Weeks Pages/Week1/9-11-Notes

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Cyberlaw Notes

Prof. Nesson


9.11.06

Introduction (1:21)

  • If you have not received an email, please email Harvard.cyberone@gmail.com to get on the mailing list.
  • This class is about an interactive experience. It is about collaboration to build resources.
  • We should be able to build a web experience for the rest of the world to be able to view the class and learn about how the networks change the way goods are perceived and used.


Professor Nesson’s Opening Statement (1:24)

  • Cyberspace is a rhetorical space. We are speaking on September 11, 2006. On 9/11/01 he was in a classroom when it happened and it was a rhetorical experience, those videos changed the world that we live in, it was the videos of something real that changed the world. It was the video that affected the rhetorical space.
  • We are in a network information environment, and we will study what it means for a network to go through a phase change.
  • If you imagine a network as first being a group of disconnected points and the building of a network is the introduction of building point to point, you can tell the network by the number of nodes you have to go through to get from point to point. There comes a time when the time taken to get to point to point changes and there is a substantial phase change.
  • He believes we are in the midst of an information phase change. Over the span of time, this is very brief, it is when communication becomes fluid and each of us is challenged to recognize our own connection with it.
  • The object of this class tracks to 9/11. It is to make the future what we want it to be, to recognize that it is essentially rhetorical. 9/11 initiated a wave of fear that intruded on the rhetorical sphere of the United States and has changed everything.
    • Can we change our sphere from fear to tough love? Cautious but open instead of fearful and closed?
  • This is law in the court of public opinion. The courtroom is where arguments are made and they count. The idea of the class is to teach argument in the court of public opinion, argument that counts and participates in the building of a space.
  • In the metaphor of the courtroom, this first day is an opening statement. You open by telling a story that may seem irrelevant until at some later time its point becomes apparent.
  • Sail Boat Story: he was on a sailboat and he was reading The Odyssey with his wife. They got into an argument and she said that he was hectoring her. Hector, from the Trojan War, a man who believed in honoring his gods, defending his country and loving his woman, so how did this hero come to live in this bad word? It is true, that hectoring go back to Hector. But how had it gone from being heroic to nasty?
    • His wife did not give up. Shakespeare is responsible. He writes a play celebrating Hector. In London, there were street gangs and one of the street gangs took the name of Hector, and they marauded through London in a way that changed the name.
    • So, in a rhetorical space, it suggests a challenge.
  • This opening statement now moves to a point (where are we, what are we doing, how will we get there?)
    • We are five years after 9/11, we are in Cambridge, MA, USA, Planet Earth
    • We are at a point where things are changing. But things have been changing for quite a while. Continuing since the Marshall Plan, we have constantly been changing


Core of the class (1:35)

  • We are learning machines, the development of code in the form of more sophisticated DNA, operating systems, and networks. From individual to institution, the university is a learning machine meant to take in knowledge and spit it out.
  • What is the process of learning? Well, we are at a law school and at law school a student reads a case and has a reaction. Let’s go back to first learners. Imagine yourself as the point that ultimately becomes the piece of a set, but at the beginning you are just a fetus, you have feelings, you have responses, but you have no sense of self or others. You are born and you relate to mother. But this does not give you a sense of other, it is as if you were in a room and it was all light without any distinction. Then dad comes into picture, then the child looks at mother and then father and insight forms at some point that there is a self.
  • Riddle of the Three Hats
    • There was a kingdom ruled by a queen whose word was law. She wanted the daughter or son to marry the most intelligent in the kingdom. So they gave everybody an intelligence test, 3 scored perfectly. She invited the three to the castle and sat them down at a table, told them she was going to blindfold them, and put a beanie on their heads, either red or white. The blindfolds would be simultaneously removed, and if they could see even one red beanie, they would raise their hands. When you know the color of your own beanie and why, then pull the hand down, stand and explain.
    • So the queen undertakes this, each of them saw two red beanies, all three raise their hands, look at each other and then one lowered her hand.
      • Explanation: if either of the other had seen a white hat on my head then they would have known that it was a red hat on their own head.
      • No one else has stood up, that is one of the keys.
      • From the perspective of the person who eventually stood up, we know that the inability of the others to stand up shows the color of our own hat!
  • This is at the bottom of everything that we are doing in this class. We shape our idea of what we express and what comes back to us, we never see the beanie on our own head. This is fundamental to the law; this is law in the sense of law as truth, law as reason. We are not going to focus on cyber one on law shaped in the wake of disruptive technologies. It is reasonable to see cyberlaw as disruptive. It could be an examination of courts dealing with the destruction in the wake of the change. But we are looking at it in a constructive manner, we are seeing everything being built in code and connection and how it is built will very much affect the future.
    • We are interested in the part of the law that deals with persuasion.
    • We are dealing with a realm where physicality is no longer a concept; we talk about law in the realm of the rhetorical. In the absence of personal jurisdiction. This is law for a networked information economy.
    • The way of creating collective environments, that is something that turns on the ability to see from another’s point of view, something that the riddle of the three hats demonstrates.


