Internet & Society 2000:
Readings (Entire Semester)
Module O: Controlling the Internet
Tues., Sept. 5: The Story of ICANN
In the beginning, there was a man named Jon Postel.
Postel kept the list. If
you had a computer on the network that would became today’s Internet, Postel
knew its unique identifier, and helped to send people your way when they were
looking for you. In short, Postel
controlled the root. The problems
began when there were just too many people for Postel to keep track of very
easily – when the Internet began to attract more than a few academics, technies
and the odd military official. Postel
tried to give away control of the root – control of the list of Internet users
– and complexity ensued. What comes
next in the story – from Postel’s abdication through the incarnation of the
Internet Corporation for Assigned Names and Numbers to the present day debates
over representation, dispute resolution and new top-level-domains – sets the
stage for Internet & Society 2000.
The story of ICANN is among the most compelling case studies in the technologies
and politics of control.
[Please note: we will be revisiting the ICANN story later
in the term, around the time of ICANN's next major meeting. And note also
that the first reading, The Tao of IETF, may not make perfect sense prior to
class but should come into relief as the story unfolds.]
The Tao of IETF -- A Guide for New
Attendees of the Internet Engineering Task Force (Humble Beginnings)
Module I: Content Control for Money
Mon., Sept. 11: Framework. Introduction to Copyright
on the Net.
the increasing ubiquity of the Internet mean the end of copyright?
Content on the Internet wants to be free, right?
Isn’t that the nature of the medium?
We’ll start by thinking about copyright as we know it in the
pre-Internet world and turn quickly to the brilliant, provocative – possibly
dangerously counter-cultural – views of John Perry Barlow, former Grateful
Dead songwriter and Internet savant. We’ll
also take a look at a few of the most interesting questions posed by copyright
in the Internet context, including the impact of digitized movies and books made
available online. Can – and
should – content be controlled for money, or is it meant to be free when the
Internet is involved? And do we
have to scrap copyright as we know it?
John Perry Barlow, "The Economy
of Ideas," March, 1994. (Please be sure to follow the links past
page one -- the reading packet from the Distribution Center does not have a
complete set of pages for this reading.)
You Pay $1 For this Article?," July 27, 2000
Copyright, Digital Data and Fair Use in Digital Networked Environments
Betsy Rosenblatt, "Copyright
Basics," March 1998
U.S. Code, Title 17 - Copyrights
(see especially Chapter 1, §107)
Senate Judiciary Committee, Testimony on Digital Music,
July 11, 2000
Intellectual Property in Cyberspace
(online course offered by the Berkman Center for Internet and Society)
The Cuckoo Egg Project
v. Arriba Soft Corp., et al. (This file is a .pdf which will require Adobe
Acrobat to you to read it).
Tues., Sept. 12: Guest Panel: Digital Music
would likely be the rare student on a university campus in the past twelve
months who had not heard someone talking about Napster, an Internet company and
service that allows music listeners to share files digitally, or MP3.com, an
Internet site offering downloads of music from virtually every genre.
These Internet services have spawned more in the way of lawsuits, press
coverage and worries about bandwidth than they have in profits, however, as
entrenched forces like the Recording Industry Association of America have
challenged the right of these companies to enable file-sharing in the manner
that Napster and others do – crying foul along copyight lines, among other
complaints. The controversy has
split the public, artists, and the courts alike.
Can and should traditional copyright right law – much less the Napsters,
Gnutellas, and Scours of the new economy – survive the flap?
Issues Injunction Against Napster," July 26, 2000
Wired News, "Napster Gets Stay
of Execution," July 28, 2000
Metallica: Behind the Scenes
Eytan Adar and Bernardo Huberman, "Free
Riding on Gnutella," August 10, 2000
RIAA's original complaint
against Napster (.pdf).
Scour is Not Napster"
If you have not used Napster, take a tour to see how the software
works. Skim "Napster Copyright Policy" and browse the
"Speak Out" page.
