Dear Warner Brothers,

Apparently there is more than one way of conquering a city and holding it as your own. For example, up to the time that we contemplated making this picture, I had no idea that the city of Casablanca belonged exclusively to Warner Brothers. However, it was only a few days after our announcement appeared that we received your long, ominous legal document warning us not to use the name Casablanca.

It seems that in 1471, Ferdinand Balboa Warner, your great-great-grandfather, while looking for a shortcut to the city of Burbank, had stumbled on the shores of Africa and, raising his alpenstock (which he later turned in for a hundred shares of common), named it Casablanca.

I just don’t understand your attitude. Even if you plan or releasing your picture, I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo. I don’t know whether I could, but I certainly would like to try.

You claim that you own Casablanca and that no one else can use that name without permission. What about “Warner Brothers”? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you were. We were touring the sticks as the Marx Brothers when Vitaphone was still a gleam in the inventor’s eye, and even before there had been other brothers—the Smith Brothers; the Brothers Karamazov; Dan Brothers, an outfielder with Detroit; and “Brother, Can You Spare a Dime?” (This was originally “Brothers, Can You Spare a Dime?” but this was spreading a dime pretty thin, so they threw out one brother, gave all the money to the other one, and whittled it down to “Brother, Can You Spare a Dime?”)

Now Jack, how about you? Do you maintain that yours is an original name? Well it’s not. It was used long before you were born. Offhand, I can think of two Jacks—Jack of “Jack and the Beanstalk,” and Jack the Ripper, who cut quite a figure in his day.

As for you, Harry, you probably sign your checks sure in the belief that you are the first Harry of all time and that all other Harrys are impostors. I can think of two Harrys that preceded you. There was Lighthouse Harry of Revolutionary fame and a Harry Appelbaum who lived on the corner of 93rd Street and Lexington Avenue. Unfortunately, Appelbaum wasn’t too well-known. The last I heard of him, he was selling neckties at Weber and Heilbroner.

Now about the Burbank studio. I believe this is what you brothers call your place. Old man Burbank is gone. Perhaps you remember him. He was a great man in a garden. His wife often said Luther had ten green thumbs. What a witty woman she must have been! Burbank was the wizard who crossed all those fruits and vegetables until he had the poor plants in such confused and jittery condition that they could never decide whether to enter the dining room on the meat platter or the dessert dish.

This is pure conjecture, of course, but who knows—perhaps Burbank’s survivors aren’t too happy with the fact that a plant that grinds out pictures on a quota settled in their town, appropriated Burbank’s name and uses it as a front for their films. It is even possible that the Burbank family is prouder of the potato produced by the old man than they are of the fact that your studio emerged “Casablanca” or even “Gold Diggers of 1931.”

This all seems to add up to a pretty bitter tirade, but I assure you it’s not meant to. I love Warners. Some of my best friends are Warner Brothers. It is even possible that I am doing you an injustice and that you, yourselves, know nothing about this dog-in-the-Wanger attitude. It wouldn’t surprise me at all to discover that the heads of your legal department are unaware of this absurd dispute, for I am acquainted with many of them and they are fine fellows with curly black hair, double-breasted suits and a love of their fellow man that out-Saroyans Saroyan.

I have a hunch that his attempt to prevent us from using the title is the brainchild of some ferret-faced shyster, serving a brief apprenticeship in your legal department. I know the type well—hot out of law school, hungry for success, and too ambitious to follow the natural laws of promotion. This bar sinister probably needled your attorneys, most of whom are fine fellows with curly black hair, double-breasted suits, etc., into attempting to enjoin us. Well, he won’t get away with it! We’ll fight him to the highest court! No pasty-faced legal adventurer is going to cause bad blood between the Warners and the Marxes. We are all brothers under the skin, and we’ll remain friends till the last reel of “A Night in Casablanca” goes tumbling over the spool.

Sincerely,
Groucho Marx
 

Perhaps you could have found more than a few idealists who, energized by the fast-growing strength of Open Source philosophy and movement in its early years, spoke and wrote about how the Internet would open up the barriers to learning, and saw cyberspace as an unlimited piece of real estate for the free exchange of information and ideas. Then of course came reality, in the name of intellectual property disputes.

