864 lines
38 KiB
Plaintext
864 lines
38 KiB
Plaintext
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Computer underground Digest Sun Sep 15, 1996 Volume 8 : Issue 66
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ISSN 1004-042X
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Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
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News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
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Archivist: Brendan Kehoe
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Shadow Master: Stanton McCandlish
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Field Agent Extraordinaire: David Smith
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Shadow-Archivists: Dan Carosone / Paul Southworth
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Ralph Sims / Jyrki Kuoppala
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Ian Dickinson
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Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
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CONTENTS, #8.66 (Sun, Sep 15, 1996)
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File 1--Vinton Cerf's National Geographic Society Lecture
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File 2--Re: CuD #8.62 - "US Army Private Faces Spying Charge"
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File 3--Condat plagiarizes Crypt Newsletter in recent CuD
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File 4--** BERNIE S. RELEASED!! **
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File 5--Microsoft lies, damned lies, and statistics
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File 6--CITA
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File 7--EPIC Testifies on Children's' Privacy Bill
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File 8--It's all in the Game: Who Owns "Real-time" Sports Information?
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File 9--"Freedom on Trial," from October 1996 Playboy
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File 10--Cu Digest Header Info (unchanged since 7 Apr, 1996)
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CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
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THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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---------------------------------------------------------------------
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Date: Mon, 9 Sep 1996 17:37:53 -0400
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From: russ@NAVIGATORS.COM(Russ Haynal)
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Subject: File 1--Vinton Cerf's National Geographic Society Lecture
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Hello DC-ISOC,
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We are looking into the following topic for our next meeting:
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Domain Names (policy, issues, trademark, etc.)
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We also continue to be interested in suggestions for meeting locations that
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can handle several hundred people. (If you have a "connection" with any
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such facility, please reply to this email)
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In the mean time, I thought this meeting sponsored by the Internet Society
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and National Geographic would be of interest to you. Questions about Vint
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Cerf's lecture should be directed to the phone number in the announcement
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below.
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Thanks,
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Russ Haynal
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Subject--Vinton Cerf's National Geographic Society Lecture
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Here's the information concering Vinton Cerf's National Geographic Society
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lecture. ISOC members should mention their affiliation to get the lower
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ticket price, which is available with advance ticket purchase only.
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"The Internet and Society"
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Although Vinton Cerfs' official title at MCI Communications Corporation is
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senior vice president for data architecture, he is also known worldwide as
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the "Father of the Internet." Experts say that his tireless efforts to
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develop global standards for transmitting date have been indispensable to the
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Internet' s amazing growth. Join him as he discusses this flourishing
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technology and the legal and social issues arising from its presence in our
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daily lives. Then see what lies ahead as Dr. Cerf speculates about the
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future of this revolutionary communications medium.
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This program is co-sponsored with the Internet Society.
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When: Wednesday, Oct. 9 at 7:30 p.m.
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Tickets:
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National Geographic Society and Internet Society Members: $10 with advance
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purchase only.
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General admission: $13
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(ISOC members should mention their affiliation)
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Where:
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The National Geographic Society
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The Gilbert H. Grosvenor Auditorium, 1600 M Street NW, Washington, D.C.
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Free parking is available in the Society's underground garage.
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Information: 202-857-7700
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-----------------------------------------------------------
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Individuals who are interested in becoming members of DC-ISOC can do so
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by joining the Internet Society. See the ISOC's web site at
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http://www.isoc.org for more information.
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The Washington DC Chapter of the Internet Society also maintains its own web
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site at: http://www.dcisoc.org Please feel free to pass this announcement
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message along to other interested individuals. If this message was
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forwarded to you, you can join our announcement mailing list through
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our web site ( http://www.dcisoc.org )
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_________________________________________________________
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Russ Haynal - Internet Consultant, Instructor, Speaker
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"Helping organizations gain the most benefit from the Internet"
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Author:"Internet; A Knowledge Odyssey" (Top-rated CD-ROM Tutorial)
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Available from MindQ Publishing: http://www.mindq.com
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russ@navigators.com http://www.navigators.com 703-729-1757
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------------------------------
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Date: Mon, 26 Aug 1996 12:08:05
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From: sysop@VISUCOMM.COM(---)
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Subject: File 2--Re: CuD #8.62 - "US Army Private Faces Spying Charge"
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I have but a few comments on this case, not knowing the specifics.
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But, in my experience, it could very well be the case that this
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Private was just trying show the system was unsecure.
