The Internet: Issues at the Frontier (course wiki) - User contributions [en]

Old Laws/New Media

2009-04-18T14:29:43Z

MSanchez: /* Part II. Case study: RIAA vs. Tenenbaum */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year-old Physics graduate student at Boston University, was sued in 2007 by the Recording Industry Association of American (RIAA) for allegedly downloading seven music files and making them available for distribution on the KaZaA file-sharing network. Prior to the lawsuit, Joel offered to settle the dispute for $500, but the music companies rejected demanded thousands more. At trial, Joel faces statutory damages under the Copyright Act of $750 to $30,000 for each infringement, or up to $150,000 each if he is found to have engaged in a "willful violation." Tenenbaum could be forced to pay more than $1 million in damages over seven songs. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a team of students – came to Tenenbaum's defense. See [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA] for a quick background on the case.

Further readings:

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:29:23Z

MSanchez: /* Part II. Case study: RIAA vs. Tenenbaum */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year-old Physics graduate student at Boston University, was sued in 2007 by the Recording Industry Association of American (RIAA)for allegedly downloading seven music files and making them available for distribution on the KaZaA file-sharing network. Prior to the lawsuit, Joel offered to settle the dispute for $500, but the music companies rejected demanded thousands more. At trial, Joel faces statutory damages under the Copyright Act of $750 to $30,000 for each infringement, or up to $150,000 each if he is found to have engaged in a "willful violation." Tenenbaum could be forced to pay more than $1 million in damages over seven songs. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a team of students – came to Tenenbaum's defense. See [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA] for a quick background on the case.

Further readings:

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:28:27Z

MSanchez: /* Part II. Case study: RIAA vs. Tenenbaum */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year-old Physics graduate student at Boston University, was sued in 2007 by the Recording Industry Association of American (RIAA)for allegedly downloading seven music files and making them available for distribution on the KaZaA file-sharing network. Prior to the lawsuit, Joel offered to settle the dispute for $500, but the music companies rejected demanded thousands more. At trial, Joel faces statutory damages under the Copyright Act of $750 to $30,000 for each infringement, or up to $150,000 each if he is found to have engaged in a "willful violation." Tenenbaum could be forced to pay more than $1 million in damages over seven songs. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a team of students – came to Tenenbaum's defense. See[http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA] for a quick background on the case.

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:23:47Z

MSanchez: /* Part I. Background */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on issues in Internet communications and media. The discussion will then address the changing landscape of online music distribution to prep for the file-sharing case study to follow. The below readings inform this discussion:

=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:21:53Z

MSanchez: /* Part I. Background */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==

The course will open with a brief overview of tensions that arise when we attempt to apply old laws to new media. The discussion will touch upon major points of conflict that have arisen in recent years, focusing on Internet communications and online file-sharing. The following readings inform this discussion:

=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:18:59Z

MSanchez: /* Guest */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson].

Professor Nesson is a Harvard Law School professor and a founder of the [http://cyber.law.harvard.edu/ Berkman Center for Internet & Society]. Since Fall 2008, Prof. Nesson has defended Boston University student Joel Tenenbaum in a file-sharing lawsuit brought by the recording industry.

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:15:42Z

MSanchez: /* Precis */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old laws and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many industries have attempted to preserve their existing business models by enforcing pre-Internet legal regimes without acknowledging the possible need for change due to new media. They contend that laws must be uniformly and systematically applied, despite changes in culture and society. Critics of this approach argue that the old laws are ill-suited for the purpose of regulating new media because they threaten to slow innovation and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the recording industry's struggle to adapt to Internet distribution of music. Using a timely case study from a music file-sharing case defended by a Harvard Law School professor and students, this class will explore the tension between old laws and new media, evaluate strategies that have been used to address the challenges, and attempt to identify the best methods of going forward.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T14:00:16Z

MSanchez: /* Some Lingering Questions */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions For Discussion ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So is the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T13:59:31Z

MSanchez: /* Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So isn't the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

We have spent the class discussing tensions that arise when old laws and new media intersect. How can we best address these issues? Is any of the following options superior, or is a combination required?

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T13:57:56Z

MSanchez: /* Tools / innovations for the presentation */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So isn't the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the '''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T13:57:30Z

MSanchez: /* Tools / innovations for the presentation */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So isn't the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

The class will be divided into three groups to best make use of new communications tools that supplement the old methods of class interaction. Each group will utilize a tool in a way that builds upon other groups' actions and furthers the class dialogue.

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool group members here]

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* [List question tool voters here]

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* [List Twitter users here]

All groups are encourage to reference the *'''[http://joelfightsback.com JoelFightsBack Website]''' during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Old Laws/New Media

2009-04-18T13:52:58Z

MSanchez: /* Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

== Precis ==
The purpose of this class is to explore the tension between old infrastructure and new media. The Internet has threatened the way "traditional" companies do business and has challenged the "traditional" norms of the courtroom. Many companies, such as the record labels in the music industry, have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes. They contend that laws must be uniformly and systematically applied despite changes in culture and society. Critics argue that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

One of the clearest examples of this tension is the RIAA and its struggles to adapt to Internet distribution of music. Using a timely case study from our own backyard at Harvard Law School, the purposes of this class is to better understand the tension, evaluate strategies that have been used to address the challenges, and consider what the right approach should be.

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Part I. Background ==
=====Topic Introduction: Conflict between old laws and new media=====
* [http://www.rtnda.org/pages/media_items/legal-notes-in-a-brave-new-world-old-laws-still-apply1016.php In a Brave New World, Old Laws Still Exist]
=====Overview of attempts to apply existing copyright law to online file-sharing=====
* [http://www.eff.org/wp/riaa-v-people-years-later RIAA vs. The People: Five Years later]
* [http://www.riaa.com/physicalpiracy.php RIAA's view on piracy] & [http://www.riaa.com/whatwedo.php The RIAA: What we do]
* [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

== Part II. Case study: RIAA vs. Tenenbaum ==
Joel Tenenbaum, a 25-year old graduate student in Physics at Boston University, was sued by the Recording Industry Association of American (RIAA), the trade group that represents the U.S. recording industry, for making seven music files available for distribution on the KaZaA file-sharing network in 2003. He offered to settle the case for $500, but music companies rejected that, demanding $12,000. The Digital Theft Deterrence Act, the law at issue in the case, sets damages of $750 to $30,000 for each infringement, and as much as $150,000 for a "willful violation." Tenenbaum could be forced to pay more than $1 million in statutory damages if it was determined that his alleged actions were intentional. In the fall of 2008, Harvard Law School professor Charles Nesson – with the help of a small team of students – came to Tenenbaum's defense on a pro bono basis. See, also [http://arstechnica.com/tech-policy/news/2009/02/tell-the-riaa-to-take-a-hike-how-harvard-law-threw-down-the-gauntlet.ars How Harvard Threw Down the Gauntlet to the RIAA]

* [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* More information at [http://www.joelfightsback.com Joel Fights Back]
* Reference: [http://info.riaalawsuits.us/howriaa_printable.htm How RIAA Litigation suits work]
* Reference: [http://recordingindustryvspeople.blogspot.com/ Ray Beckerman's Blog]

=== RIAA's use of the Copyright Act ===

Some questions you might consider:

** Is the changing landscape of copyright infringement relevant in considering whether the Act's statutory damages are unconstitutionally disproportionate to the actual damages -- and if they are impermissibly punitive if so?
** Similarly, whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?
** The bottom line is that there is a statute that seems to prohibiting online file-sharing that awards significant statutory damages against an infringer. What is Joel’s best argument in his defense?

