Slashdot Mirror

Many people have sent in the breaking news from C|Net that the Appeals Court handling the Napster case wants to have the Napster injunction modified. The court website is throughly bogged, but the quick and dirty analysis is that Napster can continue to operate. Update by J : I've listed a couple of mirrors below if you can't get through to the court's site. I have some more comments below; the court's flat-out statement that "Napster users do not engage in fair use" is of special interest.

Mirrors:

• http://eon.law.harvard.edu/~wseltzer/napster.html
• http://www.politechbot.com/docs/napster.021201.html
• http://lvalue.com/nap.html

As Michael Sims points out, these 22 words are probably the most important portion of the ruling; everything else is technical details and window-dressing:

"...the record supports the district court's conclusion that Napster users do not engage in fair use of the copyrighted materials. We agree."

That doesn't look good for those who want to swap copyrighted music peer-to-peer. That same comment could probably apply to Gnutella users, for example. Brace for impact.

Moving on to the case of Napster specifically and what will happen in the immediate future...

The court found that the injunction is simply too broad in its current form, but bounced the case back to the district court with instructions, essentially, on how to do an injunction properly.

They were quite clear that an injunction should be issued to stop Napster:

The district court correctly recognized that a preliminary injunction against Napster's participation in copyright infringement is not only warranted but required.

But then went on to explain why the current injunction must be limited to the extent that Napster fails to comply with Metallica-style "here is the list of bad files" warnings. Only in such a situation can an injunction stand:

We believe, however, that the scope of the injunction needs modification in light of our opinion. Specifically, we reiterate that contributory liability may potentially be imposed only to the extent that Napster: (1) receives reasonable knowledge of specific infringing files with copyrighted musical compositions and sound recordings; (2) knows or should know that such files are available on the Napster system; and (3) fails to act to prevent viral distribution of the works. ... The mere existence of the Napster system, absent actual notice and Napster's demonstrated failure to remove the offending material, is insufficient to impose contributory liability.

I'm not quite sure how this could be enforced. Obviously, anyone can rename any MP3 "metallica-master-of-puppets.mp3" and Napster is not capable of acting to prevent distribution of same. What Napster can do is kick users off the system who have been shown to be pirates. And since they have shown their willingness to comply in the past, I'm not sure whether the court will ever find that Napster will "fail to act."

Finally, there was this simple comment:

Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index.

Alex Bischoff writes: "As noted in this Politech posting, a federal district judge says it's OK to do port scans on networks. 'The court concluded that an imperceptible slowdown in performance was not damaged under the Georgia law.'" Note that this is a very specific situation; only one data point out of many that will be required to figure out how various laws apply to the Internet.

senort01 writes: "Who couldn't find this humorous? 602P, (the post office will charge for e-mail being sent to make up for lost revenue), a classic Internet hoax, was asked about in the New York Senate debate. Needless to say, both parties aren't going to support it! Thank god!" And for those who prefer their news both more direct and more fun, ContinuousPark writes: "Declan McCullagh's Politechbot mailing list is reporting that the lame e-mail hoax made it into the Clinton-Lazio debate." the_quark helpfully points out not only the famous Bill 602P itself but the USPS's stock page denying its existence.

declan writes: "The Clinton administration is siding with the entertainment industry to shut down Napster. It just filed a 37-page amicus brief (WP file) in the court case, saying Napster can't use the Audio Home Recording Act of 1992 as a legal shield. The brief says 'the activities of Napster's users do not even arguably come within the terms of the statute' and the district court's ruling should be upheld. The Justice Department, the Patent and Trademark Office, and the Copyright Office signed the brief. By way of possible explanation, a colleague has compiled this handy list of entertainment industry contributions to Democrats. :)" While that's a clever jab, it hardly seems fair to lay the blame at the political party involved here. Seems more like a question of Establishmentarianism -- politicians in office like to remain there, and know about both corporate bread-buttering and the importance of appearing reassuringly normal.

From the brief mentioned above comes this convenient view of reality:

" ... Neither a personal computer nor its hard disk constitutes "a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium. Napster itself does not suggest otherwise."

They can make that claim not because it's true in a larger sense (obviously, your computer can make a fine recording device -- ask at any music store), but because, as the brief goes on to say,

"The terms 'digital audio recording device' and 'digital audio recording medium' are specifically defined in the Act. A 'digital audio recording device' is defined, with exceptions not relevant here, as any machine or device 'the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.' 17 U.S.C. 1001(3)"

If you define your terms correctly, black is white and 2+2=5, too.

The strange bedfellows clause seems in full effect at the moment; remember that just weeks ago, an industry group including AT&T and other unexpected Napster allies filed their own amicus brief favoring the other side, on the reasonable basis that the controls the courts would be declaring acceptable under the DMCA would soon if not already impinge on activities of nearly any large digital carrier.

declan writes: "The Clinton administration is siding with the entertainment industry to shut down Napster. It just filed a 37-page amicus brief (WP file) in the court case, saying Napster can't use the Audio Home Recording Act of 1992 as a legal shield. The brief says 'the activities of Napster's users do not even arguably come within the terms of the statute' and the district court's ruling should be upheld. The Justice Department, the Patent and Trademark Office, and the Copyright Office signed the brief. By way of possible explanation, a colleague has compiled this handy list of entertainment industry contributions to Democrats. :)" While that's a clever jab, it hardly seems fair to lay the blame at the political party involved here. Seems more like a question of Establishmentarianism -- politicians in office like to remain there, and know about both corporate bread-buttering and the importance of appearing reassuringly normal.

