<-- The Filter --> May 2006

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


[0] From the Editor

We're very excited about our upcoming conference, "Beyond Broadcast:  Reinventing Public Media in a Participatory Culture" this Friday and Saturday, May 12 & 13.  This event builds on conversations taking place in the public broadcasting, technology, policy, and foundation communities. Beyond Broadcast, co-hosted with the  Center for Social Media, NYU's Interactive Telecommunications Program, the Project for Open Source Media, and the Center for  Citizen Media, will explore the thesis that traditional public media  faces a unique opportunity to more closely realign itself with its public-service goals.

The conference will be webcast and everyone - participants and those joining in virtually - can ask questions of panelists using the BeyondBroadcast Question Tool.  Please join us! The conference website is <http://www.beyondbroadcast.net>.  The Berkman homepage will also provide links to the question tool, blogs, the webcast, and more. If you aren't available but want to catch up, sign up for this week's version of the Berkman Buzz at <http://cyber.harvard.edu/signup/>.  To check out the Buzz, look at last week's here: <http://cyber.harvard.edu/home/home?wid=10&func=viewSubmission&sid=1017>
-- Amanda Michel


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

What’s Driving the Next Telecom Law
-- by David S. Isenberg

The COPE (Communications, Promotion, and Enhancement) bill in the House of Representatives, and a similar, but more detailed Senate telecommunications bill are racing towards enactment by summer. The likely new law is propelled by the nation’s big telephone companies’ perceived business need to deliver video entertainment along with voice telephony and Internet services. The triple-application formula fits the old telco/cableco business model, i.e., collecting fees for delivering established applications and using these fees to subsidize  the delivery network. This old model is threatened because today’s Internet can support voice and video, and infinitely more, delivered  from its edges by third-party application providers. Indeed, third  parties like Skype and Vonage are breaking out all over and rudimentary video services are popping up like dandelions. National  TV franchising will replace thousands of local city-by-city agreements to ease telco entry into video services. This will  institutionalize the voice, video and Internet service bundle so only big players, "rational competitors," as cablecos and telcos like to call themselves, can participate.

Telephone companies have been weakened by the onslaught of new  technology. The number of dial-up lines, which are the foundation of their business, has been falling since 2001. In 2003, the number shrunk by 4%, and the trend is accelerating. Meanwhile, telcos have not figured out how to make money selling simple Internet connectivity, so they need de jure preservation by Congress.

Until this decade, law has treated the telephone network as a public accommodation, meaning that non-discriminatory access to the network, known as network neutrality in the current policy debate, was assured. On the Internet, though, non-discriminatory access leads straight to the erosion of the telco/cableco business model by third  parties that would not behave as "rational competitors." This is why telephone companies are fighting fiercely against non-discriminatory access. Recently they have been successful in the courts and the FCC, and the current House bill contains ineffectual, hard-to-enforce non- discrimination provisions. The Internet succeeded largely due to non-discriminatory access. That is what permitted third parties to create (and find markets for) e-mail, the Web, e-commerce, chat, online music, blogging, and virtual-world gaming. With it, there’d be more of the same tomorrow. An Internet that is made discriminatory to save the telcos is likely to  remind us of Bruce Springsteen’s song, "57 Channels (and Nothing On)." The problem we should be solving is not how to change the  Internet to save the telcos, but how to have a growing and innovative Internet without them.


Public Knowledge's Net Neutrality Video:

Center for Digital Democracy's Resource Site on Net Neutrality:




GLOBAL ONLINE FREEDOM ACT: Should Congress Legislate Behavior of U.S. Internet Companies Abroad?
-- by Rebecca MacKinnon

On February 16th, the day after hearings on corporate collaboration in Internet censorship by repressive regimes, Congressman Chris Smith introduced the Global Online Freedom Act of 2006. The Bill would seek to do a number of things, including: establish an "office of Internet freedom" that would determine a list of "Internet restricting countries;" make it illegal for U.S. Internet companies to house servers inside these countries, forbid U.S. companies from blocking a regularly updated list of "protected words" pertaining to political and religious speech, require U.S. companies to report to the U.S. government what specific data a foreign government has requested for censorship or hand-over, tighten export laws to make it impossible to do business with government entities in Internet restricting countries, and so forth. "U.S. companies" being defined as any company listed on a U.S. stock exchange - which would in practice impact many Chinese companies.

It is indeed a problem that when companies are caught in conflict between the interests of governments on one hand, and the rights and interests of the user/citizen on the other, companies seem too often inclined to support the government interests at the expense of the user/citizen. The key question is: how do we create incentives for them – both positive and negative - to tilt the other way?