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====
Our discussion here centered around a debate between Prof. Nesson (who in a role-reversal will argue for RIAA) and Prof. Fisher (who will argue as Prof. Nesson). The debate focused on the bigger-picture policy and normative issues, rather than applying/distinguishing caselaw.
* [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* [http://bigthink.com/ideas/the-riaa-vs-joel-tenenbaum VIDEO: Arguments between Professors Nesson and Fisher]

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====
* [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

=== New Technology vs. Courtroom Norms ===

Our discussion here will center around a debate amongst the students. We are splitting you up into two groups, one to argue that webcasting of trial proceedings should be allowed and another to argue that it should not be allowed. Again, we'd like to focus on policy issues rather than specific rules. Here are the group assignments:

* Argue that webcasting trial proceedings should be allowed: AndrewKlaber; Ayelet; Bepa; CKennedy; Cooper; DAL; danray; Dharmishta; Dulles; Elanaberkowitz; EST; g
* Argue that webcasting trial proceedings should not be allowed: Gwen; Hoellra; jf; Jfishman; Jgruensp; lbaker; Mchua; Megerman; Miriam; Mwansley; Seth Woodworth; AMehra

Some questions you might consider:

** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

=====Internet and recording technology in the courtroom=====
* [http://bigthink.com/ideas/charlie-nesson-and-a-brief-history-of-media-in-the-courts VIDEO: A Brief History of Media in the Courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-majesty-of-the-federal-courts VIDEO: Professor Nesson's thoughts on the majesty of the federal courts]
* [http://bigthink.com/ideas/charlie-nesson-on-the-role-of-cvm-tv-in-the-courtroom VIDEO: Role of TV in the courtroom]

Readings:
* [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition to appeal]
* [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by Courtroom View Network]
* [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

Follow up:

* [http://www.ca1.uscourts.gov/files/audio/09-1090.mp3 Oral Arguments from First Circuit Court of Appeals]
* [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1090P.01A. First Circuit Ruling to Block Webcast of Tenenbaum's case]

=== Some Lingering Questions ===
* What other options are available to the RIAA? Are any other groups affected by piracy that could prosecute/take action in the RIAA's stead?
* So isn't the RIAA doing just the right thing, then? Advertising huge penalties in order to get the deterrent effect, but then nicely only seeking $2.5K or so when they nab a particular file sharer -- closer to actual damages.
* But is it *fair* (right? constitutional?) for some users to pay for the sins of all users?
* What can the publicity accomplish? Get people to boycott the record companies? Get people to lobby their congressmen for legislative change? Shame the jury/judge? Something else? Realistic?
* Did the presence of so many cameras around the OJ Simpson trial change the trial?
* Can any legally sophisticated argument be made that the 1st Cir. resolution against televised proceedings is invalid because nobody could (until now) find it, hence there's been no notice?
* Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right?

== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? ==

* Abandon the old laws and use self-help or create private sector enforcement =====
** Example: RIAA's new enforcement strategy, which asks ISPs to remove or restrict the Internet access of alleged repeat infringers [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]
* Continue employing the existing imperfect statutory scheme =====
** Example: the recording industry's litigation campaign against individual file sharers and file sharing services, as evidenced in the Tenenbaum case
* Let courts adapt the case law to technology =====
** Example: Grokster, where the Supreme Court created a new variation on contributory liability
** Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
** Example: Sony "Betamax" case, where the court precluded liability for technologies that had both infringing and noninfringing uses
* Lobby for new laws in Congress
** Digital Millennium Copyright Act, which provides a means for copyright owners to request removal of allegedly infringing content while providing protections for ISPs
* Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
** One argument: [http://www.newsweek.com/id/176809/output/Lessig article]

== Tools / innovations for the presentation ==

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** '''Question tool questioner group:''' During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* User:Dharmishta
* User:dulles
* User:Elanaberkowitz
* User:EST
* User:g
* User:Gwen
* User:Hoellra

** '''Question tool voting group:''' During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. [http://cyber.law.harvard.edu/questions/iif2009 Here is the question tool].

* User:jf
* User: Jfishman
* User:Jgruensp
* User:JZ
* User:lbaker
* User:Mchua
* User:Megerman
* User:Miriam
* User:Mwansley
* User:Seth Woodworth
* User:AMehra

*'''[http://twitter.com Twitter group:]''' As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

* User:AndrewKlaber
* User:Ayelet
* User:Bepa
* User: CKennedy
* User:Cooper
* User:DAL
* User:danray

*'''[http://joelfightsback.com JoelFightsBack Website]''': We put up this website to help our supporters follow the case and interact with us as student lawyers. Spend some time on the site. What could be better? What would you like to see?

Prediction Markets

2009-03-19T18:54:19Z

MSanchez:

'''Topic Owners:''' '''[[User:Mwansley|Matthew]]''', '''[[User:EST|Elisabeth]]'''

back to [[syllabus]]

'''Precis'''

The most high-profile examples of prediction marketsthe Iowa Electronic Markets and Intradestarted by focusing primarily on predicting election outcomes and related political and financial events. Now they have expanded to cultural (Oscars) and technological (X Prize) events as well. The status of the commercial prediction markets is uncertain; for example, [http://en.wikipedia.org/wiki/TradeSports Tradesports] announced recently that it [http://www.tradesports.com/ is closing]. And questions remain about the [http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1134563_code183716.pdf?abstractid=1134563&mirid=1 legal status] of prediction markets, whether the CTFC will [http://www.cftc.gov/lawandregulation/federalregister/proposedrules/2008/e8-9981.html regulate] them, and whether they will be [http://findarticles.com/p/articles/mi_6716/is_4_27/ai_n29450615/pg_1?tag=artBody;col1 taxed].

Rather than focusing on the traditional markets, however, we want to focus on future applications of prediction markets, particularly their possible use by government or by government-industry collaboration. We'd like to explore in particular applications that are likely to be controversial.

The focus will be three cases that we think raise interesting legal and ethical questions.

* Crime rate predictions, a la [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1118931 this proposal]

* Google's flu-tracking application (where, as Professor Zittrain noted, the predictors aren't even aware that their knowledge is being harvested)

* the failed DARPA [http://www.cnn.com/2003/ALLPOLITICS/07/29/terror.market/index.html terrorist futures] market

'''Guests'''

Justin Wolfers, Economist (confirmed)

Hal Varian, Google (possibly, on videoconference)

'''Concrete Questions'''

* Which of these applications are most likely and desirable?

* Should the government be involved in administering prediction markets at all? Should it regulate them?

* What ethical concerns do we have about prediction markets of the future, and how might we address them? Can design of the markets help mitigate concerns? Are some more fundamental?