Skim "What is Gnutella?" and "Terms and Conditions of
Use" in the "Download Gnutella" option area. Browse
"Press Coverage and Links".
Browse the "Scour Technology Freedom Center" and "Copyright
Skim the FAQ and the Guide section of the "SDMI Portable Device
Specification". Break the rules and browse also the press releases on
the "For the Media" page.
Washington Post, "MP3.com
Loses Court Ruling," September 7, 2000
Giants Slam Napster Injunction," August 25, 2000
Business Plan Not Enough for Scour," September 7, 2000
Mon., Sept. 18: Beyond Copyright: Expanding the Content Control Toolbox
who seek to control content for money hardly stop at the edges of United States
copyright law. The content control
toolbox has a number of tools at the ready, some more controversial than others.
And the content (mis-)appropriation toolbox has arguably an equally
potent set of tools. The legality
of heretofore unknown practices like “deep-linking” and “framing”
continue to both intrigue and confound lawyers and Internet content mavens
alike. And what about good old-fashioned
contract law? Are there limits to
the power and flexibility of contract when it comes to content control?
Are these tools enough, and if not, how can they be supplemented (or
The Washington Post Co., et al. v. TotalNews, Inc., 97 Civ. 1190 (S.D.N.Y.,
filed Feb. 2, 1997): Case settled June 5, 1997. No opinion was issued.
Here is the Complaint.
Shetland Times Ltd. v. Dr. Jonathan Willis and Zetnews, Ltd., Scotland
Court of Sessions (Oct. 24, 1996): Case settled Nov. 1997; no opinion issued.
Text of Settlement
Ticketmaster v. Tickets.com, No. CV99-7654 HLH (BQRx) (C.D. Cal. August 10,
2000). Latest ruling,
denying request for preliminary injunction. For a discussion of the case,
go to this article.
eBay, Inc. v. Bidder’s
Edge, Inc., (N.D. Cal. May 25, 2000): Federal district court's grant
of preliminary injunction against Bidder's Edge.
New York Times, "Is
Michelle Spaulding, "Misappropriation,"
For a demonstration of how framing works, go to: http://www.totalnews.com/. First press the
NPR link (NPR didn't file suit and agreed to let TotalNews continue framing
their material). Then press the CNN Interactive link (CNN was a party to the
suit). Note the difference.
West's restrictions on use of information from their legal directory.
Elkin-Koren,"Copyright Policy and the Limits of Freedom of Contract" 12 Berkeley
Technology Law Journal, 111 (1997)
Bernstein v. J.C. Penney, Inc., No. 98-2958-R (CD CA, dismissal Sept.
22, 1998). Case dismissed. For a discussion of the case see this
Church of Scientology v. Dataweb et al, Cause No. 96/1048 (Dist. Ct.
of the Hague, Holland, June 9, 1999). View an article about the case,
or the opinion
(translated into English).
Intellectual Reserve v. Utah Lighthouse Ministry.
Hale and Dorr’s discussion of
Business Week, "Did
'Deep-Linking' Really Get a Green Light?"
Links Can Be Considered Illegal, Osaka Court Judgment Says
to Meta-Searching and Deep Linking (discussion of eBay controversy)
& Online Industry Litigation Reporter, Microsoft's Link to Ticketmaster
Site Spurs Trademark Lawsuit. Article discussing the case brought by Ticketmaster
against Microsoft seeking to prohibit the linking to Ticketmaster's site through
Microsoft's Seattle Sidewalk web site.
Lawyer, Futuredontics, Inc. v. Applied Anagramics, Inc. Article discussing
the denial of a preliminary injunction against AAI for linking to and framing
the Futuredontics Web site.
Deep Linking and Framing
John Dvorak articles about deep linking
and the Total
J.Elgison and James M. Jordan III, "Trademark Cases Arise from Meta-Tags, Frames.
