Author Archives: Phillips Academy

Cary Sherman, Lewis Hyde in Chat about RIAA's AntiPiracy Campaign

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Cary Sherman, president of the Recording Industry Association of America, participated in a web chat about the RIAA’s new Anti-Piracy Campaign on US university campuses — sending pre-litigation notices to digital natives accused of illegal activity on peer-to-peer networks, which the universities are asked to pass along to the students.  The Berkman Center’s Lewis Hyde tossed in a question.  Here’s Lewis’s question:

“The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

“Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

“If colleges ‘pass along messages’ that direct students to ‘pay lump sums to record companies,’ colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.

“For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?”

Go here for Mr. Sherman’s response.

Apache, Sun Tangle over Licenses

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The Apache Foundation is accusing Sun of holding out on a license related to a Java test kit. In an open letter, Geir Magnusson Jr of the Apache Foundation says to Jonathan Schwartz, the Sun CEO:

“Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE.  This test kit, called the ‘Java Compatibility Kit’ or ‘JCK’, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun’s specification license.  The JCK license Sun is offering imposes IP rights restrictions through limits on the ‘field of use’ available to users of our software.

“These restrictions are totally unacceptable to us.  As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) – the governing rules of the JCP – to which Sun is contractually bound to comply as a signatory.”

Interoperability in the software context — especially the free/libre/open source software context — so often turns on field of use and similar provisions in the relevant intellectual property licenses.  Sun has been a huge supporter of the open source movement in many ways, so Mr. Schwartz certainly knows this.  One wonders whether this decision, presuming Apache’s claims are true, to deny such a compatible license was a high-level policy decision or one that just hasn’t been run past the right person at Sun.  We’ll find out, I suppose.

Book Party for John Clippinger's A Crowd of One

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This year, the Berkman faculty and fellows will publish four books on topics related to our field. Join us for the celebration of the first of the four to come out, John Clippinger’s “A Crowd of One: The Future of Individual Identity,” published by PublicAffairs Books. The celebration will take place on Thursday, April 19, 2007,at 5:30 PM at Harvard Law School in Pound Hall 200 with John speaking about the book, and will continue with a cocktail reception at the Berkman Center at 6:30 PM, located at 23 Everett St., also located on the law school campus. Please send an e-mail to rsvp AT cyber.law.harvard.edu to let us know if you plan to attend.

Here’s the promo blurb: “John Clippinger, one of today’s preeminent experts on how technology influences business and society, offers a fresh and provocative perspective, grounded in everyday and historical examples, that presents a vision for a new scientific understanding of human nature and identity. In A CROWD OF ONE, Clippinger takes us through the historical origins of identity and the way it is influencing—and being influenced by—today’s world. He examines origin narratives from around the world and the religious underpinnings of many people’s identities, and explores the competing theories of human nature developed by Hobbes, Adam Smith, and some of the other leading philosophical minds throughout history. His conclusions will have profound implications for everything from social networking and virtual worlds, to leadership strategies in business and technology, to the structure of today’s military operations around the world.”

iTunes and EMI Breaking the DRM Barrier

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Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)

The First OpenNet Initiative Conference: Registration Opens

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The OpenNet Initiative is holding its first-ever conference on May 18 in Oxford, England, at the Oxford Internet Institute. The conference is free and open to the public, but you must register and the event is capped at 100 participants. You can register on this wiki. We will be sharing the initial results of our first global survey of Internet filtering, which will later be published by MIT Press in a book, Access Denied: The Practice and Politics of Internet Filtering, later this year. We hope you’ll join us in Oxford later this Spring.

