<-- The Filter --> February 2003

February 7, 2003
No. 5.6  .  The Filter  .  02.07.03

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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> Eldred v. Ashcroft—Judgment Day: Petitioners in Eldred v. Ashcroft were dealt a crushing blow last month when the US Supreme Court ruled 7-2 to uphold the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA). In the majority opinion written by Justice Ruth Bader Ginsburg, the Court rejected petitioners' argument that the CTEA exceeds Congress's power under the Copyright Clause and violates the First Amendment. "The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain," wrote Justice Ginsburg. "[We] are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." Further, despite acknowledging that the D.C. circuit "spoke too broadly when it declared copyrights 'categorically immune from challenges under the First Amendment,'" the Court nevertheless concluded that "copyright law contains built-in First Amendment accommodations"—namely, the idea/expression dichotomy and the fair use defense.

Though not wholly unexpected, the ruling was a profound disappointment to supporters of the Eldred challenge. On the one hand, wrote lead petitioner counsel Lawrence Lessig in his weblog, "there is something wonderful about losing because the Court believes its power is limited." On the other, Lessig argued, the Court appeared to be discriminating among the cases in which it circumscribes that power. "If the Court believes there is a principled reason why...enumeration applies to protect the rights of states (against liberal legislation) but does not apply to protect the public domain (against special interest legislation), it should say so." FindLaw columnist Chris Sprigman, among others, echoed the sentiment. "Why did the conservatives stay silent in Eldred? Can it be because the CTEA, rather than liberal federal meddling in affairs best left to the states, is just another wealth transfer to rich corporations? Are the conservatives willing to police Congress only when it acts in ways they don't like?"

      http://shorl.com/bodryprofameda [Lessig Log]


If the Court's ruling with regard to the Copyright Clause raised questions as to members' political leanings, its analysis of the petitioners' First Amendment argument provoked an even more complex reaction. According to Yale law professor Jack Balkin, the analysis was "wholly inadequate"—and thereby provides activists with ammunition for future legal battles over restoring balance to the copyright system. "[The ruling states that when] Congress has not 'altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary,'" wrote Balkin in his weblog. "But the very question to be decided is whether Congress has altered the traditional contours of copyright protection in passing the CTEA, especially given how expanded terms interact with fair use and idea/expression doctrines...The 'traditional contours' Ginsburg speaks about have not stayed fixed, but have continually been changing in ways that benefit media organizations and limit the speech of others.
As a lawyer and legal scholar, it's my job, when confronted with decisions I don't particularly agree with, to make lemonade out of lemons—to see how the court's reasoning might apply to future cases in ways I do approve of. And after thinking about Eldred's First Amendment analysis, it seems to me that the Supremes have made new law that puts the DMCA into question."



Given the impact of the Eldred ruling on the health of the public domain, what is the next step for those who seek to protect it? While Balkin has framed the challenge with regard to the courts, others are focusing the political arena. "The Eldred decision... 'deconstitutionalizes' copyright, pushing it farther into the realm of policy and power battles and away from the principles that have anchored the system for two centuries," wrote New York University communications professor Siva Vaidyanathan in a widely read Salon piece. "That means public interest advocates and activists must take their battles to the public sphere and the halls of Congress."

Among the initiatives that have already been proposed is a campaign, led by Lessig, to persuade Congress to adopt "The Eldred Act"— legislation that would require copyright holders to pay a small tax 50 years after a work is published. "This is a problem that the First Branch could fix without compromising any of the legitimate rights protected by the copyright extension act," wrote Lessig in an op-ed piece for The New York Times. "The trick is a technique to move content that is no longer commercially exploited into the public domain, while protecting work that has continuing commercial value."




Whether or not "The Eldred Act" makes it to Capitol Hill, however, it appears in the wake of the Eldred ruling that copyright reform has now definitively surfaced from previously arcane depths.

"Thanks to the Internet, we're in the midst right now of a sort of cultural reassessment of the meaning of copyright," said the Berkman Center's Jonathan Zittrain, who served as co-counsel for the petitioners. The Electronic Frontier Foundation's Cory Doctorow agrees. "We are now at a point where the issue of copyright reform and the public domain, which two years ago was so obscure as to be invisible—even among very technical people—is now a mainstream issue, at least within the technology world. We can hope now that this [decision] will vault this issue into the nontechnical world, but certainly a generation of technical people have been changed forever by the preparation for and the outcome of this case."

      http://shorl.com/hefrodydityja [Harvard Law Bulletin]


***EXTRA: Visit the below URL an article in The Economist that proposes a return to the original, 14-year term of copyright:


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What are the critical legal and political conundrums facing us as the Internet becomes increasingly integrated into our daily lives? Below we feature links to articles included in "The Internet Society," a survey by David Manasian, Legal Affairs Editor of The Economist, on the pressing privacy, security, policy and intellectual property debates of the digital age.

      "Digital Dilemma"
      "No Hiding Place"
      "Only Disconnect"
      "A Fine Balance"
      "Power to the People"
      "Caught in the Net"
      "Through a Glass Darkly"

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> Internet Law Program in Rio, March 24-28: The Berkman Center and the Getulio Vargas Foundation (FGV) in Brazil are pleased to announce that registration is now open for this spring's Internet Law Program in Rio de Janeiro, Brazil. The two institutions are collaborating for the program's South American debut.

On the agenda: recent reforms in intellectual-property systems, privacy versus security on the Net, the changing shape and role of ICANN, "open" versus "proprietary" software systems, regulating pornography, jurisdictional problems, cybercrime, addressing the digital divide, and more. Simultaneous translations of the presentations into both Portugese and Spanish will be available.