'''Tech Tweak/Experiment'''

Everyone will create their own prediction market contract via intrade.net. Once you set up an account there, you can then create you own contract at http://www.intrade.net/market/create/start.faces. Your contract can be about anything you like (doesn't have to be legal), but it should conclude before our class date, April 27, 2009. The idea is (1) for everyone to get a feel for how prediction markets operate; (2) to see what kinds of contracts get enough volume to be successful and what kinds don't; (3) to see how accurate the predictions are, how they change over time, etc.

Once you've signed up and created a contract -- please do so by Friday, March 20 -- you can invite other people in the class to bet on your contract to give it some initial starting volume. (Intrade.net gives everyone $10k in play money upon signing up, so obviously if people want to bet on the wider world's contracts, that's great too). Everyone should list the contracts they've created below to facilitate class participation on intrade (and so that we can generate a variety of different kinds of contracts). At the actual class session on April 27, everyone should come in prepared to briefly discuss what happened with their contract (feel free to create more than one).

'''Readings'''

* Background
** A [http://bpp.wharton.upenn.edu/jwolfers/Papers/Predictionmarkets.pdf brief general overview] of prediction markets, Justin Wolfers & Eric Zitzewitz, <i>Prediction Markets</i>, 18 Journal of Economic Perspectives 107 (2004).
** Chapter 10 of Michael Abramowicz's book [http://www.amazon.com/Predictocracy-Market-Mechanisms-Private-Decision/dp/0300115997 Predictocracy]

* Google Flu Tracking Program
** The New York Times's [http://www.nytimes.com/2008/11/12/technology/internet/12flu.html writeup]

* Crime
**Professors Wolfers, Henderson, Zitzewitz's paper proposing the application of prediction markets to [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1118931 crime]

* DARPA
**Senator Daschle's criticisms of the DARPA terrorism futures markets, http://www.fas.org/sgp/congress/2003/s072903.html, and Senator Dorgan's, http://ftp.fas.org/sgp/congress/2003/s072803.html
**A brief paper describing the failed DARPA terrorism futures market, by a Professor at the Naval Postgraduate School. [http://www.ccc.nps.navy.mil/si/sept03/terrorism.pdf Robert Looney, <i>DARPA’s Policy Analysis Market for Intelligence: Outside the Box or Off the Wall?</i>, STRATEGIC INSIGHTS (2003).]
**A few newspaper [http://www.mongabay.com/external/pentagon_terror_futures.htm articles] describing the uproar over the DARPA program and its quick cancellation

'''Optional Readings'''

* Professor Sunstein's Infotopia

* Robin Hanson's [http://hanson.gmu.edu/futarchy.pdf Futarchy] proposal

* Cass R. Sunstein, Group Judgments: Statistical Means, Deliberation, and Information Markets, 80 N.Y.U. L. Rev. 962 (2005)

* Paper on the application of prediction markets to [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928896 corporate governance]

'''Class-Constructed Markets'''

* Matthew: [http://www.intrade.net/market/detail/?contractId=337549#Democrat_to_Be_Elected_Virginia_Attorney_General_in_2009 2009 Virginia Attorney General Race]

* CKennedy: [http://www.intrade.net/market/detail/?contractId=337550#China%3A_Charter_08_more_than_1_million_signers_by_12.31.09 A Million Chinese Charterists]

* [[User:Dulles|Dulles]]: [http://www.intrade.net/market/listing/showEvent.faces?e=31362 Congress or FCC strengthens network neutrality principles by the end of 2010].

* [[User:Danray|Dan]]: [http://www.intrade.net/market/detail/?contractId=337892 U.S. Supreme Court strikes down all or part of Â§ 5 of the VRA this Term]
Andrew: Will General Motors file for Chapter 11 by April 20, 2009? http://www.intrade.net/market/detail/?contractId=338028#GM_Files_for_Chapter_11_by_4/20/09%3F

* [[User:DebbieRosenbaum|Debbie]]: [http://www.intrade.net/market/detail/?contractId=338029 Nesson Takes Down the RIAA]

* [[User:MSanchez|Msanchez]]: [http://www.intrade.net/market/detail/?contractId=338056 U.S. Recording Industry Cease Filing File-sharing Lawsuits]

Old Laws/New Media

2009-02-16T21:59:28Z

MSanchez:

Old Laws/New Media

2009-02-16T20:20:33Z

MSanchez:

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

''' Questions to consider in preparation for our discussion '''

* Questions about RIAA's use of the Copyright Act
** Should we view statutory damages passed by Congress as being analogous to punitive damages assessed by a judge or jury? Do you think that statutory damages should face the constitutional limitations currently imposed on punitive damages regarding how far in excess of actual damages they can be?
** The bottom line is that there is a statute prohibiting online filesharing that awards damages against an infringer. What is Joel’s best argument in his defense?
** Whereas pre-Internet copyright infringement typically involved commercial uses, the Internet has enabled widespread copying by non-commercial users. Should courts' application of the fair use doctrine be tuned to take into account the non-commercial nature of most file-sharing? Should we create a separate statutory damages regime for non-commercial uses?

* Questions about the Internet in the courtroom
** Should we approach the issue of whether to webcast trials over the Internet as simply a policy dispute? Or is the right to view trials over the Internet a fundamental right -- analogous to the constitutional right to physically attend trials in the courtroom, just updated to account for modern technology?
** Is the opportunity for education brought about by webcasting trials outweighed by the opportunity for mis-education if the media devolves into soundbites and sensationalism?
** How should we value, and by what standard should we judge, the privacy rights and privacy requests of the various parties involved in a litigation (judge, jury, lawyers, litigants, victims, witnesses)?

== Subject matter of the class ==
(''note: Required readings are in italic. There are only five required readings.'')

=== Part I. Background (15 minutes) ===
=====Topic Introduction: Conflict between old laws and new media=====
* ''Required Reading 1'': [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case (skim)]

=====Overview of attempts to apply existing copyright law to online file-sharing=====
* ''Required Reading 2'': [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling) (skim)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum ===

* Optional: Articles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

==== A. RIAA's use of the Copyright Act (30 mins) ====

===== RIAA's use of the Copyright Act's statutory damages framework to Internet users =====

* ''Required Reading 3'': [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])

* ''Required Reading 4'': [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief, focus on sections challenging constitutionality of Copyright Act and abuse of process]

* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).

===== RIAA's use of Copyright Act to try and shape norms of Internet usage =====

* Reading: Tenenbaum brief (above)

* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article on RIAA's litigation strategy]

==== B. New Technology vs. Courtroom Norms (30 mins) ====
=====Internet and recording technology in the courtroom=====
* ''Required Reading 5: [http://joelfightsback.com/wp-content/uploads/730.pdf Judge Gertner's Decision re: Motion to Admit Internet]
* Optional: [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_081223MotionMemoInternetCoverage.pdf Tenenbaum's Motion to Admit Internet into the Courtroom]
* Optional: [ http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf Record Companies' Appeal to First Circuit Court]
* Optional: [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129TenenbaumBrief.pdf Tenenbaum Opposition]
* Optional: [http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090129CVNBrief.pdf Amicus Brief by CVN]
* Optional: [http://www.eff.org/files/filenode/inresonybmgetal/09-1090AmicusCuriaeBrief.pdf EFF's amicus brief]

=== Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media? (15 mins) ===

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Example: RIAA's new enforcement strategy [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html (optional reading)]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Example: Sony "Betamax" case

===== Lobby for new laws in Congress =====
* Digital Millennium Copyright Act

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Optional: [http://www.newsweek.com/id/176809/output/print Lessig article]

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Tools / innovations for the presentation ==

*'''[http://cyber.law.harvard.edu/questions/iif2009 Question Tool]'''
** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''[http://twitter.com Twitter]''': As part of the RIAA case, one of the technologies we have been experimenting with is [http://twitter.com twitter]. We encourage you to check us out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback.

