From: Filter Editor [mailto:[log in to unmask]]
Sent: 07 February 2003 22:16
To: [log in to unmask]
Subject: The Filter, No. 5.6
No. 5.6 <--The Filter--> 02.07.03
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: Eldred v. Ashcroft, Ruling & Reaction
[2] Dispatches: The Economist on "The Internet Society"
[3] Berkman News: ILAW, Dave Winer & Ethan Zuckerman, CFP
[4] Conference Watch: Spectrum Policy, ILAW, CFP, OSCOM
[5] Bookmarks: DMCA Rulemaking, Brewster Kahle
[6] Quotable: Jack Valenti, Peter Swire, Jonathan Zittrain
[7] Talk Back
[8] Subscription Info
[9] About us
[10] Not a Copyright
-----------------------------------------
[1] IN THE NEWS
================
* Eldred v. Ashcroft--Judgment Day: Petitioners in Eldred v.
Ashcroft were dealt a crushing blow last month when the
US Supreme Court ruled 7-2 to uphold the constitutionality
of the Sonny Bono Copyright Term Extension Act (CTEA). In a
majority opinion written by Justice Ruth Bader Ginsburg, the
Court rejected petitioners' argument that the CTEA exceeds
Congress's power under the Copyright Clause and violates
the First Amendment. "The CTEA reflects judgments of a kind
Congress typically makes, judgments we cannot dismiss as
outside the Legislature's domain," wrote Justice Ginsburg.
"[We] are not at liberty to second-guess congressional
determinations and policy judgments of this order, however
debatable or arguably unwise they may be." Further, despite
acknowledging that the D.C. circuit "spoke too broadly when
it declared copyrights 'categorically immune from challenges
under the First Amendment,'" the Court nevertheless
concluded that "copyright law contains built-in First
Amendment accommodations"--namely, the idea/expression
dichotomy and the fair use defense.
<http://shorl.com/gabygrytefydru> [FindLaw]
Though not wholly unexpected, the ruling was a profound
disappointment to supporters of the Eldred challenge. On the
one hand, wrote lead petitioner counsel Lawrence Lessig in
his weblog, "there is something wonderful about losing because
the Court believes its power is limited." On the other, Lessig
argued, the Court appeared to be discriminating among the
cases in which it circumscribes that power. "If the Court
believes there is a principled reason why...enumeration applies
to protect the rights of states (against liberal legislation)
but does not apply to protect the public domain (against
special interest legislation), it should say so." FindLaw
columnist Chris Sprigman, among others, echoed the sentiment.
"Why did the conservatives stay silent in Eldred? Can it be
because the CTEA, rather than liberal federal meddling in
affairs best left to the states, is just another wealth
transfer to rich corporations? Are the conservatives willing
to police Congress only when it acts in ways they don't like?"
<http://shorl.com/bodryprofameda> [Lessig Log]
<http://writ.news.findlaw.com/commentary/20030120_sprigman.html>
If the Court's ruling with regard to the Copyright Clause raised
questions as to members' political leanings, its analysis of the
petitioners' First Amendment argument provoked an even more
complex reaction. According to Yale law professor Jack Balkin, the
analysis is "wholly inadequate"--and thereby provides activists
with ammunition for future legal battles over restoring balance
to the copyright system. "[The ruling states that when] Congress
has not 'altered the traditional contours of copyright protection,
further First Amendment scrutiny is unnecessary,'" wrote Balkin
in his weblog. "But the very question to be decided is whether
Congress has altered the traditional contours of copyright
protection in passing the CTEA, especially given how expanded
terms interact with fair use and idea/expression doctrines...The
'traditional contours' Ginsburg speaks about have not stayed fixed,
but have continually been changing in ways that benefit media
organizations and limit the speech of others.
[...]
As a lawyer and legal scholar, it's my job, when confronted with
decisions I don't particularly agree with, to make lemonade
out of lemons--to see how the court's reasoning might apply to
future cases in ways I do approve of. And after thinking about
Eldred's First Amendment analysis, it seems to me that the Supremes
have made new law that puts the DMCA into question."
