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Sent: 19 December 2002 21:03
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Subject: The Filter, No. 5.5
No. 5.5 <--The Filter--> 12.19.02
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:
[1] In the News
[2] Dispatches
[3] Berkman News
[4] Conference Watch
[5] Bookmarks
[6] Quotable
[7] Talk Back
[8] Subscription Info
[9] About us
[10] Not a Copyright
-----------------------------------------
[1] IN THE NEWS
================
* The Global Net? That's *So* 1995: In a decision with potentially
profound implications for online publishing, Australia's High
Court found last week that US-based publisher Dow Jones & Co.
can be sued for libel in an Australian court over an article
published on the Internet. Mining magnate Joseph Gutnick filed
suit in the Australian state of Victoria after an allegedly
defamatory article appeared in the online version of Barron's,
a Dow Jones publication. Dow Jones responded with a series of
motions arguing that proper jurisdiction for the suit is in
New Jersey, where servers hosting the article are located.
The High Court disagreed. Affirming a lower court's finding
for the plaintiff, the Court ruled that "It is where [a person]
downloads the material that the damage to reputation may be done.
Ordinarily then, that will be the place where the tort of
defamation is committed." (See
<http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html>.)
Reaction to the decision has so far run the gamut from the
near hyperbolic to the puzzlingly blasé. Sydney-based defamation
lawyer Damian Sturzaker told the BBC News that the ruling
creates "a spider web of potential litigation, where you have
a single publisher in the center and strands running to every
jurisdiction that adopts this standard, each one a potential
lawsuit with different standards of evidence and different
defenses." Echoing these concerns, journalist Dan Gillmor
penned an op-ed piece in which he called the decision "a
travesty of justice and fairness" and warned that it will
encourage "paranoid people to use local laws...to stamp out
unwelcome news or opinions." Others, however, appeared to
downplay the ruling's practical significance. "[Dow Jones's]
words are their product," said Berkman Center Faculty Co-Director
Jonathan Zittrain, "and if they export it internationally
they know how to work the cost of litigation into the sale
of their product."
<http://news.bbc.co.uk/2/hi/asia-pacific/2560683.stm>
<http://www.siliconvalley.com/mld/siliconvalley/4719322.htm>
<http://shorl.com/hifrepahisigra> [Washington Post]
Why such polarity of opinion? According to Zittrain, the
answer may lie in that most people are unaware of the extent
to which the Internet is already cordoned off, through technical
if not legal means--and are therefore not yet prepared to
consider whether such "cantonization," while understandably
raising hackles among those who value free speech online, may
be both inevitable and, from the perspective of foreign peoples
and regimes, just. "Much of this debate seems frozen in 1995
or so...The real advance that will impact this debate is the
ability of the provider of content to actually express a
preference for who should be able to see it...I think [this is]
fast developing," writes Zittrain in an email published
online. "[Like] you, I don't want to see the revolutionary
reach of the Internet gummed up by a network of oft-conflicting
laws. But the other side is that it's not fair for someone
injured by a faraway wrongdoer to have to travel to, say, New
Jersey to seek vindication."
If the Australian ruling and concurrent technological advancements
represent nails in the coffin of American legal hegemony with
regard to speech on the Internet, what might the future bring?
That depends, argues Zittrain, on the given jurisdiction.
"Countries could find themselves under a natural pressure to
harmonize their rules about speech so as to encourage Internet
speakers not to exclude their citizens from what they have to say.
Australia may think a given article in Barron's is no good, but
they're not China--they wouldn't be pleased to see Dow Jones
taking its ball home if it were easy to do."
<http://shorl.com/gastigasihosa> [Boston Phoenix]
***EXTRA: As this issue of The Filter was prepared for release,
a jury in San Jose, California found Russian software company
ElcomSoft not guilty of violating the Digital Millennium
Copyright Act (DMCA) when it produced and sold software that
circumvents security measures on Adobe e-Book files. ElcomSoft
made headlines worldwide after former employee Dmitry Sklyarov
was arrested by the FBI while attending a security conference
in Las Vegas--becoming the first person to be criminally charged
under the DMCA. While the jury's decision turned on whether
ElcomSoft "willfully" violated the act, Jennifer Granick of
Stanford's Center for Internet and Society suggested that it
also serves as a reassuring confirmation of the DMCA's
jurisdictional limits.
