From: Declan McCullagh <declan@well.com>
Date: Wed, 5 Jun 1996 20:25:51 +0800
To: cypherpunks@toad.com
Subject: Fight-Censorship Dispatch #12: CDA deathwatch, copyright update
Message-ID: <Pine.3.89.9606050013.A18013-0100000@well>
MIME-Version: 1.0
Content-Type: text/plain



------------------------------------------------------------------------
                        Fight-Censorship Dispatch #12
-----------------------------------------------------------------------------
                          The CDA deathwatch begins
-----------------------------------------------------------------------------
         By Declan McCullagh / declan@well.com / Redistribute freely
-----------------------------------------------------------------------------

In this dispatch: CDA deathwatch begins, vultures start to circle
                  Copyright update: sucks to continue, sucks to delay
                  Fred Cherry, back in action!
                  MIT's Seth Finkelstein weighs in on copyright
                  Internet Caucus prepares pro-Net resolution

June 4, 1996


WASHINGTON, DC -- The CDA deathwatch has begun and hungry scavengers
are starting to close in on the ill-begotten law's moldering carcass.

The Philly court yesterday attracted still more hovering media
vultures by saying they'll announce when they're ready to release
their decision.

What a tease.

This evening I called Chris Hansen, who's leading the ACLU's legal
team challenging the CDA in Philadelphia's Federal court. He told me:

  The court will try to give as much advance notice as possible. This
  is unusual but not unheard of -- all along the court has treated
  this as a very important case. They had the court historian come in
  and take pictures the first day. And the clerk himself has been
  present, not his deputies.

(In case anyone's interested, I'm still offering 3:1 odds in our favor
in Philly, though all bets are off when we get to the Supreme Court.)

In the last week, the ALA/CIEC and ACLU media operations shifted into
overdrive, pumping out a flurry of press advisories telling mediaperns
to be on the lookout -- that a decision is expected "any day now."

That was the idea, at least. Conventional wisdom said that our
three-judge panel in Philly would want to rule before the court in New
York City that's currently hearing a weaker, parallel challenge to the
CDA. After all, Federal judges are political beasts and it's a cinch
that any of 'em would want to write an opinion in this landmark case.

Final arguments in the NYC case were scheduled for yesterday. But at
the hearing, the Manhattan court decided it had more questions for
both sides and gave the government until June 7 to file responses and
the plaintiff, Joe Shea, until June 13.

That means that our court has until the end of next week to issue its
decision -- and still come out first.

And so the deathwatch groans onward...


+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
           COPYRIGHT UPDATE: SUCKS TO CONTINUE, SUCKS TO DELAY
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

I wrote in my May 30 dispatch that there's "a fighting chance that
this braindead copyright bill will pass this year." 

Now I'm not as sure. The House subcommittee markup session that
tentatively was scheduled for June 5 has been cancelled, and it won't
take place before June 12 or 13.

That's good and bad. The upside is that this ill-fated bill likely
won't pass in any form this session -- but the mucky underside is that
the courts will continue to rely on a Clinton administration white
paper released last fall by copyright czar Bruce Lehman.

Lehman, who heads the Patents and Trademark Office, hatched this
boondoggle that slams online fair-use rights and slaps service
providers with hefty fines if one of their users violates someone's
copyright.

A well-connected lawyer in DC sent me email on this earlier tonight:

  No copyright legislation is going to be passed this year. This comes
  from [Important Name deleted --DBM]. That means the White Paper will
  guide courts for at least the next very critical six months. The
  Scientology v. Lerma court has been looking [for] legislative
  direction, but they can't stall much longer. They will have to base
  their decision on the only thing they have, the White Paper.

Somehow, I suspect the Church of Scientology won't mind that one bit.


+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
                       FRED CHERRY, BACK IN ACTION!
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

Fred Cherry, everyone's favorite net.loon and a truly redoubtable
USENET flamer, took center stage briefly at yesterday's Shea v. Reno
CDA hearing in New York City. The amateur lawyer succeeded in joining
his lawsuit with Joe Shea's and has been merrily introducing excerpts
from soc.motss "homonazi" flamewars into evidence.