<http://balkin.blogspot.com/2003_01_12_balkin_archive.html#87500874>
<http://balkin.blogspot.com/2003_01_12_balkin_archive.html#87596430>
Given the impact of the Eldred ruling on the health of the public
domain, what is the next step for those who seek to protect it?
While Balkin has framed the challenge with regard to the courts,
others are focusing the political arena. "The Eldred decision...
'deconstitutionalizes' copyright, pushing it farther into the realm
of policy and power battles and away from the principles that
have anchored the system for two centuries," wrote New York
University communications professor Siva Vaidyanathan in a widely
read Salon piece. "That means public interest advocates and
activists must take their battles to the public sphere and the
halls of Congress."
Among the initiatives that have already been proposed is a campaign,
led by Lessig, to persuade Congress to adopt "The Eldred Act"--
legislation that would require copyright holders to pay a small tax
50 years after a work is published. "This is a problem that the
First Branch could fix without compromising any of the legitimate
rights protected by the copyright extension act," wrote Lessig
in an op-ed piece for The New York Times. "The trick is a technique
to move content that is no longer commercially exploited into the
public domain, while protecting work that has continuing commercial
value."
<http://salon.com/tech/feature/2003/01/17/copyright/index.html>
<http://www.nytimes.com/2003/01/18/opinion/18LESS.html>
<http://cyberlaw.stanford.edu/lessig/blog/archives/EAFAQ.html>
Whether or not "The Eldred Act" makes it to Capitol Hill, however,
it appears in the wake of the Eldred ruling that copyright
reform has finally surfaced from previously arcane depths.
"Thanks to the Internet, we're in the midst right now of a sort
of cultural reassessment of the meaning of copyright," said
the Berkman Center's Jonathan Zittrain, who served as co-counsel
for the petitioners. The Electronic Frontier Foundation's Cory
Doctorow agrees. "We are now at a point where the issue of copyright
reform and the public domain, which two years ago was so obscure
as to be invisible--even among very technical people--is now a
mainstream issue, at least within the technology world. We can
hope now that this [decision] will vault this issue into the
nontechnical world, but certainly a generation of technical
people have been changed forever by the preparation for and
the outcome of this case."
<http://shorl.com/hefrodydityja> [Harvard Law Bulletin]
<http://www.oreillynet.com/pub/a/policy/2003/01/16/eldred.html>
***EXTRA: Visit the below URL an article in The Economist
that proposes a return to the original, 14-year term of
copyright:
<http://shorl.com/dirustedrijiku>
[2] DISPATCHES
================
What the critical legal and political conundrums facing us
as the Internet becomes increasingly integrated in our
daily lives? Below we feature links to articles included in "The
Internet Society," a survey by David Manasian, Legal Affairs
Editor of The Economist, on the pressing privacy, security,
policy and intellectual property debates of the digital age.
"Digital Dilemma"
<http://shorl.com/dilikifodrymy>
"No Hiding Place"
<http://shorl.com/fusivaprihomi>
"Only Disconnect"
<http://shorl.com/hylekanajigo>
"A Fine Balance"
<http://shorl.com/gosebebulabry>
"Power to the People"
<http://shorl.com/bofreteretyje>
"Caught in the Net"
<http://shorl.com/fybovyprulegri>
"Through a Glass Darkly"
<http://shorl.com/bedrugripydosti>
[3] BERKMAN NEWS
================
* Internet Law Program in Rio, March 24-28: The Berkman Center
and the Getulio Vargas Foundation (FGV) in Brazil are pleased
to announce that registration is now open for this spring's
Internet Law Program in Rio de Janeiro, Brazil. The two
institutions are collaborating for the program's South American
debut.
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. Simultaneous translations of the
presentations into both Portugese and Spanish will be available.
