<-- The Filter --> August 2002

August 19, 2002
No. 5.3  .  The Filter  .  08.19.02

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

• • • • • • • • • •


> Record Labels Get On Internet's Back: Thirteen of the world's largest record labels launched a copyright infringement lawsuit Friday against four major Internet Service Providers (ISPs), alleging that their routing systems allow users to access Listen4ever.com—a China-based website—and illegally copy musical recordings. "The targets of this suit are providers of Internet 'backbone' connectivity and routing," says Berkman Fellow Wendy Seltzer. "So the effect of an injunction would not just be to block a few ISPs' customers from seeing the site, but to make the site essentially invisible from the Net, breaking the end-to-end connectivity that has made the network so powerful."

      http://makeashorterlink.com/?H25A25E81 [EFF; legal docs]

      http://makeashorterlink.com/?K14A52E81 [NYT]


> In ReplayTV Case, Fair Use Gets Some Play: The Electronic Frontier Foundation last week won an opportunity to establish whether ReplayTV owners have an affirmative right to use the device for recording television programs and skipping commercials. US District Court Judge Florence-Marie Cooper, who last Monday issued a stay on the consumer suit, decided Friday to deny the entertainment industry motion for dismissal, and combined the consumer suit with the entertainment industry lawsuit filed last fall against ReplayTV producer SonicBlue. "[T]he issue of whether the Newmark Plaintiffs' use of the ReplayTV DVRs' send-show and commercial-skipping features constitutes fair use will most likely figure prominently in both the ReplayTV action and the Newmark action," wrote Judge Cooper.

"I'm not a crook if I skip commercials or share a news interview of myself with my mom using the SendShow feature rather than sending her a videotape," said plaintiff Craig Newmark, founder of Craigslist.org and a ReplayTV owner. "I shouldn't have to worry about getting prosecuted, but the Turner Broadcasting CEO tells us that taking a bathroom break is criminal."

      http://makeashorterlink.com/?P23653A81 [EFF; court docs]

      http://makeashorterlink.com/?I2B512A81 [EFF; press release]


      http://makeashorterlink.com/?I28F32781 [Silicon Valley News]

> Get Your P2P War On: Complaining that copyright infringement poses a "growing threat" to "our culture and economy," a bipartisan group of nineteen legislators sent a letter July 25 asking Attorney General John Ashcroft to prosecute the operators of peer-to-peer (P2P) networks and, notably, individuals who "intentionally allow" mass copying of copyrighted works via those networks. The group also asked Ashcroft to add to the number of federal crime units already working to ferret out copyright infringers— called "CHIPs" for Computer Hacking and Intellectual Property units—as well as to beef up the units' authority.

      http://makeashorterlink.com/?J6F222A81 [PDF]

Applauded by Hilary Rosen of the Recording Industry Association of America (RIAA), the letter sparked an immediate negative response from some members of the cyberlaw community—including an op-ed piece by "Infowarrior" Richard Forno. "[The] entertainment industry ...will stop at nothing--no matter how ill-conceived—to keep its reign despite a failing business model and changing economic and customer environment. The copyright debate isn't only about profit, it's also about who controls information, and ultimately, people and society."


Under what federal law would P2P operators—and individuals who swap copyrighted material via P2P networks—be prosecuted? According to an article by CNet's Declan McCullagh, the answer may be the No Electronic Theft (NET) Act—a controversial law that under some circumstances eliminates non-commercial use as a defense against copyright infringement. "Under the NET Act...it is a federal crime for a person to share copies of copyrighted products such as software, movies or music with friends and family members if the value of the work exceeds $1,000. Violations are punishable by one year in prison, or if the value tops $2,500, not more than five years in prison," writes McCullagh.

"That's a mighty weapon to wield against peer-to-peer pirates, especially when so many Americans are potential federal felons, but it seems likely that the Justice Department will honor Congress's request."



> Think Again, Mate: Among the nineteen signatories of the Ashcroft letter is Representative Howard Berman (D-Calif.), who along with Representative Howard Coble (R-N.C.) introduced last month the Peer-to-Peer Piracy Prevention Act—a bill that if passed would authorize copyright holders to covertly hack into Internet users' computers and use technological weaponry such as viruses against anyone whom they have a "reasonable basis" for suspecting is engaged in copyright infringement.

      http://www.house.gov/berman/p2p.pdf [PDF]

Described by Berman as an "important first step toward a solution" to P2P-enabled copyright infringement, the proposed legislation has come under fire from a broad spectrum of Internet constituents, including privacy activists, Internet security specialists, and consumer rights advocates. "The bill is a nightmare," cyberlaw specialist Mark Lemley told CNet News. "I am amazed that after September 11, members of Congress are willing to sacrifice our nation's computer security in order to give Hollywood yet another tool in its already formidable arsenal against piracy."