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When I was in the US Air Force in the late 1980s, I discovered a
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security problem with some of our computers and communications
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systems. I informed my supervisor, who apparently informed his. I
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was then instructed to do nothing, that the security problem DID
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NOT exist. When I offered to prove it DID exist I was told I would
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be charged with any manner of serious UCMJ and security violations.
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So, I naturally dropped the subject. Later, some of those very same
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security problems were exploited, for personal reasons, by another
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Sgt and Airman. They were disciplined, after being discovered
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quite by accident, but no measures were taken to insure resolution
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of the security problems. They may have been taken care of after I
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left that AirBase though.
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Now, for the Private giving some "unclassified" password to this
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Chinese friend of his. BIG NO NO. That is completely outside any
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realm of responsible action. He deserves to be, hauled in for
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that. Classified or unclassified, he had NO business giving ANY
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passwords from his Military affiliations to someone like that.
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Fred Brandli
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sysop@VisuComm.com
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j66r@Probe.net
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------------------------------
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Date: Sat, 14 Sep 1996 20:17:20 -0500 (CDT)
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From: Crypt Newsletter <crypt@sun.soci.niu.edu>
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Subject: File 3--Condat plagiarizes Crypt Newsletter in recent CuD
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It's said imitation is the sincerest form of flattery. However,
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plagiarism should be held in contempt.
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Jean Condat, "Senior Business Consultant for the Smart Card Unit,
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Informix" in France posted an article on computer virus troubles
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during the US Army's Bosnian deployment in CuD 8.65 that plagiarized
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Crypt News.
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Instead of paraphrasing, citing or synthesizing the news, Condat cut
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and pasted my words directly from Crypt Newsletter while cleverly
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stripping my by-line and Web URL from the original. Too bad I read
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CuD, huh?
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"Information wants to be free" is a quaint bromide that's much
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too often an excuse for this ersatz trick. Stop thief! Crypt Newsletter
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is watching.
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For the original, "US Army troubled by computer viruses in
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Bosnia," check the Website:
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http://www.soci.niu.edu/~crypt
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George Smith, Crypt Newsletter
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------------------------------
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Date: Tue, 17 Sep 1996 02:34:13 -0400
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From: Emmanuel Goldstein <emmanuel@2600.COM>
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Subject: File 4--** BERNIE S. RELEASED!! **
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As of Friday, September 13th, Bernie S. was released from prison on
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an unprecedented furlough. He will have to report to probation and
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he still has major medical problems as a result of his extended tour
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of the Pennsylvania prison system. But the important thing is that
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he is out and that this horrible ordeal has finally begun to end.
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We thank all of you who took an interest in this case. We believe
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it was your support and the pressure you put on the authorities that
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finally made things change. Thanks again and never forget the power
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you have.
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emmanuel@2600.com
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www.2600.com
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------------------------------
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Date: Mon, 16 Sep 1996 20:54:41 +0000
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From: David Smith <bladex@bga.com>
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Subject: File 5--Microsoft lies, damned lies, and statistics
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Jim,
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Microsoft has been touting heavily the statistic that 4 out of 5
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users prefer Explorer 3.0 over Navigator 3.0. This is touted on
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their websites, press releases, and has been cited in articles by
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independent publications.
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> EXPLORER 3.0 VASTLY PREFERRED TO NETSCAPE 3.0
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>
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>
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> Microsoft says Usability Sciences Corp., an independent
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> research firm, has found that four out of five users (79 percent)
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> preferred Explorer 3.0 over Navigator 3.0 in all 14 categories
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> tested, including ease of use, efficiency in completing assigned
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> tasks, and ease of learning.
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I just couldn't believe it was true.
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I went to the Microsoft home page, and found that the entire study by
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Usability Sciences Corporation is available online. I was looking at
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their research methodology --- do you know what their sample
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population was? *NEW* users. That is, people who had never used an
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Internet browser before.
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By dropping the qualifer that these were new users, Microsoft is
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being intentionally misleading and deceitful.
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Is it just me who feels this way? I haven't heard or read a single cry
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of outrage from the media, which is surprising given the amount of
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heat granted the Time-Rimm study.
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Perhaps you and/or the readers of CuD could shed some light and/or
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blood about this issue.
