The Filter

No. 6.3 <--The Filter--> 1.23.04

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: WSIS - Whatsis?

[2] Dispatches: It was 20 years ago today...

[3] Berkman News: Register Now for ILaw

[4] Conference Watch

[5] Bookmarks: Understanding and Understanding

[6] Quotables: Durr!

[7] Talk Back

[8] Subscription Info

[9] About us

[10] Not a Copyright

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[1] IN THE NEWS

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* Up(load)s and Down(load)s

Late last month, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Verizon in its legal battle against the Recording Industry Association of America, Inc. (RIAA). The decision, handed down on December 19th, blocked the RIAA's attemtps to force Verizon as an ISP to hand over the names of users whose IP addresses the RIAA had cited as alleged sharers of copyrighted materials over P2P networks. In the text of the decision, the D.C. Circuit Court of Appeals stated that the RIAA could not force Verizon to turn over the information by siting the Digital Millennium Copyright Act : "It is not the province of the courts...to rewrite the DMCA in order to make it fit a new and unforeseen internet architecture, no matter how damaging that developmenthas been to the music industry."

On January 21, the RIAA filed 532 lawsuits against "John Doe" defendants, identified only by their IP addresses. With this new angle, the record labels are hoping to be allowed to subpoena the users' information from ISPs after specific lawsuits are filed. RIAA president Cary Sherman said, "The message to illegal file sharers should be as clear as ever - we can and will continue to bring lawsuits on a regular basis against those who illegally distribute copyrighted music."

On the Verizon victory:

<http://news.com.com/2009-1027-5130153.html>

Read the decision--RIAA v. Verizon Internet Services, Inc.:

<http://pacer.cadc.uscourts.gov/docs/common/opinions/200312/03-7015a.pdf>

On the newest lawsuits:

<http://money.cnn.com/2004/01/21/technology/riaa_suits/index.htm>

<http://www.eff.org/IP/P2P/20040121_eff_pr.php>

<http://www.nytimes.com/2004/01/22/business/media/22music.html>

* Big Conference, Any Impact?

Participants and international observers of the largest ever conference on international Internet development - the World Summit on the Information Society (WSIS) - are still trying to evaluate what difference WSIS will have on the future of information and communication technologies (ICTs). The summit's official paper trail consists of two documents and a counter-statement, but according to many, the lasting impact of the 11,000-person summit is more subtle and varied than these statements reflect. Read more about the impact of WSIS in this Berkman Briefing:

<http://cyber.law.harvard.edu/briefings/WSIS.html>.

In collaboration with the Berkman Center, the journal of Information Technologies and International Development (ITID) is producing a special issue dedicated to WSIS and its aftermath. Read more about the journal and submission guidelines here:

<http://mitpress.mit.edu/ITID>

The official WSIS homepage:

<http://www.itu.int/wsis/>

WSIS declarations:

<http://www.itu.int/wsis/documents/doc_multi-en-1161|1160.asp>

The Daily Summit's blog of WSIS:

<http://www.dailysummit.net/>

* CASE IN POINT 1.2 [with corrections suggested by alert and well-informed readers]

The Case in Point is Caldera (SCO) v. IBM, also called the case against open-source.

Update on litigation: SCO is suing IBM under a number of unfair trade practice and breach of contract disputes. SCO announced recently that it also intends to add copyright infringement claims. IBM has denied most of the claims and asks the court to force SCO to reveal the portions of the code that are the basis of the allegation.

Since the last Filter report, SCO notified Linux users of more than 65 files (“ABI Code”) that it says have been copied into Linux 2.4.21 from SCO’s UNIX code base. Although these files were covered by the BSDI settlement, SCO points out that they are part of the “UNIX Derived Files” and the particular settlement terms that apply to them do not permit distribution without copyright notice. SCO demands that users remove all ABI Code because such copying violates the U.S. Copyright Act and because the removal of SCO’s copyright notice violates the DMCA §1202’s rights management provisions.

See SCO's letter at

<http://www.sco.com/scosource/abi_files_letter_20031219.pdf>

Meanwhile, the Open Source Development Labs announced a defense fund to pay legal fees for litigation threatened by SCO against Linux users, claiming that the fund has received $3 million in support from supporters such as IBM and Intel.

<http://tinyurl.com/3fylg>.

Our next discussion question is: Does an open-source license scheme such as the GPL defeat the purposes of the copyright clause of the United States Constitution (Article I, Section 8) by forcing those who wish to build on a work to offer their improvements on a royalty-free basis? Does the answer differ depending on the type of work that is being distributed? Under this theory, would technical rights management restrictions that last beyond the term of copyright protection be equally unconstitutional?

See SCO’s comments from Darl McBride at

<http://www.newsforge.com/trends/03/12/04/2024240.shtml?tid=85>.

See the GPL at <http://www.gnu.org/copyleft/gpl.html - TOC1>.

If you are interested in commenting on this question, please go to H2O at

<http://h2o.law.harvard.edu/register.do> and register for the project “SCO-IBM.” Responses will be reported in the next Filter issue.

Case in Point is an ongoing series of discussions targeting legal issues in the general sequence in which they are raised by the parties as the actual case proceeds.

