<-- The Filter --> November 2003

November 14, 2003
[1] In the News: Your Comments Wanted on SCO/IBM
[2] Dispatches: Global Attention Profiles
[3] Berkman News: Digital Media Project Launches
[4] Conference Watch: Geneva in December
[5] Bookmarks: Watch and Listen
[6] Quotables: But Seriously Folks
[7] Talk Back
[8] Subscription Info
[9] About us
[10] Not a Copyright


                [1]  IN THE NEWS



Case in Point is a new feature that will focus on a particular case of significance, track its progress, and ask Filter readers for their input on some of the important issues it raises.

The first Case in Point is Caldera v. IBM, also called the case against open-source.

Caldera Systems (SCO) sued IBM in a Utah state court.  The complaint alleges that the open-source operating system, LINUX, contains portions of UNIX proprietary code to which SCO has taken title.

SCO claims that IBM:

·     misappropriated SCO trade secrets that were contained in OpenServer and UnixWare and used them to promote sales for LINUX,

·     engaged in unfair trade practices by using this information to damage the market for UNIX,

·     used deceptive practices by misleading SCO at to IBM’s true intention to abandoned a joint UNIX software development project,

·     interfered with the contracts that SCO had with its UNIX clients by inducing them to switch to LINUX, and

·     breached obligations of confidentiality by distributing copies of UNIX to the public under an open-source licensing scheme.

As evidence of these claims, SCO alleges that it would have been far too time-consuming and expensive to independently develop an Intel-based UNIX flavor as quickly as LINUX appeared on the market.

See the complaint and attachments at


Some press coverage of the case is at



Some discussion forums looking at the case are



Before we look at IBM’s response, let’s consider the complaint.  It doesn’t refer to any copyright at all.  All of the claims are based on breach of contract and unfair trade practices.

Discussion Question:  If you are distributing software world wide and losing sales to a competing product that you believe incorporates your technology, what are the advantages of abandoning/postponing copyright claims in favor of breach of contract/unfair trade practices?  Does the answer differ depending on your jurisdiction?

If you are interested in commenting on this question, please go to H2O at <http://h2o.law.harvard.edu/ViewProject.do?projectID=166> and register for the SCO-IBM project.

The discussion will begin in one week.  Results will be reported in the next Filter issue.


* Rage Against the (Voting) Machine

In perhaps the most unexpected invocation of the Digital Millennium Copyright Act (DMCA) to date, Diebold Systems, Inc., has issued cease and desist letters and threatened legal action against ISPs and private parties over the posting of thousands of pages of Diebold's internal communication on the internet. Diebold, a prominent manufacturer of electronic voting machines in the United States, claims that these documents -- which were apparently gathered by a hacker and reveal serious security vulnerabilities in both the voting equipment and the entire corporate entity -- are private intellectual property, thereby placing those who host the documents in the same category as those who share copyrighted music online. Diebold has issued several legal threats against Internet Service Providers across the country; since several of the individuals hosting these documents are students, Diebold has sent legal notices to colleges and universities (in their capacity as ISPs), demanding that the copyrighted material be removed. Depending on the particulars of any college's DMCA violation policy, the penalties for the students hosting the materials could be severe.

The Electronic Frontier Foundation (EFF) is fighting back, arguing that Diebold is trying to suppress information crucial to the entire American electoral process. EFF Attorney Wendy Seltzer states her organization's position: "Diebold must not be permitted to use unfounded copyright claims to stifle public debate of the accuracy of electronic voting machines." In conjunction with the Center for Internet and Society Cyberlaw Clinic at Stanford Law School and the Online Policy Group (OPG), the EFF has filed suit against Diebold for harassment, arguing that the DMCA is being used here in bad faith, and that the posting of the documents should be considered fair use.

Thus far, the EFF has been successful in its motion for an accelerated schedule for legal proceedings. The first court date for OPG v. Diebold is set for November 17th in the federal district court in San Jose, CA.

For more information on the history of the Diebold case, please see:


For more information about the documents in question, please see:
<http://www.copyfight.org/20031101.shtml - 59578>

* DMCA Exemptions Spark Debate

Public interest groups attained a small victory but a far larger defeat in the recent Digital Millennium Copyright Act (DMCA) exemption rulings.  Every three years, the Librarian of Congress and the Copyright Office review the DMCA's prohibitions against bypassing measures that control access to copyrighted works.  Citing insufficient evidence, the Office's first recommendation in October 2000 skirted arguments that access controls impair fair use, competition, and free speech.  With increased distribution of protected works causing more widespread harm, public interest groups hoped for exemptions that would, for example, enable consumers to make back-up copies of DVDs, move eBooks to devices of an owner's choosing, and access public domain materials.

