< -- The Filter --> March 2006

March 16, 2006
[0] From the Editor
[1] News
[2] Berkman Updates
[3] Community Talk
[4] Networked: Bookmarks, Webcasts, Podcasts, Tags, and Blogposts
[5] Global Voices: Digital Dose of Global Conversations
[6] Community Links
[7] Upcoming Conferences
[8] Staying Connected
[9] Filter Facts

[0] From the Editor

Last month we introduced Community Talk, a new section that profiles a question you’ve asked alongside an answer by a Berkman fellow or faculty member. This month's featured question, “Why is it OK to tape a song off the radio, but not the same song off a friend’s CD?” comes from Ray M.; Berkman Affiliate Derek Slater provides the answer in section [3]. We’ve also got a new section, [5] Global Voices. Compiled by David Sasaki over at Global Voices, a Berkman Center citizen media project, the monthly digest provides you with links to interesting conversations happening throughout the global blogosphere. As always, please send comments and suggestions to filter@cyber.harvard.edu.
— Amanda Michel

[1] NEWS: a bit of what's going on and where to read more

••• "Waffling Over Fair Use? Deciphering the Entertainment Industry's Stance on Format-Shifting" •••
By Tim Armstrong
Berkman Fellow and Assistant Clinical Program Director

On February 2, 2006, the Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA), Business Software Alliance (BSA), and many other industry groups representing copyright holders submitted comments to the U.S. Copyright Office in connection with the Office’s triennial rulemaking proceeding under the Digital Millennium Copyright Act. The industry group’s submission included the following statement: “Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use.”

What’s striking about the industry groups’ comments is that they appear to some as inconsistent with the industry’s representations during the MGM v. Grokster Supreme Court trial. The counsel for the entertainment industry stated during his oral arguments on March 29, 2005: “The record companies, my clients, have said, for some time now, and it’s been on their website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.” To many, the counsel’s comments suggested the recording industry had conceded that such “format-shifting” of media works was lawful.

Those critical of the inconsistency argue that consumers benefit from clarity regarding the extent of their own rights. The industry’s prior statements supplied such clarity because they were broadly consistent with the industry's historical pattern of behavior in not bringing suit against individual consumers for format-shifting their own CDs. By suggesting that it has refrained from suing consumers as a matter of grace, not because consumers are acting within their legal rights, the industry has clouded the state of law and restored some of the legal uncertainty surrounding personal uses of copyrighted entertainment works.

Read more:
• Tim Armstrong’s blog post: http://blogs.law.harvard.edu/tka/2006/02/16#a78
• Electronic Frontier Foundation commentary: http://www.eff.org/deeplinks/archives/004409.php
• Ars Technica commentary: http://arstechnica.com/news.ars/post/20060215-6190.html

••• Sifry’s Blogosphere Report •••
By Katie Chang
Berkman Intern

David Sifry, the founder and director of the blog search engine Technorati, reported on February 13 that mainstream media giants like the New York Times and CNN continue to receive the most attention online, despite blogs’ growing popularity. According to Sifry’s report, blogs have increased by almost eight million since October 2005 and now total 27.2 million. While eight million represents a substantial increase in the number of blogs, blog growth appears to be slowing. Just last October Sifry recounted that the number of blogs has doubled approximately every five months for the past three years. Also in his report, Sifry called attention to The Magical Middle, those influential blogs linked to by between 20 and 1000 people that function as expert blogs. Despite the fact that blog popularity often appears to be in flux, there is apparently minimal change in rank among the top 100 blogs.

Berkman Fellow David Weinberger (co-Author of "The Cluetrain Manifesto" and "Small Pieces Loosely Joined" and a longtime blogger) interpreted the data as reflecting that, “as more people blog, the sites we all read in common remain the MSM (the mainstream media). But as blogging spreads, interests get more diverse, so there are fewer blogs that we all read.” Weinberger mused that what remains to be seen is whether mainstream media is waiting to be Wikipedia-ed, or if they will transform themselves enough to continue being our common ground.

Learn more:
• David Sifry’s report on the State of the Blogosphere:
• David Weinberger’s observations on Sifrys report: http://www.hyperorg.com/blogger/mtarchive/blogosphere_changes_shape.html

[2] BERKMAN UPDATES: news from in and around the Center

••• Berkman Represented at Congressional Hearings over the Internet and China •••
By Berkman Intern Alex Berengaut

The public debate surrounding American corporate involvement in China’s filtering regime came to a head last month in two open congressional hearings.