This reality bore enormous evidence from banks and a bunch of other businesses, sending thousands and thousands of threatening letters to site owners who ridicule their companies, from athletic organizations threatening to sue fan sites for dilution of trademarks, and even from organizations threatening web search engines for linking to their copyrighted materials. Actually, Internet idealists still hold a torch for the potential of cyberscape as a canvas for the free exchange of information and ideas. It’s just that now they can’t afford to ignore all the tunnels at the end of the light.

In 1995, determined to make a significant effort to explore those tunnels, Harvard Law School professors Charles Nesson and Jonathan Zittrain established the "Center on Law and Technology" at Harvard Law School. The idea was to actively consider the laws and sanctions of this brave new world of cyberspace. A gift of $5.4 million in 1997 from the Berkman family serviced the vision. Professor Lawrence Lessig was awarded the Berkman professorship. The Center on Law and Technology eventually became the Berkman Center for Internet & Society at Harvard Law School.

Several years later, Larry Lessig would prepare a keynote for the Berkman Center, talking about the principle of the freedom of ideas as dating back to the nation’s founding fathers.

“Two years ago, when I came to Harvard, Charlie Nesson [faculty co-director of Berkman Center] was talking about building a commons in cyberspace…He spoke about the need to support the building of a space in cyberspace free from control…It seemed to me just a little nuts. What could he possibly mean? Why would anyone need to build a commons? Cyberspace was not a limited space…”

It did not take long for Lessig to change his mind. As part of his keynote, two years hence, Lessig was telling his audience that Nesson was right. “The closed society is not dead,” he said. “We are at a critical moment in the history of our future and we are, in an important sense, stuck.”

Lessig by that time knew that treating the Internet as the signpost of a guaranteed free idea exchange was naïve. A brave new world where jubilant Dads construct web sites named after their baby daughters would need to be weighed in a real world where property-centric trademark and copyright czars order Dad to take the site down if it bears the same name as their cartoon characters. The war of words over the justice of ideas treated as property had not come such a long way from Groucho Marx responding to a letter from Warner Brothers.

With the rise of the Internet has come something new, however: the rise of Internet politics and the rise of Internet regulators applying intellectual property arguments, and hiring lawyers to relay their chest-thumpings over copyright and trademark powers to own and regulate ideas.

Lessig was asking us to sober up, too, to the thought of a closed society where one might have to go, hat in hand, to ask to criticize; to ask to browse; to ask to read; to exercise many things that we take for granted.

That same year, Wendy Seltzer graduated from Harvard Law and became part of the movement to explore the infringements, boundaries and freedoms surrounding cyberspace, its norms, its standards, and the need or lack thereof for sanctions.

But Seltzer has done more than that: Now a member of the New York bar and IP and litigation associate with a law firm, Kramer Levin Naftalis & Frankel, Seltzer is also a fellow at the Berkman Center. Earlier this year she helped to found a Berkman project called The Chilling Effects Clearinghouse. Seltzer bills its mission as “to study and combat the ungrounded legal threats that chill activity on the Internet.“

Seltzer also leads the Berkman’s Openlaw project, which is vigorously supporting Eric Eldred in the Eldred vs. Ashcroft case, its first Openlaw case.

In the Eldred vs Ashcroft case, in a challenge to the Sonny Bono Copyright Term Extension Act adding 20 years to existing and future copyrights, Eric Eldred and other commercial and non-commercial users of public domain works sued. Eldred and his Berkman supporters think the Sonny Bono act robs the American public of the rich and diverse public domain guaranteed by the Constitution.

Friends of the court (“numerous amici”) supporting the case include the Free Software Foundation, IP law professors, and Intel, which is an interesting mix in itself. Seltzer and team filed opening briefs in Openlaw’s challenge to the Copyright Term Extension Act.

In yet another Seltzer undertaking, she has been part of the birth of the Creative Commons project as a kind of IP conservancy that will try to encourage people to donate IP into a conservancy for other people to draw from. The project is designing saner ways to mark the intellectual spaces that people can walk on, to paraphrase Lessig in an interview about the Commons with The New York Times. Lessig took partial leave from Stanford Law School to serve as chairman of Creative Commons.

Does all this activity at the Berkman share inspiration and support from the titanic Open Source software movement?

Seltzer recalls her generation’s learning experience: “I got to Harvard when there was already a lot of talk going on about advocating for Open Source; that software should not be locked up in binaries; preserving transparency in the law; and they were a natural fit.”