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------------------------------
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Date: Tue, 30 Aug 1994 16:10:00 -0600
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From: Tim Harris <maxexpo@saskmaple.net>
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Subject: File 6--CITA
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www.saskmaple.net/citc
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For Immediate Release
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C.I.T.A. -- Canadian Information Technology Association Declares War on
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SaskTel
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SASKATOON, August 30, 1996 -- The C.I.T.A. -- Canadian Information
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Technology Association has officially declared war on SaskTel. An
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official investigative report released by the provincial government
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August 27, 1996 indisputably shows that SaskTel is deliberately pushing
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private sector Internet Service Providers (ISPs) and federal government
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subsidized Community Access Program communities out of business.
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According to the report, 100 Internet users, each operating a 28.8 k/sec
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modem would be able to concurrently use a single 56 k/sec line. "You do
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not have to know anything about computers to do the math." says Lyndon
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Holm Vice Chairman of the C.I.T.A. "This is technically impossible."
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The C.I.T.A. confronted Robert Hersche, Senior Advisor on
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Telecommunications for Saskatchewan Intergovernmental Affairs, about
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some of the comments made in his report. Mr. Hersche acknowledged that
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he is not familiar with Internet technology and that the report was
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constructed from the statements made from the SaskTel Engineering
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Department. Mr. Hersche indicated that he "took their word for it." When
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asked if any independent consultants were used for the investigation he
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replied that they did not have the budget for that.
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"This assault on private business by this crown corporation grossly
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violates the Competition Act." says Tim Harris, Chairman of the C.I.T.A.
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"Unfortunately, as we can see with this provincial government report,
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the private business owners can not even get a fair investigation to
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determine wrong doing. SaskTel is judge and jury on every issue."
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Since the private sector has been challenging SaskTel on these issues of
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unfair competition, SaskTel insists they are bound by tariffs. These
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tariffs are not federal but from the Provincial Cabinet. The role of
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Saskatchewan Intergovernmental Affairs is to advise the Minister about
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policy issues concerning SaskTel. It is the position of the C.I.T.A.
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that the Provincial Cabinet is just as ignorant as their advisors and
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are passing tariffs "taking SaskTel=92s word for."
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The C.I.T.A. will be releasing an official challenge to SaskTel and
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provincial government representatives to have an on-camera debate later
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next week. "We don't expect them to show up." says Harris "To this point
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they have backed out of every request to meet this organization."
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------------------------------
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Date: 12 Sep 1996 18:15:29 -0500
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From: "Dave Banisar" <banisar@EPIC.ORG>
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Subject: File 7--EPIC Testifies on Children's' Privacy Bill
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From -- EPIC: Volume 3.16 September 12, 1996
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--------------------------------------------------------------
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Published by the
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Electronic Privacy Information Center (EPIC)
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Washington, D.C.
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http://www.epic.org/
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=======================================================================
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[2] EPIC Testifies on Children's' Privacy Bill
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=======================================================================
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EPIC Director Marc Rotenberg testified today before the House
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Judiciary Committee Subcommittee on Crime in support of the Childrens
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Privacy Protection and Parental Empowerment Act of 1996. The bill
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would establish basic privacy standards for organizations that collect
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personal information on children and curb recent abuses in the
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marketing industry. The bill is sponsored by Rep. Bob Franks (R-NJ)
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and has 46 cosponsors in the House of Representatives. A similar
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measure has been introduced in the Senate by Senator Diane Feinstein
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(D-CA).
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Rotenberg said that "current practices pose a substantial threat to
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the privacy and safety of young people." He described a recent
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incident where a reporter posing as the murderer of Polly Klaas was
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able to obtain the ages and address of young children living in the
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Pasadena area. Rotenberg also cited editorials from USA Today and the
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Economist favoring privacy legislation as well as public opinion polls
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which show that 9 out of 10 Americans object to the sale of personal
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data where explicit consent is not obtained.
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Recalling the passage of the Family Educational Right to Privacy Act
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of 1974, which protects the privacy of student records, Rotenberg said
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there was already Congressional recognition of the need to protect
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personal information about young children. "No universities have been
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shut down because of the Act, but the privacy of children's
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educational records is more secure because Congress did not fail to
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act when it had the opportunity to establish privacy protection for
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young people." #011#Also testifying in support of the bill were Rep. Bob
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Franks, children rights advocate Marc Klaas, and Miriam Bell of Enough
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is Enough. Marc Klaas also heads the Klaas Foundation for Children
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which launched the Kids Off Lists campaign.
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Testifying against the bill were representatives from the Direct
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Marketing Association, a list broker, a book publisher, and a police
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officer from San Bernadino.