John Palfrey (Clinical Professor of Law, Berkman's Executive Director, and a principal investigator of the OpenNet Initiative) testified before the Human Rights Caucus members' briefing, “Human Rights and the Internet — The People's Republic of China”, on February 1. Present at the hearing were representatives of human rights groups including Amnesty International, Reporters Without Borders, and Human Rights Watch. Also testifying was Nart Villeneuve, Director of Technical Research for the OpenNet Initiative and the University of Toronto’s Citizen Lab. The OpenNet Initiative, of which the Berkman Center is a member, has produced reports on the state of Internet filtering in China, Iran, Yemen, Singapore, UAE, Tunisia, Burma, Bahrain, and Saudi Arabia.

On February 15, both Prof. Palfrey and Berkman Fellow Rebecca MacKinnon offered testimony to another Hill hearing, “The Internet in China: A Tool for Freedom or Suppression?” Representatives who called the hearings proposed the Global Online Freedom Act, which takes general measures to promote Internet openness, sets minimum standards for corporate behavior, and establishes a private right of action in U.S. courts for individuals injured by corporate filtering. Among those present at the February 15 hearing were the legal representatives of Google, Yahoo!, Cisco Systems, and Microsoft; they argued that their presence in China was a net benefit to the Chinese people, providing both greater access to information and fora in which people can freely express their views.

In the public debate following the hearings, Palfrey and MacKinnon have argued that the answer may lie in both increased corporate transparency and a brokered approach between America's government and companies.

Read more:
• John Palfrey’s blog (with links to his written testimony): http://blogs.law.harvard.edu/palfrey/
• Rebecca MacKinnon’s reflections on the proposed legislation: http://rconversation.blogs.com/rconversation/2006/03/global_online_f.html
• ONI's report “Internet Filtering in China: 2004-2005”: http:// www.opennetinitiative.net/studies/china/
• Palfrey and MacKinnon's Newsweek op-ed “Censorship Inc.”: http://www.msnbc.msn.com/id/11437139/site/newsweek/

••• Berkman Center Offers Monthly Digital Media in Asia Speaker Series •••

The Digital Media in Asia Project seeks to research and understand how policy makers and entertainment industries in Asia are responding to the internet and the proliferation of new digital technologies. Digital Media in Asia will host monthly webcasts featuring speakers at the forefront of law, policy, and digital entertainment issues in Asia. These webcasts are open to the public.

Last month’s special guest was Michigan State University law professor and internationally renowned Chinese cyberlaw expert Peter Yu. Professor Yu explored the challenges of protecting intellectual property rights in digital media in China and the international implications of a failure to protect content online. In addition, he spoke about the impact of China's Internet regulation and information control policy, as well as its recent accession to the World Trade Organization.

If you would like to join us virtually for the Digital Media in Asia Speaker Series, please email Digital Media in Asia Project co-founders Eric Priest (epriest@law.harvard.edu) or Susie Lindsay (slindsay@law.harvard.edu) for more information.

The Digital Media in Asia blog: http://blogs.law.harvard.edu/dmablog/

••• Center for Citizen Media Launches Speakers Series and Research Initiative •••

Approximately two months ago, Berkman Fellow Dan Gillmor launched the Center for Citizen Media (http://citmedia.org/blog/), a new initiative aimed at helping to enable and encourage grassroots media, especially citizen journalism, at every level. This past month Gillmor launched Berkman's Citizen Media Speaker Series with the talk, “The Rise of Grassroots, Open-Source Journalism, and the Coming Era of the Citizen Activist.” The series focuses on recent developments in grassroots media and why they are so essential to the notion of an informed citizenry.

If you are interested in getting involved with the Center for Citizen Media, please contact Dan Gillmor at dan@gillmor.com.

We will be webcasting and podcasting Gillmor's talks, as well as making them available on AudioBerkman, the Berkman Center's audio archive. To listen in, please check: http://cyber.harvard.edu/audio/archive

Read more:
• CitizenMedia.org: http://citmedia.org/
• Dan Gillmor: http://www.dangillmor.com/about.htm

[3] COMMUNITY TALK: Your questions and comments

How it works: If you've got a question you'd like to ask the Berkman faculty and fellows, or if you've been puzzling over a recent event and would like some clarification, send in your questions to filter@cyber.harvard.edu by March 24. One question will be selected and addressed by Berkman fellows and faculty in the next edition of the Filter.