*'''[http://joelfightsback.com JoelFightsBack Website]''': We put up this website to help our supporters follow the case and interact with us as student lawyers. Spend some time on the site. What could be better? What would you like to see?

Old Laws/New Media

2009-02-12T01:33:59Z

MSanchez: /* A. RIAA's use of the Copyright Act */

Old Laws/New Media

2009-02-12T01:33:34Z

MSanchez: /* Part II. Case study: RIAA vs. Tenenbaum (60 mins) */

Old Laws/New Media

2009-02-12T01:33:07Z

MSanchez: /* RIAA's use of the Copyright Act's statutory damages framework to Internet users */

Permissions

2009-02-12T01:31:30Z

MSanchez: /* Blanket permission: Attribution is OK */

== Introduction ==

This course involves using the Internet in novel ways. Some of those ways may involve recording the class sessions and making them available in real time or as archives, and in full or in part, to external audiences -- and soliciting contributions from those audiences. We want to ensure that this experimentation is consonant with participants' privacy expectations. Unless explicitly stated otherwise or agreed below, all content from the class wiki, mailing list, the class time itself, and class-related discussions may be quoted and paraphrased under the Chatham House rule -- i.e. without attribution to the speaker. In other words, it is all right to say "Someone in my IIF class said that..."

== Options ==

For things that can be attributed to individuals, or for which identification with an individual is unavoidable (for instance, video), we have three options; please indicate your choice below or by communicating with the profs --

=== Blanket permission: Attribution is OK ===

Everything is okay to share and attribute to relevant individuals.

* '''support.''' I don't think we will be sharing any confidential details amongst ourselves, and this will make it much easier for our work to be spread. I'd even suggest [http://creativecommons.org/licenses/by/2.0/ cc-by] for all our coursework. [[User:Mchua|Mchua]] 10:20, 3 February 2009 (UTC)
* I hereby license all my brilliant pearls of wisdom under this "OK by default" license. [[User:Danray|Dan Ray]] 15:51, 3 February 2009 (UTC)
* This system is fine with me, too. [[User:Gwen|Gwen]] 19:00, 3 February 2009 (UTC)
* Works for me. [[User:JZ|JZ]] 17:43, 4 February 2009 (UTC)
* Me too. Terry
* Yup, I'm okay with this too. [[User:Jharrow|Jharrow]] 00:38, 6 February 2009 (UTC)
* This is fine with me. [[User:Drood|Dharmishta]]
* I support this option [[User:Lbaker|Lbaker]] 22:08, 9 February 2009 (UTC)
* I'm in [[User:jf|Jon Fildes]]
* This works for me [[User:CKennedy|Conor Kennedy]]
* wfm [[User:Dulles|Dulles]] 18:54, 10 February 2009 (UTC)
* me too --[[User:Mahmadian.jd11|Mahmadian.jd11]] 19:46, 10 February 2009 (UTC)
* Sounds good. [[User:MSanchez|MSanchez]]

=== Attribution must be sought on a case by case basis when class participation or contributions are to be used externally ===

For those who want to attribute a contribution or post something with identifiable individuals, permission must be sought.

=== Blanket denial: Attribution is not wanted under any circumstances ===

Old Laws/New Media

2009-01-18T19:34:17Z

MSanchez: /* Overview of attempts to apply existing copyright law to online file-sharing */

Old Laws/New Media

2009-01-18T19:33:58Z

MSanchez: /* Topic Introduction: Conflict between old laws and new media */

Old Laws/New Media

2009-01-18T19:33:37Z

MSanchez: /* Subject matter of the class */

Old Laws/New Media

2009-01-18T19:32:56Z

MSanchez: /* Subject matter of the class */

Old Laws/New Media

2009-01-18T19:32:42Z

MSanchez: /* Subject matter of the class */

Old Laws/New Media

2009-01-18T19:29:34Z

MSanchez: /* Topic Introduction: Conflict between old laws and new media */

Old Laws/New Media

2009-01-18T19:29:16Z

MSanchez: /* Topic Introduction: Conflict between old laws and new media */

Old Laws/New Media

2009-01-18T19:29:02Z

MSanchez: /* Topic Introduction: Conflict between old laws and new media */

Old Laws/New Media

2009-01-18T19:25:54Z

MSanchez: /* Internet and recording technology in the courtroom */

Old Laws/New Media

2009-01-18T19:25:15Z

MSanchez: /* Abandon the old laws and use self-help or create private sector enforcement */

Old Laws/New Media

2009-01-18T19:23:51Z

MSanchez: /* RIAA's use of Copyright Act to try and shape norms of Internet usage */

Old Laws/New Media

2009-01-18T19:22:44Z

MSanchez: /* Lobby for new laws in Congress */

Old Laws/New Media

2009-01-18T19:22:06Z

MSanchez: /* Abandon the old laws and use self-help or create private sector enforcement */

Old Laws/New Media

2009-01-18T19:20:59Z

MSanchez: /* Internet and recording technology in the courtroom */

Old Laws/New Media

2009-01-18T19:20:03Z

MSanchez: /* B. The Internet in the Courtroom (30 mins) */

Old Laws/New Media

2009-01-18T19:13:46Z

MSanchez: /* Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (15 mins) */

Old Laws/New Media

2009-01-18T19:13:23Z

MSanchez: /* Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (15 mins) */

Old Laws/New Media

2009-01-18T19:09:46Z

MSanchez: /* Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (30 mins) */

Old Laws/New Media

2009-01-18T19:09:10Z

MSanchez: /* Part I. Background (~30 minutes) */

Old Laws/New Media

2009-01-18T19:07:38Z

MSanchez: /* Topic Introduction */

Old Laws/New Media

2009-01-18T19:07:09Z

MSanchez: /* Record industry's attempts to apply existing copyright law to online file-sharing */

Old Laws/New Media

2009-01-18T19:04:43Z

MSanchez: /* Part II. Case study: RIAA vs. Tenenbaum (60 mins) */

Old Laws/New Media

2009-01-18T19:04:16Z

MSanchez: /* Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (30 mins) */

Old Laws/New Media

2009-01-18T19:03:30Z

MSanchez: /* Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) */

Old Laws/New Media

2009-01-18T19:02:44Z

MSanchez: /* Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (30 mins) */

Old Laws/New Media

2009-01-18T19:01:42Z

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

== Subject matter of the class ==

=== Part I. Background (~30 minutes) ===
=====Topic Introduction=====
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

=====Record industry's attempts to apply existing copyright law to online file-sharing=====
* Reading: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum (60 mins) ===

* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Tenenbaum brief challenging constitutionality of copyright damages and asserting abuse of process]
* Reference: Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]).
* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article background on RIAA's litigation strategy]
** Optional: Articles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Reading: [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html RIAA's new enforcement strategy]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

===== Lobby for new laws in Congress =====
* DMCA
* Reading: (will prepare an excerpted version as a reading)

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

===== Any of the strategies listed above? =====

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Reading: [http://www.newsweek.com/id/176809/output/print Lessig article]

===== Other ideas? =====

=== Part IV. Closing Discussion: What are the pros and cons of various ways to adjust old laws to new media? (30 mins) ===

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Tools / innovations for the presentation ==

*'''Question Tool''': [http://cyber.law.harvard.edu/questions/list.php]

** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''Twitter''': As part of the RIAA case, one of the technologies we have been experimenting with is twitter.com. We encourage you to check us out at: www.twitter.com/joelfightsback.

