Intellectual "Property" in the Digital Age
Frank Field
Links Home : Copyright : Digital Millenium Copyright Act (DMCA)

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-REC *We Can Run, but We Can't Hide: How BayTSP Is Enforcing the DMCA
[5 hits, 4 votes, Average Rating -0.75] [Added: 20th Sep 2002]; Robert X. Cringeley; September 19, 2002. Slashdot discussion

BayTSP is paid anywhere from $200 to $50,000 per month by owners of intellectual property -- primarily software companies, movie studios, and record companies -- to find who is illegally copying, distributing, or helping to distribute without permission their intellectual property. For example: Adobe Systems arranged to have Russian programmer Dmitry Sklyarov arrested at the 2001 DefCon security conference in Las Vegas for violating the DMCA by showing how to circumvent copy protection in Adobe's eBook software. The arrest was made on information supplied by BayTSP.

Now we get to the part I find especially interesting, and where I think there is a lot of confusion among users. This has to do with how BayTSP finds out who is distributing kiddy porn or pirated music files. If you think your activities on the Internet are anonymous, you are wrong. When BayTSP finds an IP address that appears to be the source of child pornography or pirated music or video files, under the DMCA, it can subpoena ISP logs. These logs can directly connect even dynamic IP addresses to user accounts, making it clear very quickly who owns the offending account. Every ISP keeps these http logs, and even products for so-called anonymous surfing aren't effective in circumventing the technique.

"We have 100 percent coverage of peer-to-peer file sharing," Ishikawa claims. "If you are illegally sharing copyrighted materials, we know who you are."

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-REC Copyright as Cudgel
[5 hits, 5 votes, Average Rating -1.00] [Added: 31st Jul 2002]

Chronicle of Higher Education; Siva Vaidhyanatha; July 30, 2002. Slashdot discussion: Copyright as Cudgel

More broadly, a mood has come to prevail not only in the academy -- particularly among administrators and trustees -- but also among legislators that has strengthened the thrust of copyright revision. Together, trends in scholarship, copyright law, and mood have combined to generate a set of assumptions about academic work that are weighted toward the exploitation of professors and the protection of a university's "property," and against sharing or distributing knowledge. The rising importance of privately sponsored research on campus and efforts by universities to capitalize on faculty research, distance education, and other opportunities are changing the nature of universities. While they are still the largest content-consuming institutions around, they have been thinking and acting like content providers -- and have missed the radical implications of changed copyright law.

... We make a grave mistake when we choose to engage in discussions of copyright in terms of "property." Copyright is not about "property" as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons. While, technically, it describes real property as well, it also describes a more fundamental public good that precedes specific policy choices the state may make about the regulation and dispensation of property. But we can't win an argument as long as those who hold inordinate interest in copyright maximization can cry "theft" at any mention of fair use or users' rights. You can't argue for theft.

...Two rhetorical strategies have emerged. Most prominent is "commons talk." A growing number of activists and law professors are pushing for an appreciation of the "information commons." Sparked by a brilliant 1997 article by the Duke University law professor James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?," this movement toward preservation and expansion of an information commons resembles the environmental movement 40 years ago. With good luck and hard work, activists hope to build a similar level of public concern and awareness about how information operates in society, and the need for it to be commonly owned and shared. For an important statement on the information commons, see David Bollier's Silent Theft: The Private Plunder of Our Common Wealth (Routledge, 2002).

The second rhetorical strategy involves focusing on users of copyrighted material -- everyone who reads, writes, watches, photographs, listens, or sings. This is a more pragmatic approach, intended to warn people that the harmless acts they have taken for granted for years, like making a mixed tape or CD for a party, or "time shifting" television programs and skipping commercials, are threatened by recent changes in law and technology. The organization is promoting "The Consumer Technology Bill of Rights," which makes private, noncommercial uses positive rights instead of weak defenses to accusations of infringement.