Wendy Seltzer Puts the NFL on Notice

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Berkman fellow (and Brooklyn law prof) Wendy Seltzer is challenging the NFL in an educational video she’s posted to YouTube. The NFL has now twice filed cease-and-desist letters to get the video taken down, and twice YouTube has complied. The content of the video makes the critical and educational nature of Wendy’s posting, plus her claim of fair use, to anyone who actually watches the video. Query as to whether the bots that generate C&Ds, or those who unleash them, actually watch the videos. Fair use should get a good hearing as a result of this exchange, whether through a DMCA 512(f) proceeding or otherwise. Wendy says her clip is “clear fair use,” but there’s no easy way for you to judge for yourself right now, since it’s taken down.

Professor Mary Wong on Intellectual Property Rights and Rhetoric, with Nesson as Interlocutor

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Professor Mary Wong of Franklin Pierce Law Center is here today at the Berkman Center. Mary’s talk is a series of provocations about language. She’s taking on the trope of the individual author. She is of the “dualist school,” that there’s a minor, but existing solution to do more with natural rights-type reasoning than the United States utilitarian framework that undergirds our IPR system.

Professor Charles Nesson, the Berkman Center’s founder, who thinks a lot about the rhetorical frame, put it nicely: Mary honed in on both the stability and the fluidity of the rhetoric around intellectual property rights.

The single greatest problem in US law in this area, Charlie says, is that the burden of proof in fair use falls on the person re-using the work, not on the person asserts her or his underlying right.

What could we do, Charlie asks? We could think about universities as a client, and law reform as our tactic. What if we were to take up as a cause a shifting of the burden of proof in the fair use context.

Ethan Zuckerman pushed back on Mary’s suggestion that the Universal Declaration of Human Rights might be a good model in terms of language for reframing of the rhetoric around IPR. It’s a shaky foundation, EZ argues, kind of like trying to build community in Palestine. EZ says that Mary is spending her time in the aspirational zone, not in the real world. What is it that we actually do, EZ wants to know? In universities, we find texts we like and xerox them and give them to students, for instance (not at the Berkman Center, of course, but…). We should work from there and try to get to a legal regime that works, says EZ.

If you’ve missed her talk in real-time, please find it at MediaBerkman.

John Mayer of CALI at Berkman

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The executive director of The Center for Computer-Assisted Legal Instruction (CALI), John Mayer, is a totally wonderful guy. He’s funny and smart and cares about cool technologies and access to justice — all good things. That’s especially good news for us, since he’s giving the Berkman Center luncheon series talk today. If you’re familiar with CALI, you know what an amazing resource he and his colleagues have created for law students and those who teach them. If you’re not, it’s well worth a look.

In their own words: “CALI is a U.S. 501(c)(3) non-profit consortium of law schools that researches and develops computer-mediated legal instruction and supports institutions and individuals using technology and distance learning in legal education. CALI was incorporated in 1982 and welcomes membership from law schools, paralegal programs, law firms and individuals wishing to learn more about the law.”

One of the things they are up to is eLangdell. The idea is to make the legal casebook of the future. Rather than buying a $120 casebook that comes out every four years on Evidence, say, eLangdell will let all of us collect the cases that we teach in our respective courses and rip-mix-burn our syllabi and teaching materials. His vision: these casebooks could serve a law professor and her students at a fraction of the cost of traditional casebooks and fund ongoing development of the system and the course-materials. The parallels to H20 Playlists is obvious. (One thing I wonder: why hasn’t someone set up a wiki server that lets people create syllabi for courses we teach in every high school in America?)

Not everything they do at CALI is about legal education in the strict sense. One of the ideas that he’s talking about is legal aid case management systems, an important concept for the provision of legal services to the poor.

I think some of the most interesting things he’s talking about has to do with taxonomies. Fortunately, The Man on taxonomies, David Weinberger, is right here next to me, tap-tapping away on his little ThinkPad — hopefully, for the rest of us, he is blogging away. Look to him for insights on this score, as always.

In response to questions, John says he’s very big on “legal literacy.” He points to a CALI service called Learn the Law that lets anyone get access to CALI lessons if they want to learn more on a given topic of law. He notes that in some areas, like intellectual property, we all need to know something about the law, whether we’re lawyers or not.