The Office recommended only two new, narrow exemptions for computer programs and video games in obsolete formats as well as eBooks that disabled persons cannot use.  The Office also maintained existing exemptions for malfunctioning hardware-based controls and research related to Internet filtering lists.  Throughout its analysis, the Office dismissed several fair use arguments and claimed that many requested changes were beyond its power.  Given the opinion's tone and substance, it seems unlikely that the exemption process will become an effective way to carve out substantial exemptions that are in the public interest.

Determination of Librarian of Congress and Text of the Regulation:
Recommendation of Register of Copyrights:

Petitions for Exemptions to Copyright Office:

Electronic Frontier Foundation's response to ruling:

Ernest Miller's links to news and commentary:

Donna Wentworth discusses ruling's possible impact on printer cartridge manufacturer:
<http://www.copyfight.org/20031001.shtml - 58104>

Seth Finkelstein declares personal victory:

DVD copying software creator to appeal ruling:


                     [2] DISPATCHES


Why is there more news coverage of Norway than Nigeria?  In his Global Attention Profiles white paper, Berkman Fellow Ethan Zuckerman explores how media pays attention to nations.

Collected by submitting Boolean inquiries to the search engines of major media outlets, the GAP data shows that the Gross Domestic Product of a country is closer to proportional with the amount of media coverage it receives than is the population of that country.  Zuckerman will now also look at mentions of countries in weblogs to compare the pattern - is the blogosphere more democratic in practice as well as in theory?

To read Zuckerman's thoughts on the project:

To read the Global Attention Profiles paper:


                   [3] BERKMAN NEWS


* Digital Media Project Launches with $600K Grant from MacArthur Foundation:

The project will continue to be focused on analysis of five possible future scenarios for digital media. Newly expanded areas of analysis will include more in-depth economic and business modeling, as well as continued legal analysis and consideration of consumer perception and behavior data.


* BOLD Series on CyberPrivacy Underway:

More than 250 participants from across the globe are discussing the latest on privacy in cyberspace with Professor John Nockleby of Loyola Law School.  This series is the first to be entirely hosted on H2O.


* Berkman Center Welcomes New Fellow Michael Best:

Best, also a visiting assistant professor at Georgia Tech, will focus on the use of computers and communication in social and economic development.



                   [4] CONFERENCE WATCH



* December 4-5, 2003, Technical University of Denmark--Copyright and Software Patents: Open vs. Proprietary Development Paths


* December 8-9, 2003, Geneva--Monitoring the Information Society: Data, Measurement and Methods


* December 10-12, 2003, Geneva--WSIS: The World Summit on the Information Society, First Phase


                   [5]  BOOKMARKS


* Yossi Vardi – The Edge Against the Hub: The Struggle for Dominance on the Internet
Audio of his lecture at Harvard Law School

* Professor William Fisher – The Disaggregation of Intellectual Property
Video of his lecture as he accepted the Hale and Dorr Intellectual Property Chair at Harvard Law School

* Digital Rights Management and the Breakdown of Social Norms
Article from First Monday on DRM technologies and the “balance between the rights of ‘creators’ and the interests of users.”

* ICANN Carthage Video
Video archive of the October ICANN meeting in Tunisia.

                    [6]  QUOTABLES


"We called their bluff because we didn't think Rupert Murdoch would pay for Fox to sue itself.”

–     Matt Groening, the creator of the Simpsons, on threats by Fox News to sue over parody


“You don't have to trust us, because we'll never know who you are.”

-     Creators of Invisiblog, on their lack of need for a privacy policy


                 [7]  TALK BACK


We are thinking about how we might adjust the Filter's format and
content.  Your ideas and suggestions would be greatly appreciated.
Please send them to mailto:filter-editor@cyber.harvard.edu

                 [8]  SUBSCRIPTION INFO


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                 [9]  ABOUT US


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                 [10]  NOT A COPYRIGHT


A publication of the Berkman Center for Internet & Society at Harvard Law School <http://cyber.harvard.edu/> You may--and please do--forward or copy this newsletter to friends and colleagues

Last updated

January 15, 2008