Also, the lawyer who has been representing the MPAA argues (Charles Sims) (via Politech) that Viadhyanathan is full of it. Several others have chimed in as well - Copyfight entry; Shifted Librarian entry; more from Politech
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-REC Debunking DMCA - Fighting DMCA Abuse With Facts
[5 hits, 5 votes, Average Rating -1.00] [Added: 5th Jun 2002] - As a followup to their Consensus at Lawyerpoint blog, here's one that looks at the DMCA - LOTS of important and useful links.
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-REC Debunking DMCA myths
[3 hits, 4 votes, Average Rating -1.00] [Added: 19th Aug 2002]

Cnet News; Declan McCullagh; August 19, 2002. Interesting article; Declan takes on the perception that the DMCA stifles research, arguing that the community has dangerously overstated the risks, making them look shrill. Slashdot: Debunking (some) DMCA Myths - Cory Doctorow explains why he thinks Declan missed the boat on this, again. Ed Felton has a few choice words, too.

Even so, not all execrable laws are equally loathsome. A careful look at the DMCA shows that, far from prohibiting all security research, the law does not regulate as many activities as people seem to believe. And if activists hope to assail a law like the DMCA, they'll be taken more seriously if they know what they're talking about.

"The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero," says Orin Kerr , a law professor at George Washington University and a former prosecutor for the Justice Department. In fact, Kerr says, it makes sense to take opponents' claims about the scope of the copyright law with a grain of salt.

"Opponents of the DMCA want to dramatize its effects, so they want people to believe that the law is incredibly broad," Kerr says. "If the public believes that the DMCA is stopping Professor Felten and other researchers from conducting legitimate research, then that is a major victory for opponents of the law."

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-REC Digital copyright law under fire: Millenium Act already out of date, critics say
[5 hits, 7 votes, Average Rating -1.00] [Added: 14th Aug 2001], online presence of the San Francisco Chronicle; Benny Evangelista; August 13, 2001.
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-REC Does this article violate the DMCA?
[3 hits, 3 votes, Average Rating -1.00] [Added: 19th Aug 2001]; Grant Gross; August 17, 2001. A discussion of free speech and the press, vis a vis the DMCA. With commentary here, as well as at Slashdot: under the same title
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-REC New violators of the DMCA? Reuters,,, dozens of other publications, and us
[6 hits, 3 votes, Average Rating 4.33] [Added: 26th May 2002]

NewsForge; Grant Gross; May 23, 2002. Raises the question: if everyone has posted articles about how a felt tip marker can defeat the Sony protection scheme for, among others, the recent Celine Dion release, aren't they all liable under the anti-circumvention provision of the DMCA? And, if so, what does that say about the First Amendment? Picked up and discussed at kuro5hin
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-REC Study Required by Section 109 of the Digital Millenium Copyright Act
[3 hits, 4 votes, Average Rating -1.00] [Added: 29th Aug 2001]

U.S. Copyright Office & Library of Congress; 8/29/2001. The long-awaited report, required under the DMCA, for a review of the effects of the law in the face of certain provisions. With public comments. Most particularly, the concept of "incidental copies" is outlined.
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-REC The 'other' DMCA
[4 hits, 8 votes, Average Rating -1.00] [Added: 11th Oct 2001]

CNet News; Doug Isenberg; October 10, 2001. "The Digital Millennium Copyright Act--a revision to U.S. copyright laws--has taken a real beating recently, thanks in large part to a high-profile case against a sympathetic computer programmer branded as a criminal hacker."
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-REC The Digital Millenium Copyright Act
[5 hits, 2 votes, Average Rating -1.00] [Added: 6th May 2002]; Jonathan Band - a summary memorandum
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-REC The DMCA is the Toast of D.C
[3 hits, 5 votes, Average Rating 0.80] [Added: 17th May 2002]; Declan McCullagh; May 17, 2002. Declan is pissed: "The hour-long reception was a potent reminder that no matter how angry programmers, librarians and activists might be, content owners remain some of Washington's most savvy and effective influence-peddlers. In a series of interviews last summer, key politicos told Wired News that the DMCA was a fabulous bit of law -- and not much seems to have changed since then."
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-REC Time to rewrite the DMCA
[3 hits, 4 votes, Average Rating -1.00] [Added: 29th Jan 2002]

