Internet & Society: The Technologies and Politics of Control
Harvard Law School
- January 2003
Professor Jonathan Zittrain

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Class 1: The ICANN Story: the battle over public turf and internet governance – Thursday, 1/2




John Perry Barlow’s Declaration of Independence for Cyberspace


Class 2: Antitrust Issues on the ‘Net: the battle over defending private turf and making it so ubiquitous such that it becomes public – Friday 1/3


Microsoft is the ultimate technology company success story, from start-up to the company with the largest market capitalization of any company in the world within less than two decades. If any company has succeeded in cornering the markets for control, it's Microsoft. Indeed, according to the United States Department of Justice and at least one federal judge, they succeeded too well. The Microsoft case continues to unfold with enormous potential implications for the law of cyberspace as well as antitrust law in general.


In this class we ask whether the Microsoft case is just another antitrust case - or whether it illustrates the ways in which one can't just apply old laws to the Net by adding an e- in front. We'll also look at Microsoft's .NET initiative, and the Cassandra-like worries already coalescing around it.




Excerpt from Philip J. Weiser, Internet Governance, Standard Setting and Self-Regulation, 28 N. Ky. L. Rev. 822 (2001)


US v. Microsoft: Timeline


Excerpt from Dean Ringel, Monopolies and Joint Ventures, 1311 PLI/Corp 11 (May 2002)


Memorandum Opinion, State of New York et al. v. Microsoft: read pp. 1-10, 25-32, 93-110, 186-190 and skim the rest (numbers refer to page numbers that appear in the document at the bottom of each page). This is not included in the Course Pack; it can be found online at


Jonathan Zittrain, The Un-Microsoft Un-Remedy: Law Can Prevent the Problem That It Can't Patch Later, 31 Connecticut L. Rev. 1361 (1999)


Java Community Process (excerpt from Executive Summary)






Class 3: The Basics of Copyright in Cyberspace: “too much music” - Monday, 1/6


Napster started a revolution. A couple of guys, a cool idea, and a simple technology awakened the lazy, sleeping giants of the music publishing business and made them very, very afraid. The legal battle was joined, and some of America's most famous lawyers fought it out in court. Some of the richest venture capitalists lost their shirts, and a business deal closed out the story - at least for now.


Our starting point in class will be what Napster's story - and the Peer-to-Peer (P2P) movement in general - means for the law related to the Internet. The notion of file sharing persists, in many formats and many business models. Some of the thorny intellectual property issues raised in the Napster case (and in the Sony case before it) remain unresolved.





John Perry Barlow, The Economy of Ideas



Sony Corporation v. Universal Studios, 464 U.S. 417 (1984) (skim Headnotes and Syllabus for holding) Opinion is available online at


A & M Records et al. v. Napster, 239 F.3d 1004 (9th Cir. 2001)


The Latest Debate: Which of these services is not like the other?


MGM v. Grokster: Motions for Summary Judgment. Read EITHER Plaintiffs’ Motion or Defendants’ Motions; DO NOT read the other party’s motion.


Plaintiffs’ Motions available online at


Defendants’ Motions (2) available online at and


TV file-sharing: Salon, “Replay it Again, Sam





Fred von Lohmann, Peer-to-Peer Copyright and File Sharing After Napster

MGM v. Grokster documents (skim complaint, briefs, responses)

Wired News, Court Hints at Trouble for Kazaa, Nov. 26, 2002

CNET, Judge Okays Suit Against Kazaa Parent, July 10, 2002

CNET, Kazaa, Morpheus Legal Case Collapsing, May 22, 2002

CNET, Ruling Bolsters File-Traders’ Prospects, March 28, 2002

CNET, Judge Puts File Swappers in Hot Seat, March 4, 2002

CNET, Suit Hits Popular Post-Napster Network, Oct. 2001

Salon, Sour Notes, July 30 2002

Salon, File Sharing: Guilty as Charged? August 23, 2002

Class 4: Technological Counterparts to Copyright (and the Laws that Bolster Them) – Tuesday, 1/7


Last class we saw how the digital music revolution swept the web. Today, we explore the proposition that another shoe will drop: technology backed up by law can beat back P2P and lock music up tight. This session will address the technological advances related to so-called trusted systems and the legal mechanisms set in place by the U.S. Digital Millennium Copyright Act. The first piece tries to answer the question you may be asking yourself at this moment ("What's a trusted system?") and explores what the advent of these technologies means for content control. We'll explore the drawbacks of these technologies, and the possibility that trusted systems that aren't perfect may still be good enough for their creators' purposes.