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More information on the Childrens Privacy bill and kids privacy may be
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found at:
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http://www.epic.org/privacy/kids/
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The Klaas Foundation for Children is on the web at:
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http://www.klaaskids.inter.net/
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------------------------------
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Date: Mon, 26 Aug 1996 17:40:10 -0500 (CDT)
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From: pkennedy <pkennedy@IO.COM>
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Subject: File 8--It's all in the Game: Who Owns "Real-time" Sports Information?
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**********************************************
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** LEGAL BYTES **
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**********************************************
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Summer 1996, Volume 4, Number 2
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----------
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George, Donaldson & Ford, L.L.P.
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Attorneys at Law
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114 West 7th Street, Suite 1000
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Austin, Texas 78701
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(512) 495-1400
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(512) 499-0094 (FAX)
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gdf@gdf.com
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http://www.gdf.com
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----------
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Copyright 1996, George, Donaldson & Ford, L.L.P.
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(These articles may be re-distributed electronically,
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without editing and with proper attribution)
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----------
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David H. Donaldson, Jr., Publisher, dhdonald@gdf.com
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Peter D. Kennedy, Editor, pkennedy@gdf.com
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----------
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2. IT'S ALL IN THE GAME: WHO OWNS "REAL-TIME" SPORTS
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INFORMATION?
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If information can't be copyrighted, that means anyone can
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copy it, right? Wrong.
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A recent ruling from a New York federal judge has startled
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many lawyers and sports fans alike. On July 19, 1996, U.S.
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District Judge Loretta A. Preska declared that the National
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Basketball Association "owns" the "essence" of its professional
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basketball games, and therefore the NBA can prohibit the
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unauthorized publishing of "real-time" basketball scores and
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statistics -- even though that information cannot be copyrighted,
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and even though the games are being broadcast live on television or
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radio.
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The case is called The National Basketball Association v.
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Sports Team Analysis and Tracking Systems, Inc. (STATS), 1996
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Westlaw 435031 (S.D.N.Y. July 22, 1996). In ruling for the NBA,
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Judge Preska did not rely on the most common intellectual property
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doctrines -- trademark, copyright, patent, or trade secret law. In
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fact, she specifically held that neither the NBA games nor their
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scores and statistics could be copyrighted. However, in a decision
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that is leaving some intellectual property lawyers scratching their
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heads, Judge Preska ruled that the old pliable common law doctrine
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of "unfair competition" gives the NBA a monopoly over the
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dissemination of "real-time" information about its games.
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The actual contestants in Judge Preska's courtroom were the
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NBA, the communications giant Motorola, and an innovative company
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called STATS. While Judge Preska's ruling might be an anomaly
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limited to the unique arena of sports law, it might just be the
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first skirmish of a potentially wide-ranging new intellectual
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property war: high-stakes battles to own the economic value of the
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"freshness" of otherwise public and legally unprotected
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information. Many companies considered this case to be very
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important: "friend of the court" briefs were filed by The National
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Football League, Major League Baseball, the National Hockey League,
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The Associated Press, America Online, and The New York Times.
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STATS and "SportsTrax." Time is money. Information has value
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-- or at least timely information has value. Stale information can
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be worth less than zero. What good is hours-old stock price
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information? Know up-to-the-minute stock prices, and you can make
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informed investment decisions; old stock prices information is just
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a history lesson. What real sports fan can wait for the morning
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paper to read the box scores? And what bookie can monitor the
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current status of his "investments" by reading the paper or
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watching the evening news?
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Sensing a lucrative niche market, Motorola and STATS first
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teamed up to deliver scores and statistics for ongoing professional
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baseball games. Under a license with Major League Baseball, STATS
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hired "reporters" to watch the ball games and transmit to STATS
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play-by-play information. STATS processes the information and
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transmits it to Motorola. (STATS also provides the information to
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news outlets and America Online.) Motorola then broadcasts the
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information to special pagers marketed under the name "SportsTrax";
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these pagers could display, in practically real time, the status of
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all ongoing Major League games.
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When STATS and Motorola started a similar service for
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professional basketball, they did not obtain a license from the
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National Basketball Association. The NBA, which had plans to
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develop its own similar service, quickly sued to shut down
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SportsTrax's coverage of NBA games. In the lawsuit, the NBA
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accused STATS and Motorola of a host of legal violations, from
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copyright and trademark infringement to state law "commercial
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misappropriation." The NBA lost every claim except one, but that
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one claim was enough for the court to enjoin the entire SportsTrax
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business. Judge Preska's opinion runs over 100 pages, but her
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decision gives answers to two key questions: Can a sports contest
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itself be copyrighted? And if it can't, does New York law still
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protect the NBA's ownership of the "essence" of that game?