News.Com Perspectives; Rick Boucher; January 29, 2002. "The American public has traditionally enjoyed the ability to make convenient and incidental copies of copyrighted works without obtaining the prior consent of copyright owners. These traditional 'fair use' rights are at the foundation of the receipt and use of information by the American people." As a member of the US House of Representatives, Rep. Boucher has been making this case for a while. Here's another articulation of the problems with the DMCA, closing with "in short, we need to reaffirm fair use." A response from Jon "maddog" Hall is on; DMCA: We're not all criminals;
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-REC Unintended Consequences: Three years under the DMCA
[5 hits, 2 votes, Average Rating -1.00] [Added: 5th May 2002]

Electronic Frontier Foundation; May 2002. "Since they were enacted in 1998, the 'anti-circumvention' provisions of the Digital Millenium Copyright Act (DMCA), codified in section 1201 of the Copyright Act, have not beed used as Congress envisioned. Congress meant to stop copyright pirates from defeating anti-piracy protection added to copyrighted works, and to ban 'black box' devises intended for that purpose. In practice, the anti-circumvention provisions have been used to stifle a wide array of legitmate activities, rather than to stop copyright piracy. As a result, the DMCA has developed into a serious threat to three important public policy priorities." Slashdot discussion: Three Years Under the DMCA
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-2 Copyright Cases Decided in Favor of Entertainment Industry
[4 hits, 5 votes, Average Rating -1.00] [Added: 29th Nov 2001]

New York Times; John Schwartz; November 29, 2001. There's a Slashdot discussion link on this in this area as well.
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-ACM's Intellectual Property Archive
[4 hits, 2 votes, Average Rating -1.00] [Added: 2nd Aug 2001] The Association for Computing Machinery has a set of WWW resources stating their positions on intellectual property.
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-Another DMCA Attack Looms
[4 hits, 0 votes, Average Rating 0] [Added: 5th May 2002]; Declan McCullagh; May 4, 2002. "Rep. Rick Boucher is finally ready to try and dismantle a key part of the Digital Millennium Copyright Act." Slashdot discussion: Another DMCA Attack Looms
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-ARL's Status & Analysis of DMCA
[4 hits, 0 votes, Average Rating 0] [Added: 14th May 2001]

The Association of Research Libraries maintains a fairly extensive WWW site on the DMCA, including its implications for their members. Also a great timeline
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-Business 2.0 Webguide - DMCA
[3 hits, 0 votes, Average Rating 0] [Added: 25th Jul 2001]

Business 2.0 WWW site. An index to Web resources in the DMCA (Digital Millenium Copyright Act).
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-Copyright Law Foes Lose Big
[4 hits, 0 votes, Average Rating 0] [Added: 29th Nov 2001]; Declan McCullagh; November 29, 2001. The lead for this article seems to imply that Declan reads Slashdot <G>, even if he doesn't quite get subjunctive mode - "If there was a scorecard for copyright lawsuits, this week it would look like this: entertainment industry 2, free speech zip."
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-Copyright Use and Excuse on the Internet
[3 hits, 0 votes, Average Rating 0] [Added: 23rd May 2001]

Jane C. Ginsburg; Columbia - VLA Journal of Law & the Arts; Vol 24; Fall 2000. Columbia Law School Public Law Research paper No. 16 amd Columbia Law and Economics Working Paper No. 178.
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-Copyrights, Wrongs Get a Review
[5 hits, 0 votes, Average Rating 0] [Added: 16th Oct 2002]; Brad King; October 16, 2002.

A controversial portion of digital copyright law will get a public airing next month.