The core faculty are leading experts in the field, including
Lawrence Lessig of Stanford, Yochai Benkler of New York University,
and William Fisher, Charles Nesson and Jonathan Zittrain of
Harvard. The program will also feature guest lecturers from
distinguished institutions in Brazil.
There will be a similar program at Stanford Law School in
California June 30-July 4, 2003. It will be presented jointly
by the Berkman Center and the Stanford Center for Internet and
Society. Further details about this program and registration will
be available online beginning March 3, 2003.
Follow the link below for the ILAW program website:
<http://cyber.law.harvard.edu/ilaw>
***Please note: Questions regarding the program should be
directed to Robyn Mintz at [log in to unmask]
* Berkman Center Welcomes New Fellows: We are proud to welcome
two new fellows who are joining us for the spring: Dave Winer
and Ethan Zuckerman. "Dave Winer's work in developing open
standards for software, promoting the growth of widespread and
broadly accessible Web publishing tools and content, and
leading the blogging movement is outstanding," said Berkman
Center Executive Director John Palfrey. "As founder of Geekcorps,
Ethan Zuckerman is highly skilled at bringing spirited,
innovative approaches to bridging the digital divide. We are
honored to have them with us, and look forward to their
efforts here."
***EXTRA: The Berkman Center invites Boston-area weblog writers
to attend a meeting moderated by Berkman Fellow Dave Winer to
discuss how weblogs can be useful for various projects at
Harvard and in education generally. Free and open to the
public, the meeting will take place at 6:30 p.m. on Tuesday,
February 11, at Lewis International Law Center, room 301, here
on the Harvard Law School campus. Follow the link below for
a campus map. We hope you can join us.
<http://www.law.harvard.edu/about/map_hls.shtml>
* Palfrey, Seltzer, Zittrain to Teach Internet Law at CFP 2003:
Berkman Center Executive Director John Palfrey, Berkman Fellow
and EFF Staff Attorney Wendy Seltzer and Berkman Faculty
Co-Director Jonathan Zittrain are gearing up to teach CLE
tutorials at the 13th Annual Conference on Computers, Freedom
and Privacy on April 1-4 in New York City, NY. Palfrey will
teach a session on speech problems in cyberspace, with Seltzer
joining to discuss the Chilling Effects Clearinghouse. Zittrain,
who serves as a member of the CFP program committee, will
lead a tutorial on music and the Internet. Further details
about the conference, including how to register, are
available at the link below.
<http://www.cfp2003.org/>
***EXTRA: The Berkman Center is sponsoring a new study group
for Harvard Law School and affiliated students, co-taught
by Palfrey and Zittrain. The study group will explore civil
liberties in cyberspace; details are available online at the
following URL: <http://cyber.law.harvard.edu/studygroup/>
* "The Whole Wide World" from Public Radio International: We live
in a single, shrinking stewpot of climate, viruses, medicine,
money, terror, TV images and instant Internet connections. "The
Whole Wide World" is a new radio program that asks you to help
sort the trends that could kill us from the ones that could
make us stronger, even wiser.
A collaboration of Lydon, McGrath Inc. and the Berkman Center
in association with WGBH Radio Boston, "The Whole Wide World"
is hosted by Berkman Fellow Christopher Lydon and will be
distributed nationally by Public Radio International. Further
details on the series are available at the below link:
<http://www.transom.org/shows/2003/200301.lydon.www.html>
* Upcoming BOLD Series--"Development and the Internet": Much is
being done around the world to influence information infrastructures
and environments. Development initiatives are driven by the
desire to ensure that more of our fellow human beings will be
positioned to reap the benefits of powerful network technologies.
What are these initiatives? How do they influence the information
environments? What are the hard decisions that need to be made?
What do decision-makers need to know to make them?
To learn more and to share in the experiences of those working on,
and/or interested in, the issues of information technologies and
development, join us for our new Berkman Online Lecture
and Discussion (BOLD) series, "Development and the Internet,"
which will take place in mid-to-late spring 2003. Details, including
dates, times, and how to register, will soon be available; sign
up at the URL below to receive email notification.