** To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
** During class: Opportunity to micro-blog
** Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.

== OLD CONTENT FROM HERE DOWN ==
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson], to raise these questions. Articles about Joel's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

==== General relationship between technological change and the law ====
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:
* How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
* Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC [http://online.wsj.com/article/SB122832671930476269.html?mod=googlenews_wsj proposal] that would impose common carrier-like responsibilities on the recipient of wireless spectrum and [http://www.ntia.doc.gov/comments/2008/NTIA_FCC_Martin_AWS3_081210.pdf opposition] asserting that these responsibilities would unduly interfere with the free market.
* What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: [http://www.newsweek.com/id/176809/output/print "minimal intervention to maximize innovation."] Consider RIAA's new [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html strategy] as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
* How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
* Other questions to consider:
** What IS new media? Consider Lessig article.
** How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

=== Guests ===
* Google Telecom Lawyer Rick Whitt (invitation extended)
* Google Antitrust Lawyer Dana Wagner (invitation extended)
* Berkman Center's David Ardia, who runs the Citizen Media Law Project
* Cary Sherman of RIAA
* [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson] (invitation extended)
* Public Citizen Litigation Group Attorney Paul Alan Levy
* Electronic Frontier Foundation Attorney Fred Von Lohmann

=== Readings for Class ===

* The links in the writeup above.

''' Copyright-related readings '''
* [http://blogs.law.harvard.edu/cyberone/riaa/docket/ Various court documents and media coverage from the Sony v. Tenenbaum case]
* [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html Discussion of RIAA's new tactics to curb file sharing]
* [http://www.law.cornell.edu/copyright/cases/464_US_417.htm Sony Corporation v. Universal City Studios, 464 U.S. 417(1984)] (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
* [http://www.law.cornell.edu/supct/html/04-480.ZS.html Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005)] (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
* [http://www.copyright.gov/legislation/dmca.pdf Digital Millennium Copyright Act] (1998 law that extended U.S. copyright principles to digital materials)
* [http://www.wired.com/wired/archive/12.03/lessig_pr.html Some Like It Hot by Lessig]

''' Speech-related readings '''
* Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
* [http://en.wikipedia.org/wiki/Communications_Decency_Act CDA], especially [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html Section 230].
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0844_ZS.html Reno v. ACLU, 521 U.S. 844 (1997)] (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

''' Other readings '''

=== Possible Tools ===
* [http://cyber.law.harvard.edu/node/3400 Berkman Question Tool] or [http://moderator.appspot.com/ Google Moderator].
* [http://www.youtube.com YouTube]
* Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

=== Music Downloading Agents to Preview ===
* [http://www.Rhapsody.com Rhapsody]
* [http://www.limewire.com Limewire]
* [http://www.kazaa.com/ Kazaa]

Old Laws/New Media

2009-01-18T19:00:44Z

MSanchez:

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

== Subject matter of the class ==

=== Part I. Background (~30 minutes) ===
=====Topic Introduction=====
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

=====Record industry's attempts to apply existing copyright law to online file-sharing=====
* Reading: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum (60 mins) ===

* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/676.pdf Joel's Amended Counterclaim]
* Optional: The imperfect fit of a pre-Internet statutory scheme being applied in an Internet setting. In particular, focus on the Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]), how they operated pre-Internet, and how they have been applied by rights holders for Internet infringement.
* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article background on RIAA's litigation strategy]
** Optional: Articles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Reading: [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html RIAA's new enforcement strategy]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

===== Lobby for new laws in Congress =====
* DMCA
* Reading: (will prepare an excerpted version as a reading)

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

===== Any of the strategies listed above? =====

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Reading: [http://www.newsweek.com/id/176809/output/print Lessig article]

===== Other ideas? =====

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

== Guest ==
[http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson]

== Tools / innovations for the presentation ==

*'''Question Tool''': [http://cyber.law.harvard.edu/questions/list.php]

** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''Twitter''': As part of the RIAA case, one of the technologies we have been experimenting with is twitter.com. We encourage you to check us out at: www.twitter.com/joelfightsback.

** To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
** During class: Opportunity to micro-blog
** Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.

== OLD CONTENT FROM HERE DOWN ==
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson], to raise these questions. Articles about Joel's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

==== General relationship between technological change and the law ====
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:
* How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
* Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC [http://online.wsj.com/article/SB122832671930476269.html?mod=googlenews_wsj proposal] that would impose common carrier-like responsibilities on the recipient of wireless spectrum and [http://www.ntia.doc.gov/comments/2008/NTIA_FCC_Martin_AWS3_081210.pdf opposition] asserting that these responsibilities would unduly interfere with the free market.
* What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: [http://www.newsweek.com/id/176809/output/print "minimal intervention to maximize innovation."] Consider RIAA's new [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html strategy] as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
* How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
* Other questions to consider:
** What IS new media? Consider Lessig article.
** How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

=== Guests ===
* Google Telecom Lawyer Rick Whitt (invitation extended)
* Google Antitrust Lawyer Dana Wagner (invitation extended)
* Berkman Center's David Ardia, who runs the Citizen Media Law Project
* Cary Sherman of RIAA
* [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson] (invitation extended)
* Public Citizen Litigation Group Attorney Paul Alan Levy
* Electronic Frontier Foundation Attorney Fred Von Lohmann

=== Readings for Class ===

* The links in the writeup above.