Disputes Involve Search-Engine Indexes,Web Sites Within Web Sites, As Well As
Hyperlinking.": In-depth article which focuses on "the delicate balance
between protecting the rights of people and businesses and preserving the spirit
of open communication that is the hallmark of the Web." Areas examined include
spamming, linking, framing, and consumer privacy.
Matt Jackson, "Linking Copyright to Homepages.": Law review
article discussing in detail copyright issues and linking as well as related
doctrinal considerations. Provides background on constitutional basis and economic
rationale for copyright law. Primer included on how the Internet works.
Mark Sableman, Link Law: The Emerging Law of Internet Hyperlinks.
The most recent and thorough examination of legal implications of hyperlink
use on the Internet. A long but comprehensive look at the many legal arguments
that can be made for and against users of hyperlinks.
Tues., Sept. 19: iCraveTV. Jurisdiction. ICANN UDRP. Cybersquatting.
So far, we've looked primarily at United States law. A common question:
what do you do when someone is outside of the bounds of traditional
jurisdiction? Over the past twelve months, a number of creative responses
have emerged to vindicate potentially powerful interests traditionally outside
of the reach of the long arm of the law.
Of course, disagreements happen -- and frequently, it
would seem -- on the digital frontier. Who's the sheriff charged with
stepping in to stop the gunslinging? The process of dispute resolution,
particularly in the intellectual property context on the Internet, evolves
constantly -- with a variety of potential sheriffs, hard questions about
jurisdiction, and powerful interests on multiple, ever-changing sides.
We'll raise thorny questions of online identity, delve into the legal doctrine,
and find ourselves mired in the political conflicts related to intellectual
John Borland, “iCraveTV.com
Exec Discusses His Start-up’s Short Life.”
Studios, Networks Sue iCraveTV”
MacClary, Personal Jurisdiction and the Internet, 3 Suffolk J. Trial & App.
ICANN UDRP and Online ADR:
Background on the UDRP.
C. Bordone, Notes: Electronic Online Dispute Resolution: A Systems Approach
- Potential, Problems, and a Proposal, 3 Harv. Negotiation L. Rev. 175
Text of the Anticybersquatting
Consumer Protection Act (ACPA).
Diane Cabell, Learning Law in Cyberspace: Name Conflicts.
David Post, "Juries
and the UDRP," September 6, 2000
Module II: Code as Content:
Control the Code, Control the Content
Mon., Sept. 25: Free Software vs. Proprietary Code. Reverse Engineering.
you control the code, do you control the content? What about if you give away the code – and encourage people
to take it, change it, and make it there own – what then?
One of the age-old questions (OK, so it’s not that old, but in Internet
time it is) is whether code should be “open,” meaning free for all to use
and adapt, or “proprietary,” as many of the large software companies would
have it. Professor Lawrence Lessig,
Scott Bradner, Julie Cohen, Richard Stallman and many others have a great deal
to say on the topic. Perhaps a
harder question is: does it matter?
Lessig, Code, Chapter 8, "The Limits in Open Code," pp. 100 -
Scott Bradner, "The IETF"
(A chapter from Open Sources: Voices from the Open Source Revolution;
you do not have to read the whole book (unless you want to)).
The GPL Manifesto
Richard Stallman, The GNU
Operating System and the Free Software Movement
Tim O'Reilly, Hardware Software
Lawrence Lessig, Reclaiming the Commons.
exception for Reverse Engineering (Sec. 1201, subsection titled 'Reverse Engineering')
S. Raymond, "The Cathedral and the Bazaar": The research paper by Eric Raymond
which, in part, persuaded Netscape to go open-source with its popular browser.
Julie Cohen, "Some
Reflections on Copyright Management Systems and Laws Designed to Protect Them,"
12 Berkeley Technology Law Journal, 161 (1997)
in the CyberPatrol case
Links to more articles and legal documents from the CyberPatrol
Skim "about W3C" and W3C software licensing rules. Browse
"Get Involved: Open Source Software".