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Sporting events -- and facts describing them -- cannot be
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copyrighted. The NBA made the somewhat novel argument that a
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basketball game can be copyrighted just like a poem or a song. Not
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too surprisingly, Judge Preska decided that the Copyright Act's
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protection of "original works of authorship fixed in any tangible
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medium of expression" did not apply to the basketball game itself.
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(A broadcast of the game, in contrast, incorporates a creative
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choice of camera angles and commentary and can be copyrighted.)
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The court went on to conclude, again not too surprisingly,
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that the scores, statistics and other facts pertaining to the
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sporting events also were not copyrightable. The Copyright Act
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protects the expression of ideas or facts, not the underlying facts
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or ideas themselves. And even though the SportsTrax service was
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delivering information contained in copyrighted broadcasts, the
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NBA's copyright in the broadcast was not being infringed because
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SportsTrax was only transmitting uncopyrightable facts.
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Does state law protect the "essence" of live sporting events?
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Often, a ruling that the Copyright Act does not apply ends the
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hunt. Not here. Judge Preska went on to rule that the SportsTrax
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service violated New York state law and that the NBA was entitled
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to an injunction shutting it down. At first blush, Judge Preska's
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conclusion that distribution of public, uncopyrighted facts can be
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enjoined seems contrary to fundamentals of intellectual property
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law. However, although the legal precedent is old (pre-dating
|
|
digital pagers and the Internet by quite some years) there is
|
|
support for her ruling.
|
|
|
|
The key precedent is the seventy-eight-year-old U.S. Supreme
|
|
Court case of International News Service v. Associated Press, 248
|
|
U.S. 215, 39 S. Ct. 68 (1918). Wire news services were the cutting
|
|
edge communication technology at that time. The INS and the AP
|
|
were battling to become the nation's preeminent wire service. The
|
|
INS had been taking AP wire stories from early editions of East
|
|
Coast newspapers and transmitting them to its West Coast
|
|
newspapers. Although the INS often didn't infringe the AP's
|
|
copyright in the stories, the Supreme Court ruled that INS, as a
|
|
competitor of the AP, could not even use the facts in the AP
|
|
stories to write its own stories -- at least while the news was
|
|
still "hot." In those days, the Supreme Court was less careful
|
|
about the source of law for its ruling; it apparently decided the
|
|
INS v. AP case based on the common (judge-made) law of unfair
|
|
competition. Subsequent courts have interpreted the INS v. AP
|
|
ruling as incorporating some notion of a property right that arises
|
|
under state, not federal, law.
|
|
|
|
Although INS v. AP involved news stories, it became the
|
|
foundation for a series of rulings from the 1930s through the 1950s
|
|
prohibiting unauthorized broadcasts of sporting events. In 1938,
|
|
a Pennsylvania federal trial court enjoined the unlicensed radio
|
|
broadcast of Pittsburgh Pirates games from a rooftop overlooking
|
|
Forbes Field. [fn.1] Between 1937 and 1955, New York courts
|
|
prohibited unlicensed broadcasts or depictions of boxing matches,
|
|
hockey contests and baseball games. [fn.2]
|
|
|
|
Judge Preska found these old cases to be good law in New York.
|
|
|
|
Three factors appeared to be key: (1) the NBA took various steps,
|
|
such as licensing broadcasts and placing restrictions on the media
|
|
and spectators, to control the commercial use of information about
|
|
its games; (2) STATS and Motorola were commercially using the
|
|
information to directly compete with the NBA in providing
|
|
information about basketball games; and (3) STATS and Motorola were
|
|
"reaping where they have not sown" -- gaining commercial advantage
|
|
from the efforts of the NBA, not their own. The court concluded
|
|
that the defendants had "misappropriated the essence of the NBA's
|
|
most valuable property -- the excitement of an NBA game in
|
|
progress." The "quantity and contemporaneous nature of the
|
|
information" convinced the court that SportsTrax went far enough
|
|
beyond permissible "mere media coverage."
|
|
|
|
Each of the factors the court found persuasive are open to
|
|
question, and this decision is likely to be the subject of serious
|
|
debate. While the NBA does restrict through various licenses how
|
|
its games are depicted or broadcast, neither Motorola nor STATS
|
|
were subject to such a license. The information they carried was
|
|
already public. Whether the SportsTrax service directly competes
|
|
with attendance at games or television coverage is questionable; no
|
|
computer statistical display can substitute for the joy of watching
|
|
Michael Jordan actually play the game. And STATS and Motorola
|
|
certainly contend they are reaping what they have sown -- that the
|
|
efforts of collecting, sorting, organizing and distributing the
|
|
information in a manner that consumers want is not a trivial
|
|
matter; the SportsTrax system is not simply a "pirate" broadcast of
|
|
NBA games.