“Technological Counterparts to Copyright” chapter of forthcoming Internet Law casebook




Amy Harmon, Studios Using Digital Armor (NYTimes Online, Jan. 5, 2003)


Doug Mellgren, Norwegian Teen Acquitted of DVD Piracy (, Jan. 7, 2003)

Class 5: Legal and Cultural Complements to Copyright – Wednesday, 1/8




“Alternatives to IP” module excerpts


Excerpts from Eldred v. Ashcroft, Petitioner’s Brief


Excerpts from “Digital Choice and Freedom Act of 2002


Jonathan Zittrain, Calling Off the Copyright War, The Boston Globe, Nov. 24, 2002


Siva Vaidhyanathan, Copyrights and Copywrongs, Draft Chapter 5 (The Digital Moment: The End of Copyright?).

Classes 6 The Role of Intermediaries – Friday, 1/10 Please Note Date Change




17 U.S.C.A. 512 (Section 202 of Digital Millennium Copyright Act)


Excerpts from Jonathan Zittrain, DRAFT Internet Points of Control (forthcoming).


Aaron Koller letter


RIAA v. Verizon Motions: RIAA’s Motion to Enforce Subpoena and Verizon’s Motion in Opposition


CNet article “Anti-piracy group bills for downloads


News articles on Berman P2P “vigilantism” bill:





Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552, 1559 (M.D. Fla. 1993)


Playboy Enterprises, Inc. v. Webbworld, 991 F.Supp. 543 (N.D. Tex. 1997), aff’d, 168 F.3d 486 (5th Cir. 1999)

Class 7 Economic Substitutes for Copyright Regimes – Thursday, 1/9 Please Note Date Change




Excerpts from Eric Raymond, The Cathedral and the Bazaar


Excerpts from the Microsoft Halloween Memos




Excerpts from Yochai Benkler, Coase’s Penguin

Read Introduction

Skim Part I: examples of peer production

Read Part II, pp. 31-51: Peer Production in a Networked Environment

Read conclusion


Eben Moglen, The dotCommunist Manifesto





History of Open Source Initiative


Free Software Foundation Overview: scan links at, including:


Richard Stallman, Why Software Should be Free



Class 8: Privacy I: Privacy as Against Corporate Entities - Monday, 1/13


PowerPoint slides created in class




Chapter 11 of Lawrence Lessig, Code and Other Laws of Cyberspace


Jonathan Zittrain, Welcome to Second Class


In re Doubleclick, Inc. Privacy Litigation - read the first 7 pages then skim


Excerpts from Jonathan Zittrain, What the Publisher Can Teach the Patient, 52 Stan. L. Rev. 1201 (2000) and response thereto (and response to the response)


Assigned Readings Not Available in Course Pack:

W3C - read the Background, Mission, Goals, and Roles sections,

P3P and Privacy on the Web FAQ,

Skim FTC, "Online Profiling: A Report to Congress,"


Excerpt from Jeffrey B. Ritter, Benjamin S. Hayes, Henry L. Judy, Emerging Trends in International Privacy Law, 15 Emory Int'l. L. Rev. 87 (2001).


Class 9: Privacy II: Governmental Surveillance and Infrastructure Protection: A Legislation Exercise – Tuesday, 1/14




Current Law: 18 U.S.C 2702-03


Patriot Act:

                       Select Provisions of Patriot Act

                       EFF’s Critique of Patriot Act


Select Provisions of Homeland Security Act (altering 2702)


Reactions to Homeland Security Act:, Homeland Security Bill Has Internet Provisions

        CNet, House considers jailing hackers for life

        EFF Call to Action


Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093 (1996)

        Skim “Law” section, then read


Orin Kerr, Post to Cyberprof list: “Net-wide Search”


Critical Infrastructure Commission Report:

        Read chapters 1-3

        Note: this is a large PDF file and it may take a few moments to load.


NY Times, Agency Weighed, but Discarded, Plan Reconfiguring the Internet, Nov. 22, 2002


FBI Congressional Statement on Carnivore


CNET, SafeWeb sidelines anonymity for security




NY Times, Many Tools of Big Brother Are Up and Running, Dec. 23, 2002


Class 10: Harmful Speech - Wednesday, 1/15


The Web and the Internet significantly shifted two of the boundaries that used to constrain speech: the ability to speak anonymously and the ease of making oneself heard. With the increasing popularity of the web and email, people with something to say could easily get their message out (whether or not others would choose to read it) and without making their identities known (at least to the average computer user). These two changes encouraged a relative proliferation of speech of a sort that used to exist at a more or less stable level of hard-to-find-unless-you-knew-where-to-look.


For some this change was liberating: it allowed those who were marginalized in their local environments to find others like them on the net, or gave them access to information on touchy subjects without forcing them to reveal their identity. It allowed those with unpopular ideas to publish them more aggressively and to increase their strength in spite of their small numbers. For others the change appeared dangerous: it allowed children to gain access to pornography and other material their parents didn't want them to see, and allowed pornographers and perverts to contact them; it allowed people to publish hate speech anonymously without fear of accountability or reprisal. Technical means, such as filters, have been used to try to make the net safe for kids.


How effective are they? Are they a good thing? How should the law handle this? How can U.S. law handle this consistent with the Constitution?