Starting Nov. 19, the United States Copyright Office will begin taking public comments on the section of the Digital Millennium Copyright Act, known as the DMCA, which prohibits people from breaking encryption technologies.

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-Defcon remembers Dmitry--blasts DMCA
[4 hits, 0 votes, Average Rating 0] [Added: 7th Aug 2002]

ZDNet News; Reuters; August 6, 2002.

When Adam Bresson showed how to make copies of copyright-protected videos in a speech at a hacker conference this weekend he realized he was risking arrest for violating U.S. copyright law that landed a Russian man behind bars after the same event last year.

... His message: people's rights to make "fair use" copies of copyrighted material for personal use are being eroded by copyright holders.

He cited as examples recording companies selling CDs that can't be played in PCs or car CD players, movie studios selling DVDs that can only be viewed by people in specific geographic regions and emerging technologies that prevent people from copying their own CDs.

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-DMCA 2, Freedom 0
[3 hits, 0 votes, Average Rating 0] [Added: 28th Nov 2001]; November 28, 2001. The Felton case is thrown out, and 2600 loses their appeal. Not a good day... Links and community commentary
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-DMCA defenders in enemy territory
[4 hits, 0 votes, Average Rating 0] [Added: 2nd Aug 2002]

CNet News; Lisa M. Bowman; August 1, 2002.

On a visit to the enemy territory of the Silicon Valley, representatives from News Corp.'s Fox Entertainment Group and the Recording Industry Association of America (RIAA), which has sued numerous technology companies, defended their legislative push during a panel sponsored by the Cato Institute.

Meanwhile, the leader of the Consumer Electronics Association (CEA ) and Silicon Valley Rep. Zoe Lofgren lamented their support of earlier Hollywood-backed bills, including the Digital Millennium Copyright Act (DMCA), saying the industry had abused them.

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-DMCA Forces Cox To Censor Changelog?
[3 hits, 0 votes, Average Rating 0] [Added: 22nd Oct 2001]

Slashdot; CmdrTaco; October 22, 2001. Alan Cox, one of the lead Linux kernal hacker/maintainers at Red Hat, released a new working version of the Linux kernal with a censored changelog (2.2.20pre11). The reason? One of the fixes included addressing a security glitch in the file access system; since this correction would describe a circumvention method for a potential digital rights management system, he has decided to make the information about the fix a secret to avoid violating the DMCA - supposedly based on legal advice. Quite a discussion, with links
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-DMCA Worldwide: Canade, New Zealand, USA
[3 hits, 0 votes, Average Rating 0] [Added: 28th Jul 2001]

Slashdot; July 28, 2001. A discussion of the efforts to expand the purview of copyright to match that of the DMCA in other countries. With links and commentary.
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-Draconian DMCA
[6 hits, 0 votes, Average Rating 0] [Added: 2nd Jun 2002]

InfoWorld; Ed Foster, Gripe line; June 3, 2002. A look at the real-life implications of the DMCA today:

So what we do have here? Software companies are using this new copyright law primarily to circumvent a fundamental principle of established copyright law. Is that how Congress intended the DMCA to be used? And did it intend that small ISPs should have to hire lawyers or become lawyers themselves in order to protect themselves and their customers from arbitrary takedowns? I hope not, but that's the way the DMCA works in the real world.

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-Flak Over Hack Hushes Talk
[3 hits, 0 votes, Average Rating 0] [Added: 27th Jul 2002]; Randy Dotings; July 26, 2002.

Sure, it will play movies dubbed in Spanish or Swedish. But if you bought it in the United States, it will probably spit out any DVD you pick up in Madrid or Stockholm. You can thank the motion picture companies, which divide the world up into six regions and block DVD players from crossing technological borders.

Programmers have been offering ways around the restrictions for years, however, and a renegade open-source advocate planned to publicize their possibly illegal efforts on Friday.

But under pressure from his bosses at Hewlett-Packard, Linux guru Bruce Perens declined to risk violating 1998's Digital Millennium Copyright Act at the O'Reilly Open Source Convention in San Diego.