|
|
|
|
Open Questions. Lots of open questions remain after this
|
|
ruling. If the NBA "owns" the "essence" of its games, for how long
|
|
does it own that right? The NBA itself releases to news services
|
|
game statistics twice a quarter -- would SportsTrax be free to
|
|
transmit the information then? If the NBA chooses to hold back
|
|
those statistics, can it extend the length of control it has over
|
|
game information?
|
|
|
|
Has Judge Preska recognized a new type of intellectual
|
|
property -- the "essence of live entertainment" or perhaps the
|
|
"freshness of information"? What is the line that distinguishes
|
|
permissible news reporting from "commercial misappropriation"? Or
|
|
is the "ye shall not reap where ye have not sown" principle broader
|
|
than that? In 1991, the U.S. Supreme Court decided that the
|
|
Copyright Act did not prevent someone from simply copying the
|
|
information in another publisher's telephone book, even though that
|
|
information was originally collected at great effort and expense.
|
|
Facts like names, addresses, and phone numbers can't be
|
|
copyrighted. [fn.3] Under New York law as applied in the NBA case,
|
|
would the result be different? Would it be different if the
|
|
original publisher required purchasers of the book to agree not to
|
|
compete?
|
|
|
|
The NBA v. STATS lawsuit is another example of the tension
|
|
between developing communications technology and the limits of
|
|
traditional intellectual property protections. This century, each
|
|
time a significant new means of communication is developed --
|
|
telegraph, radio, television, and now digital pagers and the
|
|
Internet -- this same type of dispute has arisen. When copyright
|
|
and trademark are found wanting, those who produce entertainment or
|
|
information turn to state law to expand their control; those who
|
|
assemble, sort and transmit information seek to narrow the
|
|
doctrines that restrict their ability to compete. History has
|
|
shown -- at least in New York cases involving sporting events --
|
|
that courts may be receptive to favoring producers over those who
|
|
gather and disseminate information. Whether this will continue to
|
|
hold true may turn into a high-stakes legal battle fought in
|
|
courtrooms throughout the nation.
|
|
|
|
Footnote 1: Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24
|
|
F. Supp. 490 (W.D. Pa. 1938).
|
|
Footnote 2: Twentieth Century Sporting Club, Inc. v. Transradio
|
|
Press Serv., Inc., 300 N.Y.S. 159 (N.Y. Sup. Ct. 1937) (boxing);
|
|
Madison Square Garden Corp. v. Universal Pictures Co., 7 N.Y.S.2d
|
|
845 (N.Y. App. Div. 1938) (hockey); National Exhibition Co. v.
|
|
Fass, 143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955) (baseball). Judge
|
|
Preska found the latter decision especially relevant; it involved
|
|
a service that monitored broadcasts of baseball games, rewrote
|
|
descriptions of the ongoing games, and then sent the descriptions
|
|
to other radio stations via teletype. The entire process took only
|
|
minutes, so the stations receiving the teletypes could "broadcast"
|
|
the game while it was still in progress. The court held that this
|
|
activity could be stopped by the owners of the baseball team.
|
|
Footnote 3: Feist Publications, Inc. v. Rural Telephone Serv.
|
|
Co., 499 U.S. 340, 111 S. Ct. 1282 (1991).[ALL CAPS]
|
|
|
|
------------------------------
|
|
|
|
Date: Thu, 22 Aug 1996 13:07:03 -0500
|
|
From: Declan McCullagh <declan@well.com>
|
|
Subject: File 9--"Freedom on Trial," from October 1996 Playboy
|
|
|
|
[Some excerpts follow. Pick up the October issue for the full article. --Declan]
|
|
|
|
Playboy, October 1996
|
|
"Freedom on Trial: how the communications decency act played in court"
|
|
|
|
By Declan McCullagh (declan@well.com)
|
|
|
|
|
|
Day 1 (March 21)
|
|
|
|
In the shadow of the Liberty Bell in downtown Philadelphia, the future of
|
|
online liberty is being decided. A panel of federal judges has gathered
|
|
to hear a challenge to the Communications Decency Act, which bans
|
|
"indecent" or "patently offensive" material from being transmitted or
|
|
displayed online where minors might access it. That means just about
|
|
anywhere online.