''' Copyright-related readings '''
* [http://blogs.law.harvard.edu/cyberone/riaa/docket/ Various court documents and media coverage from the Sony v. Tenenbaum case]
* [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html Discussion of RIAA's new tactics to curb file sharing]
* [http://www.law.cornell.edu/copyright/cases/464_US_417.htm Sony Corporation v. Universal City Studios, 464 U.S. 417(1984)] (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
* [http://www.law.cornell.edu/supct/html/04-480.ZS.html Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005)] (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
* [http://www.copyright.gov/legislation/dmca.pdf Digital Millennium Copyright Act] (1998 law that extended U.S. copyright principles to digital materials)
* [http://www.wired.com/wired/archive/12.03/lessig_pr.html Some Like It Hot by Lessig]

''' Speech-related readings '''
* Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
* [http://en.wikipedia.org/wiki/Communications_Decency_Act CDA], especially [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html Section 230].
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0844_ZS.html Reno v. ACLU, 521 U.S. 844 (1997)] (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

''' Other readings '''

=== Possible Tools ===
* [http://cyber.law.harvard.edu/node/3400 Berkman Question Tool] or [http://moderator.appspot.com/ Google Moderator].
* [http://www.youtube.com YouTube]
* Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

=== Music Downloading Agents to Preview ===
* [http://www.Rhapsody.com Rhapsody]
* [http://www.limewire.com Limewire]
* [http://www.kazaa.com/ Kazaa]

Old Laws/New Media

2009-01-18T18:51:19Z

MSanchez: /* Overview of record industry's attempts to apply existing copyright law to online file-sharing */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

== Subject matter of the class ==

=== Part I. Background (~30 minutes) ===
=====Topic Introduction=====
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

=====Record industry's attempts to apply existing copyright law to online file-sharing=====
* Reading: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum (60 mins) ===

* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* Optional: The imperfect fit of a pre-Internet statutory scheme being applied in an Internet setting. In particular, focus on the Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]), how they operated pre-Internet, and how they have been applied by rights holders for Internet infringement.
* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article background on RIAA's litigation strategy]
** AOptional: rticles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Reading: [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html RIAA's new enforcement strategy]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

===== Lobby for new laws in Congress =====
* DMCA
* Reading: (will prepare an excerpted version as a reading)

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

===== Any of the strategies listed above? =====

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Reading: [http://www.newsweek.com/id/176809/output/print Lessig article]

===== Other ideas? =====

== Guest ==
Professor Charles Nesson

== Tools / innovations for the presentation ==

*'''Question Tool''': [http://cyber.law.harvard.edu/questions/list.php]

** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''Twitter''': As part of the RIAA case, one of the technologies we have been experimenting with is twitter.com. We encourage you to check us out at: www.twitter.com/joelfightsback.

** To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
** During class: Opportunity to micro-blog
** Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.

== OLD CONTENT FROM HERE DOWN ==
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson], to raise these questions. Articles about Joel's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

==== General relationship between technological change and the law ====
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:
* How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
* Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC [http://online.wsj.com/article/SB122832671930476269.html?mod=googlenews_wsj proposal] that would impose common carrier-like responsibilities on the recipient of wireless spectrum and [http://www.ntia.doc.gov/comments/2008/NTIA_FCC_Martin_AWS3_081210.pdf opposition] asserting that these responsibilities would unduly interfere with the free market.
* What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: [http://www.newsweek.com/id/176809/output/print "minimal intervention to maximize innovation."] Consider RIAA's new [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html strategy] as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
* How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
* Other questions to consider:
** What IS new media? Consider Lessig article.
** How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

=== Guests ===
* Google Telecom Lawyer Rick Whitt (invitation extended)
* Google Antitrust Lawyer Dana Wagner (invitation extended)
* Berkman Center's David Ardia, who runs the Citizen Media Law Project
* Cary Sherman of RIAA
* [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson] (invitation extended)
* Public Citizen Litigation Group Attorney Paul Alan Levy
* Electronic Frontier Foundation Attorney Fred Von Lohmann

=== Readings for Class ===

* The links in the writeup above.

''' Copyright-related readings '''
* [http://blogs.law.harvard.edu/cyberone/riaa/docket/ Various court documents and media coverage from the Sony v. Tenenbaum case]
* [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html Discussion of RIAA's new tactics to curb file sharing]
* [http://www.law.cornell.edu/copyright/cases/464_US_417.htm Sony Corporation v. Universal City Studios, 464 U.S. 417(1984)] (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
* [http://www.law.cornell.edu/supct/html/04-480.ZS.html Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005)] (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
* [http://www.copyright.gov/legislation/dmca.pdf Digital Millennium Copyright Act] (1998 law that extended U.S. copyright principles to digital materials)
* [http://www.wired.com/wired/archive/12.03/lessig_pr.html Some Like It Hot by Lessig]

''' Speech-related readings '''
* Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
* [http://en.wikipedia.org/wiki/Communications_Decency_Act CDA], especially [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html Section 230].
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0844_ZS.html Reno v. ACLU, 521 U.S. 844 (1997)] (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

''' Other readings '''

=== Possible Tools ===
* [http://cyber.law.harvard.edu/node/3400 Berkman Question Tool] or [http://moderator.appspot.com/ Google Moderator].
* [http://www.youtube.com YouTube]
* Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

=== Music Downloading Agents to Preview ===
* [http://www.Rhapsody.com Rhapsody]
* [http://www.limewire.com Limewire]
* [http://www.kazaa.com/ Kazaa]

Old Laws/New Media

2009-01-18T18:50:58Z

MSanchez: /* Topic Introduction: Conflicts Between Old Laws and New Media */

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

== Subject matter of the class ==

=== Part I. Background (~30 minutes) ===
=====Topic Introduction=====
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

=====Overview of record industry's attempts to apply existing copyright law to online file-sharing=====
* Reading: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum (60 mins) ===

* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* Optional: The imperfect fit of a pre-Internet statutory scheme being applied in an Internet setting. In particular, focus on the Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]), how they operated pre-Internet, and how they have been applied by rights holders for Internet infringement.
* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article background on RIAA's litigation strategy]
** AOptional: rticles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Reading: [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html RIAA's new enforcement strategy]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

===== Lobby for new laws in Congress =====
* DMCA
* Reading: (will prepare an excerpted version as a reading)

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

===== Any of the strategies listed above? =====

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Reading: [http://www.newsweek.com/id/176809/output/print Lessig article]

===== Other ideas? =====

== Guest ==
Professor Charles Nesson

== Tools / innovations for the presentation ==

*'''Question Tool''': [http://cyber.law.harvard.edu/questions/list.php]

** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''Twitter''': As part of the RIAA case, one of the technologies we have been experimenting with is twitter.com. We encourage you to check us out at: www.twitter.com/joelfightsback.

** To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
** During class: Opportunity to micro-blog
** Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.

== OLD CONTENT FROM HERE DOWN ==
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson], to raise these questions. Articles about Joel's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

==== General relationship between technological change and the law ====
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:
* How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
* Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC [http://online.wsj.com/article/SB122832671930476269.html?mod=googlenews_wsj proposal] that would impose common carrier-like responsibilities on the recipient of wireless spectrum and [http://www.ntia.doc.gov/comments/2008/NTIA_FCC_Martin_AWS3_081210.pdf opposition] asserting that these responsibilities would unduly interfere with the free market.
* What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: [http://www.newsweek.com/id/176809/output/print "minimal intervention to maximize innovation."] Consider RIAA's new [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html strategy] as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
* How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
* Other questions to consider:
** What IS new media? Consider Lessig article.
** How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

=== Guests ===
* Google Telecom Lawyer Rick Whitt (invitation extended)
* Google Antitrust Lawyer Dana Wagner (invitation extended)
* Berkman Center's David Ardia, who runs the Citizen Media Law Project
* Cary Sherman of RIAA
* [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson] (invitation extended)
* Public Citizen Litigation Group Attorney Paul Alan Levy
* Electronic Frontier Foundation Attorney Fred Von Lohmann

=== Readings for Class ===

* The links in the writeup above.

