No. 6.1 <--The Filter--> 11.14.03
Your regular dose of public-interest
Internet news and commentary
from the Berkman Center for Internet & Society at
H a r v a r d L a w
S c h o o l
CONTENTS:
HIGHLIGHTS:
[1] In the News: Your Comments
Wanted on SCO/IBM
[2] Dispatches: Global Attention
Profiles
[3] Berkman News: Digital Media
Project Launches
[4] Conference Watch: Geneva in
December
[5] Bookmarks: Watch and Listen
[6] Quotables: But Seriously Folks
[7] Talk Back
[8] Subscription Info
[9] About us
[10] Not a Copyright
-----------------------------------------
[1] IN THE NEWS
================
* CASE IN POINT 1.0
Case in Point is a new feature that will focus on a particular case of significance,
track its progress, and ask Filter readers for their input on some of the important
issues it raises.
The first Case in Point is Caldera v. IBM, also called the case against open-source.
Caldera Systems (SCO) sued IBM in a Utah state court.
The complaint alleges that the open-source operating system, LINUX, contains
portions of UNIX proprietary code to which SCO has taken title.
SCO claims that IBM:
· misappropriated
SCO trade secrets that were contained in OpenServer and UnixWare and used them
to promote sales for LINUX,
· engaged in unfair
trade practices by using this information to damage the market for UNIX,
· used deceptive
practices by misleading SCO at to IBM’s true intention to abandoned a joint
UNIX software development project,
· interfered with
the contracts that SCO had with its UNIX clients by inducing them to switch
to LINUX, and
· breached obligations
of confidentiality by distributing copies of UNIX to the public under an open-source
licensing scheme.
As evidence of these claims, SCO alleges that it would have been far too time-consuming
and expensive to independently develop an Intel-based UNIX flavor as quickly
as LINUX appeared on the market.
See the complaint and attachments at
<http://www.sco.com/ibmlawsuit/>
Some press coverage of the case is at
<http://www.forbes.com/home/2003/03/06/cs_qh_0306unix.html>
<http://news.com.com/2100-1016-991464.html>
Some discussion forums looking at the case are
<http://www.linuxworld.com/story/34017_f.htm>
<http://www.groklaw.net/index.php>
Before we look at IBM’s response, let’s consider the complaint.
It doesn’t refer to any copyright at all.
All of the claims are based on breach of contract and unfair trade practices.
Discussion Question: If you are
distributing software world wide and losing sales to a competing product that
you believe incorporates your technology, what are the advantages of abandoning/postponing
copyright claims in favor of breach of contract/unfair trade practices?
Does the answer differ depending on your jurisdiction?
If you are interested in commenting on this question, please go to H2O at <http://h2o.law.harvard.edu/ViewProject.do?projectID=166>
and register for the SCO-IBM project.
The discussion will begin in one week.
Results will be reported in the next Filter issue.
* Rage Against the (Voting) Machine
In perhaps the most unexpected invocation of the Digital Millennium Copyright
Act (DMCA) to date, Diebold Systems, Inc., has issued cease and desist letters
and threatened legal action against ISPs and private parties over the posting
of thousands of pages of Diebold's internal communication on the internet. Diebold,
a prominent manufacturer of electronic voting machines in the United States,
claims that these documents -- which were apparently gathered by a hacker and
reveal serious security vulnerabilities in both the voting equipment and the
entire corporate entity -- are private intellectual property, thereby placing
those who host the documents in the same category as those who share copyrighted
music online. Diebold has issued several legal threats against Internet Service
Providers across the country; since several of the individuals hosting these
documents are students, Diebold has sent legal notices to colleges and universities
(in their capacity as ISPs), demanding that the copyrighted material be removed.
Depending on the particulars of any college's DMCA violation policy, the penalties
for the students hosting the materials could be severe.
The Electronic Frontier Foundation (EFF) is fighting back, arguing that Diebold
is trying to suppress information crucial to the entire American electoral process.
EFF Attorney Wendy Seltzer states her organization's position: "Diebold must
not be permitted to use unfounded copyright claims to stifle public debate of
the accuracy of electronic voting machines." In conjunction with the Center
for Internet and Society Cyberlaw Clinic at Stanford Law School and the Online
Policy Group (OPG), the EFF has filed suit against Diebold for harassment, arguing
that the DMCA is being used here in bad faith, and that the posting of the documents
should be considered fair use.
Thus far, the EFF has been successful in its motion for an accelerated schedule
for legal proceedings. The first court date for OPG v. Diebold is set for November
17th in the federal district court in San Jose, CA.
For more information on the history of the Diebold case, please see:
<http://www.eff.org/Activism/E-voting/>
<http://www.npr.org/features/feature.php?wfId=1392657>
<http://www.nytimes.com/2003/11/09/business/yourmoney/09vote.html>
<http://www.pcworld.com/news/article/0,aid,113273,00.asp>
<http://www.wired.com/news/evote/0,2645,61172,00.html>
For more information about the documents in question, please see:
<http://www.why-war.com/features/2003/10/diebold.html>
<http://www.copyfight.org/20031101.shtml - 59578>
* DMCA Exemptions Spark Debate
Public interest groups attained a small victory but a far larger defeat in the
recent Digital Millennium Copyright Act (DMCA) exemption rulings.
Every three years, the Librarian of Congress and the Copyright Office
review the DMCA's prohibitions against bypassing measures that control access
to copyrighted works. Citing insufficient
evidence, the Office's first recommendation in October 2000 skirted arguments
that access controls impair fair use, competition, and free speech.