From the brief mentioned above comes this convenient view of reality:

" ... Neither a personal computer nor its hard disk constitutes "a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium. Napster itself does not suggest otherwise."

They can make that claim not because it's true in a larger sense (obviously, your computer can make a fine recording device -- ask at any music store), but because, as the brief goes on to say,

"The terms 'digital audio recording device' and 'digital audio recording medium' are specifically defined in the Act. A 'digital audio recording device' is defined, with exceptions not relevant here, as any machine or device 'the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.' 17 U.S.C. 1001(3)"

If you define your terms correctly, black is white and 2+2=5, too.

The strange bedfellows clause seems in full effect at the moment; remember that just weeks ago, an industry group including AT&T and other unexpected Napster allies filed their own amicus brief favoring the other side, on the reasonable basis that the controls the courts would be declaring acceptable under the DMCA would soon if not already impinge on activities of nearly any large digital carrier.

TomCollins writes "I just read on Declan McCullagh's politech mailing list that J D Sallen, the current owner of corinthians.com, has lost the domain to the Brazilian soccer team Corinthians in a ruling by Roberto Bianchi of WIPO. Sallen had been using the domain to display scripture from the book of Corinthians long before hearing about the soccer team of the same name."

TomCollins writes "I just read on Declan McCullagh's politech mailing list that J D Sallen, the current owner of corinthians.com, has lost the domain to the Brazilian soccer team Corinthians in a ruling by Roberto Bianchi of WIPO. Sallen had been using the domain to display scripture from the book of Corinthians long before hearing about the soccer team of the same name."

The ever-vigilant Brill's Content sent a freebie to the ever-vigilant Politech that makes us long for vigilante justice. It seems the odds-on favorite for this century's Big Brother, DoubleClick, has contracted to put 1x1 pixel graphic Web bugs on porn and medical sites. Read all about it. But don't worry, we're assured by the porn sites that although "DoubleClick [secretly] collects the information [that you, John Q. Doe, personally spent 12.2 minutes at a girl-on-girl fetish page and then spent 19.7 minutes reading up on your prostate problems], it does not have the technical skill to understand it."

The ever-vigilant Brill's Content sent a freebie to the ever-vigilant Politech that makes us long for vigilante justice. It seems the odds-on favorite for this century's Big Brother, DoubleClick, has contracted to put 1x1 pixel graphic Web bugs on porn and medical sites. Read all about it. But don't worry, we're assured by the porn sites that although "DoubleClick [secretly] collects the information [that you, John Q. Doe, personally spent 12.2 minutes at a girl-on-girl fetish page and then spent 19.7 minutes reading up on your prostate problems], it does not have the technical skill to understand it."

BlueCalx- writes "I was pleased this morning when I opened up my mailbox and I found my PIN number for ICANN's Members at Large program. This means that just about everyone who expressed interest at their first Slashdotting has either gotten their letter or will get it very soon." I received mine in the mail yesterday. For lots more information on ICANN, click below.

ICANN is the Internet Corporation for Assigned Names and Numbers. Essentially, they have power over the entire internet addressing system: domain names and IP addresses. People criticize the U.S. FCC for stifling low-power radio, or Congress for trying to ban indecent speech - well, ICANN has more power over communications than either of those entities, and far less accountability.

ICANN's board structure is a complex one. Probably it cannot be fully analyzed except by people devoted to the task full-time. It was designed to give corporations the dominant voice in administering the internet. A great amount of effort has been expended in stacking the deck, making sure that individuals and public interest groups do not gain any significant voice in the process. You've already seen the results of these actions. One such is the Uniform Dispute Resolution Policy, which ICANN required all domain name registrars to adopt, and which makes sure that if any corporation covets your domain name, they can take it away without any problems.

But enough of that. ICANN is run by a 19-member Board of Directors. The original members were picked out of the blue (literally; no one knows how the original members were chosen, or , more precisely, whoever knows isn't telling). ICANN has been directed to move to an election process by the Commerce Department, and that's what is now underway.

Of course, the elections also have to be stacked. Business interests have already spoken. They get to pick 9 of the 19 members. Originally, nine more were supposed to be picked by the At-Large membership (that is, the general population of internet users). (The final seat would be the President of ICANN-the-Corporation.) So already, business interests would have had a 10-9 majority on the Board. I say, "would have had", because 10-9 seemed a little too close for comfort, and the At-Large elections have been cut down to just five members, to make sure they wouldn't get too much power compared to the corporate interests in ICANN. Each of ICANN's five geographic regions will elect one member.

(This is the way committees in the U.S. Congress works as well - the political party with a majority in either of the Houses gets a majority on all the committees as well, to ensure that if push comes to shove, their party wins. It is a poor omen for the future to note that corporate interests have a permanent majority in running the internet.)