The Necker Cube (1:58)

  • If you stare at it you will see it two ways. You cannot see it both ways at once, because it requires you to shift your point of view.
  • This is a metaphor for the law and for arguments in general.
    • Two sides look at what they believe is the same object, and they see different things. They say the other side lies for describing what they see.
  • Fear is the mindkiller.
    • When you start law school you read one case and you have no concept, but by the second and third year, you can whip it and turn anything anyway. The problem is that you lose your sense of what you came to law school for or you lose your emotion.
    • Then you may, at some point, reconnect with passion and hit another level of learning.
    • Then another level where you become the artist.
    • This is what we do, from ma and da to the end of our lives. Each time the learning algorithm begins we build a basis; it is on the perception of the environment that we brought to a particular stage.


What is this class about? (2:05)

  • It is about arguments, about dispute resolution, how can we express ourselves in a connected environment.


Structure of the Class (2:08)

  • On Mondays we will do big idea days. Persuasion, analogies, what it means to be a citizen of the internet.
  • On Tuesdays we will be more practical. We will look at a view of the new media state where you do not need to be a computer geek to build an information structure. These are the basic things that you need to do to be an effective advocate on the internet.
    • We will look at wikis (community based), contrast them with blogs (personality based), then we will look at performative media and audio technologies (how the structure of the network affects the way the information moves). We will do small group projects, but what they want is enthusiastic participation.


Internet architecture (2:13)

  • The internet provides a structure that was simply not possible before. Take copyright as an example. When our constitution was formed, the framers created a balance between the creators and the public domain. That was at a time before the legal corporation had developed in any significant way. Once there were corporations as a legal form, then a change of significant proportions took place. Civic Virtue changed. The moral element changed. For profit is what we are about. The corporations use their profit to influence the law, politics, and so you can see the copyright law going from a balance of 14 years and then extending it in every possible way.
  • What is so important about this environment is that in the drop in cost of production, it permits contribution of willing participation in a market economy.
  • Benkler’s “Wealth of Networks”
    • There is a new corporate form. The excitement is of the idea that everything is connected and the closer they come we are forming a collective consciousness. We are looking to replace an era of fear with a new collective consciousness.


What kind of law are we talking about? (2:18)

  • We are talking about a law of norms. We are talking about how law is delicate and the use of force is almost a diminishment of the rule of law. Law is at its most credible when we all behave because we think it is the best way to behave.
  • Student comment on Burning Man.
    • Everything is collaborative, it is a city that exists for one week, and what is there is only what people choose to bring, there is no top down authority (at least not a lot). When you talk of the law without the whip, the law of cyberspace, you see a Taoist approach to law.
  • Benkler would say that this is modern liberal democracy- information goods become the most important goods in a modern networked society. The means to produce those goods have become very cheap, so people may have a variety of motivations for doing something. There can be these loosely collaborative ways to work together.
  • The idea, in the end, is that we want to make an argument, and not only make that argument but put it out in the world of cyberspace and see the development of that argument.
  • This class is making an argument for open access at Harvard University. This is about a collaborative environment, it is about Linux and Apache and Wikipedia, we want to see what happens when non-profit institutions contribute to this space. We want open access to the materials that are created here.
  • Colbert report
    • Remember when he was at the press club and he stood up and showed a video at the end of that where he was being chased by a White House video
  • Look at the website: http://blogs.law.harvard.edu/cyberone/


Readings (2:37)

  • We do a lot of reading of philosophers, who discuss ideas and where these ideas come from.
  • The Benkler book is written at a level that is technically demanding. On the other hand it is also a wonderful asset.
  • Make sure to browse the names in Wikipedia. For many of use the names are foreign, but look it up and absorb the open culture of the net. It is the open culture that opens hope beyond the net.