[2] DISPATCHES

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January 17th marked the 20th anniversary of the landmark Betamax decision. When Sony, attacked by Disney and Universal for alleged copyright violation, emerged victorious, a new era in copyright law was born. The concept of "time-shifting" - recording a broadcasted work in order to view it at another time - as fair use would later enter into cases regarding various new technologies, particularly online download sites (Napster, Grokster, Aimster) and personal video recorders. Despite the varied results in these cases and modifications to the relevant law by the DMCA, Sony v. Universal stands not only important precedent but also legal groundbreaker.

The majority opinion:

<http://www.virtualrecordings.com/betamax.htm>

Further readings:

<http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm>

<http://zdnet.com.com/2100-11-523817.html?legacy=zdnn>

<http://www.findarticles.com/cf_dls/m3169/34_39/55551109/p1/article.jhtml>

[3] BERKMAN NEWS

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* AudioBerkman: Listen to Us

The Berkman Center is kicking off a new multimedia project: AudioBerkman will offer a way to listen in to research about the hottest issues related to technology and cyberlaw. Periodically, we will release a new audio piece that spotlights a different Internet-related subject and features different angles on the debate. Check out our first production, and stay tuned for future pieces by checking the project website.

<http://cyber.law.harvard.edu/audio>

* Internet Law Program 2004: Registration Now Open!

The Berkman Center for Internet & Society is pleased to offer the Internet Law Program at Harvard Law School on May 13-15, 2004. This dynamic, innovative three-day seminar will bring together the leading experts in the field with participants from all over the world to explore today's most pressing Internet issues and provoke new ways of thinking about the future of the Internet. The program kicks off with a distance learning component on April 14 to May 5.

The outstanding team of educators includes Larry Lessig of Stanford, Yochai Benkler of Yale, and William Fisher, Charles Nesson and Jonathan Zittrain of Harvard. On the agenda: recent reforms in intellectual-property systems, privacy versus security on the Net, the changing shape and role of ICANN, "open" versus "proprietary" software systems, regulating pornography, jurisdictional problems, cybercrime, addressing the digital divide, and more.

The program is intended for a broad audience, and no previous experience with Internet law is necessary. Past participants have included entrepreneurs, policymakers, educators, technology professionals, and journalists who write about technology. American lawyers in some states may be eligible for Continuing Legal Education (CLE) credit.

For more information:

<http://cyber.law.harvard.edu/ilaw>

Online registration is now open at:

<http://cyber.law.harvard.edu/ilaw/register>

Questions? Please contact Robyn Mintz at <mailto:rmintz@cyber.law.harvard.edu>.

* New Digital Media Website Launched

The Berkman Center has created a new website for its Digital Media Project, a multi-year study that began in October 2003. The project, made possible with the generous sponsorship of the MacArthur Foundation, the Open Society Institute of the Soros Foundation Network, and Gartner|G2, was initiated to educate stakeholders, from industry executives to policymakers to the general public, about how to maximize the potential of digital media technology. The research has been structured around five scenarios that could become the primary influences guiding the distribution of music, movies, and other creative content online. As the project evolves, we will continue to monitor the digital media debate and expand the five scenarios through a series of publications and conferences.

<http://cyber.law.harvard.edu/media/>

[4] CONFERENCE WATCH

====================

February:

* February 2-3, 2004, Washington, DC--Email Security

<http://www.srinstitute.com/ApplicationFiles/web/WebFrame.cfm?web_id=143>

* February 26-27, 2004, Geneva--Workshop on Internet Governance

<http://www.itu.int/osg/spu/forum/intgov04/index.html>

March:

* March 12-16, 2004, Austin, TX--South by Southwest Interactive Festival

<http://www.sxsw.com/interactive/>

May:

* May 10-14, 2004, Barcelona--INET/IGC 2004 Strengthening the Net: Building an Open and Trusted Internet

<http://www.isoc.org/inet04/>

* May 13-15, 2004, Cambridge, MA--Internet Law Program

<http://cyber.law.harvard.edu/ilaw>

* May 26-27, 2004, Zaporozhye, Ukraine--The Second Cybercrime Conference 2004

<http://www.crime-research.org/conferenc.html>

[5] BOOKMARKS

==============

* Jack Balkin's Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society

<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=470842>

* Christopher Lydon interviews Tim Berners-Lee

<http://blogs.law.harvard.edu/lydon/2004/01/09>

* Understanding Open Source Software by Red Hat's Mark Webbink, Esq.

<http://www.groklaw.net/article.php?story=20031231092027900>

* On HR 3261: Do we need stronger database protection?

<http://www.publicknowledge.org/content/legislation/legislation-hr3261>

* Communicast: Developing a Community-Programmed Webcasting Service by Todd Larson

<http://cyber.law.harvard.edu/home/uploads/308/2004-01.pdf>

[6] QUOTABLES

==============

"[T]here's...evidence that people haven't stopped swapping music -- they've just stopped admitting it." -- Hiawatha Bray in The Boston Globe

<http://tinyurl.com/32qqv>

"I didn't think they would get all their high-priced lawyers to come after me." -- 17-year-old Mike Rowe, on being sued by Microsoft for his domain name, MikeRoweSoft.com

<http://tinyurl.com/3b2zm>

[7] TALK BACK

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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 filter-editor@cyber.law.harvard.edu

[8] SUBSCRIPTION INFO

======================

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<http://cyber.law.harvard.edu/filter/subscribe>

[9] ABOUT US

=============

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<http://cyber.law.harvard.edu/filter/about.html>

[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.