Clearinghouse: Linking


Heard about the Dallas Morning News and Runner's World "deep linking" cases? Now you can check out the now-annotated cease-and-desist letters at the Chilling Effects Clearinghouse, a collaborative project tracking threats to speech and expression online.

* Wiretap Report 2001


Eye-opening report on wiretap activity in 2001; includes such information as the number of intercept orders issued by judges and the major offenses for which they were granted.

* Intellectual Property Cases


Website providing details on recently prosecuted IP cases, maintained by the Computer Crime and Intellectual Property Section (CCIPS) of the US Department of Justice.

* Kartoo


Search site that presents results as an interconnected "map"; check out your own personal topography on the Web by entering your name in the search.

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"When the MPAA complains that it is losing billions to piracy, my first reaction is, so what?...Corporate multinationals, wielding unchecked power, terrify me far more than kids with video cameras. In fact, the latter, such as the Norwegian schoolboy who cracked the DVD code, encourage me greatly: their resourcefulness and creativity—rather than the special pleading and restrictive practices of the MPAA—represent a possible bright future for our industry."

—Alex Cox, director of "Repo Man" and "Sid and Nancy," in a recent Guardian op-ed arguing that corporations, not kids, are the "real pirates" in the film industry.


"I guess there's a certain amount of tolerance for going to the bathroom. But if you formalize it and you create a device that skips certain second increments, you've got that only for one reason, unless you go to the bathroom for 30 seconds. They've done that just to make it easy for someone to skip a commercial."

—Jamie Kellner, chairman and CEO of Turner Broadcasting, elaborating on the notion that when viewers watch a television show, they are obligated by "contract" with the networks to watch the commercials as well.


"This does not change subscribers' ongoing use of the product and we hope over time the value of the content provided will outweigh any perceived inconvenience this creates."

—Andrew Cresci, vice president of TiVo Europe, reacting to an outcry by subscribers who discovered that their TiVo recorders had automatically chosen and recorded for them a new television show the company evidently intended to tout.


"Do you know the story about bringing a rock? I tell you, 'Ned, bring me a rock.' You look a little puzzled, turn around, go to the riverbed and bring me a rock. And I say, 'No, not that rock. Another rock.' Some parts of the entertainment industry are playing 'bring a rock' with us."

—Andy Grove, chairman and co-founder of Intel, describing his attempts to reach consensus with Disney and other entertainment industry heavyweights on content-protection technologies.


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

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January 15, 2008