Featured Question: “Why is it OK to tape a song off the radio, but not the same song off a friend’s CD? Why is it ok to videotape a movie, but not to copy the movie from a friend or relative?” — Ray. M

Answer by Derek Slater, Berkman Affiliate: “Unfortunately, the Copyright Act doesn't provide any easy answer to these questions. Though copyright holders are granted certain exclusive rights to their works, those rights are not absolute. One important exception is called ‘fair use’. Courts determine fair use on a case-by-case basis, evaluating the purpose and character of the use, the nature of the work used, the amount used, and the effect on the market for the work. There’s no hard and fast rule for how these factors should be applied.

“In 1984, the Supreme Court ruled in Sony v. Universal that recording a TV program to watch it once (‘time-shifting’) is lawful. Because time-shifting is non-commercial, socially beneficial, and unlikely to harm the market for copyrighted works, it constitutes ‘fair use’. The Court’s arguments can reasonably be applied to recording for personal use from the radio as well. Notably, the Court’s analysis did not consider recording a program and keeping it permanently (‘librarying’).

“What about copying a song or movie from a friend or relative’s CD or DVD? Again, without assessing particular circumstances, it's hard to say definitively whether such copying would be lawful or not, but most copyright owners take the position that it is illegal under most circumstances. For example, in Napster, the 9th Circuit Court of Appeals held that sharing music on P2P networks is not fair use because it substituted for purchases of works. In addition to fair use, various other exceptions might in some circumstances allow copying. For instance, recording off the radio using certain devices is lawful under the Audio Home Recording Act.”

To learn more about copyright and fair use, check out http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

Links to Berkman conversations happening online

• Digital Media •

PRESENTATION: “The Future Digital Economy: Digital Content- Creation, Distribution, and Access,” Prof. Terry Fisher http://www.oecd.org/dataoecd/16/44/36138608.pdf

BLOGPOST: RIAA: We Never Conceded CD Format-Shifting Was a Noninfringing Use, Timothy K. Armstrong http://blogs.law.harvard.edu/tka/2006/02/16#a78

• Internet Governance •

ARTICLE: “Searches and Seizures in a Networked World”, Prof. Jonathan Zittrain http://www.harvardlawreview.org/forum/issues/119/dec05/zittrain05.shtml

BLOGPOST: “China’s New Domain Names: Lost in Translation”, Rebecca MacKinnon

BLOGPOST: “So where do I register ethanzuckerman.???” Ethan Zuckerman

• Citizen Media •

BLOGPOST: “Is it Journalism? Does it pretend to be?” Dan Gillmor

AUDIO BERKMAN PODCAST: “Brad Patrick (Wikipedia Counsel) on Wikipedia”, Berkman Luncheon Series http://cyber.harvard.edu/home/uploads/12/38/brad_patrick.mp3

• The Internet and Politics •

WRITTEN TESTIMONY: Testimony to the US House of Representatives on International Relations, Prof. John Palfrey

OP-ED: “Technology and Censorship, Inc.” Prof. John Palfrey and Rebecca MacKinnon, Newsweek http://www.msnbc.msn.com/id/11437139/site/newsweek/

BLOGPOST: “Global Online Freedom Act of 2006: The Evil is in the Details”, Prof. Urs Gasser http://blogs.law.harvard.edu/ugasser/2006/02/16#a662

AUDIO BERKMAN EVENT: The Sunlight Foundation launches new program to promote greater examination of Congress. http://cyber.harvard.edu/audio/home?wid=12&func=viewSubmission&sid=23

[5] Global Voices:
Digital Dose of Global Conversations

Global Voices, a non-profit global citizens’ media project, is sponsored by and was launched from the Berkman Center by Berkman Fellows Rebecca MacKinnon and Ethan Zuckerman. David Sasaki, Global Voices Americas Regional Editor, put together the monthly digest below, a collection of links to the most interesting conversations happening in the global blogosphere. Please check out Global Voices at http://www.globalvoicesonline.org

In a development that surprised just about everyone, Bolivians went to the polls last month in strong support of leftist former coca grower Evo Morales and elected him president in the first round of elections. The rapid change of administration and social policy has left Bolivian bloggers with much fodder to discuss and debate. Whether it's the legitimization of coca growing, the nationalization of hydrocarbons, or the development of oil reserves, they want their opinions heard.