As of this writing, the bill has not yet moved in committee. Major international human rights organizations including Human Rights Watch, Amnesty International, and Reporters Without Borders have expressed public support for the bill. They believe that despite the legislation's flaws, something is better than nothing. Cyber law experts and Internet free speech activists are much more lukewarm. While some (though not all) agree that legislation may be necessary if companies can't come up with, implement and enforce an industry-wide code of conduct on their own, many who study cyber-law, Internet governance, or advocate for online free speech also feel that bad legislation could be worse than none at all.

Most people in the Berkman-affiliated community tend to agree that these standards need to be universally applicable in order to be legitimate and effective. Parts of the "Smith Bill," as it's called, are deemed by many to be technically unrealistic or infeasible from a business perspective, while other parts could actually be counterproductive. One particular concern is that the bill's current language and tone are not compatible with adoption into international agreements or treaties, let alone adoption by other nations.  That arises in part because, as non-American free speech activists have noted, the bill effectively divides up countries into "good" and "bad," as determined by the State Department. This is ironic because technology companies in ostensibly “good” countries such as the U.S. do not appear to be free from government-pressure to do things that quietly encroach upon certain citizens' rights. On the brighter side, Overlapping efforts are underway to facilitate an industry code of conduct and incentive regime that enables and encourages good behavior – and discourages complicity with censorship and political oppression.


Global Online Freedom Act of 2006 text:

Testimony text & webcast from February 15th hearings, with statements from Yahoo!, Google, Microsoft, and Cisco (scroll down slightly):

EFF's proposed code of conduct:

My overview of the situation and GOFA critique written for The Nation:

RSF's Julien Pain on why he supports GOFA:



DRM Developments En Français?
-- by Katie Chang with Urs Gasser

With the ease of downloading MP3s and obtaining pirated movies from the internet, copyright holders focus on using technology to prevent duplication of CDs and DVDs. Consumer advocates fear that such  technology and anti-circumvention legislation will reduce purchasers' rights to make copies for personal use. A recent decision by the highest court in France appears likely to redefine users' rights narrowly in favor of expansive protection for copyright.

Here’s what happened.

On February 28, the Cour de Cassation, the highest French court, held that a purchaser's right to make copies for personal use is not an absolute right and that the application of technological protection  measures which prevent such copies for private use is not illegal under French law. The decision, UFC v. Films Alain Sadre, comes at a time at which the balance between private and copyright holder rights  is in flux. The European Copyright Directive of 2001, which France is in the process of incorporating, first put the question of private copying rights on the table. The Directive requires member states to  provide legal protection against the circumvention of technological  protection measures.  It contemplates an exception for private copying but leaves it to each country's discretion. Berkman Faculty Fellow Urs Gasser argues that the Cour de Cassation's ruling is further evidence of "how the delicate balance between copyright holders' interest on the one hand and the users' and public's interest on the other has shifted in favor of copyright holders' interest, and proves that technological protection measures are one key driver of this problematic development."

UFC Que Choisir, a consumer advocate organization, filed the case after consumers complained that copy protections prevented them from making copies of certain DVDs for private use. The UFC focused on one particular consumer who was unable to copy his purchased DVD of the film "Mulholland Drive" onto a video cassette so that he could watch  the film at his mother's house where there is no DVD player. The Tribunal de Grande Instance de Paris, or district court, flatly denied the claim on April 30, 2004. Despite the generation of consumers who has long been accustomed to making copies for personal  use, the court held that there is no personal copying exception in French copyright law. The district court's decision was overruled on  April 22, 2005, when the Paris Court of Appeals gave a strong, though fleeting victory to consumer rights. The court acknowledged that while there may be no "right" to private copying, the existing privilege of private copying still limited the exclusive rights of copyright holders. In other words, Films Alain Sadre could not use technology to prevent consumers from making copies for private home  use. In addition, Films Alain Sadre, the court held, violated French consumer protection law by failing to adequately warn purchasers that the DVDs of the presence of DRM.

The excitement of consumer advocates was brief. The latest decision  of the Court de Cassation reversed the court of appeals decision and affirmed the district court’s view that since there is no right to copying for personal use, the DRM on the DVDs was permissible. Gasser explains, "We should conclude [from the Cour de Cassation decision] that there is no 'real' right under French law to make copies for private purposes. Rather, the existing private copying exception is a privilege (and, thus, weaker than a 'right'). It follows that the 'privilege' can be 'overwritten' by technological protection measures - while, in contrast, a right could not be overwritten that easily."