The At-Large Nomination process is also skewed. The business interests in ICANN get to nominate candidates for the At-Large elections as well, and though it's theoretically possible to get nominated without going through the Nominating Committee (sort of akin to a write-in candidate), the bar is set so high that probably no one will succeed in such a candidacy. So it's likely that the choice of candidates for the At-Large election is going to look something like the choice between Gush and Bore for U.S. President - a choice between business representative X and business representative Y.

Nevertheless, you should get involved. It's your internet that ICANN is governing, and if you plan to spend any time on the net in the future, you'd better speak now. The electorate (the number of people who've registered to vote in ICANN's elections) is extremely small - less than 20,000 people all told. Because of the regional split, the members for Africa and Latin America could be elected with only a few hundred people participating! Your vote will count much more than it would in almost any other election process, and you're controlling the future of the worldwide communications network. It's worth the effort.

A few links:

• Declan McCullagh posted some info on the election process and statistics on the electorate
• ICANNWATCH's comments on the Board elections
• Join Now. The registration process could close at any time.

Does the Digital Millennium Copyright Act cover electrical religious artifacts? Apparently the Church of Scientology thinks so. eBay has been yanking auctions of e-meters because of complaints by the CoS. In response to queries by a collector, eBay said "the Church of Scientology is giving us Notices of Infringement, which we are legally required to honor. These items are being ended for that reason." Does the DMCA really prohibit the sale of these boxes? (more)

The short answer is: "No" -- as far as I can tell -- I'm not a lawyer. But this is just one more data point in the disturbing trend of the DMCA being used as an all-purpose club to remove material from the Internet.

On hearing of this, my first thought was that perhaps the devices in question are actually licensed somehow, instead of being sold outright. But I spoke to two former members and the spouse of a current member of the CoS, each of whom assured me categorically that the devices were purchased outright, with no license required to be signed. A staffer at the Lisa McPherson Trust found a catalog where anyone can buy an e-meter; the "public price" is a little higher than the price to CoS members, but there are no apparent limitations to the purchase. A credit card is all you'll need.

The device itself is just an electrical mechanism, somewhat like a fancy multimeter or oscilloscope. It's patented, but of course thousands of patented items are sold on eBay every day.

To members of the Church of Scientology, however, it's more than just an electrical device. It's used in "auditing," which apparently helps new members advance in the program. Members of the CoS who have become experienced in this process are licensed by the CoS to audit others (but, again, the purchase of the items themselves is not under license).

Some e-meters apparently have Intel Inside (an 8-bit microprocessor which performs some rudimentary functions). But ever since a 1963 raid in which the FDA took exception to the marketing of the device as medically beneficial, e-meters have carried a disclaimer which begins: "By itself, this meter does nothing. It is solely for the guide of Ministers of the Church in Confessionals and pastoral counselling."

I'd hard-pressed to think of why copyright could apply to a piece of electronic gadgetry which "does nothing." So why is eBay refusing to allow its sale?

Because DMCA is such an effective club.

Rod Keller, a Scientology critic, noticed that e-meter auctions were being taken down, and wrote eBay to ask why. The response was:

Hello,

These items are not prohibited due to their nature, but the Church of Scientology is giving us Notices of Infringement, which we are legally required to honor. These items are being ended for that reason.

Regards,

[...]
eBay Community Watch Supervisor

(Emphasis added.) That explanation, by the way, is a little facile: eBay is "legally required to honor" such notices if it wants to remain lawsuit-proof about the item. They would be well within their legal rights to leave the auctions up. More on this later.

When Mr. Keller expressed surprise at this, the next message went into a little more detail:

Hello,

There is a procedure under the Digital Millennium Copyright Act whereby someone who claims to be an owner of Intellectual property can send a notice sworn under penalty of perjury that an item is infringing. The internet provider must then remove the item. The seller of the item (not a third party) can request and fill out a counter notice. If he/she does so, the complaining party who filled out the original notice has a limited period of time to file suit, or the provider can go ahead and relist the item.

This is set up under the statute so that the interested parties will be the ones doing any litigating.

Regards,

eBay Customer Support

In response to my requests for more detail on exactly how the DMCA was being invoked by the CoS, an eBay representative promised that someone would get in touch with me. Unfortunately, I haven't heard from them by press time.

Here's what I think happened, based on the above -- feel free to follow along in the full text of the DMCA if you like.

The DMCA is an unusual regulation in that it principally protects service providers from litigation and then rigidly defines the steps they must follow to stay under its umbrella. It puts eBay in a position a little bit like Bart Simpson's, when Sideshow Bob announces:

"The following people will not be killed by me: Homer Simpson, Marge Simpson, Lisa Simpson, that little baby Simpson.... That is all."

Title II of the DMCA, otherwise known as the "Online Copyright Infringement Liability Limitation Act," is what seems to be relevant. It describes under what conditions a service provider is not liable "for infringement of copyright." My guess is that eBay is looking at section 202(c): "Information Residing On Systems Or Networks At Direction Of Users." The system is ebay.com; the users are the sellers; presumably the information is, in this case, the item being auctioned. Or the text and graphics used to describe the auction? I'm not sure.