He maintains that to reply to flames, he must use "indecent" or
"patently offensive" language, which could violate the CDA.

Mark Mangan writes on the June 3 hearing:

  In his deep, raspy voice [Judge] Cabranes then called Fred Cherry,
  who had attended every day of the hearings in hopes of consolidating
  his case. The chief judge looked at a paper and pronounced Cherry's
  name again. Someone leaned over the seats and tapped Cherry. He
  awoke, arose, gathered his plastic bags and umbrella and, wearing
  his overcoat, approached the bench. He walked straight to the
  microphone and rested his belongings at his feet. Cherry started
  his hurried talk about how he "despised the ACLU" and what he was
  there to discuss "goes all the way back 30 years."

I interviewed Cherry earlier today. Here's what he told me:

  -------------------------------------------------------------------
  Q: HOW DID YOU FEEL AFTER THE HEARING?

  A: The judges were nice to me. I can't believe how nice they were.
     That's not what I'm used to when I see judges.

  Q: WHAT ABOUT YOUR REQUEST THAT THE CASES BE CONSOLIDATED?

  A: [Shea's attorney, Randall Boe] said he's worried that if I join,
     I'm so far behind that it'll slow him down. That they won't be
     able to get to the Supreme Court...

     I'm just going to tag along like a caboose hitched onto a train.
     [Shea and his attorney] don't want me. They filed a brief, about
     two pages, saying they didn't want me.

  Q: WHAT DID YOU TELL THE JUDGES YESTERDAY?

  A: I came up with something [posted] by Rod Swift that Jesus had a
     large penis. Everybody [in the courtroom] was going crazy.
     Everyone was laughing.

  Q: WILL YOU INTRODUCE THOSE POSTS INTO EVIDENCE?

  A: They're going to give me more time. There's going to be an
     order -- it hasn't come down yet. They'll issue an order
     allowing me to present more exhibits.
  -------------------------------------------------------------------

I asked Cherry for the penis-posts he read aloud, but he still hasn't
sent 'em to me. I was able to track down some seemingly representative
ones that I archived at EFF's web site in April:

  Your ass is so blocked up that you do need some therapeutic relief
  for your constipation -- a condition which has backlogged all the
  shit right back up into your head, Fred.

  nobody has suggested that fred cherry should be thrown in jail, sued
  for libel, or even so much as fined. i have suggested the wisdom of
  packing his asshole with shards of broken glass, but i wasn't
  serious.  i wasnt _that_ serious anyway.

Whatever you think of Cherry's antics, you gotta grant him one thing:
not many people have the balls to demand that a Federal court uphold
their right to flame.


+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
             MIT'S SETH FINKELSTEIN WEIGHS IN ON COPYRIGHT
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

                 By Seth Finkelstein (sethf@mit.edu)

The fight over the future of copyright law is raging over two
competing concepts: information should be for the public good vs. info
is "private property."

Previously, information has been tightly linked to a physical object
-- a book, a record, a tape. Now, with electronic communication, the
full implications of "copyright" -- where using your printscreen key
may be illegal if not explicitly allowed by license -- are becoming
clear.

Since this "property" is so abstract, it's frightening to contemplate
the regulation needed to control the network to ensure no unauthorized
information gets distributed. In the censorship battles, there's at
least *some* material which is safe. Not so in the copyright wars,
where every message may be required to carry "identification papers,"
to establish that it's not fugitive property that has escaped from its
rightful "owner." (And what does this do to anonymity online?)

Unlike many, I don't believe any particular outcome is inevitable.
It's a question of what sort of future world emerges from the
*political* process. It can be either an electronic commons, shared by
all, or a series of tollbooths on every public online street.