This case was among a few others in which French courts have interpreted French copyright law in a manner inconsistent with the European Directive. Where the balance will lie between private copying rights and the rights of copyright holders will ultimately depend on the intervention of French legislators. EU countries are resolving these issues differently. According to Gasser, this may  mean that "in the long run, we might see the emergence of bottom-up consumer initiatives if users who increasingly travel among or live in different EU countries will see that they are allowed to do one thing in, say, France and a completely different thing in, say, Germany." For now, Gasser is pessimistic about protections for the  rights of consumers in the future. "In fact, both the US and the EU  face a similar challenge to create a more user-centric and friendly copyright regime – although, of course, the legal frameworks might differ in important respects. However, looking at the long and  controversial history of the [Directive], I’m not so optimistic whether such a re-balancing will happen in the EU in the near future."


The ruling

Urs's summary

Background materials



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

Podcasting Legal Guide
-- by Phil Malone

On April 27, 2006, Creative Commons and the Berkman Center Clinical Program in Cyberlaw released the Podcasting Legal Guide: Rules for the Revolution. The Guide provides a comprehensive summary of the complex body of copyright, trademark and publicity rights issues that face podcasters, as well as a helpful list of resources for podcasters, ranging from technical overviews to useful software to ways to find "podsafe" content that may be freely used. Equally important, the complexity revealed by the Guide illustrates the disconnect between current law and the technological upheaval represented by new digital media tools such as podcasting.

A copy of the report is available here: <http://wiki.creativecommons.org/Podcasting_Legal_Guide>


The Public Radio Exchange (PRX) launches two new podcasts in partnership with NPR
-- Jake Shapiro

PRX (http://www.prx.org) is a nonprofit web-based service for distribution, review and licensing of radio content run by Berkman Fellow Jake Shapiro.  It creates a  platform for independent producers to make their work available  directly to local public radio stations for broadcast, and increasingly for digital distribution through Audible.com, iTunes, and podcasting.

Recently NPR began featuring PRX work in two of its new podcats: Youthcast and the NPR Station Showcase. YouthCast is a weekly podcast highlighting work from youth radio groups involved in the Generation PRX project (http://generation.prx.org), and the NPR Station Showcase selects exceptional station-produced pieces from around the country.

Check out Youthcast on npr.org:

And the NPR Station Showcase with PRX:


Bloggership Symposium
-- by John Palfrey

For law professors, the traditional unit of successful work product is the published law review article. Ordinarily, that article is included in a bound volume that is expensive to produce and to procure, runs to more than a hundred pages, has many hundred footnotes, builds out a sustained argument, engages the literature of those who have covered the topic previously, and so forth. That  article also - unless very good - is read by very few people outside the committee that someday forms to review that law prof's candidacy for tenure.

The web might, just might, change all that. The unit of work of a law  professor might get smaller, more accessible to other scholars and others not inside the academy, and/or more freely available, thanks,  perhaps, to the open access movement. A symposium at HLS this past month, bringing together a remarkable group of law faculty from a range of legal specialty fields, created space to explore the issue of the blog and other emerging online formats. Is blogging affecting the scholarship of law faculty members? Is it becoming our scholarship? What should its role be? The conference looked hard at blogging itself, but also ranged to questions about the role of the law professor, the nature of discourse in the legal academy, and the future of digital information and knowledge.

For more information about the conference, including copies of the submitted papers, please visit the following sites:

Bloggership Conference home page:

SSRN host site for conference papers:

Summary and commentary on the presentations by Berkman Fellow Tim  Armstrong:


Global Voices - Reuters Collaborative Efforts

As part of its ongoing working relationship with Reuters, Global Voices, a non-profit global citizens' media project sponsored by the Berkman Center, has been collaborating with Reuters on events focused  on drawing participation with the global blogosphere. Reuters, like many mainstream media organizations, is still trying to figure out how best to connect to and engage in conversation with the global  blogosphere.

On April 5, Global Voices (GV) collaborated with Reuters on its first Newsmaker Debate, "Iraq: Is the media telling the real story?" Hosted by Reuters in NYC, the event focused on engaging both mainstream media and bloggers alike. Members of the GV community liveblogged the event and participated in a live IRC online chat, offering comments in response to the proceedings. Rebecca MacKinnon acted as "IRC Ambassador," representing comments and questions from the live chat  back into the room. Reuters has posted the event video on its site, and its site feature has links to bloggers' comments and posts.