Section 202(c)(1)(C) indicates that eBay will not be subject to liability as long as it, "upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity."

Paragraph (3) describes the elements which must be present in a notification, including: "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

Based on eBay's statements, the Church of Scientology has sworn under penalty of perjury that it has an "exclusive right" to copyright on the material that was posted in the auction.

To me, that seems obviously wrong. An e-meter is an electrical device, or a religious artifact, depending on how you look at it. Either way, it's sold to customers who may or may not be members of the Church. Once they've bought the items, they should be able to do with them what they wish, including reselling them to whoever they wish.

But to enjoy the protections of the DMCA, service providers must remove any material as soon as they're told it infringes on copyright. Once material has been challenged, the service provider must act "expeditiously" to remove it. Only when the material is gone can the accused user make a case to defend it.

The carrot for service providers becomes a stick for users.

Meanwhile, I'd like to see the statement that the Church of Scientology made, under penalty of perjury, that an auction of an e-meter infringes on their copyright in some way. Any spokespeople for the CoS reading this are welcome to contact me to discuss it.

But, as Declan McCullagh wrote in an unrelated DMCA story yesterday, we are moving toward a two-tier copyright system on the internet -- at least in this country. If you don't host your own content, the DMCA's censor-first, ask-questions-later mandate effectively strips you of your rights.

When the Electronic Privacy Information Center gets a poor privacy rating, you might think something's wrong. It is. Enonymous.com is apparently giving out weird ratings to many Web sites, including this one - earlier, it claimed Slashdot had no privacy policy and now it wrongly claims we share your data without permission. Other sites were getting different readings though they linked to the same policy. Meanwhile, Enonymous' own privacy policy has been challenged. I'm left wondering - if even experts can't make sense of online privacy policies, what good do they do?

Brian Ristuccia writes, "It looks like the ACLU has decided to help Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, three folks who were running mirror sites of the recently released Cyber Patrol paper and decoding software, respond to the subpoena and confusing e-service messages that have been sent to them via e-mail by Cyber Patrol's law firm."

Links:

• Declan McCullagh's Archive of Case Related Documents
• ACLU Press Release

Text of the ACLU's Press Release:

FOR IMMEDIATE RELEASE
Friday, March 24, 2000

NEW YORK -- The American Civil Liberties Union will enter a Boston court this Monday to argue that a ban on a program allowing users to decode the Internet blocking software Cyber Patrol constitutes a "classic prior restraint on speech" in violation of the U.S. Constitution.

The Cyber Patrol controversy is but the latest round in a heated debate over flaws in so-called filtering software that both "overblocks" non-pornographic Web sites on subjects like Super Bowl XXX and fails to block many sites parents may not deem appropriate for their children.

In legal papers filed with the court today, the ACLU said that Cyber Patrol's lawsuit is unnecessary because the company can easily block their customers from accessing any Web site or page on which the decoding program appears, whereas some of the Web sites may be out of the jurisdiction of the court.

Acting on behalf of three U.S. Web site operators who posted "mirror" copies of the decoding program, the ACLU said their free speech rights would be violated if the court granted the company's request for a preliminary injunction against the Swedish and Canadian creators of the program.

"Under Cyber Patrol's logic, I'd be breaking the law if I bought a Ford Mustang and looked under the hood," said Chris Hansen, a senior ACLU staff attorney and lead counsel in the case. "I don't think it is asking too much for Cyber Patrol and other software companies to tell the American public exactly what their software blocks, especially when Congress wants to force both children and adults to use it."

Last Friday, March 17, U.S. District Judge Edward F. Harrington granted a 10-day temporary restraining order against the creators of the program. Cyber Patrol then sent subpoenas to the ACLU's clients, suggesting that they would be bound by that order and any future court bans.

In addition, at least one American reporter has confirmed receipt of subpoena from Cyber Patrol ordering him to reveal the name of "each and every person who produced, received, viewed, downloaded or accessed" the decoding program from his site.

The Web site operators, Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, each said that they posted the decoding program as a form of political protest against Cyber Patrol's legal actions and against "censorware" in general. Their Web sites can be found at: www.peacefire.org (Haselton), www.fmp.com (Haisley) and www.waldo.net (Jasquith).

"We thought it would be educational for some politicians, who are recommending blocking software for use in every school in the country, to see the mistakes that the codebreakers found in Cyber Patrol's list," said Haselton, 21, operator of Peacefire.org, a Web site he founded specifically to defend the free-speech interests of people under 18 on the Internet.

Haselton said that Peacefire recently decrypted the lists of sites blocked by two other programs -- I-Gear and X-Stop -- and found that they had error rates between 68 and 76 percent for blocking pages in the educational ".edu" domain.

Haselton, Jasquith, and Haisley are represented as "nonparties" to the Cyber Patrol lawsuit by Hansen of the national ACLU, Sarah Wunsch, an attorney with the ACLU of Massachusetts, David Sobel, general counsel for the Electronic Privacy Information Center based in Washington, and Jessica Littman, a visiting professor of law at New York University.

In 1998, a federal district judge said that forcing adults to use blocking software like Cyber Patrol in public libraries "offends the guarantee of free speech." Last month, a proposal aimed at forcing a Michigan public library to install Web filtering software on computers was defeated by voters.

