<-- The Filter --> April 2003

April 28, 2003
No. 5.8  .  The Filter  .  04.28.03

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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> Grokster and StreamCast's Morpheus—Betamaxed: In a ruling that some experts worry could turn out to be a double-edged sword, a federal judge in Los Angeles on Friday found Grokster and StreamCast Networks not liable for copyright infringement by users of the companies' peer-to-peer (P2P) file-sharing software. Citing the Sony Betamax and Napster decisions, Judge Stephen Wilson found that Grokster and StreamCast do not meet the legal threshold for liability for contributory or vicarious infringement, and further, "are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."






Reaction to the ruling among fair use advocates has been split between euphoria and caution. On the one hand, said the Electronic Frontier Foundation's Fred von Lohmann, "someone in a black robe" has acknowledged that "[when] you make a piece of software and distribute it to the world, and...have no ability to control what people do with it, you are in the same shoes as those who manufacture photocopiers and VCRs." On the other hand, however, concerns remain. Not only will the decision immediately be appealed, but the ruling contains language that can be construed as a plea for additional legislative "guidance" from Congress.

"...Plaintiffs invite this Court to expand existing copyright law beyond its well-drawn boundaries. As the Supreme Court has observed, courts must tread lightly in circumstances such as these," wrote Judge Wilson. "In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never calculated such a calculus of interests."

"Unless this decision is overturned quickly on appeal, the P2P policy battle will now move to Washington," wrote Princeton computer science professor Edward Felten in his weblog. "Having lost in the Courts, the content industry will take the judge's hint and lobby Congress to pass legislation changing the rules. My prediction is that we'll see a bill circulated that creates an affirmative responsibility to design products that make infringement as difficult as possible."



> Target Practice: The Grokster/StreamCast decision comes on the heels of a ruling in RIAA v. Verizon, in which a US District Court in Washington, D.C. held that Verizon must reveal the identities of subscribers whom the Recording Industry Association of America alleges is using KaZaA file-sharing software to swap copyrighted material. Intellectual property attorney Mark Radcliffe suggests that the two decisions in tandem could presage a shift in the RIAA's strategy for combating online piracy. "The obvious alternative [to targeting P2P software providers] is what the record companies have begun to do: Go after the worst traders," Radcliffe told CNET.

According to Berkman Fellow and EFF Staff Attorney Wendy Seltzer, this spells trouble for people who use P2P file-sharing software. "[Yesterday's] ruling against Verizon...gave copyright holders broad leeway to flood ISPs with demands for the identities of alleged copyright infringers," wrote Seltzer in her weblog. "That decision... [compromises users'] privacy and anonymity on the mere rubber-stamped say-so of any copyright claimant."





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As reported in Filter 5.5, the High Court of Australia ruled this past December that US-based publisher Dow Jones & Co. could be sued for libel in an Australian court over an article published on the Internet. Now, Bill Alpert, the reporter who wrote the article in question, has reportedly filed a writ with the UN Human Rights Commission claiming that he has been denied the right of free speech.

What are the arguments for global versus local rules regarding speech on the Internet? And how are tricky jurisdictional questions like those encountered in the Dow Jones case playing out in the courts?

Below, we feature a Cato Institute working paper by Berkman Center Faculty Co-Director Jonathan Zittrain exploring how "localization" technologies are allowing governments to shape the Internet according to local rules, and what effect this may have on Internet communications as a whole.

      "Be Careful What You Ask For: Reconciling a Global Internet and Local Law"

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> OSCOM '03—CMS: Authoring, Syndication & the Semantic Web, May 28-30: The Berkman Center is proud to sponsor this year's OSCOM conference, featuring keynotes by Dave Winer and John Udell as well as presentations by Wendy Seltzer among others.

Among the questions we'll be exploring: What are the hazards and opportunities of open source software licenses? How is open source CMS working within universities? Is it possible to make money with open source software?

Follow the link below for further details, including how to register online:


> Christopher Lydon Live on Public Radio International—and Online: Berkman Fellow Christopher Lydon, founding host of the popular WGBH/NPR radio show "The Connection," held a live call-in radio show on Sunday night, the seventh and final show of the series, "The Whole Wide World with Christopher Lydon."