Vociferously opposed by the EFF, the Berman bill has also already run into trouble on the international front. How so? It evidently conflicts with Australia's Victorian Summary Offences Act, which states that "a person must not gain access to, or enter, a computer system or part of a computer system without lawful authority to do so." According to a lawyer quoted in the Australian newspaper The Age, passage of the bill would make it so that US executives could potentially be blocked from entering the country—because "afflicted PC owners could seek to have them arrested for unauthorized computer trespass."

      http://makeashorterlink.com/?R3C722E81 [EFF]

      http://makeashorterlink.com/?X2E723E81 [The Age]

***EXTRA: As this issue of The Filter was prepared for release, Information Wave Technologies has announced it will block the RIAA from accessing the contents of its network, stating that the "plan to to access computers without owner's consent for the sake of protecting [the record labels'] assets puts...customers at risk of unintentional damage, corporate espionage, and invasion of privacy to say the least."


> Speaking of Espionage...: Russia's counter-intelligence service filed criminal charges last week against an FBI agent who allegedly downloaded data from the computers of two Russian hackers. The charge? Unauthorized computer trespass. Said one source quoted by the Interfax news agency: "If the Russian hackers are sentenced on the basis of information obtained by the Americans through hacking, that will imply the future ability of US secret services to use illegal methods in the collection of information in Russia and other countries."


• • • • • • • • • •


Acting on behalf of Berkman Affiliate Ben Edelman, the ACLU has launched a new challenge to the Digital Millennium Copyright Act (DMCA), filing suit last month in the US District Court of Massachusetts to request a declaratory judgment that Edelman can legally study the N2H2 filtering program, extract its block list, publish his results, and distribute the tool he uses to do it. [Editor's note: please be aware that while Mr. Edelman is an affiliate of the Berkman Center, he is bringing the suit in his individual capacity; it is not a Berkman Center lawsuit.]

Below you'll find the Copyfight interview with Edelman, a link to the Edelman v. N2H2 webpage, an article by Berkman Center Faculty Co-Director Jonathan Zittrain on the implications of filtering for the Internet's "end-to-end" neutrality, and a link to Berkman Center-sponsored research on filtering.

"Edelman v. N2H2: Can He Hack It?" [Copyfight]
"Edelman v. N2H2: Case Summary & Documents"
"Can the Internet Survive Filtering?" [CNet News]
"Documentation of Internet Filtering Worldwide"

• • • • • • • • • •


> ILAW—The (Cyberlaw) Revolution Will Be Blogged: On July 1-5, the Berkman Center held its summer 2002 Internet Law Program, bringing participants from around the world together with top legal experts to explore the most pressing developments in Internet law and policy. Among the highlights was a debate between Lawrence Lessig and Jason Matusow of Microsoft Corporation on the merits of open source, shared source, and proprietary software.

Below is a link to "ILAW—The Tour," a comprehensive guide to weblog commentary on the program, including real-time notes by journalist Dan Gillmor and articles and additional commentary by Drew Clark, senior writer for National Journal's Technology Daily.

      "ILAW—The Tour" [Copyfight]

***EXTRA: The Berkman Center is producing an ILAW case book; preliminary details are available.

> Berkman Center Names New Executive Director: The Berkman Center is proud to welcome John Palfrey as its new Executive Director. A long-time affiliate of the Berkman Center, John comes to us from the law firm Ropes & Gray. John received an A.B. magna cum laude from Harvard College in 1994, an M.Phil. from the University of Cambridge in 1997, and a J.D. cum laude from Harvard Law School in 2001. With Berkman Affiliate Rebecca Nesson, he teaches an Internet Law class at the Harvard Extension School. John is also co-founder and a former officer of a Boston-based technology company, and served as a Special Assistant at the US Environmental Protection Agency.

Welcome aboard, John!

> ...And Names Diane Cabell as Associate Director: The Berkman Center is pleased to announce that Diane Cabell, a long-time fellow and the director of our Clinical Program in Cyberlaw, has been promoted to Associate Director. "Diane has been a leader at the Berkman Center for many years," said Berkman Center Faculty Co-Director Jonathan Zittrain. "We're delighted to have this opportunity to recognize her outstanding work, and look forward to further tapping Diane's talents to keep the Berkman Center thriving and growing in the years ahead."