"We don't want every country in the world to have to comply with
how the US does copyright," said Granick. "This is good for
democracy: people in other countries can make determinations
about what is right and wrong for themselves."
<http://www.nytimes.com/2002/12/18/technology/18DIGI.html>
<http://shorl.com/hyfrakagrinygu> [The Recorder]
<http://shorl.com/defrolifrusigro> [WSJ, Reg. req.]
<http://news.com.com/2100-1023-978296.html>
* Archivist, Activist: The Internet Archive yesterday participated
in the US Copyright Office's DMCA Rulemaking, proposing an exemption
to the DMCA's anticircumvention provisions for software that
prohibits access to reproductions of itself. According to Berkman
Affiliate Alexander Macgillivray and Berkman Fellow Wendy
Seltzer, each of whom helped prepare the comment, the exemption is
vital because preservation requires transferring software to new
media and accessing the original software to verify the transfer.
<http://www.bricoleur.org/archives/20021218-IA-Comment.pdf>
***EXTRA: Also submitting comments to the Copyright Office were
the Electronic Frontier Foundation, Ernest Miller of Yale University's
Information Society Project, Seth Finkelstein, censorware
specialist and EFF Pioneer Award winner, and Peter Suber, Earlham
College professor and a leader in the Free Online Scholarship
movement.
<http://www.eff.org/IP/DMCA/20021218_eff_dmca_reply_comments.html>
<http://shorl.com/hyvufrugragryga> [Yale U., PDF]
<http://sethf.com/anticensorware/legal/dmcacom.php>
<http://shorl.com/debepijibosu> [FOS Forum]
[2] DISPATCHES
================
Since March of this year, Berkman Center Faculty Co-Director
Jonathan Zittrain and Berkman Affiliate Benjamin Edelman have
been conducting an ongoing collaborative study to document the
methods, scope, and depth of selective barriers to Internet
access through Chinese networks. Earlier this month they released
a report that provides empirical analysis of their results so far.
The report documents more than 19,000 specific sites blocked; it
also charts the proportion of sites blocked in China among those
that result from Google searches for such hot-button terms as
"Tibet" and "democracy."
"We found blocking of almost every kind of content," Edelman told
Wired. "If it exists, China blocks at least some of it."
Follow the links below for the study itself, selected press coverage,
and two related articles that explore Google's role in determining
what those who use the popular search engine see:
"Empirical Analysis of Internet Filtering in China"
<http://cyber.law.harvard.edu/filtering/china/>
"China Has World's Tightest Internet Censorship, Study Finds"
<http://www.nytimes.com/2002/12/04/international/asia/04CHIN.html>
"An Inside Look at China Filters"
<http://www.wired.com/news/politics/0,1283,56699,00.html>
"Fences Go Up As Net Outgrows Its Innocence"
<http://online.securityfocus.com/news/1803>
"The World According to Google"
<http://www.msnbc.com/news/844175.asp?0cv=KB10>
"Google vs. Evil"
<http://www.wired.com/wired/archive/11.01/google_pr.html>
[3] BERKMAN NEWS
================
* Copyright's Complement? The Creative License: On December 16 the
Creative Commons project launched its first product: machine-readable
copyright licenses custom-designed to allow copyright holders to
easily inform others that their works are free for copying and
other uses under specific conditions.
"Our model was inspired in large part by the open-source and free
software movements," said Glenn Otis Brown, a former Berkman
Affiliate and executive director of the project. "One of the great
lessons of these software movements is that the choice between
self-interest and community is a false choice. If you're clever
about how you leverage your rights, you can cash in on openness.
