<-- The Filter --> November 2002

November 13, 2002
No. 5.4  .  The Filter  .  11.13.02

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 Grants Cert in CIPA Case: The US Supreme Court announced Tuesday that it will hear US v. American Library Association, et al., a case that will determine whether the Children's Internet Protection Act (CIPA) is constitutional. The act was struck down this past June when a panel of three federal judges ruled unanimously that it is "currently impossible...to develop a filter that neither underblocks nor overblocks a substantial amount of speech." Because of this, the panel ruled, the act's requirement that federally funded libraries install filtering programs in their computer systems made it facially invalid under the First Amendment.

The government appealed the ruling, however, taking the case directly before the Supreme Court. US Solicitor General Theodore Olson—who last month presented oral arguments for the government in Eldred v. Ashcroft—said the lower court's decision hampers Congress in its efforts to ensure that money spent "for educational and other purposes does not facilitate access to the enormous amount of illegal and harmful pornography on the Internet."

The justices will hear arguments in the case next year, with a decision due by the end of June.




> It's Not Over When It's Over: In the wake of stunning defeat last month before US District Court Judge Colleen Kollar-Kotelly, the group of non-settling state attorney generals in the Microsoft antitrust case is reportedly weighing the merits of two future paths in its continuing fight against the software behemoth: appealing the ruling or closely monitoring its compliance. Which path is the group likely to take? "We're all, on both sides of this fight, fatigued," admitted California attorney general Bill Lockyer, who has been a leader in the states' challenge. "It was difficult and expensive, so while a victory or even a partial victory may show that it's possible, those of us that went through this legal equivalent of a land war in China have realized it's not something you want to do every day."





Among the partial victories the state attorney generals snatched from the jaws of defeat is a settlement provision requiring Microsoft to appoint an internal watchdog committee comprised not of its own employees or ex-employees but rather three members of the somewhat more removed Microsoft board. Acting swiftly as promised, Microsoft announced its picks for the committee this past Friday: James Cash, a professor at the Harvard Business School and chairman of Harvard Business School Publishing, Raymond Gilmartin, chairman and chief executive of pharmaceutical giant Merck, and Ann McLaughlin Korologos, a former secretary of labor during the Reagan administration. Cash, a relative newcomer to the board, was chosen to chair.


> Halloween II: While Microsoft can claim a solid legal victory in the Kollar-Kotelly courtroom, a newly unearthed document suggests it may be less than pleased with its progress on other fronts. In November of 1998 two internal memos leaked onto the Net revealed in no uncertain terms that Microsoft, undisputed heavyweight champion of the software world, believed it had something to fear: the open source software (OSS) movement. The memos, dubbed the "Halloween Documents" due to the timing of their release, now have a sequel. The document—which Microsoft has declined to authenticate—summarizes the results of a company survey of "key audiences" worldwide. The upshot? It appears that Microsoft is no less concerned about the movement now than it was four years ago—and further, considers its own recent efforts at changing user attitudes toward OSS largely a failure.

"Messaging that discusses possible Linux patent violations, pings the OSS development process for lacking accountability, attempts to call out the 'viral' aspect of the GPL, and the like are only marginally effective in driving unfavorable opinions around OSS, Linux, and the GPL," states the document. It additionally notes that in "in some cases" these strategies backfire.

"I've suspected for a while that the anti-Linux, anti-GPL FUD campaign was actually rebounding on Microsoft," wrote OSS evangelist Eric Raymond on the website where he posted the document for analysis. "This seems to confirm it."



***EXTRA: In related news, Bradford Smith—Microsoft's senior vice president and general counsel—recently locked horns with Stanford law professor Lawrence Lessig in a debate sponsored by the Research Institute of Economy, Trade and Industry in Japan. Visit the URL below to access the video archive:


> X-Men v. the Mod Squad: If Microsoft is best known for its market dominance in office software products, it's not through lack of trying to succeed just as well in the increasingly competitive home video game arena. Last month Microsoft announced the launch of its Xbox gaming console in Hong Kong, Singapore and Taiwan—despite the fact that the Asia-Pacific region is known to have a high rate of software piracy. "Console makers sell their devices at a unit loss, expecting to make the money back on games sales," notes CommentWire. "[Where] games are copied rather than sold, this business model takes a knock."

The risk is arguably even higher in Australia, where a ruling this summer in the so-called Sony mod chip case reportedly had CEO Steve Ballmer spooked. In that ruling an Australian federal judge found that modification chips sold for the original PlayStation do not infringe on Sony copyright protections under Australia's version of the Digital Millennium Copyright Act (DMCA). Ballmer alluded to the decision at a speech in Australia last month, sparking rumors that Microsoft would pull the Xbox from the Australian market. Company representatives were quick to quash them, however, asserting that while the company is indeed monitoring the Sony case, the future remains "bright" and its commitment in Australia "firm and long-term."

