<-- The Filter --> June 2003

June 24, 2003
No. 5.9  .  The Filter  .  06.24.03

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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> Supreme Court OKs Mandated Filtering in Libraries: The US Supreme Court ruled 6-3 on Monday to uphold the Children's Internet Protection Act (CIPA), reversing a lower court's unanimous finding that the act is facially invalid under the First Amendment. CIPA, which requires federally funded libraries to install filtering software in their computer systems or lose government funding, was challenged by the American Library Association, the ACLU and others who argued that filtering software inevitably blocks constitutionally protected speech. In ruling to uphold the act, the Court found that "[c]oncerns over filtering software's tendency to erroneously 'overblock' access to constitutionally protected speech...are dispelled by the ease with which patrons may have the filtering software disabled."

While the ACLU issued a press statement asserting that the ruling has a "silver lining" because "the Justices essentially rewrote the law to minimize its effect on adult library patrons," Justice David Souter argued in his dissenting opinion that the fact that adult patrons can request that librarians turn off filtering software does little to ameliorate CIPA's harmful effects. "First, the statute says only that a library 'may' unblock, not that it must...In addition, it allows unblocking only for a 'bona fide research or other lawful purposes,'" wrote Justice Souter. "There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not."






***EXTRA: As this issue of The Filter was prepared for release, the Electronic Frontier Foundation (EFF) and the Online Policy Group (OPG) released a joint report to "[measure] the extent to which blocking software impedes the educational process by restricting access to web pages relevant to the required curriculum."

> ...and Rules for the Public Domain in Dastar: The US Supreme Court ruled June 2 in Dastar v. Twentieth Century Fox Film Corp., finding 8-0 that once a work's copyright expires, it passes into the public domain and trademark law cannot prevent its free and un-attributed use. "[We] don't think the Lanham Act requires the search for the Nile and all its tributaries," said Justice Antonin Scalia from the bench.


Fox, having failed to renew the copyright to produce a television series based on war memoirs by then-General Dwight D. Eisenhower, brought suit against Dastar, a production company that modified and repackaged the Fox-authorized series, selling it under its own name. Unable to assert copyright, Fox turned to trademark and other claims--a strategy that succeeded in lower courts but failed before the Supreme Court. Distinguishing between copyright and trademark law, the Court reasoned that trademark law protects consumers, not authors. "The Lanham Act should not be stretched to cover matters that are typically of no consequence to consumers," wrote Justice Scalia in the opinion. To do so would be to "create a species of mutant copyright law" and a "perpetual patent and copyright," in conflict with the Constitution's requirement that copyright be for "limited times" only.

"[The] reasoning of the court is extremely helpful to supporters of balanced intellectual property laws," said Jonathan Band, attorney for the Association of Research Libraries, which signed an amicus brief in the case.


While Dastar has been cleared under the Lanham Act, the Court's decision sends the case back for a rehearing. "Had Fox renewed the copyright in the Crusade television series, it would have had an easy claim of copyright infringement," wrote Justice Scalia. "[Respondents'] contention that 'Campaigns' infringes Doubleday's copyright in General Eisenhower's book is still a live question on remand."



**EXTRA: In a FindLaw piece on the Dastar ruling, UC Davis law professor Madhavi Sunder points out that copyright law has changed considerably since Fox made the mistake of allowing its copyright to expire. "In the past, property holders had to take affirmative steps to renew copyright," writes Professor Sunder. Currently, however, "the copyright term is automatic; copyrights need not be renewed."


Now, Stanford law professor Lawrence Lessig has launched a campaign to persuade Congress to consider "The Public Domain Enhancement Act" (a.k.a. "The Eldred Act"). The proposed act would effectively reinstate the renewal requirement.

"Now that we have the Internet, we can imagine taking an extraordinary amount of knowledge and culture and making it available...so that it can be provided for free to schools, to libraries, to other creators," said Professor Lessig to CNET. "This is a possibility that didn't exist when Congress originally abolished the requirement that you had to renew your copyright, in 1976. They did that because they thought it was an unnecessary burden, and there was not so much benefit in letting work pass into the public domain...[We] want Congress to reconsider what they've done in light of the potential that the Internet creates."

Follow the links below for a synopsis of the proposed act, the petition itself, press coverage and weblog commentary.