<http://cyber.law.harvard.edu/online/interest.html>
***Please note: Questions regarding the BOLD series should be
directed to Wendy Koslow at [log in to unmask]
[4] CONFERENCE WATCH
================
February:
* 02/27/03-03/01/03, Berkeley, CA--"The Law & Technology of DRM"
(Boalt Hall School of Law)
<http://www.abanet.org/lpm/mtarticle12219_front.shtml>
March:
* 03/01/03, Stanford, CA--"Spectrum Policy: Property or Commons?"
(Stanford Center for Internet and Society, Stanford University)
<http://cyberlaw.stanford.edu/spectrum/>
* 03/24/03-03/28/03, Rio de Janeiro, Brazil--"Internet Law Program"
(Berkman Center for Internet & Society, Harvard Law School and
Fundacao Getulio Vargas, Brazil)
<http://cyber.law.harvard.edu/ilaw/>
April:
* 04/01/03-04/04/03, New York, NY--"Computers, Freedom and Privacy
2003" (CFP)
<http://www.cfp2003.org/>
May:
* 05/28/03-05/30/03, Cambridge, MA--"Third Open Source Content
Management Conference" (OSCOM)
<http://www.oscom.org/Conferences/Cambridge/>
[5] BOOKMARKS
================
* "How to Win (DMCA) Exemptions and Influence Policy--the
Sequel"
<http://www.eff.org/IP/DMCA/finkelstein_on_dmca2.php>
The second in a series of useful guides to participating
effectively in the rulemaking by the Library of Congress
on exemptions to the Digital Millennium Copyright Act
(DMCA).
* Brewster Kahle: "Public Access to Digital Materials"
<http://www.loc.gov/rr/program/lectures/kahle.html>
Link to the archived webcast of a recent Library of Congress
speech by Brewster Kahle, co-founder and director of the
Internet Archive.
[6] QUOTABLE
================
"What is fair use? Fair use is not a law. There's nothing
in law."
--Jack Valenti, president of the Motion Picture Association of
America, responding to a question about whether MPAA-backed bills
such as the Consumer Broadband and Digital Television Promotion
Act(CBDTPA) threaten consumers' fair use rights.
<http://www.hpronline.org/news/347207.html?mkey=628413>
"With copyright legislation such as the DMCA, '[t]he wisdom of
Congress' action...is not within [the Court's] province to second
guess.' Eldred v. Ashcroft, slip op. at 32."
--Excerpt from a court order granting the Recording Industry
Association of America(RIAA) a subpoena to identity a Verizon
customer suspected of using KaZaA to swap copyrighted
music files.
<http://shorl.com/denakofrutora> [PDF file; EFF]
<http://shorl.com/hyprovimamafi> [Washington Post]
"I have reviewed all the US privacy laws. I helped write some of
them. But I have never seen any provision like this. There is no
due process under this provision before a person's identity is
revealed. There is no judicial supervision."
--Peter Swire, former Chief Counselor for Privacy in the US
Office of Management and Budget, in a statement supporting
Verizon in its motion for stay of the court order.
<http://www.peterswire.net/>
<http://news.com.com/2100-1023-982809.html>
"As we go to an appliance model, it's much, much easier to
control users' behaviors. I think we may look back and see the
PC as an anomaly--how strange to run anything ending in '.exe.'"
--Berkman Center Faculty Co-Director Jonathan Zittrain,
anticipating the loss of the general purpose computer in the
face of the content industry's push for legally mandated digital
rights managment (DRM) technologies and the growing popularity
of digital "appliances" like TiVo.
<http://www.law.harvard.edu/news/today/2003/01/5zittrain.html>
[7] TALK BACK
================
Comments? Questions? Opinions? Submissions? Send a letter to the editor
at [log in to unmask]
[8] SUBSCRIPTION INFO
================
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[9] ABOUT US
================
Read The Filter online at
<http://cyber.law.harvard.edu/filter/>
Who we are:
Editor: Donna Wentworth
<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
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