If entering these markets jeopardizes the home game business model, why is Microsoft moving ahead? While media onlookers speculate that the company is willing to take an initial loss in order to gain a foothold in the market, other developments suggest it is doing more than playing a waiting game. Case in point: Microsoft recently joined rivals Sony and Nintendo in a successful legal bid to stop a leading Hong Kong mod chip retailer from selling the chips via the company's website. "Lik-Sang International Limited has always sold the products in question with the legitimate use in mind, and the products haven't been considered as illegal," reads a statement on the site. "However, Lik-Sang is not committed on selling the questioned products in the future."




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Berkman Faculty Co-Director Jonathan Zittrain and Berkman Affiliate Ben Edelman have announced a new project that enlists the help of the Internet community in gathering data on localized exclusions from Google search results. This research seeks to document a set of developing cases wherein filtering is the result of private arrangements and understandings rather than government action. Among the findings so far are some 113 sites excluded, in whole or in part, from the French google.fr and German google.de, though included as usual in the ordinary google.com.

Follow the links below for details on the collaborative study and selected press coverage:

"Localized Google Search Result Exclusions"
"Google Excluding Controversial Sites"
"Study Tallies Sites Blocked by Google"
http://makeashorterlink.com/?E27532E62 [NYT, reg. required]
"Google Found Censoring Extremist Websites"

***EXTRA: While Google is using its discretion in removing webpages from search results in countries where material may be offensive or illegal, it is also sharing information about pages it is required by law to remove. How so? By routinely sending the cease-and-desist letters it receives to the Chilling Effects Clearinghouse, a collaborative project that monitors threats to free speech and expression on the Net. Follow the URLs below for a recent Harvard Law Bulletin profile of the project and the Chilling Effects repository of Google C&Ds:



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> Internet & Society 2002—Harvard's Digital Identity: On November 15-16 the Berkman Center will present this year's Harvard Conference on Internet & Society—a unique experiment in collaborative thinking about Harvard's digital identity. Free and open to all Harvard faculty, administrators, students, staff, and alumni, the conference will feature presenters and panelists including Harvard President Lawrence Summers (invited), Jeffrey Rayport, CEO of Marketspace, and the Berkman Center's own Charles Nesson, Charles Ogletree and Jonathan Zittrain.

For more information or to register online, please visit the conference website.

Please note: questions about the conference should be directed to Robyn Mintz.

> Wide World—Global Riddles of Identity, Technology and Power: Berkman Fellow Christopher Lydon is working with producer Mary McGrath to create a multi-part series of webcast radio programs featuring Yo-Yo Ma, the economist Jeff Sachs, the historian Jared Diamond (Guns, Germs and Steel), the Internet guru Lawrence Lessig, the cognitive psychologist Steven Pinker (new book, The Blank Slate) and many others.

The topic? In Lydon's own words, "the basic global paradox: that six-billion earthlings can see more clearly every day that we are connected in dimensions of climate, economics, genomics, disease, medicine, high and popular culture; and at the same time the politics of terror, lop-sided wealth and poverty, and imbalances of power and 'voice' seem to be pulling the world apart."

To learn more or to become involved, visit the Lydon site.

> Eldred v. Ashcroft—the Big Questions: On October 9 lead petitioner counsel Lawrence Lessig appeared before the Supreme Court to present oral arguments in Eldred v. Ashcroft, a constitutional challenge to the Sonny Bono Copyright Term Extension Act (CTEA). The hearing and its aftermath brought an explosion of media interest in the case as well as widespread post-game analysis. How successful was Lessig in advancing the petitioners' argument? Which side now has the upper hand? What are the chances that the Court will overturn the CTEA?

While the oral arguments are over, the battle is far from won. The justices asked tough questions of both sides in the case—and they still need answers. The Berkman Center invites you to join us in our Openlaw forum to engage in substantive discussion of the issues the justices raised.

To join us to discuss outstanding questions in the Eldred case, visit the Openlaw forum.

For a complete archive of arguments made and briefs filed, visit the petitioner's site.

> Berkman Center Welcomes New Fellows: Among the 2002-2003 Berkman Fellows are seven who have recently joined us. The Berkman Center is proud to welcome Rosemary Coombe, Blythe Holden, Lewis Hyde, Megan Kirk, Geoffrey Kirkman, Colin Maclay and Dotan Oliar.

Rosemary Coombe is the author of The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press, 1998) and numerous articles in legal theory, cultural anthropology and cultural studies. In 2001 she was appointed to the Canada Research Chair in Law, Communication and Cultural Studies at York University. Coombe earned a combined doctorate in law and anthropology from Stanford University in 1992.

Blythe Holden (HLS '97) returns to Harvard as a Berkman Fellow after five years of practice in the areas of technology and intellectual property law. Formerly Associate General Counsel of "The .tv Corporation" (known as "dot-TV"), Holden is coordinating a project exploring "Digital Media in Cyberspace." Where does a consumer's right end and piracy begin? What obligation, if any, does technology have to protect the rights of copyright holders? And at whose expense? This joint research project includes members in the private sector as well as academia, aiming to provide a unique perspective as it researches and analyzes issues related to the convergence of digital media and the Internet.

