<-- The Filter --> December 2003

December 17, 2003
[1] In the News:  I Don't Like Spam!
[2] Dispatches:  You Are the President
[3] Berkman News: ILaw Returns to Cambridge
[4] Conference Watch
[5] Bookmarks: Keep Me Posted
[6] Quotables: The Weather Outside Is Frightful
[7] Talk Back
[8] Subscription Info
[9] About us
[10] Not a Copyright


               [1]  IN THE NEWS

* Diebold Folds!

The stage was set for a Digital Millennium Copyright Act showdown: on one side was Diebold, Inc. – a 145-year-old company and the country’s leading manufacturer of electronic voting machines.  On the other was the Electronic Frontier Foundation (EFF) – a nonprofit coalition of attorneys and volunteers – defending an ISP and two Swarthmore students.

The face-off hinged on 13,000 memos that had been hacked from Diebold’s servers in March, 2003.  This fall, the memos had been circulated to WiredNews and were beginning to circulate among weblog writers.  In particular, two Swarthmore students posted the memos, which revealed problems with Diebold operations ranging from egregious security holes in their software to intentional non-compliance with election regulations.

Diebold responded to the posting of the emails by sending cease-and-desist letters to Swarthmore College, claiming that Diebold had proprietary ownership of the memos and that posting them was a violation of copyright laws.  EFF filed for a declaratory judgment against Diebold to block the company’s cease-and-desist letters, which, according to EFF, had a chilling effect on constitutionally protected political speech.

The two sides met in court on November 14, but before the judge was able to issue a decision, Diebold announced that it was dropping its lawsuit against the students and that it would not send any more DMCA notices about the memos.  The decision was a victory for EFF, but Staff Attorney Wendy Seltzer isn’t entirely satisfied: “We’d still like to have a judge saying that a posting like this is ‘fair use,’” Seltzer explains.  At least for the meantime, it’s Bloggers: 1, Diebold: 0.

Berkman Center briefing on the controversy:

WiredNews coverage:

Diebold’s retraction:

Participants’ commentary and other good links:
<http://www.house.gov/kucinich/issues/voting.htm> (Congressman Kucinich, D-OH, also posted the memos)

While the courtroom debate about Diebold and its memos was unfolding in California, another version of the conflict was taking place here at Harvard University.  Berkman Center affiliate Derek Slater (Harvard College '04), one of the students who posted the Diebold memos, had to make his case to Harvard rather than a California judge that his website did not violate copyright laws. Slater first posted the memos at the end of October as a sign of solidarity with the Swarthmore students.  Four days later, Harvard administrators contacted him to say that his webpage would be taken down.  The school had received a cease-and-desist letter from Diebold indicating that his site contained copyright-protected material, and, incompliance with 15 USC 512(i), the school had removed the offending web address.

To fight the university’s decision, Slater enlisted the help of John Palfrey, the Berkman Center’s Executive Director, the EFF, and other supporters.  After several rounds of negotiations, the team convinced Harvard that the “fair-use” test applied to Slater.  Because he posted the documents as a form of political speech and because the documents were non-commercial in nature, the “fair-use” clause of copyright law protects his actions.

Though Harvard ultimately accepted Slater’s argument, the ordeal indicates the potential misuses of the current copyright system.  As Palfrey explains, “the problem here is that copyright law was not meant to stifle political speech.”  But if the Diebold case is any indicator, application of the law can be a different story.

Media Coverage of the Harvard Story:



* Spam Eggs Spam Spam Bacon and Spam

In an effort to address the epidemic of unsolicited emails that flood mailboxes everywhere, President George W. Bush has now signed into law a bill that outlines specific penalties for bothersome electronic marketing. The "CAN SPAM" Act (S. 877) would codify strict penalties for the purveyors of spam who do not respect a user's requests to stop receiving spam.  The law also requires the FTC to study the possible creation of a "do-not-spam" registry, similar to the popular but controversial "do-not-call" list. While many celebrate the law as a clear stand against frustrating advertising practices, others believe it will do little to reduce inbox clogging.

The federal law, sponsored by Senators Conrad Burns (R-Mont.) and Ron Wyden (D-Ore.), will pre-empt most previously enacted state legislation, including California's controversial opt-in rule, which is slated to take effect on January 1, 2004, which, unlike the federal bill, forbids any unsolicited business email from an unknown party. California is one of 36 states with anti-spam legislation currently on the books.

For more on "Can Spam" legislation at the national level:

To read the full text of the bill:

For more on California's anti-spam law:

To learn what can happen if you violate anti-spam laws:

For more on Monty Python's Spam sketch:


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

The first Case in Point is Caldera v. IBM, also called the case against open-source. The first discussion question asked about possible advantages SCO gained by choosing to sue under state law claims instead of under federal copyright provisions.   Filter readers named several.

--Contract language can be interpreted according to the plain meaning of the language but also according to the way that the parties themselves define the terms.  SCO might be able to argue for a more favorable definition of “derivative work” (in relation to creating modifications) than courts have previously adopted when interpreting that phrase under the Copyright Act, thus freeing SCO from having to show direct copying into the Linux kernel.