Excerpts from Reno v. ACLU, 521 U.S. 844 (1997)


Excerpts from the ACLU’s Fahrenheit 451.2: Is Cyberspace Burning?


Zittrain and Edelman, Empirical Analysis of Filtering in China


ADL Hatefilter


Excerpt from Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J. L. & Tech. 495 (1997)



Class 11: Jurisdiction – Thursday, 1/16


This session takes on the issue of jurisdiction on the internet and the argument for the minimal intrusion of "local" regimes. We will cover two cases where competing jurisdictional ideals have collided on the Net. In one case, U.S. copyright law was brought to bear on a Canadian company in order to protect U.S. business interests. In the other, a U.S. company struggles to resist enforcement of a judgment under French law. Lastly, we will consider technological "solutions" to the problem of compliance across disparate jurisdictions and their implications for the evolution of the internet.


READINGS: “Jurisdiction and Zoning” chapter from forthcoming Internet Law casebook


Class 12: Global Development Issues: ICT and Developing Countries – Friday, 1/17

Please note: This class will meet on Friday January 17 from 1-5pm in Hauser 102




I. Technology Architecture: Andrew McLaughlin and Ethan Zuckerman


Andrew McLaughlin, Internet Exchange Points (July 2002)


Zachary, Letter from Ghana (August 2002)


Geoff Huston, Interconnection and Peering (Nov. 2000)


Balancing Act 139, Kenya: Jambonet Blocks the Internet, But the Private Sector Fights Back (January 2003)

Akst and Jensen, Africa Goes Online

Please view 2002 Africa Connectivity Map


II. Entrepreneurship: Jim Moore and Andrew McLaughlin


Letter to class from Jim Moore, Senior Fellow at the Berkman Center for Internet & Society and Director of Open Economies


Jim Moore, A Digital Ecosystem in Jordan: October 2002


III. Learning: Professor Charles Nesson and Colin Maclay


Iqbal Z. Quadir, The Bottleneck is at the Top of the Bottle, The Fletcher Forum of World Affairs, Vol.26:2 Summer/Fall 2002.


Eggleston, Jensen & Zeckhauser, Information and Communication Technologies, Markets, and Economic Development (2002)

Visit these sites:


IV. Policy: Geoffrey Kirkman and Diane Cabell


Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Chapter 5 (2002). Also available as an html file here.





From Geoffrey Kirkman:


Chapter 2 from the GITR, located at

The Dominican Networked Readiness project doc, at (students should read the intro chapter, the intros for each chapter, and skim the rest to get a sense of things).


From Jim Moore:


From Professor Nesson:

          Amartya Sen, Development as Freedom (Knopf, 1999)


          Listen to Chris Lydon’s interviews of Jeff Sachs, Colin Channer, Yo Yo Ma


From Colin Maclay:


On Education:

Forward thinking ideas on education and ICT:

General ideas on ICT in formal education implementation and priorities:

Specific case including implementation issues for ICT/Education, as well as the relationship with rural connectivity, sustainability, etc. See chapter 1 (pp 7-36) of the Dominican report.

More education / ICT resources are on,

General Background Reading: 


There are good/current pieces in the Global Information Technology Report including on telecoms privatization issues, education (as mentioned), rural sustainability at

Our readiness guide, while old is still insightful at

Geoffrey Kirkman on appropriate technology:


World Resources Institute Digital Dividend, What Works: Serving the Poor Profitably


Additional resources are at:



Class 13: Points of Control - Tuesday, 1/21


In the "real" world we experience a mix of private and public - houses and parks. The infrastructure of the Internet is almost completely privately owned, from the pipes to the ISPs to the computers we use.


The conventional political and social wisdom of the Net appears essentially libertarian, celebrating this entirely private zone, with the threat to Net freedoms coming from outside Government(s) -- those weary giants of flesh and steel, as Barlow put it so lyrically in his now-venerable Declaration of Independence for Cyberspace. With most of cyberspace being "private," the setup is of a pleasant anarchy which need only come together to keep the inept (if not evil) government out.

As the first of two sessions winding up the course, we ask whether this remains true as either a descriptive or normative principle. We might confront the idea that threats to freedom come not from Big Brother but from Middle Siblings, a panoply of "private sheriffs," whether motivated by ideology or greed, who are increasingly in a position to govern our online behavior. The readings offer two case studies of private parties seeking to control the behavior of other private parties - while government claims no involvement in the dispute.




Jonathan Zittrain, Internet Points of Control (DRAFT)


Intel v. Hamidi


Marsh v. Alabama, 326 U.S. 501 (1946).


Bill McSwain, Harvard Law Review, The Long Arm of Cyber-reach. Excerpted (required) version available at


Molly Shaffer Van Houweling, Sidewalks, Sewers and State Action in Cyberspace (DRAFT)






Class 14: Tying it all Together: Who Controls? – Wednesday, 1/22


RE-READ: John Perry Barlow’s Declaration of Independence for Cyberspace.