+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+
            INTERNET CAUCUS PREPARES PRO-INTERNET RESOLUTION
+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+-=-+

The congressional Internet Caucus is about to introduce a non-binding
resolution promising to do good by the Net:

  ---------------------------------------------------------------------
  Resolved by the House of Representatives (the Senate concurring),
  That it is the sense of Congress that --

  (1) Congress should educate itself about the Internet and use the
      technology in personal, committee, and leadership offices;

  (2) Congress should work in a bipartisan and bicameral fashion to
      facilitate the growth and advancement of the Internet;

  (3) Congress should maximize the openness of and participation in
      government by the people via the Internet so that our
      constituents can have more information from and more access to
      their elected representatives;

  (4) Congress should promote commerce and free flow of information on
      the Internet;

  (5) Congress should advance the United States' world leadership in the
      digital world by avoiding the passage of laws that stifle
      innovation and increase regulation of the Internet; and

  (6) Congress should work with the Internet community to receive its
      input on the issues affecting the Internet that come before
      Congress.
  ---------------------------------------------------------------------

In today's Campaign Dispatch column on HotWired, Brock Meeks writes:

  The caucus is now 47 members strong, double its original membership.
  But the fight for Net survival -- hell, for simple respect -- is far
  from over. Neither a second-term Clinton nor a Dole presidency gives
  us much reason for hope. We'll be in the trenches for several years
  to come; it's time to get our hands dirty.

More hot air from Congress? Sure. But it's a sea change compared to
where the Net community was a year ago, around the time that TIME
magazine's infamous Cyberporn cover appeared, Marty Rimm published his
fraudulent smut-study, and Sen. Chuck Grassley held the "first-ever"
cybersmut hearing in July...

Stay tuned for more reports.


-----------------------------------------------------------------------------

Today's unsubstantiated rumor:

  Y'all remember Jason "The Weasel" Baron, the DoJ's lumbering,
  cyberchallenged lawyer? Word from an attorney friend of mine says
  that Baron is predicting the DoJ will *lose* on the CDA, three-zip.

Want to subscribe to the announcement-only fight-censorship mailing
list for future Fight-Censorship Dispatches and related updates? Just
send "subscribe fight-censorship-announce" in the body of a message
addressed to:
  majordomo@vorlon.mit.edu

Mentioned in this CDA update:

  Mark Mangan's Shea v. Reno June 3 update:
    http://fight-censorship.dementia.org/dl?num=2691
  EFF's archive on the Fred Cherry v. Reno case:
    http://www.eff.org/pub/Legal/Cases/Fred_Cherry_v_DoJ/
  EFF's archive on the Joe Shea v. Reno case:
    http://www.eff.org/pub/Legal/Cases/Am_Reporter_v_DoJ/
  ACLU predicts decision soon:
    http://fight-censorship.dementia.org/dl?num=2673
  U.S. Congressional Internet Caucus:
    http://www.house.gov/white/internet_caucus/netcauc.html
  Creative Incentive Coalition on copyright:
    http://www.cic.org/
  Digital Future Coalition on copyright:
    http://www.ari.net/dfc/
  Brock Meeks on online copyright:
    http://www.hotwired.com/muckraker/96/20/index3a.html
  Brock Meeks on Internet Caucus, non-binding resolution:
    http://www.hotwired.com/netizen/96/23/index1a.html                 
  Ron Newman's web page on the Church of Scientology:
    http://www.cybercom.net/~rnewman/scientology/

  Fight-Censorship list   <http://fight-censorship.dementia.org/top/>
  Rimm ethics critique    <http://www.cs.cmu.edu/~declan/rimm/>
  Int'l Net-Censorship    <http://www.cs.cmu.edu/~declan/international/>

This and previous Fight-Censorship Dispatches are archived at:
  <http://fight-censorship.dementia.org/top/>

Other relevant web sites:
  <http://www.epic.org/>
  <http://www.eff.org/>
  <http://www.aclu.org/>
  <http://www.cdt.org/>
  <http://www.ala.org/>

-----------------------------------------------------------------------------