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> Reed Hundt @ ILAW Stanford: Former FCC Chairman Reed Hundt will be among the guest lecturers at this summer's Internet Law Program, to be held June 30-July 4 at the Stanford University campus. Also joining us will be Intel Director Emeritus Les Vadasz, Cisco General Counsel Mark Chandler, EFF Senior Staff Attorney Fred von Lohmann, Creative Commons Executive Director Glenn Brown, Berkman Affiliate Alex Macgillivray of Google and Berkman Fellow and EFF Staff Attorney Wendy Seltzer.

The core faculty members teaching the program are Yochai Benkler of Yale, Lawrence Lessig of Stanford, and William Fisher, Charles Nesson and Jonathan Zittrain of Harvard.

Details and registration are available.

***EXTRA:The Berkman Center's Donna Wentworth will be providing live notes and commentary on the program as it unfolds. To access the notes, tune in June 30-July 4 to the Berkman Center website.

> Andrew McLaughlin's Mongolia Diary: Senior Fellow Andrew McLaughlin recently published a weeklong diary for Slate about his work on Internet and technology policy issues with Geekcorps in Mongolia. "Ultimately, it's not a battle between Internet and telecom inside Mongolia," writes McLaughlin, referring to Mongolia's burdensome telecom regulation, "it's a battle between Mongolia and China, South Korea, Norway, Bolivia, and, well, everyone else in the world."


> Weblogs Get Busy: JupiterMedia convened a conference June 9-10 to examine "Weblog Business Strategies," bringing together weblog pioneers, practitioners and "newbies" for a lively--and often heated--discussion about the next step for weblogs. A number of Berkman affiliates participated, including John Palfrey, Dave Winer, Christopher Lydon and Donna Wentworth.

Follow the links below for a compilation of notes taken by weblog writers at the conference, plus a link to the BloggerCon weblog, created to track discussion and planning leading up to the Berkman Center's forthcoming BloggerCon conference on October 4.



> OSCOM 3 @ Berkman: The Berkman Center was the proud host and sponsor this year of OSCOM 3, a three-day conference to explore new possibilities for open source software, syndication and the semantic Web.

Below, a small sampling of conference coverage, including the conference syllabus, which provides links to weblog commentary tagged to the conference sessions:




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* 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)


* 10/04/03, Cambridge, MA--"BloggerCon" (Berkman Center for Internet & Society) Details TBA; see conference weblog.

* Date TBD--"Privacy, Cybersecurity & Disclosure" (Stanford Center for Internet and Society)


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* Petition to Reclaim the Public Domain


Petition seeking to garner support for "The Public Domain Enhancement Act," which proposes that copyright holders either pay a nominal fee and register a copyrighted work fifty years after it is published, or allow the work to pass into the public domain.

* Internet Blocking in Public Schools


Report prepared by the EFF and OPG to "[measure] the extent to which blocking software impedes the educational process by restricting access to web pages relevant to the required curriculum."

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"Having to assist patrons with finding things, and having to keep some things behind the desk, and giving people access to them when they want them, is traditional. It's what librarians do."

—David Burt, a former librarian who now works for filtering software provider N2H2, on the Supreme Court's decision in United States v. American Library Association--a.k.a. the "CIPA case."


"The RIAA is the Recording Industry Association of America. It is not the Recording Industry and Artists Association of America. It says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle."

—Stanford law professor Lawrence Lessig, in an online forum in which he and the RIAA's Matt Opennheim answered questions from readers about the legality of downloading, copying and sharing digital music files.


"We live today under two copyright regimes: the law on the one hand and reality as experienced by the public on the other... The Net forces us to confront the contradictions between what the law requires and what individuals do."

—Berkman Center Faculty Co-Director Jonathan Zittrain, in Dan Kennedy's "Privacy: Breaking the Internet Copyright Impasse."


"There's no excuse for anybody violating copyright laws.


If we can find some ways to [stop piracy] short of destroying their machines, I'd like to know what it is. But if that's the only way, then I'm all for destroying their machines."

—Senator Orrin Hatch (R-Utah), arguing a recent hearing in Washington that a legitimate legislative remedy for copyright infringement on the Internet would be to destroy infringers' computers.


"I am very impressed with your website, Senator. However, I'm assuming that you are using Milonic Solutions DHTML menu under the non-commercial license agreement, correct? Have you or any member of your staff notified Milonic Solutions as to your intentions regarding the use of this software as per the license agreement?"

—Laurence Simon of Houston, Texas, who trained his crosshairs on Hatch after discovering that the senator has been using unlicensed software on his official website.



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