--By suing under contract, the case is limited to the small number of parties that signed the agreement itself.  By threatening suit under copyright, hundreds of Linux users might feel threatened since they would be potential targets as well.  These users might seek declaratory judgments of non-infringement in their local courts which could seriously drain the copyright owner’s legal resources.

--The “home court” advantage and lower costs of state proceedings can benefit the plaintiff.

The actual answer may have been much more mundane; according to news reports, SCO simply lacked the documentation which established its title to the copyrights.  Having resolved that matter, SCO announced last week that it was, after all, adding copyright claims to its suit. See

SCO’s CEO, Daryl McBride, has posted an open letter in which he argues that open-source licensing defeats the Constitutional purpose of copyright when it interferes with an author’s right to a monetary reward.  See

Our next Case in Point question will appear in the January edition of Filter.  We hope to hear from you then.

                    [2] DISPATCHES

Technology (and You) in Politics: The latest question in the Internet & Society project in H2O asks you to be President of the United States.  Co-written by Kelly Nuxoll of the Howard Dean Campaign and Berkman Center Senior Fellow Jim Moore, the question supposes that the power has returned to the people through social software and personal interaction, electing you, a President chosen by and for the people of the United States of America.  What would you do next?

This rotisserie is part of an ongoing project which welcomes everyone interested in issues of technology and society.  All are encouraged to join regardless of expertise.

Note: The Berkman Center does not endorse any candidate in the presidential or any other election.  H2O and all other Berkman Center tools are available to all candidates and others who would like to use them.

To register, please go to:

If you are already a participant in the I&S project, the rotisserie is available at:

More about the Dean campaign:

Jim Moore's homepage:

                  [3] BERKMAN NEWS               

* Internet Law Program 2004

The Berkman Center for Internet & Society is pleased to offer the Internet Law Program at Harvard Law School on May 13-15, 2004. This dynamic, innovative three-day seminar will bring together the leading experts in the field with participants from all over the world to explore today's most pressing Internet issues and provoke new ways of thinking about the future of the Internet. The program kicks off with a distance learning component on April 14 to May 5.

The outstanding team of educators includes Larry Lessig of Stanford, Yochai Benkler of Yale, and William Fisher, Charles Nesson and Jonathan Zittrain of Harvard. 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.
The program is intended for a broad audience, and no previous experience with Internet law is necessary. Past participants have included entrepreneurs, policymakers, educators, technology professionals, and journalists who write about technology. American lawyers in some states may be eligible for Continuing Legal Education (CLE) credit.

Register online beginning January 12 at

Questions?  Please contact Robyn Mintz at <mailto:rmintz@cyber.harvard.edu>.

* BlogAfrica

BlogAfrica, a collaboration between Geekcorps, AllAfrica.com, the Berkman Center and others, is intended to bring African and Africa-centric blogs closer to the forefront of the blogosphere. A catalog of these blogs has begun. In coming months, volunteer-led instruction on blogging and free weblog hosting are planned. To get involved or add your Africa-related weblog to the list, please visit the site, or for more information, contact Berkman Fellow Ethan Zuckerman <mailto:ezuckerman@cyber.harvard.edu>.

* Music Co-op – Compulsory or Voluntary?

Thirty-five stakeholders in the future of digital media, ranging from legal scholars to the songwriter for “The Clash,” convened at the Harvard Law School on Friday, December 5 to discuss a bold initiative: creating Alternative Compensation Systems for Digital Media.  Participants were given a challenge – rather than discussing the faults of existing online media distribution systems, they were asked to build an alternative.  It would resemble an entertainment co-op—a system that maximizes public access to creative works and rewards those who produce such work.  For the first half of the conference, discussion centered on building a compulsory system that would redistribute tax revenue to creators based on how often their works were downloaded.  In the afternoon, participants focused on the idea of a voluntary co-op, which would generate funding from subscription fees.  The details of how to formulate such a system may seem overwhelming, but as music piracy continues to increase and the DMCA’s shortcomings become increasingly evident, perhaps policymakers will begin to see that a bold alternative is best possible solution.


                  [4] CONFERENCE WATCH


* January 22, 2004, San Francisco--National "Spam and the Law" Conference: Law, Case Law and Legislation


* May 10-14, 2004, Barcelona--INET/IGC 2004 Strengthening the Net: Building an Open and Trusted Internet

* May 13-15, 2004, Cambridge, MA--Internet Law Program

                  [5]  BOOKMARKS

* Public Participation in ICANN - A Study and A Reponse

* Traceroutes: Stanford Law School Center for Internet and Society Student Weblog

* WSIS: Updates on Progress at the World Summit for the Information Society

* ATAC: Abusable Technologies Awareness Center

                   [6]  QUOTABLES

* Technology for surveillance and data gathering is "becoming more powerful every day," he said. "In the U.S., our response to this has been to bury our heads in the sand and say, 'It'll all work out.'"

--Barry Steinhart of the ACLU, on legislating use of cell phone cameras, in the New York Times


* Happy Holidays!

--From all of us at the Berkman Center


                [7]  TALK BACK

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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