<-- The Filter --> December 2002

December 19, 2002
No. 5.5  .  The Filter  .  12.19.02

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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> The Global Net? That's So 1995: In a decision with potentially profound implications for online publishing, Australia's High Court found last week that US-based publisher Dow Jones & Co. can be sued for libel in an Australian court over an article published on the Internet. Mining magnate Joseph Gutnick filed suit in the Australian state of Victoria after an allegedly defamatory article appeared in the online version of Barron's, a Dow Jones publication. Dow Jones responded with a series of motions arguing that proper jurisdiction for the suit is in New Jersey, where servers hosting the article are located. The High Court disagreed. Affirming a lower court's finding for the plaintiff, the Court ruled that "It is where [a person] downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed."

Reaction to the decision has so far run the gamut from the near hyperbolic to the puzzlingly blasé. Sydney-based defamation lawyer Damian Sturzaker told the BBC News that the ruling creates "a spider web of potential litigation, where you have a single publisher in the center and strands running to every jurisdiction that adopts this standard, each one a potential lawsuit with different standards of evidence and different defenses." Echoing these concerns, journalist Dan Gillmor penned an op-ed piece in which he called the decision "a travesty of justice and fairness" and warned that it will encourage "paranoid people to use local laws...to stamp out unwelcome news or opinions." Others, however, appeared to downplay the ruling's practical significance. "[Dow Jones's] words are their product," said Berkman Center Faculty Co-Director Jonathan Zittrain, "and if they export it internationally they know how to work the cost of litigation into the sale of their product."




Why such polarity of opinion? According to Zittrain, the answer may lie in that most people are unaware of the extent to which the Internet is already cordoned off, through technical if not legal means—and are therefore not yet prepared to consider whether such "cantonization," while understandably raising hackles among those who value free speech online, may be both inevitable and, from the perspective of foreign peoples and regimes, just. "Much of this debate seems frozen in 1995 or so...The real advance that will impact this debate is the ability of the provider of content to actually express a preference for who should be able to see it...I think [this is] fast developing," writes Zittrain in an email published online. "[Like] you, I don't want to see the revolutionary reach of the Internet gummed up by a network of oft-conflicting laws. But the other side is that it's not fair for someone injured by a faraway wrongdoer to have to travel to, say, New Jersey to seek vindication."

If the Australian ruling and concurrent technological advancements represent nails in the coffin of American legal hegemony with regard to speech on the Internet, what might the future bring? That depends, argues Zittrain, on the given jurisdiction. "Countries could find themselves under a natural pressure to harmonize their rules about speech so as to encourage Internet speakers not to exclude their citizens from what they have to say. Australia may think a given article in Barron's is no good, but they're not China—they wouldn't be pleased to see Dow Jones taking its ball home if it were easy to do."


***EXTRA: As this issue of The Filter was prepared for release, a jury in San Jose, California found Russian software company ElcomSoft not guilty of violating the Digital Millennium Copyright Act (DMCA) when it produced and sold software that circumvents security measures on Adobe e-Book files. ElcomSoft made headlines worldwide after former employee Dmitry Sklyarov was arrested by the FBI while attending a security conference in Las Vegas—becoming the first person to be criminally charged under the DMCA. While the jury's decision turned on whether ElcomSoft "willfully" violated the act, Jennifer Granick of Stanford's Center for Internet and Society suggested that it also serves as a reassuring confirmation of the DMCA's jurisdictional limits.

"We don't want every country in the world to have to comply with how the US does copyright," said Granick. "This is good for democracy: people in other countries can make determinations about what is right and wrong for themselves."


> Archivist, Activist: The Internet Archive yesterday participated in the US Copyright Office's DMCA Rulemaking, proposing an exemption to the DMCA's anticircumvention provisions for software that prohibits access to reproductions of itself. According to Berkman Affiliate Alexander Macgillivray and Berkman Fellow Wendy Seltzer, each of whom helped prepare the comment, the exemption is vital because preservation requires transferring software to new media and accessing the original software to verify the transfer.