''' Copyright-related readings '''
* [http://blogs.law.harvard.edu/cyberone/riaa/docket/ Various court documents and media coverage from the Sony v. Tenenbaum case]
* [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html Discussion of RIAA's new tactics to curb file sharing]
* [http://www.law.cornell.edu/copyright/cases/464_US_417.htm Sony Corporation v. Universal City Studios, 464 U.S. 417(1984)] (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
* [http://www.law.cornell.edu/supct/html/04-480.ZS.html Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005)] (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
* [http://www.copyright.gov/legislation/dmca.pdf Digital Millennium Copyright Act] (1998 law that extended U.S. copyright principles to digital materials)
* [http://www.wired.com/wired/archive/12.03/lessig_pr.html Some Like It Hot by Lessig]

''' Speech-related readings '''
* Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
* [http://en.wikipedia.org/wiki/Communications_Decency_Act CDA], especially [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html Section 230].
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0844_ZS.html Reno v. ACLU, 521 U.S. 844 (1997)] (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

''' Other readings '''

=== Possible Tools ===
* [http://cyber.law.harvard.edu/node/3400 Berkman Question Tool] or [http://moderator.appspot.com/ Google Moderator].
* [http://www.youtube.com YouTube]
* Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

=== Music Downloading Agents to Preview ===
* [http://www.Rhapsody.com Rhapsody]
* [http://www.limewire.com Limewire]
* [http://www.kazaa.com/ Kazaa]

Old Laws/New Media

2009-01-18T18:50:06Z

MSanchez:

'''Topic Owners: [[User:smukherjee|Shubham Mukherjee]], [[User:DebbieRosenbaum|Debbie Rosenbaum]], [[User:MSanchez|Matt Sanchez]]'''

back to [[syllabus]]

'''Precis'''
This topic concerns the tension between old laws and new media. The Internet has threatened the way many "traditional" companies do business. Many of these companies have attempted to preserve their existing business models by applying pre-Internet statutory or regulatory regimes to cyberspace. Critics assert that the old laws are ill-suited for this purpose: they threaten to slow innovation on the Internet and, in any event, are ineffective in the Internet age.

Perhaps the clearest -- and most high profile -- example of this phenomenon is the RIAA and its struggles to adapt to Internet distribution of music. This class will use the RIAA and its efforts to use old pre-Internet laws to curb file sharing as a case study for exploring the tension between old laws and new media. The purposes of the class include understanding the tension, understanding and evaluating strategies that have been used to address the tension to date, and considering what the right approach should be.

== Subject matter of the class ==

=== Part I. Background (~30 minutes) ===
=====Topic Introduction: Conflicts Between Old Laws and New Media=====
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]
=====Overview of record industry's attempts to apply existing copyright law to online file-sharing=====
* Reading: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/04-480.pdf Grokster (Supreme Court ruling)]
* Optional: [http://w2.eff.org/IP/P2P/MGM_v_Grokster/20040819_mgm_v_grokster_decision.pdf Grokster (Ninth Circuit ruling)].
* Optional: [http://en.wikipedia.org/wiki/Music_industry Overview of Music Industry Business Model]
* Optional: [http://en.wikipedia.org/wiki/File_sharing File sharing: It’s history, growth, and impact on the music industry.]

=== Part II. Case study: RIAA vs. Tenenbaum (60 mins) ===

* Reading: [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-1.pdf Complaint against Tenenbaum]
** Exhibit A: MediaSentry report identifying 7 songs Plaintiffs believe infringed. [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-2.pdf J-01-2]
** Exhibits B-1 through B-7: MediaSentry screencaps allegedly showing the contents of Joel’s shared folder on KaZaA. ([http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-3.pdf J-01-3], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-4.pdf -4], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-5.pdf -5], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-6.pdf -6], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-7.pdf -7], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-8.pdf -8], [http://blogs.law.harvard.edu/cyberone/files/2008/11/j-01-9.pdf -9])
* Optional: The imperfect fit of a pre-Internet statutory scheme being applied in an Internet setting. In particular, focus on the Copyright Act's statutory damage provisions (see [http://www.copyright.gov/title17/92chap5.html#504 here] and [http://thomas.loc.gov/cgi-bin/query/z?c106:h3456.enr: here]), how they operated pre-Internet, and how they have been applied by rights holders for Internet infringement.
* Optional: [http://www.eff.org/wp/riaa-v-people-years-later EFF article background on RIAA's litigation strategy]
** AOptional: rticles about Professor Nesson's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]

===== Abandon the old laws and use self-help or create private sector enforcement =====
* Reading: [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html RIAA's new enforcement strategy]

===== Continue employing the existing imperfect statutory scheme =====
* Example: the litigation campaign against individual file sharers and file sharing services based on the pre-Internet statutory scheme.

===== Let courts adapt the case law to technology =====
* Example: Grokster, where the Supreme Court created a new category of liability
* Example: The [http://arstechnica.com/news.ars/post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html issue] of whether “making available” constitutes copyright infringement, currently being wrestled with by lower courts
* Reading: [http://www.enfacto.com/case/U.S./464/417/ Sony "Betamax" case]

===== Lobby for new laws in Congress =====
* DMCA
* Reading: (will prepare an excerpted version as a reading)

=== Part III. Discussion: How should we best deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments? (30 mins) ===

===== Any of the strategies listed above? =====

===== Make Internet regulation part of the administrative state (i.e., empower the FCC) =====
* Reading: [http://www.newsweek.com/id/176809/output/print Lessig article]

===== Other ideas? =====

== Guest ==
Professor Charles Nesson

== Tools / innovations for the presentation ==

*'''Question Tool''': [http://cyber.law.harvard.edu/questions/list.php]

** To do before: post/vote for questions/concerns about the readings.
** During class: continue live conversation online.

*'''Twitter''': As part of the RIAA case, one of the technologies we have been experimenting with is twitter.com. We encourage you to check us out at: www.twitter.com/joelfightsback.

** To do before: Create your own account, if you wish. (Be sure to "friend" both joelfightsback and debbierosenbaum!)
** During class: Opportunity to micro-blog
** Note from Debbie: I've been twittering for a few weeks and love it. It allows me not only to post my random thoughts of the moment -- often academic or worldly in nature -- but also to essentially keep a live journal. I encourage you all to try it for the semester. At least during classes; at the end, you'll be nostalgic -- promise.

== OLD CONTENT FROM HERE DOWN ==
The Internet and other digital media raise a number of questions about communication law and policy: Should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? How have the courts, Congress, and other lawmaking bodies responded to new media technologies? What regulatory regime is emerging, if any, to govern new media? We will use the Joel Tenenbaum copyright infringement lawsuit as a case study, in conjunction with [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson], to raise these questions. Articles about Joel's case can be found [http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9124118&intsrc=news_ts_head at Computer World], [http://www.google.com/hostednews/ap/article/ALeqM5gfmThZ1bZlDu064ld5mXyNTzTWfwD956G9FG0 here], and [http://www.boston.com/lifestyle/articles/2008/11/18/billion_dollar_charlie_vs_the_riaa/ here]. In addition to copyright law, we may also discuss the controversial issues that have come up in speech-related law (e.g., defamation and anonymous speech rights) and privacy laws.