"I care more about this than getting myself fired, but the fact is that getting myself fired today would have hurt Hewlett-Packard's Linux program," Perens said.

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-From Having Copies to Experiencing Works: the Development of Access Right in US Copyright Law
[3 hits, 0 votes, Average Rating 0] [Added: 23rd May 2001]

Jane C. Ginsburg; from US Intellectual Property: Law and Policy Hugh Hanse, ed.; Sweet & Maxwell; 2000. Columbia Law School, Public Law Working Paper No. 8. A pro-DMCA study, discussing the need for its provisions in a digital world.
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-Girding Against the Copyright Mob
[4 hits, 0 votes, Average Rating 0] [Added: 2nd Aug 2002]; Brad King; August 3, 2002.

It's a sunny summer day and you pull your CDs from your home stereo, toss them in your bag and head out. In the car, you listen to your music, and when you reach the beach, you slip a CD into a portable boom box.

Most people wouldn't give any of that a second thought. But the simple transfer of music, from home to car to portable device, could soon be ending. Content companies and consumer advocates are waging a vicious battle in Washington, with the future of consumer rights -- and what you can do with products you have purchased -- at stake.

...Mandating technology solutions, or locking down what people can do with technology, could have devastating effects on future innovation.

When advocates say the personal computer revolution wouldn't have happened under today's copyright laws, it's easy to write their comments off as a paranoid. But it might not be far from the mark. From the labs at MIT in the late '50s to the free software and open-source programmers in the '90s, hacking has historically relied on an open and available flow of information. The Digital Millennium Copyright Act has curtailed that flow of information.

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-Google Runs Into Copyright Dispute
[4 hits, 0 votes, Average Rating 0] [Added: 22nd Apr 2002]

New York Times; David Gallagher; April 22, 2002. "Legal experts say the episode highlights problems with the law that can make companies or individuals liable for linking to sites they do not control. And it has turned Google, whose business is built around a database of two billion Web pages, into a quiet campaigner for the freedom to link." This is an article about Operation Clambake and the Church of Scientology. There's a Slashdot discussion as well: Google vs. DMCA and Scientology
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-Joint Study Required by Section 104 of the DMCA
[3 hits, 0 votes, Average Rating 0] [Added: 14th May 2001]

Under the provisions of the DMCA, the Copyright Office is obliged to report on the effects of the new elements of copyright introduced upon electronic commerce. This site gives the current status of testimony submitted and ongoing responses.
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-Judge: DMCA covers AOL in e-book case
[6 hits, 0 votes, Average Rating 0] [Added: 20th Mar 2002]

CNet News; Lisa M. Bowman; March 19, 2002. "In a ruling that clarifies whether Internet service providers are responsible for material on their networks, a federal judge has ruled that America Online is not liable for the unauthorized posting of some e-books on its Web servers."
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-Lawmaker Says DMCA Controversy Will Continue
[3 hits, 0 votes, Average Rating 0] [Added: 21st Jun 2001]

The Industry Standard; Cara Garretson; June 19, 2001. "Rep. Rick Boucher says a clause that makes it a crime to circumvent copy protection mechanisms will not be modified during this session of Congress."
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-Legislative History, DMCA
[4 hits, 0 votes, Average Rating 0] [Added: 6th Sep 2001]

Franklin Pierce's Intellectual Property Mall - this huge repository of IP information includes this relatively complete (and online) legislative history of the DMCA
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-Letter to Sen Feinstein from ACM
[4 hits, 0 votes, Average Rating 0] [Added: 2nd Aug 2001]; July 31, 2001. Part of the Sklyarov fallout - a letter from the Association for Computing Machinery (ACM) to Senator Dianne Feinstein (D-CA), taking her to task over a comment by her that she had heard "no credible opposition" the the DMCA. Here, the ACM just wants to make sure that they are opposed to elements of the law, particularly the anti-circumvention elements.
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-Linux maven Bruce Perens: DMCA outlaw?
[4 hits, 0 votes, Average Rating 0] [Added: 24th Jul 2002]

InfoWorld; Matt Berger; July 23, 2002.