The program, which featured Niall Ferguson, Amy Chua and Arundhati Roy, brought a whole new twist to the traditional call-in talk show: it offered an online component, including a discussion forum and a weblog with "producer's notes." Says Lydon, a veteran journalist and talk show host but a newcomer to weblogs, "I want to find out what 'Blog World' has to say about radio, and on the radio."

Follow the link below to learn more & listen to show:


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* 05/01/03 @ 7:00 p.m., Boston Public Library, Boston, MA--"Freedom of Expression in the Digital Age: Reading, Writing and Expression" (Words on Fire)


* 05/06/03 @ 5:00 p.m., MIT's Wong Auditorium, Cambridge, MA--"New Threats to Freedom & Privacy Online" (MIT Technology & Culture Forum)


* 05/28/03-05/30/03, Cambridge, MA--"Third Open Source Content Management Conference" (OSCOM)


* 06/30/03-07/04/03, Stanford, CA--"Internet Law Program" (Berkman Center for Internet & Society, Stanford Center for Internet and Society)


* 05/28/03-05/30/03, Oxford, UK--"Oxford Internet Institute Summer Doctoral Program" (OII, Annenberg School of Communication, Berkman Center for Internet & Society)


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* State Super-DMCA Bills and Laws


Edward Felten's web page tracking the status of so-called Super-DMCA legislation in states across the nation.

* State-level Super-DMCA Archive


The Electronic Frontier Foundation's web page providing guidelines for taking action on the legislation.

* Transcripts from the Copyright Office's April 11 hearing on DMCA rulemaking


* O'Reilly Emerging Technology Conference


A compilation of press coverage, weblog commentary and other good stuff from O'Reilly's latest Emerging Technology conference.

* Computers, Freedom & Privacy 2003


Audio archive of the 13th annual CFP conference, including the closing keynote by Lawrence Lessig.

* The Second Superpower


Berkman Fellow Jim Moore's essay on the "emerging second superpower" comprised of "a surprisingly agile and muscular body of citizen activists who identify their interests with world society as a whole—and who recognize that at a fundamental level we are all one."

* Copyright and Fair Use: Current and Future Prospects


Webcast archive of a symposium on fair use in the digital age, presented by the Harvard Journal of Law & Technology. Features presentations by Gigi Sohn, Siva Vaidhyanathan, Jonathan Zittrain and others.

* Digital-copyright


Top-notch email list-serve that focuses on issues related to copyright, intellectual property rights, and public access to information in the digital age.

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"Are you making it illegal for me to tape the Tennessee-Florida game?"

—State Representative Frank Buck (D-Smithville) to State Representative Rob Briley (D-Nashville), who introduced Super-DMCA legislation in the state House in Tennessee.


"My thoughts:

1) We were present in mass and it made an impression.
2) The senators expressed a lack of understanding the problem.
3) The senators expressed a desire to understand the problem.
4) They were currently relying on a cable company representative to interpret the bill for them.
5) We were disorganized and needed better preparation.
6) We basically won an extension.
Good job, pat on the back. Now get ready for the next round..."

—Excerpt from notes taken by an attendee at a Tennessee Senate Judiciary Meeting on its version of the legislation.


"Concealing the existence of communication is my dissertation, and concealing the source of communication takes place in honey nets. So I decided to be proactive about it and move it to another location, and for now just deny anybody from the states to download any of my software."

—Niels Provos, a University of Michigan graduate student who, fearing liability under Michigan Super-DMCA legislation, reportedly removed research papers and software from his home page and relocated them to a server in the Netherlands.


"Please, ask yourselves: who wants this bill? The only person who showed up here today to support this bill has a narrow special interest. The people who showed up in opposition are your constituents, people who live and work in this state.

We must also see this bill in its proper national context. This bill is a part of a concerted national special interest campaign...In response to Representative Linsky's good question, the representative of the MPAA here today couldn't even say whether the law is redundant when compared to the state's larceny statutes. This bill was not written for this state and it should not be enacted in this state."

—Berkman Center Executive Director John Palfrey, testifying against the Super-DMCA legislation proposed in Massachusetts.


"When you've got Verizon, the American Electronics Association, Harvard Law School and the ponytail gang all against you, then you've got a problem."

—An onlooker at the hearing.


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

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Last updated

January 15, 2008