"With Congress renewing efforts to mandate use of such flawed software in public schools and libraries, the Cyber Patrol battle only serves to emphasize that information on what is blocked must be made available to consumers, let alone libraries and schools," Hansen said.

The hearing in Microsystems Software, Inc. V. Scandinavia Online, IslandNet.com, Eddy L.O. Jansson and Matthew Skala, Civil Action No.00-10488-EFH, will take place on Monday, March 27, at 2:00 p.m. in U.S. District Court in Boston.

The ACLU's opposition to motion for preliminary injunction in the case is online at http://www.aclu.org/court/cyberpatrol_motion.html. The motion to quash subpoenas is online at http://www.aclu.org/court/cyberpatrol_quash.html.

Cyber Patrol is a subsidiary of toy company giant Mattel Inc., which is publicly traded on the New York Stock Exchange.

Brian Ristuccia writes, "It looks like the ACLU has decided to help Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, three folks who were running mirror sites of the recently released Cyber Patrol paper and decoding software, respond to the subpoena and confusing e-service messages that have been sent to them via e-mail by Cyber Patrol's law firm."

Links:

• Declan McCullagh's Archive of Case Related Documents
• ACLU Press Release

Text of the ACLU's Press Release:

FOR IMMEDIATE RELEASE
Friday, March 24, 2000

NEW YORK -- The American Civil Liberties Union will enter a Boston court this Monday to argue that a ban on a program allowing users to decode the Internet blocking software Cyber Patrol constitutes a "classic prior restraint on speech" in violation of the U.S. Constitution.

The Cyber Patrol controversy is but the latest round in a heated debate over flaws in so-called filtering software that both "overblocks" non-pornographic Web sites on subjects like Super Bowl XXX and fails to block many sites parents may not deem appropriate for their children.

In legal papers filed with the court today, the ACLU said that Cyber Patrol's lawsuit is unnecessary because the company can easily block their customers from accessing any Web site or page on which the decoding program appears, whereas some of the Web sites may be out of the jurisdiction of the court.

Acting on behalf of three U.S. Web site operators who posted "mirror" copies of the decoding program, the ACLU said their free speech rights would be violated if the court granted the company's request for a preliminary injunction against the Swedish and Canadian creators of the program.

"Under Cyber Patrol's logic, I'd be breaking the law if I bought a Ford Mustang and looked under the hood," said Chris Hansen, a senior ACLU staff attorney and lead counsel in the case. "I don't think it is asking too much for Cyber Patrol and other software companies to tell the American public exactly what their software blocks, especially when Congress wants to force both children and adults to use it."

Last Friday, March 17, U.S. District Judge Edward F. Harrington granted a 10-day temporary restraining order against the creators of the program. Cyber Patrol then sent subpoenas to the ACLU's clients, suggesting that they would be bound by that order and any future court bans.

In addition, at least one American reporter has confirmed receipt of subpoena from Cyber Patrol ordering him to reveal the name of "each and every person who produced, received, viewed, downloaded or accessed" the decoding program from his site.

The Web site operators, Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, each said that they posted the decoding program as a form of political protest against Cyber Patrol's legal actions and against "censorware" in general. Their Web sites can be found at: www.peacefire.org (Haselton), www.fmp.com (Haisley) and www.waldo.net (Jasquith).

"We thought it would be educational for some politicians, who are recommending blocking software for use in every school in the country, to see the mistakes that the codebreakers found in Cyber Patrol's list," said Haselton, 21, operator of Peacefire.org, a Web site he founded specifically to defend the free-speech interests of people under 18 on the Internet.

Haselton said that Peacefire recently decrypted the lists of sites blocked by two other programs -- I-Gear and X-Stop -- and found that they had error rates between 68 and 76 percent for blocking pages in the educational ".edu" domain.

Haselton, Jasquith, and Haisley are represented as "nonparties" to the Cyber Patrol lawsuit by Hansen of the national ACLU, Sarah Wunsch, an attorney with the ACLU of Massachusetts, David Sobel, general counsel for the Electronic Privacy Information Center based in Washington, and Jessica Littman, a visiting professor of law at New York University.

In 1998, a federal district judge said that forcing adults to use blocking software like Cyber Patrol in public libraries "offends the guarantee of free speech." Last month, a proposal aimed at forcing a Michigan public library to install Web filtering software on computers was defeated by voters.

"With Congress renewing efforts to mandate use of such flawed software in public schools and libraries, the Cyber Patrol battle only serves to emphasize that information on what is blocked must be made available to consumers, let alone libraries and schools," Hansen said.

The hearing in Microsystems Software, Inc. V. Scandinavia Online, IslandNet.com, Eddy L.O. Jansson and Matthew Skala, Civil Action No.00-10488-EFH, will take place on Monday, March 27, at 2:00 p.m. in U.S. District Court in Boston.

The ACLU's opposition to motion for preliminary injunction in the case is online at http://www.aclu.org/court/cyberpatrol_motion.html. The motion to quash subpoenas is online at http://www.aclu.org/court/cyberpatrol_quash.html.

Cyber Patrol is a subsidiary of toy company giant Mattel Inc., which is publicly traded on the New York Stock Exchange.