==== General relationship between technological change and the law ====
Looking beyond individual cases, legal doctrines, and policies, the class will explore general relationships between technological change and the law. What drives changes in laws that govern media technologies? How do old media industries use their influence to shape laws that affect new media? What characteristics of the legal system especially the dynamics of litigation and congressional lawmaking affect society's response to new media? What's the role of citizen activists in shaping laws? How does social science research (e.g., studies about the effects of new media) bear on legal decisions?

During this second part of class, we'll be guided by the following series of questions:
* How has new media affected traditional communications and media industries and challenged traditional law? Consider Sony
* Given what we've learned from the RIAA situation with Joel Tenenbaum, should new media be treated like one of the traditional media (print, broadcasting, or common carriers), a hybrid, or something entirely new? Consider Tenenbaum filings. Consider controversial FCC [http://online.wsj.com/article/SB122832671930476269.html?mod=googlenews_wsj proposal] that would impose common carrier-like responsibilities on the recipient of wireless spectrum and [http://www.ntia.doc.gov/comments/2008/NTIA_FCC_Martin_AWS3_081210.pdf opposition] asserting that these responsibilities would unduly interfere with the free market.
* What regulatory regime should emerge to govern new media? i.e. Do we apply old laws to new technologies, or do we create new regulations? Consider MGM, DMCA, and CDA. Consider Lessig's article stating that regulatory regimes should be disfavored: [http://www.newsweek.com/id/176809/output/print "minimal intervention to maximize innovation."] Consider RIAA's new [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html strategy] as an example in which the private sector is attempting to create their own "regulatory" regime with minimal government intervention.
* How can we create sound policy that aligns with both traditional legal and moral aspirations while according with today's technological realities? Consider Reno v. ACLU.
* Other questions to consider:
** What IS new media? Consider Lessig article.
** How do we deal with the fact that there is little legal infrastructure that takes into account today's new media and technological environments?

=== Guests ===
* Google Telecom Lawyer Rick Whitt (invitation extended)
* Google Antitrust Lawyer Dana Wagner (invitation extended)
* Berkman Center's David Ardia, who runs the Citizen Media Law Project
* Cary Sherman of RIAA
* [http://cyber.law.harvard.edu/people/cnesson Professor Charles Nesson] (invitation extended)
* Public Citizen Litigation Group Attorney Paul Alan Levy
* Electronic Frontier Foundation Attorney Fred Von Lohmann

=== Readings for Class ===

* The links in the writeup above.

''' Copyright-related readings '''
* [http://blogs.law.harvard.edu/cyberone/riaa/docket/ Various court documents and media coverage from the Sony v. Tenenbaum case]
* [http://arstechnica.com/news.ars/post/20081221-riaa-graduated-response-plan-qa-with-cary-sherman.html Discussion of RIAA's new tactics to curb file sharing]
* [http://www.law.cornell.edu/copyright/cases/464_US_417.htm Sony Corporation v. Universal City Studios, 464 U.S. 417(1984)] (Supreme Court decision that manufacturers of video recorders can not be held liable when they are used to violate copyright).
* [http://www.law.cornell.edu/supct/html/04-480.ZS.html Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005)] (Internet services that facilitate file sharing of copyrighted materials can be held liable for infringement)
* [http://www.copyright.gov/legislation/dmca.pdf Digital Millennium Copyright Act] (1998 law that extended U.S. copyright principles to digital materials)
* [http://www.wired.com/wired/archive/12.03/lessig_pr.html Some Like It Hot by Lessig]

''' Speech-related readings '''
* Materials related to online defamation and anonymity law (AutoAdmit, Roommates.com, etc.)
* [http://en.wikipedia.org/wiki/Communications_Decency_Act CDA], especially [http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000230----000-.html Section 230].
* [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0844_ZS.html Reno v. ACLU, 521 U.S. 844 (1997)] (Supreme Court decision striking down parts of Communications Decency Act and also the Court's leading statement on the constitutional status of the Internet)

''' Other readings '''

=== Possible Tools ===
* [http://cyber.law.harvard.edu/node/3400 Berkman Question Tool] or [http://moderator.appspot.com/ Google Moderator].
* [http://www.youtube.com YouTube]
* Webcast. Distribute the Question Tool or Google Moderator link so remote listeners can help steer the discussion.

=== Music Downloading Agents to Preview ===
* [http://www.Rhapsody.com Rhapsody]
* [http://www.limewire.com Limewire]
* [http://www.kazaa.com/ Kazaa]

Scheduling

2009-01-14T19:36:30Z

MSanchez:

Here's where the scheduling happens. No need to claim a day landrush-style; just add in what day your guests have said they're available.

{| {{table}}
| align="center" style="background:#dddddd;"|'''Monday (5-7pm)'''
| align="center" style="background:#dddddd;"|'''Presenters' names'''
| align="center" style="background:#dddddd;"|'''Topic name'''
| align="center" style="background:#dddddd;"|'''Guests (confirmed)'''
| align="center" style="background:#dddddd;"|'''Guests (not yet confirmed)'''
|-
|style="background: #dddddd;"|This||is||a||sample||line.
|-
|style="background: #dddddd;"|2-Feb||||||||
|-
|style="background: #dddddd;"|9-Feb||||||||
|-
|style="background: #dddddd;"|16-Feb||Graham, Mark||Internet and Social Inequity||||Eszter Hargittai (pending scheduling)
|-
|style="background: #dddddd;"|23-Feb||Debbie, Shubham, and Matt||Old Laws/New Media||Prof. Charles Nesson||
|-
|style="background: #dddddd;"|2-Mar||Dharmishta Rood & Jon Fildes||The Future of News||||Russ Stanton||
|-
|style="background: #dddddd;"|9-Mar||Mel, Elana, Rainer||All Together Now For Great Justice Dot Org||
|-
|style="background: #dddddd;"|16-Mar||Joe & Miriam||The Future of (c) & Entertainment|||| Henry Jenkins, James Boyle, various artists
|-
|style="background: #dddddd;"|30-Mar||Gwen, Jon, Lee||The Internet and Publication||||Prof. John Palfrey, Robert Darnton, Corey Williams, Prue Adler
|-
|style="background: #dddddd;"|6-Apr||Andrew Klaber & David Levine||The Internet, The Environment and Venture Capital||TBD||Peter Thiel or other investors
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|style="background: #dddddd;"|13-Apr||Dan Ray, Joshua Gruenspecht, & Conor Kennedy||Anonymity & Privacy||||Michael Samway or Andrew McLaughlin; Caroline Nolan and/or Colin Maclay; a representative of or expert on Vietnam
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|style="background: #dddddd;"|20-Apr||Vera Ranieri & Arjun Mehra||Internet Governance & Regulation||Milton Mueller of the Internet Governance Project||
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|style="background: #dddddd;"|27-Apr|||Elisabeth Theodore & Matthew Wansley||Prediction Markets||Justin Wolfers||Hal Varian