The core faculty are leading experts in the field, including Lawrence Lessig of Stanford, Yochai Benkler of New York University, and William Fisher III, Charles Nesson and Jonathan Zittrain of Harvard. The program will also feature guest lecturers from distinguished institutions in Brazil.

There will be a similar program at Stanford Law School in California June 30-July 4, 2003. It will be presented jointly by the Berkman Center and the Stanford Center for Internet and Society. Further details about this program and registration will be available online beginning March 3, 2003.

Follow the link below for the ILAW program website:


> Berkman Center Welcomes New Fellows: We are proud to welcome two new fellows who are joining us for the spring: Dave Winer and Ethan Zuckerman. "Dave Winer's work in developing open standards for software, promoting the growth of widespread and broadly accessible Web publishing tools and content, and leading the blogging movement is outstanding," said Berkman Center Executive Director John Palfrey. "As founder of Geekcorps, Ethan Zuckerman is highly skilled at bringing spirited, innovative approaches to bridging the digital divide. We are honored to have them with us, and look forward to their efforts here."

***EXTRA: The Berkman Center invites Boston-area weblog writers to attend a meeting moderated by Berkman Fellow Dave Winer to discuss how weblogs can be useful for various projects at Harvard and in education generally. Free and open to the public, the meeting will take place at 6:30 p.m. on Tuesday, February 11, at Lewis International Law Center, room 301, here on the Harvard Law School campus. Follow the link below for a campus map. We hope you can join us.


> Palfrey, Seltzer, Zittrain to Teach Internet Law at CFP 2003: Berkman Center Executive Director John Palfrey, Berkman Fellow and EFF Staff Attorney Wendy Seltzer and Berkman Faculty Co-Director Jonathan Zittrain are gearing up to teach CLE tutorials at the 13th Annual Conference on Computers, Freedom and Privacy on April 1-4 in New York City, NY. Palfrey will teach a session on speech problems in cyberspace, with Seltzer joining him to discuss the Chilling Effects Clearinghouse. Zittrain, who serves as a member of the CFP program committee, will lead a tutorial on music and the Internet. Further details about the conference, including how to register, are available at the link below.


***EXTRA: The Berkman Center is sponsoring a new study group for Harvard Law School and affiliated students, co-taught by Palfrey and Zittrain. The study group will explore civil liberties in cyberspace; details are available online.

> "The Whole Wide World" from Public Radio International: We live in a single, shrinking stewpot of climate, viruses, medicine, money, terror, TV images and instant Internet connections. "The Whole Wide World" is a new radio program that asks you to help sort the trends that could kill us from the ones that could make us stronger, even wiser.

A collaboration of Lydon, McGrath Inc. and the Berkman Center in association with WGBH Radio Boston, "The Whole Wide World" is hosted by Berkman Fellow Christopher Lydon and will be distributed nationally by Public Radio International. Further details on the series are available at the below link:


> Upcoming BOLD Series—"Development and the Internet": Much is being done around the world to influence information infrastructures and environments. Development initiatives are driven by the desire to ensure that more of our fellow human beings will be positioned to reap the benefits of powerful network technologies.

What are these initiatives? How do they influence the information environments? What are the hard decisions that need to be made? What do decision-makers need to know to make them?

To learn more and to share in the experiences of those working on, and/or interested in, the issues of information technologies and development, join us for our new Berkman Online Lecture and Discussion (BOLD) series, "Development and the Internet," which will take place in mid-to-late spring 2003. Details, including dates, times, and how to register, will soon be available; sign up at the URL below to receive email notification.


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* "How to Win (DMCA) Exemptions and Influence Policy--the Sequel"


The second in a series of useful guides to participating effectively in the rulemaking by the Library of Congress on exemptions from the anticircumvention provisions in the Digital Millennium Copyright Act.

* Brewster Kahle: "Public Access to Digital Materials"


Link to the archived webcast of a recent Library of Congress speech by Brewster Kahle, co-founder and director of the Internet Archive.

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"What is fair use? Fair use is not a law. There's nothing in law."

—Jack Valenti, president of the Motion Picture Association of America, responding to a question about whether MPAA-backed bills such as the Consumer Broadband and Digital Television Promotion Act (CBDTPA) threaten consumers' fair use rights.


"With copyright legislation such as the DMCA, '[t]he wisdom of Congress' action...is not within [the Court's] province to second guess.' Eldred v. Ashcroft, slip op. at 32."

—Excerpt from a court order granting the Recording Industry Association of America (RIAA) a subpoena to identity a Verizon customer suspected of using KaZaA to swap copyrighted music files.

      http://shorl.com/denakofrutora [PDF file, EFF]

      http://shorl.com/denakofrutora [Washington Post]

"I have reviewed all the US privacy laws. I helped write some of them. But I have never seen any provision like this. There is no due process under this provision before a person's identity is revealed. There is no judicial supervision."

—Peter Swire, former Chief Counselor for Privacy in the US Office of Management and Budget, in a statement supporting Verizon in its motion for stay of the court order.



"As we go to an appliance model, it's much, much easier to control users' behaviors. I think we may look back and see the PC as an anomaly—how strange to run anything ending in '.exe.'"

—Berkman Center Faculty Co-Director Jonathan Zittrain, anticipating the loss of the general purpose computer in the face of the content industry's push for legally mandated digital rights managment (DRM) technologies and the growing popularity of digital "appliances" like TiVo.


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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