Brian Ristuccia writes, "It looks like the ACLU has decided to help Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, three folks who were running mirror sites of the recently released Cyber Patrol paper and decoding software, respond to the subpoena and confusing e-service messages that have been sent to them via e-mail by Cyber Patrol's law firm."

Links:

• Declan McCullagh's Archive of Case Related Documents
• ACLU Press Release

Text of the ACLU's Press Release:

FOR IMMEDIATE RELEASE
Friday, March 24, 2000

NEW YORK -- The American Civil Liberties Union will enter a Boston court this Monday to argue that a ban on a program allowing users to decode the Internet blocking software Cyber Patrol constitutes a "classic prior restraint on speech" in violation of the U.S. Constitution.

The Cyber Patrol controversy is but the latest round in a heated debate over flaws in so-called filtering software that both "overblocks" non-pornographic Web sites on subjects like Super Bowl XXX and fails to block many sites parents may not deem appropriate for their children.

In legal papers filed with the court today, the ACLU said that Cyber Patrol's lawsuit is unnecessary because the company can easily block their customers from accessing any Web site or page on which the decoding program appears, whereas some of the Web sites may be out of the jurisdiction of the court.

Acting on behalf of three U.S. Web site operators who posted "mirror" copies of the decoding program, the ACLU said their free speech rights would be violated if the court granted the company's request for a preliminary injunction against the Swedish and Canadian creators of the program.

"Under Cyber Patrol's logic, I'd be breaking the law if I bought a Ford Mustang and looked under the hood," said Chris Hansen, a senior ACLU staff attorney and lead counsel in the case. "I don't think it is asking too much for Cyber Patrol and other software companies to tell the American public exactly what their software blocks, especially when Congress wants to force both children and adults to use it."

Last Friday, March 17, U.S. District Judge Edward F. Harrington granted a 10-day temporary restraining order against the creators of the program. Cyber Patrol then sent subpoenas to the ACLU's clients, suggesting that they would be bound by that order and any future court bans.

In addition, at least one American reporter has confirmed receipt of subpoena from Cyber Patrol ordering him to reveal the name of "each and every person who produced, received, viewed, downloaded or accessed" the decoding program from his site.

The Web site operators, Waldo L. Jaquith, Lindsay Haisley and Bennett Haselton, each said that they posted the decoding program as a form of political protest against Cyber Patrol's legal actions and against "censorware" in general. Their Web sites can be found at: www.peacefire.org (Haselton), www.fmp.com (Haisley) and www.waldo.net (Jasquith).

"We thought it would be educational for some politicians, who are recommending blocking software for use in every school in the country, to see the mistakes that the codebreakers found in Cyber Patrol's list," said Haselton, 21, operator of Peacefire.org, a Web site he founded specifically to defend the free-speech interests of people under 18 on the Internet.

Haselton said that Peacefire recently decrypted the lists of sites blocked by two other programs -- I-Gear and X-Stop -- and found that they had error rates between 68 and 76 percent for blocking pages in the educational ".edu" domain.

Haselton, Jasquith, and Haisley are represented as "nonparties" to the Cyber Patrol lawsuit by Hansen of the national ACLU, Sarah Wunsch, an attorney with the ACLU of Massachusetts, David Sobel, general counsel for the Electronic Privacy Information Center based in Washington, and Jessica Littman, a visiting professor of law at New York University.

In 1998, a federal district judge said that forcing adults to use blocking software like Cyber Patrol in public libraries "offends the guarantee of free speech." Last month, a proposal aimed at forcing a Michigan public library to install Web filtering software on computers was defeated by voters.

"With Congress renewing efforts to mandate use of such flawed software in public schools and libraries, the Cyber Patrol battle only serves to emphasize that information on what is blocked must be made available to consumers, let alone libraries and schools," Hansen said.

The hearing in Microsystems Software, Inc. V. Scandinavia Online, IslandNet.com, Eddy L.O. Jansson and Matthew Skala, Civil Action No.00-10488-EFH, will take place on Monday, March 27, at 2:00 p.m. in U.S. District Court in Boston.

The ACLU's opposition to motion for preliminary injunction in the case is online at http://www.aclu.org/court/cyberpatrol_motion.html. The motion to quash subpoenas is online at http://www.aclu.org/court/cyberpatrol_quash.html.

Cyber Patrol is a subsidiary of toy company giant Mattel Inc., which is publicly traded on the New York Stock Exchange.

We just ran a story on Friday about Mattel, which makes the Web-censoring software product Cyber Patrol, and their attempted suppression of an essay and utility to decrypt CP's list of banned sites. Since then, things have gotten even uglier. Mattel's attorneys have been mass-mailing the mirrors of Eddy Jansson's site, demanding that ISPs remove them -- the original site and some of the mirrors have been taken down already. Just to make sure though, Mattel is updating the Cyber Patrol blacklists for all of their customers to include the homepages of the authors and all of the mirrors, blocked under every blocking category the product has. (more ...)