***EXTRA: Also submitting comments to the Copyright Office were the Electronic Frontier Foundation, Ernest Miller of Yale University's Information Society Project, Seth Finkelstein, censorware specialist and EFF Pioneer Award winner, Peter Suber, a professor at Earlham College and a leader in the Free Online Scholarship (FOS) movement, and Princeton University computer science professor Edward Felten, who sued the Recording Industry Association of America (RIAA) after his plans to present a paper on the Secure Digitial Music Initiative (SDMI) were quashed by an RIAA letter threatening legal action under the DMCA.






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Since March of this year, Berkman Center Faculty Co-Director Jonathan Zittrain and Berkman Affiliate Benjamin Edelman have been conducting an ongoing collaborative study to document the methods, scope, and depth of selective barriers to Internet access through Chinese networks. Earlier this month they released a report that provides empirical analysis of their results so far. The report documents more than 19,000 specific sites blocked; it also charts the proportion of sites blocked in China among those that result from Google searches for such hot-button terms as "Tibet" and "democracy."

"We found blocking of almost every kind of content," Edelman told Wired. "If it exists, China blocks at least some of it."

Follow the links below for the study itself, selected press coverage, and two related articles that explore Google's role in determining what those who use the popular search engine see:

      "Empirical Analysis of Internet Filtering in China"
      "China Has World's Tightest Internet Censorship, Study Finds"
      "An Inside Look at China Filters"
      "Fences Go Up As Net Outgrows Its Innocence"
      "The World According to Google"
      "Google vs. Evil"

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> Copyright's Complement? The Creative License: On December 16 the Creative Commons project launched its first product: machine-readable copyright licenses custom-designed to allow copyright holders to easily inform others that their works are free for copying and other uses under specific conditions.

"Our model was inspired in large part by the open-source and free software movements," said Glenn Otis Brown, a former Berkman Affiliate and executive director of the project. "One of the great lessons of these software movements is that the choice between self-interest and community is a false choice. If you're clever about how you leverage your rights, you can cash in on openness. Sharing, done properly, is both smart and right."

Among those working behind the scenes at Creative Commons are Berkman Fellow and former Executive Director Eric Saltzman, one of the project's founders, former Berkman Fellow Molly Shaffer Van Houweling, and Berkman Center Associate Director Diane Cabell, who serves as the group's corporate clerk.

"Lawyers aren't just about litigation...they're about problem solving," said Cabell. "We intend to keep working on creative solutions to problems presented by today's complex intellectual property rights regime, and hope others will be inspired to work alongside us."

In addition to helping launch the Creative Commons project, the Berkman Center has begun to compile a repository of material for distribution under CC licenses; these include a videotaped lecture by Berkman Center Faculty Co-Director Jonathan Zittrain on the Internet Corporation for Assigned Names and Numbers (ICANN) and "The Shooting of Big Man: Anatomy of a Criminal Case," an award-winning documentary film by Eric Saltzman.

Follow the links below for the Creative Commons website, the nascent Berkman Commons repository, and selected press coverage:







> H2O Releases Code for Discussion Software: The Berkman Center is proud to announce the initial code release of the Rotisserie discussion system. The Rotisserie implements an innovative approach to online discussion that encourages measured, thoughtful discourse. Click on the link below to find out more or to download the software.


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* "Get Creative: Being the Origin and Adventures of the Creative Commons Licensing Project"


Irresistible flash movie introduction to the Creative Commons project featuring music by the White Stripes and their creative cohorts, Red Cross.

* "'The Progress of Science and Useful Arts': Why Copyright Today Threatens Intellectual Freedom"


Policy paper that serves as useful primer for current battles over intellectual property online, from the the Free Expression Policy Project, an anti-censorship advocacy group.

* "Intellectual Property on the Internet: A Survey of Issues"


A follow-up survey to a previous primer by the World Intellectual Property Organization (WIPO), aimed at elucidating current developments.

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"Copyright is stronger than ever, which experts say will plunge us into the Dark Ages. Copyright is weaker than ever, which experts say will plunge us into the Dark Ages. The confusing thing is that both statements happen to be true."

—Charles C. Mann, correspondent for The Atlantic Monthly, speaking at "The New Gatekeepers," a recent Columbia University conference on free-expression conflicts in the digital age.


"Q: How can you tell when the FBI has been in your library? A: You can't."

—Text from one of five "technically legal" signs designed to alert library patrons of the possibility that they may be under FBI surveillance while using library computers—without violating the PATRIOT act by telling patrons whether or not they actually are.


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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