With increased distribution of protected works causing more widespread
harm, public interest groups hoped for exemptions that would, for example, enable
consumers to make back-up copies of DVDs, move eBooks to devices of an owner's
choosing, and access public domain materials.
The Office recommended only two new, narrow exemptions for computer programs
and video games in obsolete formats as well as eBooks that disabled persons
cannot use. The Office also maintained
existing exemptions for malfunctioning hardware-based controls and research
related to Internet filtering lists.
Throughout its analysis, the Office dismissed several fair use arguments
and claimed that many requested changes were beyond its power.
Given the opinion's tone and substance, it seems unlikely that the exemption
process will become an effective way to carve out substantial exemptions that
are in the public interest.
Determination of Librarian of Congress and Text of the Regulation
<http://www.copyright.gov/fedreg/2003/68fr2011.pdf>
Recommendation of Register of Copyrights:
<http://www.copyright.gov/1201/docs/registers-recommendation.pdf>
Petitions for Exemptions to Copyright Office:
<http://www.copyright.gov/1201/2003/comments/index.html>
Electronic Frontier Foundation's response to ruling:
<http://www.eff.org/IP/DMCA/20031028_1201_pr.php>
Ernest Miller's links to news and commentary:
<http://tinyurl.com/v04l>
Donna Wentworth discusses ruling's possible impact on printer cartridge manufacturer:
<http://www.copyfight.org/20031001.shtml - 58104>
Seth Finkelstein declares personal victory:
<http://sethf.com/infothought/blog/archives/000457.html>
DVD copying software creator to appeal ruling:
<http://tinyurl.com/v04q>
[2] DISPATCHES
==============
Why is there more news coverage of Norway than Nigeria?
In his Global Attention Profiles white paper, Berkman Fellow Ethan Zuckerman
explores how media pays attention to nations.
Collected by submitting Boolean inquiries to the search engines of major media
outlets, the GAP data shows that the Gross Domestic Product of a country is
closer to proportional with the amount of media coverage it receives than is
the population of that country.
Zuckerman will now also look at mentions of countries in weblogs to compare
the pattern - is the blogosphere more democratic in practice as well as in theory?
To read Zuckerman's thoughts on the project:
http://h2odev.law.harvard.edu/ezuckerman/oped.html
To read the Global Attention Profiles paper:
http://h2odev.law.harvard.edu/ezuckerman/paper.pdf
[3] BERKMAN NEWS
================
* Digital Media Project Launches with $600K Grant from MacArthur Foundation:
The project will continue to be focused on analysis of five possible future
scenarios for digital media. Newly expanded areas of analysis will include more
in-depth economic and business modeling, as well as continued legal analysis
and consideration of consumer perception and behavior data.
http://cyber.law.harvard.edu/home/digital_media_project
* BOLD Series on CyberPrivacy Underway:
More than 250 participants from across the globe are discussing the latest on
privacy in cyberspace with Professor John Nockleby of Loyola Law School.
This series is the first to be entirely hosted on H2O.
http://h2o.law.harvard.edu/ViewProject.do?projectID=158
* Berkman Center Welcomes New Fellow Michael Best:
Best, also a visiting assistant professor at Georgia Tech, will focus on the
use of computers and communication in social and economic development.
http://cyber.law.harvard.edu/home/mikeb
[4] CONFERENCE WATCH
====================
December:
* December 4-5, 2003, Technical University of Denmark--Copyright and Software
Patents: Open vs. Proprietary Development Paths
<http://conference.cti.dtu.dk/>
* December 8-9, 2003, Geneva--Monitoring the Information Society: Data, Measurement
and Methods
<http://www.unece.org/stats/documents/2003.12.wsis.htm>
* December 10-12, 2003, Geneva--WSIS: The World Summit on the Information Society,
First Phase
<http://www.itu.int/wsis/>
[5] BOOKMARKS
==============
* Yossi Vardi – The Edge Against the Hub: The Struggle for Dominance on the
Internet
<https://cyber.law.harvard.edu/ml/index.pl?nodeid=35521&view=1>
Audio of his lecture at Harvard Law School
* Professor William Fisher – The Disaggregation of Intellectual Property
<http://cyber.law.harvard.edu/ml/index.pl?nodeid=35519&view=1>
Video of his lecture as he accepted the Hale and Dorr Intellectual Property
Chair at Harvard Law School
* Digital Rights Management and the Breakdown of Social Norms
<http://firstmonday.org/issues/issue8_11/may/index.html>
Article from First Monday on DRM technologies and the “balance between the rights
of ‘creators’ and the interests of users.”
* ICANN Carthage Video
<http://www.icann.org/carthage/video.htm>
Video archive of the October ICANN meeting in Tunisia.
[6] QUOTABLES
==============
“We called their bluff because we didn't think Rupert Murdoch would pay for
Fox to sue itself.”
– Matt Groening,
the creator of the Simpsons, on threats by Fox News to sue over parody
<http://tinyurl.com/v04c>
“You don't have to trust us, because we'll never know who you are.”
- Creators of
Invisiblog, on their lack of need for a privacy policy
<http://invisiblog.com/>
[7] TALK BACK
================
We are thinking about how we might adjust the Filter's format and
content. Your ideas and suggestions
would be greatly appreciated.
Please send them to mailto:filter-editor@cyber.law.harvard.edu
[8] SUBSCRIPTION INFO
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[9] ABOUT US
=============
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<http://cyber.law.harvard.edu/filter/>.
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[10] NOT A COPYRIGHT
=====================
A publication of the Berkman Center for Internet & Society at Harvard Law School <http://cyber.law.harvard.edu/> You may--and please do--forward or copy this newsletter to friends and colleagues.