This means, for example, that if you have Cyber Patrol set to block "Full Nudity", you might think you're blocking pictures of nude human beings, but you're actually banning criticism of Mattel and the homepages of people Mattel is suing even if the decryption utility and essay aren't hosted there, such as Matthew Skala's homepage. Feel free to download the demo version of Cyber Patrol, update the filter list to the newest one, and check this out -- or just type it into their search engine, though that won't tell you it's banned under every category. Does Skala's page contain full nudity? No? Then you're seeing an example of a company purposefully and deliberately lying about the content of a page in order to serve their own agenda.

Same thing if you chose Violence/Profanity, or Partial Nudity, or Sexual Acts, Gross Depictions, Intolerance, or Satanic/Cult, or Drugs/Drug Culture, Militant/Extremist, or Sex Education, or Gambling, or Alcohol and Tobacco -- guess what? "All categories" also include "or criticism of our company or product."

Welcome to America in the new millennium, where a corporation just made the decision to ban several documents from the World Wide Web. They did it unilaterally, without court review, without any notice to the public whatsoever, yet their decisions are now being carried out (the Cyber Patrol product automatically updates its list of banned sites on a daily or weekly basis) in public schools and libraries and companies across the country, for children and adults. (Cyber Patrol uses the same list for the "corporate firewall" versions of its products.)

A list of mirrors is still available. Get it while you can. Declan McCullagh, a journalist for Wired, has started an archive of case-related documents; -- he too has received the legal threats, despite never hosting the banned essay. (The .uni files are actually TIFF images of the documents.)

And just as I was finishing up this story, I've received an e-mail in my capacity as censorware.org webmaster. A woman wrote:

The link to the essay you mentioned on your page [our homepage] date 3/16/00 must not be correct. Could you e-mail me the essay? I am a high school librarian and am trying to find out more about what Cyber Patrol filters. Thank you.

I wrote back, among other things:

In fact the link was correct, but Mattel (the maker of Cyber Patrol) has filed suit against the authors of that essay and made legal threats to that ISP which caused them to delete the page. So, the page existed on Friday, but does not today.

I certainly understand your desire to find out what Cyber Patrol blocks, but they are going to great lengths to stop you from finding out.

Blocking software can work on any category of material. Here in the States we try to block sex. But in Germany, they're going to use censorware to go after MP3s. Its "Rights Protection System" is rumored to already be in testing - and the rights that get protected are those of Mariah Carey and her label, needless to say, not yours or mine. What does this mean for our German readers, and others? More thoughts below...

If you only read one link, read Fitug's fact sheet (in English). It summarizes the situation pretty well. See Declan McCullagh's Politech for some more links.

Basically, the German recording industry is selling the idea that they should have carte blanche to block any incoming packets they see fit, at the router. As Lawrence Lessig and others have warned, the large ISPs are the weak link, subject to easy regulation. And as Fitug's paper says, only the large service providers need be forced to use this system: small providers get their feeds from the large ones, auto-censored for their pleasure.

Think for a moment about how this system will work in practice. Pirate websites, by definition, operate under the radar: they are hard to find. They are often up only briefly, or require a password to access. They aren't linked to search engines. Sharing copyrighted material is illegal is every major Western country, so these sites aren't going to list themselves on Yahoo.

But it's already been shown that censorware can't even block what's on Yahoo. That's not an exaggeration. I work with the Censorware Project, and we did a report on Bess in 1999. The software didn't just fail to block a lot of hardcore sex. It failed to block hardcoresex.com - and hundreds of other porn sites listed on Yahoo.

This new "Rights Protection System" is going to use the same technologies as existing censorware and have about the same results:

"Im Prinzip funktioniert das 'Right Protection System' also ähnlich wie das Programm Cyberpatrol..."

"So in principle, the 'Rights Protection System' will work like the program Cyber Patrol..."

Someone has to maintain this "Rights Protection System," just like someone has to maintain Cyber Patrol. What chance does it have to find even a fraction of the napster servers, hotline servers, IRC channels, and, yes, even websites where pirate MP3s are being traded?

And when a pirate site is found, the rock'n'roll will be blocked the same way existing censorware blocks sex or drugs. Let's say a directory full of copyrighted MP3s is at

http://BigUniversity.edu/users/joepirate/secret/

The RPS staffers have no way of knowing whether "joepirate" is going to have friends who share MP3s, is going to change user IDs, or is going to put his songs into some other directory. The block will be made not on the /secret/ directory. If the university is lucky, there will be a block on the /users/ directory.

But since the "filtering" takes place at the router, it is much more likely that the entire webserver will be blocked. Big University probably won't be getting many exchange students from Germany next year.

And on what basis is the country going to ask its service providers to put this extra software on their routers? According to a spokesperson for the German branch of the International Federation of the Phonographic Industry (IFPI):

"The packet forwarding process in the router is not a passive forwarding of the incoming signals. The packet is processed and manipulated by the router before it is transmitted onwards. So the [service providers] that purchase and install these routers have a heavy participatory role in the operation of the Internet."

In other words, since the hardware is already routing ("manipulating") packets from one network to another, it's really no different to add a blacklist that forbids certain URLs or IP numbers.

The executives speaking in favor of this proposal make it sound like it's going to benefit the little musician, the one struggling to make it. The IFPI points out magnanimously that it invests some of its profits in unknown artists (duh):

"Jede dritte Mark, die mit den Hits der Megastars erwirtschaftet wird, fließt heute in die Förderung junger Künstler."