For more on Bolivian bloggers’ political punditry, see Eduardo Arcos’ excellent summary of Morales’ first week in office: http://cyber.harvard.edu/globalvoices/2006/02/01/the-week-that-was- bolivian-blogs-14/

The Danish cartoon controversy incited tragic violence and finger–pointing across the globe, but it also inspired a much-needed cultural exchange online. Global Voices contributors from around the world worked extra hard to cover the conversations from their respective countries and, although anger did at times flare up, the overwhelming conclusion of the dialogue was a call for respect, tolerance, and non-violence.

For more on the global reaction to the Danish cartoons see:
• Arab: http://cyber.harvard.edu/globalvoices/2006/02/05/burning- butter/
• South Asia: http://cyber.harvard.edu/globalvoices/2006/02/03/ south-asia-reacting-to-the-danish-cartoons-controversy/
• Jordan: http://cyber.harvard.edu/globalvoices/2006/02/07/the- jordanian-blogosphere-reacts-to-the-danish-cartoons/
• Morocco: http://cyber.harvard.edu/globalvoices/2006/02/08/the- danish-cartoons-dominate-the-moroccan-blogs/
• Iran: http://cyber.harvard.edu/globalvoices/2006/02/08/cartoons- of-prophet-nuclear-crisis/
• Pakistan: http://www.globalvoicesonline.org/2006/02/20/pakistan-blog- o-tracking/

While bloggers in the United States reacted strongly and swiftly to news that Google would be censoring search results in China, their Chinese counterparts barely mentioned the news at all. Rather, it seems, they were engrossed in a celebrity scandal that has come to be called, “the steamed bun lawsuit,” where one celebrated director is suing another for parodying his work. Tian Yi gives context to the lawsuit and offers his own analysis of why a celebrity court case is receiving more attention among Chinese bloggers than internet censorship.

For more on the steamed bun controversy, check out Tian Yi’s coverage: http://www.globalvoicesonline.org/2006/02/20/all-quiet-on- the-chinese-front/

It’s Carnival time around much of the world and Trinidad and Tobago contributor Nicholas Laughlin has an outstanding and lively summary of what his country's bloggers have to say about the festivities. Beginning with critiques of the event’s growing commercialism and the wearied reactions by some bloggers who say the quality of music is lessened with each passing year, Laughlin explains how one man’s involvement sparked excitement across the island.

For more description and photos of Trinidad and Tobago’s Carnival, see Laughlin’s summary: http://www.globalvoicesonline.org/2006/02/24/the-web-make-to-blog-on-car...

Featuring our friends and affiliates

Electronic Frontier Foundation, Press Room: “Google Copies Your Hard Drive - Government Smiles in Anticipation” http://www.eff.org/news/archives/2006_02.php#004400

Electronic Frontier Foundation, Deep Links: “A Code of Conduct for Internet Companies in Authoritarian Regimes” http://www.eff.org/deeplinks/archives/004410.php

Center for Social Media: “Future of Public Media” http://www.centerforsocialmedia.org/future.htm

Public Knowledge: “Public Knowledge Senate Testimony Links National Video Franchise with Net Neutrality” http://www.publicknowledge.org/pressroom/releases/pressrelease.2006-02-1...

Creative Commons: “Second Life” http://creativecommons.org/video/secondlife

Benjamin Walker’s Theory of Everything: “TOE returns with its first alt.npr weekly podcast” http://www.toeradio.org/archives/2006/02/toe_returns_wit.html

Free Expression Policy Project: “Reclaiming the First Amendment” http://www.fepproject.org/fepp/hofstra.CallPapers.pdf

Center for Democracy and Technology: “Updating Privacy Protections to Keep Pace with Technology” http://www.cdt.org/publications/digital-search-and-seizure.pdf

Harvard Journal of Law & Technology: “Beyond Network Neutrality” by Christopher S. Yoo http://jolt.law.harvard.edu/articles/pdf/v19/19HarvJLTech001.pdf