"When Hollywood releases a DVD in London, that DVD will not play in a U.S. DVD player," Perens explained.

That is, unless you know how to hack your DVD player, which is exactly what Perens plans to demonstrate during his presentation. Perens purchased on eBay a player that had been modified, using a software application available on the Internet, to play DVDs from various regional zones.

"I'm going to explain how the player was modified," he said.

Technically, under the DMCA, Perens' explanation of the technology makes him liable for a fine of US$500,000, he said. And although his presentation might seem like a frivolous crime, tempting the DMCA has been a risky endeavor by those who have tried similar protests before him.

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-Linux update withholed security info on DMCA terror
[6 hits, 0 votes, Average Rating 0] [Added: 30th Oct 2001]

The Register; Kevin Poulsen; October 30, 2001 - inability to cite security fixes in the Linux kernal claimed because of anti-circumvention provisions.
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-No free speech for animal rights Web sites
[3 hits, 0 votes, Average Rating 0] [Added: 4th Sep 2001]

Salon; Katharine Mieszkowski; August 31, 2001. "A British medical reseach firm hammers its online opponents, courtesy of the Digital Millenium Copyright Act." This is an exploitation of the fact that an ISP must take a potentially infringing site off the Internet, or be included in the prosecution of the copyright violator - a strategy that can stifle speech if the claim of infringement is frivolous.
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-Open Debate Between RIAA VP And DMCA Critic
[4 hits, 0 votes, Average Rating 0] [Added: 7th Oct 2002]; October 5, 2002.

A GW student writes "The George Washington University's School of Engineering and Applied Science along with the Cyberspace Policy Institute are sponsoring some kind (hasn't really been decided yet) of debate between Stanley Pierre-Louis, Vice President Legal Affairs for the Recording Industry Association of America and Professor James Boyle of Duke Law School. Remember, Prof. Boyle just received an anonymous $1 million to fight the DMCA. The event is open to the public. It will take place on Tuesday October 8 in Washington, DC on GW's campus. The abstract and other details are here. Stick around, and the next day you can go to the Supreme Court to see Lawrence Lessig argue Eldred v. Ashcroft."

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-Sherman, Set the Wayback Machine for Scientology
[6 hits, 0 votes, Average Rating 0] [Added: 24th Sep 2002]; Ernest Miller; September 24, 2002.

The Wayback Machine (aka, The Internet Archive) has, with little fanfare, removed entire domains from its archive in accordance with a request from Scientology's lawyers:

Lawyers for the Church of Scientology contacted the Internet Archive, asserted ownership of materials visible through the Wayback Machine, and those materials have been removed from the Wayback Machine. [email to LawMeme]

The problem is not that the Internet Archive received such a request from the Church of Scientology 's lawyers, or even complied with the legal portions of the request, but that the Internet Archive has not taken minimal steps to defend free inquiry and access to information. LawMeme reveals the sordid details...

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-Sony Uses DMCA To Shut Down Aibo Hack Site
[3 hits, 0 votes, Average Rating 0] [Added: 28th Oct 2001]

Slashdot; October 27, 2001. A reverse engineering site is targeted by a produt maker..
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-The People vs. DMCA
[5 hits, 0 votes, Average Rating 0] [Added: 9th Jul 2001]

kuro5hin; July 8, 2001. "It is inevitable that a DMCA ruling will be appealed as high as the United States Supreme Court. Should the Court choose to accept the case, it will call the very legitimacy of the DMCA into question. How might the Court decide?" A strange little discussion, albeit with a Civics 101 discussion of the Supreme Court.
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-US courts kowtow to entertainment industry
[3 hits, 0 votes, Average Rating 0] [Added: 29th Nov 2001]

The Register; Thomas C. Greene; November 29, 2001
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