<-- The Filter --> May 2000, 2

May 23, 2000
No. 3.2  .  The Filter  .  5.23.00

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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> Microsoft to Jackson—Just Say No to Drawing and Quartering: Microsoft on Monday filed a surprise motion in the antitrust case against it, asking Judge Thomas Penfield Jackson for the second time to reject government plaintiffs' proposal that the company be broken up. The motion—submitted uninvited just two days before the final remedy hearing—brings to the court's attention a proceeding five years ago at which government attorneys argued that remedies such as "dismembering" Microsoft would "act against the public interest." A government source responded by pointing out that "Microsoft's filing relies on statements made before Microsoft had engaged in the numerous, illegal acts found by the court in the pending case." Microsoft first petitioned for dismissal of the breakup plan on May 10 when it filed its own remedy proposal arguing for behavioral remedies rather than structural relief.




What will be the long term outcome of the remedy hearing? Click on the links below for a thoughtful Industry Standard piece on likely paths Microsoft will take during the appeals process and the Berkman Center's Microsoft Case site, which offers continual updates on new developments:



> The DMCA—Legislation Paved with Good Intentions?: What kind of piracy does the Digital Millennium Copyright Act protect against? It depends on where you're standing. Long criticized by the open source community for "absorbing" open software protocols—adopting, extending and then staking proprietary claim to them—Microsoft recently added insult to injury when it reneged on a pledge to reveal the specification for a secure authentication system based on the open standard Kerberos, instead "publishing" the document behind a click-through "End User Agreement" that obliges the user to treat it as trade secret information. When hackers developed a workaround—and the Slashdot.org news site posted links to it—Microsoft cried foul, citing provisions in the DMCA. Now, in response to a demand from Microsoft two weeks ago that it remove all posts referencing the specification or workaround, Slashdot has posted its attorney's reply: a series of questions that outline the site's possible legal defenses and shed new light on the DMCA's potential abuses.




The irony in Microsoft's use of anti-piracy law to stop the open source community from accessing its proprietary version of Kerberos—when the product only exists because of freely shared software code—throws into sharp relief the topography of interests now shaping Internet legislation. While the DMCA ostensibly guarantees fair use—the traditional balance to the time-limited, government-granted monopoly of copyright—it also empowers copyright holders to install technical access controls that effectively nullify that guarantee. Who benefits? Click on the link below for the Berkman Center's Openlaw/DVD resource page, which details pending cases that hinge on the issues in question.


***EXTRA: Participants in the Openlaw forum are collaborating on an amicus brief in Universal City Studios, Inc. v. Reimerdes, in which plaintiffs' claims rest on the authority of the DMCA. Read more about the case in BERKMAN NEWS, below.

> QuashingFreeSpeechReallySucks.com: If the Anticybersquatting Consumer Protection Act's primary intent is to prevent "bad faith" registration of trademarked domain names in order to profit from them, its role in a recent conflict between Verizon Inc. and hacker news publication 2600 Magazine represents a radical departure. Early this month an attorney from Verizon parent company Bell Atlantic sent a formal notice to 2600 Magazine demanding that it give up the "verizonreallysucks.com" domain on the grounds of trademark infringement and violation of the Anticybersquatting Act—despite the fact that 2600 Magazine clearly purchased it in order to discuss and critique the company, not profit from its name.


How strong is 2600 Magazine's case? US caselaw has generally supported free speech in situations where the domain name itself expresses a viewpoint, and the Internet Corporation for Assigned Names and Numbers' new Uniform Dispute Resolution Policy ostensibly upholds use of trademarked domain names where the holder is "making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue." Yet legal experts say disputes like this one are frequently less cut-and-dry than they appear. "It is not clear that every 'sucks' site will avoid misleading consumers or tarnishing a valued trademark, especially if the content is knowingly fraudulent," explains Berkman Fellow Diane Cabell, who recently led a Berkman Center lecture and discussion series on ICANN's UDRP. "Further, free speech isn't as strongly protected in other countries as it is here, so UDRP arbiters unfamiliar with US law may not even apply the concept in a decision."



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This week we're featuring the Federal Trade Commission's "Privacy Online: Fair Information Practices in the Electronic Marketplace," which proposes to Congress the enactment of legislation to ensure a minimum level of privacy protection for online consumers.


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> Eldred v. Reno Plaintiffs Appeal in DC Circuit: The Berkman Center kicked off a fresh challenge this week to the Sonny Bono Copyright Term Extension Act of 1998, filing an appellate brief on Monday in the DC Circuit. On behalf of plaintiffs including Eldritch Press and Copyright's Commons, we argue that the Act's recent 20-year extension of copyright violates the First Amendment and Congress's enumerated powers.




Concerned that the repeated extension of copyright term of future and existing works may be effecting a chokehold on the public domain? Join us at the Openlaw site to develop examples of works that depend upon it:


> Openlaw/DVD—Defending the Right to Talk/Think/Link: Participants in the Berkman Center's Openlaw forum are collaborating on an amicus brief in the case of Universal City Studios, Inc. v. Reimerdes, arguing that the plaintiffs' motion to enjoin defendants from linking to DeCSS—a program to decrypt and read the data on commercial DVDs—represents an impermissible prior restraint on speech. Plaintiffs' claims rest on hotly-debated anticircumvention provisions in the DMCA. To learn more, follow the links below for an insightful Village Voice article on the case and Openlaw's compendium of legal documents pertaining to it:



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* MP3Lit.com


Salon's "source for free MP3 literature," where audio recordings of your favorite authors can be downloaded. Features weekly audio offerings from the New Yorker.

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"The DMCA creates a novel right of 'access control' for holders of copyright who erect any sort of technological barrier to the reading or use of their works. That new right must be qualified by the same concern for free expression that limits the traditional exclusive rights of copyright."

—Berkman Center Director Professor Charles Nesson, in his amicus brief on behalf of the defendant in Universal City Studios, Inc. v. Reimerdes.


"To say that Napster should qualify as an ISP is not what the [DMCA] intended, although it is possible the law could be interpreted that way [...] So we just say, let's tighten the law."

—Robert Atkinson, director of the Progressive Policy Institute, which proposes amending the DMCA to make crackdowns on piracy easier.


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January 16, 2008