|
|
|
|
[...]
|
|
|
|
|
|
|
|
Day 2 (March 22)
|
|
|
|
A key witness today is Robert Croneberger of the Carnegie Library of
|
|
Pittsburgh. The judges are pleased with his description of the
|
|
Internet as a library -- finally, someone who isn't using technobabble.
|
|
Croneberger testifies about the difficulties and expense of implementing
|
|
the CDA, noting that his library would have to hire 180 people to review
|
|
and censor the 2 million listings in its catalog. Russotto, the
|
|
government lawyer, is skeptical. During her cross-exam, she tries to make
|
|
the case that the job wouldn't be so difficult as Croneberger portrays it.
|
|
|
|
Q: Can you do a keyword search through your catalog for words related to
|
|
sex or for the seven dirty words [to find material to restrict]?
|
|
A: It depends.
|
|
Q: But a keyword search on sex wouldn't turn up books about physics,
|
|
would it?
|
|
A: I doubt it.
|
|
Q: And a search on sex isn't going to turn up books about gardening?
|
|
A: Obviously plants proliferate and flowers grow, but it depends on the
|
|
words you're using.
|
|
Q: Would a search on sex turn up a biography of Abraham Lincoln?
|
|
A: I've read many articles about his supposed sex life, or lack thereof.
|
|
Q: Would a search on sex turn up any books about geology?
|
|
A: Only if "rock" is put together with "roll."
|
|
|
|
Croneberger's point is subtle but clear. Sex can't be taken out of a
|
|
library any more easily than it can be separated from life.
|
|
|
|
[...]
|
|
|
|
|
|
|
|
Day 4 (April 12)
|
|
|
|
The government witnesses take the stand. First up is Howard Schmidt,
|
|
an Air Force special agent who says he has conducted 30 to 50
|
|
investigations of online porn. The judges are growing weary of
|
|
demonstrations and sex, so when Schmidt offers to download provocative
|
|
images from Usenet groups, the panel asks for G-rated animals instead.
|
|
After the second or third waterfowl image, Judge Sloviter rules, "I think
|
|
we've seen enough ducks."
|
|
|
|
[...]
|
|
|
|
Beyond its sheer stupidity, [Carnegie Mellon University computer scientist
|
|
Dan Olsen's -L18 self-labelling scheme] seems to be built with prudery
|
|
rather than technology. During cross-examination, the judges didn't appear
|
|
to take him seriously:
|
|
|
|
Q: If you thought about posting a centerfold from Playboy, would you
|
|
think the image might be indecent or patently offensive for persons under
|
|
18?
|
|
A; If we consider the local community that consists of Dan, Dan would be
|
|
offended.
|
|
Q: And how about the seven dirty words.
|
|
A: Dan would be offended.
|
|
Judge Buckwalter: Who's Dan?
|
|
Judge Sloviter: Yes, who's Dan?
|
|
A: That's me. I'm sorry.
|
|
Judge Dalzell: Oh, he's the community. He is an expert on what would
|
|
offend him.
|
|
A: It's a relatively small community, but it's the one I know best.
|
|
Buckwalter: I thought Dan was an acronym.
|
|
|
|
A moment later, our lawyers show Olsen a list of Internet addresses and
|
|
ask if they appear to be porn sites deserving of unsuitable-for-children
|
|
tags. He hesitates, then says, "I don't know, but I wouldn't go there."
|
|
|
|
Looking over the list, Judge Dalzell adds the punch line. "Chick of the
|
|
Day could be poultry," he suggests.
|
|
|
|
"You really are in for ducks and poultry," says Judge Sloviter.
|
|
|
|
"It's a leitmotif."
|
|
|
|
Bruce Ennis, counsel for the ALA, asks Olsen how content providers would
|
|
verify the ages of those who visit their sites. Olsen stammers a bit and
|
|
then hits on an idea. Ask the Social Security Administration! It keeps
|
|
records of such things.
|
|
|
|
Big Brother couldn't have said it better.
|
|
|
|
|
|
|
|
Day 5 (April 15)
|
|
|
|
The government has a tough road ahead. It has to convince three skeptical
|
|
judges that enforcing the CDA would not become a boondoggle. Olsen, at least,
|
|
believes it can be done. When asked if his rating system would slow the
|
|
growth of the Net, he quickly responds, "Absolutely not!"
|
|
|
|
But everyone in the courtroom seems to feel Olsen is being a weasel.