GV also recently collaborated with Reuters on its "Reuters Special Report - U.S China Relations." You can check it out here:

Currently GV is collaborating on a page for the We Media conference in London this week. The page is here:
<http://today.reuters.co.uk/ news/globalCoverage.aspx?type=wemedia&src=cms>


Jonathan Zittrain, "The Future of the Internet - and How to Stop It"

Berkman Center co-founder Jonathan Zittrain gave a special inaugural lecture today (Tuesday, April 25) at Oxford University. Prof. Zittrain, who served as Berkman's first executive director from 1997-2000, is currently Chair in Internet Governance and Regulation at Oxford University, and the Jack N. and Lillian R. Berkman Visiting Professor for Entrepreneurial Legal Studies at Harvard Law School. Prof. Zittrain's lecture, titled "The Future of the Internet -- And How to Stop It,"  proposes a theory about what lies around the corner for the internet, how to avoid it, and how to study and affect the future of the internet using the distributed power of the network itself, using privacy as a signal example.

Prof. Charles Nesson, in reflecting on Zittrain's talk, writes, "Z paints the powers of complimentary personal space. He envisions technology enabling us to expand our space by allowing us to be more aware of who and what is in it. In his vision we will move in cyberspace with a set of connections that express our identity.  I’d like to see the university world focus on the challenge Z puts to universities to recognize and realize their capacity for generating, vetting, preserving and distributing knowledge - open access."

To watch the video webcast, please visit the Oxford Internet Institute's archive:

Prof. John Palfrey of the Berkman Center and Harvard Law attended and took notes from the lecture:

Jonathan Zittrain's Winter Class Archive:



Links to Berkman conversations happening online

Technology Developments:

[BLOGPOST] Ethan Zuckerman identifies technical solutions to the problems of censorship


Citizen Media and the Future of Journalism:

[WIKI] Beyond Broadcast Conference Wiki


Digital Media:

[INTERVIEW] Paul Hoffert on the Digital Media Exchange and More

[GUIDE] "Podcasting Legal Guide: Rules for the Revolution"


Internet Politics, Governance, and Regulation:

[AUDIO] Yochai Benkler, "On the Wealth of Networks: How Social Production Transforms Markets and Freedom"

[BLOGPOST] John Palfrey looks at a recent blogging lawsuit

[PODCAST] Zephyr Teachout examines the Internet's transformative role in Eastern European politics in "Together We Are Many"
<http://cyber.harvard.edu/audio/podcast2? wid=12&func=viewSubmission&sid=55>

[WEBCAST] Jonathan Zittrain, "The Future of the Internet - and How to Stop It"

[PLAYLIST] Helmi Noman on "Internet in the Arab World: A Catalyst for Power Shift"


Internet, Education, and Knowledge:

[BLOGPOST] Ethan Zuckerman discusses Africa's content creation

[AUDIO] David Weinberger, "What's Up with Knowledge?"
<http://cyber.harvard.edu/audio/podcast2? wid=12&func=viewSubmission&sid=54>

[BLOGPOST] Urs Gasser reports back on Yale's A2K (Access to Knowledge) conference:

[BLOGPOST] Tim Armstrong covers Bloggership Symposium presentations

[AUDIO] Jackie Harlow, Bill McGeveran, and Prof. Terry Fisher discuss digital challenges to education
<http://cyber.harvard.edu/audio/archive? wid=45&func=viewSubmission&sid=57>



[4] 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 Latin America Regional Editor, compiles a monthly digest for the Filter. Please check out Global Voices at <http://www.globalvoicesonline.org>

Global Voices readers sat on the edge of their chairs this month while reading the daily dispatches of Nepalese bloggers who documented their country's mostly peaceful transition from monarchy to democracy. They also offered their opinions on whether or not democracy will bring stability to the volatile nation.

Shoot at Sight
Treading Cautiously

Much has been made of China's interest in African oil, but how do African bloggers feel about Chinese investment in oil exploration and Western allegations that it is funding corrupt governments?

Speaking of China, hear from a Chinese photoblogger who hopes to "provide foreigners with a non-official window into Beijing and China not bound by the constraints of text, to let them see images from lives of normal Chinese that aren’t found in newspapers, magazines, on television or in other exhibitions."

The Vietnamese government recently approved the importation of second-hand cars into the country, a move which will surely increase the already chaotic gridlock. Included is a video of the madness.

20 years have passed since Chernobyl. While policy makers debate its legacy for our nuclear future, a Ukrainian now living in the United States remembers what it was like to have been a soldier forced to serve in Chernobyl during the crisis. Thanks to Veronica Khokhlova's translation, his reflections are now available to an English-speaking audience.

