<-- The Filter --> November 2000

November 13, 2000
No. 3.8  .  The Filter  .  11.13.00

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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> Vote-Swapping Sites Suffer (Free) Speech Impediment: If netizens were by-and-large amused by the appearance in the weeks prior to the election of sites to enable voters in so-called swing states to "swap" votes for candidates Al Gore and Ralph Nader, the matter has since become more serious. The sites, which include NaderTrader.org and Votexchange2000.com, served as a vehicle through which voters in different states could pair up in order to vote strategically—thereby bypassing the traditional constraints of the Electoral College. Votexchange2000.com folded, however, when California Secretary of State Bill Jones sent a letter to the site's operators alleging that it violated California's Election Code, which prohibits offering payment or any other "valuable consideration" to people so that they will or will not vote. The ACLU subsequently requested that the California District Court issue a temporary restraining order against Jones, asserting that Votexchange2000.com and other similar sites carry a "clear political message," and therefore qualify for the highest level of protection under the First Amendment. That request was denied. The judge "obviously agreed that votes are not to be bought, sold or traded for money, jobs or other votes," said Jones' spokesman Alfie Charles. The ACLU has pledged to continue its pursuit of the case.



> ICANN—Damned if It Does?: The eagerly-awaited decision on which new top-level domains (TLDs) will be added to the Internet's existing structure may be just around the corner. The Internet Corporation for Assigned Names and Numbers (ICANN), the body responsible for technical administration of the domain name system and related functions, meets this week in Marina del Rey, CA for an annual meeting at which it will discuss topics ranging from UDRP review to new TLDs. ICANN released a staff report Friday recommending that the board choose from among only 17 of the 44 new TLDs proposed for adoption—a recommendation certain to be controversial. While ICANN has frequently been criticized for moving too slowly in reaching consensus on the issues that fall under its purview, each decision it makes has met with resistance by various constituencies in the Internet community. "The week will be very busy, with lots of intense discussions," said ICANN chair Esther Dyson. "I'm sure there are people who are going to be unhappy."




What's at stake at the Marina del Rey meetings? The Berkman Center this weekend presented "Pressing Issues II: Understanding and Critiquing ICANN's Policy Agenda," a series of panel discussions focusing on UDRP review, At-large membership, and new TLDs. Follow the link below to access the complete multimedia archive.


> ICANN...Resign?: In other ICANN news, the organization is grappling with an accusation by its critics of "boardsquatting"—a term coined by University of Miami law professor A. Michael Froomkin to describe ICANN's action in allowing four board members to retain their seats past their original terms of service. Nine members of the board were to have been replaced via the organization's recent open online election, but ICANN modified that plan when public interest groups raised concerns that the still-evolving election process carried substantial risk of board capture. Rather than derail the election entirely, the board voted to reduce the number of open seats from nine to five, planning to open the four remaining seats after completing a review of the process. Froomkin, who advocates immediate resignation by the four directors yet to be replaced, suggests that the decision to allow them to remain is motivated by desire on the part of the existing ICANN board to entrench its power. Not so, says ICANN Senior Policy Officer Andrew McLaughlin. "None of the four remaining directors is anxious to stay on the ICANN Board—they're doing so out of a public-spirited commitment to the ICANN process."



***EXTRA: What does Karl Auerbach,the self-described ICANN critic recently selected by its At-Large membership to serve on the governing board, make of Froomkin's critique? For Auerbach's answer, check out our exclusive, in-depth interview, linked below from DISPATCHES.

> All the News That's Fit to (Re) Print?: In a case that will be argued before the US Supreme Court, several major publishers including The New York Times, Co., Newsday and Reed Elsevier (owner of Lexis-Nexis) are set to contest a 1999 ruling obliging them to obtain permission from authors before including copyrighted works in online databases. The suit was brought in 1993 by a group of freelance writers who objected when the publishers to whom they had sold rights to their work in print form then made it available online—without asking permission or offering further compensation. Copyright law presently allows publishers who have already secured rights to an author's work to republish it without permission, provided the work appears in a revised version of the original publication. In 1997, a federal district court found for the publishers in the case, ruling that databases such as the one Lexis-Nexis compiles do indeed qualify as revised versions of the publications from which they are drawn; two years later, the ruling was reversed. The case, Tasini v. The New York Times, Co., is scheduled for a hearing next year, with a decision expected by June.



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At the conclusion of this month's ICANN meetings in Marina del Rey, CA, five new At-Large directors will take their seats on its governing board. Among them will be Karl Auerbach, who was selected as the North American representative in ICANN's recent open election.

Intrepid Filter reporter Cedar Pruitt caught up with him recently in cyberspace to discuss his adjustment to the media spotlight, his interaction so far with fellow board members and electees, and his take on the "boardsquatting" controversy.


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> Napster and Its Siblings—the Harvard Response: The Berkman Center, Harvard's Institute of Politics, and the Harvard Political Union invite Filter readers to "The Day the Music Died? Harvard's Policy on Napster and Its Siblings—Past, Present and Future," taking place this Wednesday, November 15 at 4:00 p.m. in Lecture Hall D at the Science Center here on the Harvard University campus.

Harvard recently refused a request by attorneys representing Metallica in the Napster case to block student access to the MP3 file-trading service, asserting that to do so would be inconsistent with "the values of broad inquiry and the exploration of ideas that Harvard, like other universities, has traditionally sought to protect." However, the DMCA requires as a condition for ISP protection from liability for contributory copyright infringement that a university must implement a policy of terminating its ISP services for "repeat infringers" of copyright law. Further, Harvard has been reported to have slowed down some "Napster packets" for reasons of network integrity.

"The Day the Music Died?" will ask at what point a user becomes a repeat infringer, and explore the possible ramifications of a decision by Harvard to suspend such an infringer's network privileges, as well as possible future policies constricting network use as the controversy evolves.

Moderated by Berkman Center Faculty Co-Director Professor Jonathan Zittrain, the discussion features panelists Dan Moriarty, Assistant Provost, Harvard University; Berkman Center faculty Co-Director Professor William W. Fisher III, Harvard Law School; Frank Steen, Director, Computer Services, Harvard Faculty of Arts and Sciences; and Eva Holtz, Harvard student, Class of 2002.

Questions about the event should be directed to the Berkman Center at cyber@law.harvard.edu.

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* PerpetualElection.com

      http://www.perpetualelec tion.com/

A nonpartisan news outlet offering "the latest information on the first perpetual election the United States has seen."

* Opensecrets.org


Site operated by the Center for Responsive Politics, tracking money in politics and its effect on elections and public policy.

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"Our democracy, our constitutional framework is really a kind of software for harnessing the creativity and political imagination for all of our people...Good decisions do not result from simply consuming data and spitting out conclusions. You would still want representatives to be chosen who have time to reflect and make considered judgments."

—Vice President Al Gore, pre-election, on Napster, democracy, and the wisdom of making tough judgment calls slowly.


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Comments? Questions? Opinions? Submissions? Send a letter to the editor at filter-editor@cyber.law.ha rvard.edu

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Last updated

October 31, 2008