|
|
Judge Dalzell, the most Net-savvy judge and the only one with young kids
|
|
(I'm guessing the two are related), helps pin the inventor down. "Assume
|
|
a chat group -- say, students from 13 to 18 -- is talking about the CDA.
|
|
In the course of the chat, an 18-year-old is exasperated and types in
|
|
'Fuck the CDA.' Is it your proposal that before he types the message, he
|
|
should tag it -L18?"
|
|
|
|
Dalzell is paraphrasing Cohen v. California, a First Amendment case in
|
|
which the Supreme Court overturned the conviction of a teenager who wore
|
|
a jacket that read "Fuck The Draft."
|
|
|
|
Some of Dalzell's other questions were equally astute. "If in one issue of
|
|
The Economist the word 'fuck' appears," he asks Olsen, "the library
|
|
putting it online would have to go through the entire issue?"
|
|
|
|
"Somebody would have to make that judgement," Olsen replies. He suggests
|
|
that librarians band together to censor material. He insists his plan is
|
|
"flexible." To that, Bruce Ennis reponds testily, "Is it flexible if you,
|
|
the librarian, risk going to jail for two years if you make the wrong
|
|
judgment and put material online that is found to be patently offensive
|
|
for a minor?"
|
|
|
|
[...]
|
|
|
|
Sloviter isn't finished. After Olsen claims that a voluntary rating
|
|
system developed at MIT is unfeasible because it will "slow the flow"
|
|
online, she asks how an adult could show -L18 tagged materials to a
|
|
mature teenager. Olsen replies that a "teacher or parent could log on."
|
|
|
|
"Wouldn't that slow the flow?" the judge asks.
|
|
|
|
Flustered, Olsen suddenly discharges a series of staccato high-pitched
|
|
giggles. It's the damnedest thing that I have ever heard -- it sounds
|
|
like a rabbit being tortured to death. The galley stares in horror.
|
|
|
|
Thus ends the testimony of our best witness -- and we didn't even call
|
|
him to the stand.
|
|
|
|
|
|
|
|
Day 6 (May 10)
|
|
|
|
During closing arguments, Justice attorney Tony Coppolino dances around
|
|
providing a legal definition for indecency. He hints that it would
|
|
include only hard-core porn but concedes the government can't guarantee
|
|
that an ambitious prosecutor somewhere wouldn't take on an absurd case.
|
|
|
|
Judge Sloviter is growing impatient: "I've been taking the position for
|
|
17 years that people should know what they can be prosecuted for," she
|
|
says "I still don't understand" what indecency means under the CDA.
|
|
|
|
"We've been trying to get at this for 40 minutes," grumbles Judge
|
|
Dalzell.
|
|
|
|
[...]
|
|
|
|
|
|
|
|
EPILOGUE
|
|
|
|
We have won -- for now. The government's appeal will reach the Supreme
|
|
Court during the next few months. If the Court upholds the lower court
|
|
decision, outraged right-wing groups will demand action. Congress will
|
|
spring to attention. Bills will be drawn up, campaign funds raised, and
|
|
porn once again waved in the Senate chamber.
|
|
|
|
Censorship is often championed by adults who want to protect children
|
|
from a world the adults do not understand. During the hearing, Judge
|
|
Buckwalter raised this issue while discussing the computer gap between
|
|
parents and children that helps fuel fears of online dangers. "In another
|
|
generation that will fade from the picture, don't you think?" he asked.
|
|
Archaic restrictions over what we can share online, however, may not.
|
|
|
|
------------------------------
|
|
|
|
Date: Thu, 21 Mar 1996 22:51:01 CST
|
|
From: CuD Moderators <cudigest@sun.soci.niu.edu>
|
|
Subject: File 10--Cu Digest Header Info (unchanged since 7 Apr, 1996)
|
|
|
|
Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are
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available at no cost electronically.
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CuD is available as a Usenet newsgroup: comp.society.cu-digest
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Or, to subscribe, send post with this in the "Subject:: line:
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SUBSCRIBE CU-DIGEST
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Send the message to: cu-digest-request@weber.ucsd.edu
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DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS.
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The editors may be contacted by voice (815-753-0303), fax (815-753-6302)
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or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL
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To UNSUB, send a one-line message: UNSUB CU-DIGEST
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Issues of CuD can also be found in the Usenet comp.society.cu-digest
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The most recent issues of CuD can be obtained from the
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------------------------------
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|
|
|
End of Computer Underground Digest #8.66
|
|
************************************
|
|
|