"Today, every third Mark made by the megastars' hits goes toward the promotion of young artists."

Isn't that nice. But what about the "young artists" who haven't been signed with a label yet?

If I'm trying to make a name for myself by giving away my own music, and the RPS staffers spot a directory full of my MP3s, are they really going to compare each of my files' titles against their libraries? Are they going to listen to each MP3 they find? More likely, they will assume that files named "my_heart_will_go_on.mp3" and "song-001.mp3" are songs copyrighted by someone else, and not my own original work.

Simple solution: block my whole directory. Or my whole server. If there's a little collateral damage - well, less competition for their own artists.

And they won't bother to tell me about it, of course; so my music is now blocked from eighty million potential listeners - customers - and I will never know.

This doesn't help "young artists" - unless you think enslaving them to the existing labels is helping them. The IFPI chooses to ignore that giving away MP3s can help a struggling artist, not hurt.

Meanwhile, executives for the German Authors' Rights Society (GEMA) redefine arrogance. My German is rusty and Babelfish is almost no help, so bear with me. First, they count their money:

"Erfolgreiche Jahresbilanz. Zunächst aber habe ich die Ehre, Ihnen den Geschäftsbericht 1998 vorzulegen. Er dokumentiert mit seinem Gesamtertrag von DM 1,465 Mrd. und einer Verteilsumme von DM 1,263 Mrd. die wirtschaftliche Ertragskraft unserer musikalischen Verwertungsgesellschaft..."

"Successful Annual Balance. But first I have the honor to submit the business report for 1998. It documents total proceeds of 1.465 billion Marks and a distribution total of 1.263 billion Marks for our commercial music corporation..."

(Incidentally, Babelfish translates "unserer musikalischen Verwertungsgesellschaft" as "our musical exploitation corporation" - which may be accurate but probably isn't what was intended.)

Then, two sentences later:

"...auch die den kreativen Schöpfer bedrohenden Kräfte, die sich hinter Schlagworten wie 'arbeitsplatzschaffende Kommunikationsgesellschaft' oder 'Digitalisierung der Welt' verstecken, nicht aus den Augen verloren werden dürfen. Hier drohen uns - allerdings zu bewältigende - Gefahren. Und in der Tat, sie werden auch nicht eine Sekunde aus den Augen verloren, diese Gefahren. So wird denn die GEMA nicht müde, die globalisierungssüchtigen Verfechter absoluter Kommunikationsfreiheit und damit Verächter von Kultur und geistigem Eigentum immer wieder in die Schranken zu verweisen."

"...and we should not lose track of those powers who threaten creative people*, who hide themselves behind slogans like 'job-creating communications company' or 'digitalization of the world.' We are threatened by these dangers - which nevertheless can be overcome. Indeed, these dangers will not for one second be lost from our eyes. GEMA will never, ever tire of putting these globalization-addicted advocates of absolute freedom of communication - the depisers of culture and intellectual property - in their place."

Boy. How serious are these guys?

But of course they're serious. After all, negative billions are at stake.

Finally, consider what will happen once the German music industry, or any other, manages to install content-based blocking at the routers of the entire country.

Pirated music isn't the only illegal content in Germany. And once the software's in place, no politician will be able to resist adding one more type of content to block.

What will be the next category they enable on their nationwide blacklist? You might think sex. I'm betting it's Holocaust-denial. The denial of the Holocaust is something I've been working against for eight years (wearing one of my other "activist hats"). And for eight years I've been repeating that the most effective way to repudiate this dishonest political ideology is to expose it to the light of day.

Let people read the junk. And let them read refutations of the junk. That's the best way for people to recognize that deniers are liars: give them access to what everyone says, and let them make up their own minds.

But the German government disagrees. Unfortunately, they don't realize that the best way to convince a confused citizen that Holocaust-deniers are saying something valuable is to have the government ban it. "After all," goes the logic, "they wouldn't ban it if it weren't dangerous - and what could be more dangerous than the truth?"

Then, finally, after they make free-speech martyrs out of neo-Nazis, will come the effort to block sexual content. All of these blocking efforts - music, Holocaust-denial, sex - will work approximately as well as censorware has worked anywhere else. And will do approximately as much collateral damage.

This approach to censoring an entire country - block content at the incoming routers - has not yet been tried on a large scale in any Western country. Many Asian countries (notably excepting Japan) and most if not all fundamentalist Islam countries have adopted nationwide blocking. We'll see if this is the first step toward bringing the technology to the West.

If anyone has information about who will be creating and maintaining the blacklists used by the "Rights Protection System," please post a comment here or email me.

Andy Social writes, "Just saw a Wired article that tells more of the current administration's approach to online privacy. A DOJ commission that President Clinton requested a few months ago seems ready to publish their report and recommends that the U.S. find ways to trace all Internet access..." Another interesting article from Declan McCullagh. Personally, I became a believer in online anonymity while talking to a friend who used to maintain the alt.sexual.abuse.recovery FAQ. Some things are important. Update: 03/06 12:55 by J : Here's the report itself.