Yon Ayisien, a nom de plume that means simply “a Haitian,” is his country’s foremost and, well, only blogger. In an interview with Alice Backer he theorizes as to why blogging has yet to hit big in Haiti and what the parliamentary elections could mean for President Preval.



Featuring our friends and affiliates

Save The Internet

The Podcasting Legal Guide, Creative Commons

Fair Use and Free Speech, Center for Social Media

Net Neutrality Video, Public Knowledge

Beyond Broadcast: Expanding Public Media in a Digital Age, Center for Digital Democracy

Podcast Academy Podcasts



Upcoming Berkman Conferences:

* “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.beyondbroad>

* Identity Mashup: will be held June 19-20 at the Berkman Center in Cambridge, MA.  The conference will explore the role of identity systems in furthering or inhibiting privacy, civil liberties and new forms of civic participation and commerce.


* May 3-5: IST-Africa 2006 - Pretoria, South Africa,

* May 4-7: Digital Arts and New Media Festival - Santa Cruz, California,

* May 16-17: Syndicate: Reinventing the Experience of Communications - New York, NY,

* May 17-21: ICTe Africa - Nairobi, Kenya, http://nepadcouncil.org/ICTeAfrica2006/

* May 18-19: How Intellectual Property Law Fosters or Hinders Creative Work - Princeton, New Jersey,

* May 18-19: Persuasive '06: First International Conference on Persuasive Technology for Human Well-being, The Netherlands, <http://www.persuasivetechnology.org/>

* May 20-21: OPML Camp - Cambridge, Massachusetts,

* May 22: Collaborative Web Tagging Workshop - Edinburgh, Scotland,

* May 23-26: WWW 2006: 15th International World Wide Web Conference - Edinburgh, Scotland,

* May 24: Supporting Open, Distance and eLearning (ODeL) in African Universities - Addis Ababa, Ethiopia,

* May 24-26: eLearning Africa: 1st International Conference on ICT for Development, Education and Training - Addis Ababa, Ethiopia, <http://www.elearning-africa.com/conference.php/>

* May 24-26:  IASSIST (International Association for Social Science Information Services & Technology) 2006 - Ann Arbor, Michigan, <http://www.icpsr.umich.edu/iassist/>

* May 31-June 1: Legal Aspects of e-Repositories and e-Collections - Coventry, United Kingdom,

* June 3-4: BarCampBoston - Maynard, Massachusetts,

* June 10-11: Vloggercon - San Francisco, California,

* June 11-15: JCDL 2006: Opening Information Horizons - Chapel Hill, North Carolina,

* June 12-14: The Internet and Society 2006: Second International Conference on Advances in Education, Commerce & Governance - The New Forest, United Kingdom,  <http://www.wessex.ac.uk/conferences/2006/itsociety06/index.html/>

* June 14-16:  Copyright at a Crossroads: The Impact of Mass Digitization on Copyright and Higher Education - Adelphi, Maryland, http://www.umuc.edu/distance/odell/cip/symposium/index.html/

* June 15-16: The European e-Identity Conference - Barcelona, Spain,

* June 21: eLearning: Diverse Practices; Common Futures - Greenwich, United Kingdom,

* June 21-22: An Expedition to European Digital Cultural Heritage: Collecting, Connecting - and Conserving? - Salzburg, Austria, <http://dhc2006.salzburgresearch.at/content/view/1/2/lang,en/>

* June 22-23: ICEL 2006: The International Conference on e-Learning - Montreal, Quebec,

* June 23-24: Bloggercon IV - San Francisco, California,

* June 23-25: iCommons Summit - Rio de Janeiro, Brazil,

* June 29 - July 1: Gnomedex - Seattle, Washington,

* June 29 - July 2: Democracy and Independence: Sharing of News in a Connected World -



how to find out about Berkman's weekly events

* Every Friday we feature the week's online conversations in the Berkman Buzz. If you would like to receive the Buzz via email, please sign up here: <http://cyber.harvard.edu/signup/> To take a look at last week's Berkman Buzz, go here:

* We webcast every Tuesday Luncheon Speakers event. Luncheon Series events start at 12:30 pm Eastern 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:

The Berkman Center’s audio and podcasts are also available through iTunes, ODEO, and Podnova.

** iTunes: <http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=1352385...
** ODEO: <http://odeo.com/channel/79770/view>
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Editor: Amanda Michel

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Last updated

July 18, 2008