Lewis Hyde is the author of Trickster Makes This World, an exhaustive exploration of the "trickster" character who appears in the myths and traditional stories of many cultures. His earlier work includes The Gift: Imagination and the Erotic Life of Property, widely regarded as a ground-breaking exploration of the role of the artist in a materialistic society. Prior to joining the faculty of Kenyon College in 1989, Hyde taught creative writing at Harvard for six years. A MacArthur Fellow in 1991, Hyde is a leading expert on the arts and culture.

Megan Kirk (Uuniversity of Washington School of Law '02), formerly an intern at the Berkman Center and a research fellow at the Center for Law, Commerce & Technology at the University of Washington School of Law, is now completing a judicial clerkship in Washington state while overseeing editorial production of the Berkman Center's forthcoming Internet Law Program casebook.

Geoffrey Kirkman is Managing Director of the Information Technologies Group at the Center for International Development at Harvard University and a Visiting Research Scientist at the Media Laboratory at MIT. His work focuses on extending the benefits of the Internet and other information and communication technologies to developing countries. Kirkman was graduated Phi Beta Kappa, Magna Cum Laude from Brown University and holds a Master degree in Public Policy from the John F. Kennedy School of Government at Harvard University.

Colin Maclay is Deputy Director of the Information Technologies Group at the Center for International Development at Harvard University. His broad research goal is to support people and organizations in developing nations in understanding, enabling and appropriately using information and communications technology to improve quality of life. He has worked extensively in India and Latin America, and has appeared publicly on behalf of diverse groups including HP Labs, the World Bank and the United Nations. Maclay holds degrees from the University of Wisconsin-Madison and Harvard's John F. Kennedy School of Government.

Dotan Oliar is an S.J.D. candidate at Harvard Law School researching the modifications necessary to apply intellectual property theory to the Internet. His LL.M. thesis on the fair use doctrine over the Internet won the 2001 HLS Irving Oberman Memorial Award for papers relating to "The Internet and the Law." In his prior work at the Berkman Center he has been active, together with others, in establishing the Creative Commons project for the open sharing of creative works online and in preparing Internet Law Program teaching modules. He is a John M. Olin Fellow in Law and Economics. Currently Oliar is the teaching fellow for the Berkman Center's Internet Law Colloquium.


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* US Copyright Office DMCA Comment Submission Form


Webpage where, starting on November 19, you can submit comments on new exemptions from the anti-circumvention clause in the DMCA.

* Eldred v. Ashcroft—the transcript


URL where you can download the official transcript from the oral arguments before the Supreme Court.

* SCOTUS blog


Weblog providing coverage of proceedings before the US Supreme Court, by the law firm Goldstein & Howe, P.C.

* Copyright and Culture


Link to archived MIT panel featuring Siva Vaidhyanathan and Jonathan Zittrain on "the ways in which copyright law affects individual artists and the intellectual life of the community at large."

* H2O—Communities Built Around Ideas


Website for the Berkman Center's H2O project, a courseware development initiative aimed at "building an interlocking collection of communities based on the free creation and exchange of ideas."

* GigaLaw Guide to Internet Law


Website providing information about the newly published GigaLaw Guide to Internet Law by GigaLaw.com editor & publisher Doug Isenberg.

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"What's twenty years?"

—US Registrar of Copyright Marybeth Peters, commenting on the CTEA's extension of copyright at a public forum following the Eldred hearing.


"I think a lot of people didn't realize that it would have this potential chilling effect on vulnerability research."

—Richard Clarke, head of the White House Office of CyberSecurity, at an MIT forum at which he was asked to clarify his position on the DMCA.


"This is a Bay Area feel good, thumb-in-LA's-eye initiative that will sink like lead pig in helium. Nice thought, anyway. Bet on the money and the lobbyists. Lofgren's proposal has neither. Rather it is only reasonable and fair. It has a snowball's chance in hell."

—A Cyberia-L list member in a discussion about the recently proposed "Digital Choice and Freedom Act of 2002."



"So what I see happening is a chess move, where white is placing black's king in check. White doesn't expect to take black's king—in fact, that can't happen—but rather, by presenting a threat white is forcing black to take action. By threatening to exercise IP rights, [firms] are hoping to force standards bodies to take actions that will respect the IP rights they do want to leverage—not to prevent the standard from developing or to take a cut once it does."

—Jason Bloomberg, a senior analyst for research firm Zapthink, on Epicentric's decision to assert, and then drop, its patent claim for aspects of the W3C's SOAP 1.2 specification.


"To the court's knowledge, there is no Mattel line of S&M Barbie."

—US District Judge Laura Taylor Swain, rendering judgment in favor of novelty dollmaker Susanne Pitt, who was sued by Mattel after she began selling a "dungeon doll" made with the head of Superstar Barbie.


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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