Openlaw, she tells Open, actually builds on the model of Open Source software. “We’re working from the hypothesis,” says the site, “that an open development process best harnesses the distributed resources of the Internet community.” (Helping to enable the site’s collaboration process is the OpenSource TWiki sub-site which enables them to annotate documents and update drafts while comparing pages with earlier versions).

We read the site’s welcome message: “Openlaw is an experiment in crafting legal argument in an open forum. With your assistance, we will develop arguments, draft pleadings, and edit briefs in public, online. Non-lawyers and lawyers alike are invited to join the process by adding thoughts to the “brainstorm” outlines, drafting and commenting on drafts in progress, and suggesting reference sources.”

Non-lawyers and lawyers alike? What’s the point?

Wouldn’t site visitors prefer instead to hear legal commentary solely from legal practitioners?

“Hearing more viewpoints exposes us to ideas that lawyers alone may not come up with,” she says. “Legal training is primarily focused on thinking in terms of arguments, and sometimes that focus can lead us away from promising ways of looking at issues. In technology cases, it is especially helpful to hear from people who are untainted by that legal education, especially those who are intimately familiar with technology.”

Besides the Eldred case, Openlaw supports the DVD battles, where web site operators who posted DeCss, software to decrypt and read data encoded on commercial DVDs, are being sued by DVD Copy Control Association and the Motion Picture Association of America. Seltzer and team are helping defendants assert what they refer to as the public’s right to comment, criticize, discuss, and build on DVD technology. Openlaw similarly filed an amicus brief in opposition to the plaintiff’s motion to enjoin 2600 Magazine from linking to DeCSS.

This arena of the law promises to get even hotter in the very near future. Not content with the No Electronic Theft Act, the Recording Industry Association of America (RIAA) is now threatening to wage a cyberwar of their own against miscreant file swappers. With the help of Congressman Howard Berman, whose district includes part of Hollywood, a law is being drafted that would shield copyright owners against legal liability for employing high-tech attacks to stop file trading.

While Openlaw's support of such cases is in the spotlight, the one project that appears to be a popularly used service leveraging legal expertise is her Chilling Effects site, which launched in February this year.

The Chilling Effects web site is actually a joint project of the Electronic Frontier Foundation and a cluster of law schools (Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics). The site gives people who have been hit with Cease and Desist Letters the right information they seek on both their rights under the First Amendment and the law.

The site is aptly named, considering the troubled reaction people experience when receiving letters with legal firm mastheads warning legal action of copyright or trademark infringements. Such letters have become real-world reminders to Internet idealists that intellectual property battles are very much part of this brave new world. For the not-so-brave, whether they are entrepreneurs or individuals, the letters, accusing people of defamation or copyright infringement or trademark dilutions, for example, are frightening. Cease and Desist letters accuse people of trampling on a competitor’s name or some company logo, or causing confusion over the accuser’s branded image.

Seeking knowledge, the fretful letter holders go to the Chilling Effects site for a check on reality in the form of a searchable database to learn from other cases, plus a weather report of notable issues and court rulings, plus line-by-line commentary and analysis, thanks to the law students who participate, for the letters that these worried ‘Cease and Desist’ letter-holders submit.

Jonathan Zittrain, Harvard Law School expert on digital property and faculty co-director of the Berkman Center, in an interview with the Harvard University Gazette, confessed to once receiving a Cease and Desist Letter. Of course, he was only 14, and he wondered if this meant he would lose his allowance. He was, at the time, a columnist for Computer Shopper. He wrote that a piece of software was terrible. The software vendor wrote Zittrain to say, retract the review or they would sue. His parents, both lawyers, wrote back to the vendor. To date, Zittran has not heard back .

“We seek to explain the legal context to non-lawyers of these letters,” says Seltzer. “Does this letter have legal merit? Do I need to pull my site down? What’s my next step?”

Seltzer says she finds that “Too many people are taking down their web sites after getting these letters. We want to document how the law is both used and abused, to draw everyone toward a rational understanding of how the law works. This can encourage people to act responsibly and to also help them understand their legal rights.”

How eager are Internet users for this information? The site was launched late February and it received over 1 million hits its first week.

It is perhaps ironic that the title “Chilling Effects” might also apply to the harried public relations officers of companies whose missions are to maintain good will with the general public. After all, these companies’ Cease and Desist letters are seeing a rather glaring light of day on this Berkman project site. “Being seen to be a bully is not good for business,” says Seltzer.