••• If you know of a conference that should be included in this section, please email a URL, conference name, and date to filter@cyber.harvard.edu. •••

Upcoming Berkman Conferences:

• March 30 is the deadline to submit a proposal to Wikimania ’06, to be held August 4-6 in Cambridge, Massachusetts: http://cfp.wikimania.wikimedia.org/

• Freedom 2 Connect, April 3-4 http://pulver.com/f2c

• “Beyond Broadcast: Reinventing Public Media in a Participatory Culture” will be held May 12–13 in Cambridge, Massachusetts. Get involved on the planning wiki: http://www.beyondbroadcast.net/


• March 22–25: Museums and the Web – Albuquerque, New Mexico, http://www.archimuse.com/mw2006/index.html/
• March 30–31: e–Crime Congress 2006 – London, United Kingdom, http://www.e-crimecongress.org/ecrime2006/website.asp/

• April 5–7: International Symposium on Intelligent Environments: Improving the quality of life in a changing world - Cambridge, United Kingdom, http://research.microsoft.com/ero/iep/isie06/
• April 6–7: Association for Learning Technology (ALT) Spring Conference and Research Seminar 2006 - The Netherlands, http://www.alt.ac.uk/conferences.php
• April 10–12: Open Source and Sustainability 2006 - Oxford, United Kingdom, http://www.oss-watch.ac.uk/events/2006-04-10-12/
• April 11-13: International Conference on Web Information Systems and Technologies (WEBIST) - Setubal, Portugal, http://www.webist.org/
• April 18–20: Asia Commons: Asian Conference on the Digital Commons - Bangkok, Thailand, http://www.asia-commons.net/
• April 20: LIFE: Life Cycle Information for E-Literature - London, United Kingdom, http://www.ucl.ac.uk/ls/lifeproject/conference.shtml/
• April 20-21: Innovate and Motivate: Next Generation Libraries - Online conference, http://www.ala.org/ala/acrl/acrlevents/virtualconference.htm
• April 21-23: Access to Knowledge - New Haven, Connecticut, http://islandia.law.yale.edu/isp/a2k.html/
• April 21-23: First Conference of Asian Bloggers, Podcasters and Online Media: Free Expression in Asian Cyberspace - manila, Philippines www.seapa.org
• April 25-28: Digital Learning Asia 2006, Bangkok, Thailand http://www.dlasia.csdms.in/
• April 26-27: Technology Policy for a Flattening World: Educause Policy 2006 - Washington, DC, http://www.educause.edu/Policy/1477/
• April 26-28: The Impact of Internet on the Mass Media in Europe - Delphi, Greece, http://www.cost-a20.wb.st/
• April 26-28: e-gov Asia 2006: The Asian e-Government Conference - Bangkok, Thailand, http://www.egovonline.net/egovasia/index.asp/
• April 27-28: ECEG 2006: 6th European Conference on e-Government - Marburg, Germany, http://www.academic-conferences.org/eceg/eceg2006/eceg06-home.htm/
• April 28: NETLAW 2006 - Toronto, Canada, http://www.canadianinstitute.com/Telecommunications___Technology/Netlaw_...

how to find out about Berkman's weekly events

• Every Friday we feature the week's online blog conversations in the Berkman Blog Buzz. If you would like to receive the Buzz via email, please send an email to amichel AT cyber.harvard.edu with "Blog Buzz subscribe" as the subject line. To take a look at last week's Berkman Blog Buzz, go here: http://cyber.harvard.edu/home/home?wid=10&func=viewSubmission&sid=914

• We webcast every Tuesday Luncheon Speakers event. Luncheon Series events start at 12:30 pm Eastern Standard Time. The webcast link is http://harmony.law.harvard.edu/webcast.sdp We will also host an IRC chat during the discussion - drop in and we'll take your questions from there: irc://irc.freenode.net/berkman. Tune in!

• If you are unable to tune in to one of our events, please check out Berkman's Audio Event Archive to listen in at a later time. http://cyber.harvard.edu/audio/archive

• The Berkman Center sends out an events email every Wednesday. If you'd like to be notified of upcoming events - virtual and otherwise - please sign up by emailing amichel at cyber.harvard.edu.

• Future events are listed on the Berkman public calendar. It is available here: https://cyber.harvard.edu/home/events


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Editor: Amanda Michel

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Last updated

January 16, 2008