Sharing, done properly, is both smart and right."
Among those working behind the scenes at Creative Commons are
Berkman Fellow and former Executive Director Eric Saltzman, one
of the project's founders, former Berkman Fellow Molly Shaffer
Van Houweling, and Berkman Center Associate Director Diane Cabell,
who serves as the group's corporate clerk.
"Lawyers aren't just about litigation...they're about problem
solving," said Cabell. "We intend to keep working on creative
solutions to problems presented by today's complex intellectual
property rights regime, and hope others will be inspired to work
alongside us."
In addition to helping launch the Creative Commons project, the
Berkman Center has begun to compile a repository of material
for distribution under CC licenses; these include a videotaped
lecture by Berkman Center Faculty Co-Director Jonathan
Zittrain on the Internet Corporation for Assigned Names and Numbers
(ICANN) and "The Shooting of Big Man: Anatomy of a Criminal
Case," an award-winning documentary film by Eric Saltzman.
Follow the links below for the Creative Commons website, the
nascent Berkman Commons repository, and selected press
coverage:
<http://www.creativecommons.org/>
<http://eon.law.harvard.edu/berkmancommons/>
<http://www.openp2p.com/pub/a/p2p/2002/12/11/piracy.html>
<http://www.wired.com/news/politics/0,1283,56704,00.html>
<http://shorl.com/jejytilutagy> [Mercury News]
<http://shorl.com/fagrudrihakiry> [Seattle Times]
* H2O Releases Code for Discussion Software: The Berkman Center
is proud to announce the initial code release of the Rotisserie
discussion system. The Rotisserie implements an innovative
approach to online discussion that encourages measured,
thoughtful discourse. Click on the link below to find out more
or to download the software.
<http://h2oproject.law.harvard.edu/rotisserie>
[4] CONFERENCE WATCH
================
January:
* 01/05/03-01/07/03, Washington, DC--"Future of Music Policy
Summit"(Georgetown University)
<http://www.futureofmusic.org/events/summit03/index.cfm>
February:
* 02/06/03, Oxford, UK--"The Politics of Code: Shaping the
Future of the Next Internet"(Oxford University)
<http://pcmlp.socleg.ox.ac.uk/code/>
* 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 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/>
[5] BOOKMARKS
================
* "Get Creative: Being the Origin and Adventures of the
Creative Commons Licensing Project"
<http://mirrors.creativecommons.org/>
Irresistible flash movie introduction to the Creative Commons
project featuring music by the White Stripes and their creative
cohorts, Red Cross.
* "The Progress of Science and Useful Arts": Why Copyright
Today Threatens Intellectual Freedom"
<http://www.fepproject.org/policyreports/copyright.html>
Policy paper that serves as useful primer for current battles
over intellectual property online, from the the Free Expression
Policy Project, an anti-censorship advocacy group.
* "Intellectual Property on the Internet: A Survey of Issues"
<http://ecommerce.wipo.int/survey/>
A follow-up survey to a previous primer by the World Intellectual
Property Organization (WIPO), aimed at elucidating current
developments.
[6] QUOTABLE
================
"Copyright is stronger than ever, which experts say will plunge
us into the Dark Ages. Copyright is weaker than ever, which experts
say will plunge us into the Dark Ages. The confusing thing is that
both statements happen to be true."
--Charles C. Mann, correspondent for The Atlantic Monthly,
speaking at "The New Gatekeepers," a recent Columbia University
conference on free-expression conflicts in the digital age.
<http://www.nytimes.com/2002/11/26/arts/26CENS.html>
"Q: How can you tell when the FBI has been in your library?
A: You can't."
--Text from one of five "technically legal" signs designed
to alert library patrons of the possibility that they may be
under FBI surveillance while using library computers--without
violating the PATRIOT act by telling patrons whether or
not they actually are.
<http://www.librarian.net/technicality.html>
[7] TALK BACK
================
Comments? Questions? Opinions? Submissions? Send a letter to the editor
at
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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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