> IPR in India, September 12-13: The Berkman Center is participating in a conference on intellectual property rights in Hyderabad, India on September 12th and 13th. Initiated by Professor Pavan Mamidi, IIM Bangalore (HLS LL.M. '95) and Mr. Chandra Babu Naidu, Chief Minister of Andhra Pradesh, the conference will explore issues facing India as an emerging technological country and a signatory of the TRIPS accord of the World Trade Organization (WTO), to commence in the year 2005. Berkman Center Faculty Co-Director William Fisher, Associate Director Diane Cabell, and Professor Mamidi will speak on "The Role of a Non-Proprietary Commons in a Globally Networked World."

> Berkman Center Open House, September 17: The Berkman Center cordially invites Harvard Law School students and others interested in learning about or becoming a part of our projects to meet with us for our Berkman Center Open House on September 17. The Open House takes place at 6:30 p.m. in Langdell North here at the Harvard Law School campus and will feature sign-up tables with project leaders from projects such as Greplaw, the Clinical Program in Cyberlaw, and the Berkman Center Student Think Tank. Below is a link to a map of the Harvard Law School campus; we hope you can join us.


• • • • • • • • • •


* free_culture: Lawrence Lessig at OSCON 2002


Link to flash version of a speech given by Lawrence Lessig at this year's O'Reilly Open Source Convention.

* O'Reilly Network: Lawrence Lessig at OSCON 2002


Text transcription of the above speech.

* Eldred v. Ashcroft: Intellectual Property, Congressional Power and the Constitution


A symposium by the Loyola of Los Angeles Law Review on Eldred v. Ashcroft, a constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA) that will be heard before the US Supreme Court in October.

* Current Copyright Readings


New copyright weblog by M. Claire Stewart, head of Digital Media Services at Northwestern University.



Fact sheet for federal crime units called CHIPs, for "Computer Hacking and Intellectual Property" units.

* Counterpane Crypto-Gram


URL where you can subscribe to Crypto-Gram, a free monthly email newsletter on computer security and cryptography from Bruce Schneier, author of "Secrets and Lies."

• • • • • • • • • •


"Now is the time for all good people to come to the aid of the Internet, with the voters of North Carolina's sixth Congressional district leading the charge."

—North Carolina resident Edward Cone, speaking out against Representative Howard Coble (R-N.C.) for his co-sponsorship of the Peer-to-Peer Piracy Prevention Act.

      http://makeashorterlink.com/?Z25623F81 [News & Record]

"It has come to our attention that you have incorporated the 'ZILLA' portion of our client's GODZILLA marks in the name of your 'DAVEZILLA.COM' domain name, and that you have included a 'reptile-like' character as well as a 'monster-like' character...Please be advised that your use of the GODZILLA mark constitutes a trademark infringement and confuses consumers and the public into believing that your 'GODZILLA' character originates from Toho, which it does not."

—Excerpt from a cease-and-desist letter sent by the holder of the "Godzilla" trademark to the owner of a small-time blog called "Davezilla."

      http://makeashorterlink.com/?D26D35E81 [Chilling Effects]

"My take on the -ZILLA thing? In the age of the blog, the trademark lawyer has to be extremely cautious as to how to proceed, because a subtle claim can become a public brou-ha-ha (and in fact the shrewd defendant will want it so)."

—Martin Schwimmer Esq., trademark attorney and maintainer of "The Trademark Blog."


"Trust me, a few—even a few thousand—peeved email messages won't change vote totals that lopsided. (Did you know the Senate approved the DMCA unanimously?) Washington's political class is used to ignoring frenzied yowls from far more organized and well-funded groups than 'geektivists' can hope to emulate anytime soon."

—Journalist Declan McCullagh in a much-circulated op-ed piece arguing that "geeks" are better off writing software with the potential to trump law than they are entering politics.


"No amount of good code can overcome harmful laws and bad policy...Code, law and the future health of programming must be compatible. Geeks are the best people to help lawmakers understand the impact of bad technology laws and policy."

—Excerpt from a rebuttal by Public Knowledge, a public-interest advocacy group "dedicated to fortifying and defending a vibrant 'information commons'—the shared information resources and cultural assets that we own as a people."


"RossJesse: ganstagamble, what do you think about software patents?
ganstagamble: My brain pattern set does not have a response for that.
RossJesse: Are you prior art?
ganstagamble: I don't know whether or not I am prior art. I am a student.
RossJesse: Do you have any friends who might be prior art?
ganstagamble: I have many friends and lot of people on the Internet chat with me.
RossJesse: You're smarter than most bots. How long have you been online?
ganstagamble: Thanks for the compliment, friend. Be sure to tell your friends. I am 21 of your Earth years."

—Excerpt from an interview with an instant messaging (IM) bot, regarding the controversial patent granted to software company ActiveBuddy on IM bots.


• • • • • • • • • •


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