Browse through the News and 2600 On Trial. N.B. the "Hacked
Skim the "Introduction" and "About mp3" pages.
Browse the Portfolio of Patents.
New York Times, "Whose
Intellectual Property Is It, Anyway? The Open Source Wars", August 24,
Tues., Sept. 26: Trusted Systems
Here's how controlling
the code can mean controlling the content:
trusted systems. This
session charges headlong into two new areas: the technological advances related
to trusted systems and the legal mechanisms set in place by the Digital
Millennium Copyright Act. The
pieces by Stefik and Zittrain answer the question you may be asking yourself at
this moment (“What’s a trusted system?”) and explore what the advent of
these technologies means for content control.
We’ll also get into the legal battle over DeCSS, both on its own merits
and as a comparison to the Napster and other music-related copyright cases from
the first module.
Mark Stefik, "Shifting
the Possible: How Trusted Systems and Digital Property Rights Challenge us to
Rethink Digital Publishing" (and recall John Perry Barlow's "Economy of
Jonathan Zittrain, "What the Publisher
Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted
Salon.com, "Watermarks in
E-signatures Can Easily Be Forged," July 14, 2000
Digital Millenium Copyright Act (Sec. 1201)
MPAA vs. Reimerdes, Corley, and Kazan (DVD/DeCSS case).
Mon., Oct. 2: Valenti v. Lessig. Moot Court: Eldred v. Reno.
of the most fascinating, colorful debates in cyberlaw, circa 2000, will unfold
real-time as Jack Valenti, head of the Motion Picture Association of America,
debates Professor Larry Lessig, Berkman Center alum and now Stanford Law
luminary. Lessig says that Valenti
“is quickly becoming the Internet’s Kenneth Starr.”
Valenti seems convinced that Lessig, “got his law degree from Bob Jones
University and his evidence from Austin Powers.” And all of this over a few zeros and ones.
debate will take place at lunchtime, so there will be no class at the
do come at lunchtime or, on the honor system, watch the archived Web-cast.
And come in the evening, if you have time, to hear Lessig moot the case as a
practice session for the real event.
The Industry Standard, "Cyberspace
Prosecutor," by Lawrence Lessig (February 21, 2000).
The Industry Standard, Jack Valenti's letter to the editor, "MPAA:
Oh, Behave!" (March 27, 2000 - towards the bottom)
OpenLaw's Eldred v. Reno site.
Tues., Oct. 3: How Encryption Works
the law as it relates to a new technology becomes much easier with an
understanding of the technology itself. Public-key
encryption, believed by some to be one of the central inventions of the Internet
era, is a critical technology to unpack. The
ability to encrypt data and then to share it with the person or people you
intend to share it with – but nobody else – could have substantial
implications for the law in cyberspace. This
session may be the most technologically-sophisticated discussion of the course,
and is critically important to a full grasp of the content control issue.
Larry Lessig, Code and Other Laws of Cyberspace, pp. 30 - 42 (with particular
attention to pp. 35 - 40).
Relaxes Crypto Export Rules," July 17, 2000
Scientific American, "Computer Security and the Internet," October
1998 (hard copy only)
Jean Camp, Trust and
Risk in Internet Commerce. Chapter 3
David Chaum, "Achieving
Electronic Privacy," Science (August 1992): 96-101.
Mon., Oct. 9: Encryption and Government Surveillance
protection of the public safety and the protection of civil liberties often do
not go hand-in-hand, and the Internet context is no exception.
Some fear that the national infrastructure is at risk and that criminals
and hackers hide in the tangled digital folds of the Internet – and that
powerful tools in the hands of government officials is a necessary precaution.
Others contend that the fears are overblown, and that the real fear is
the undue intrusion by government into the lives of private, net-using
individuals. Or perhaps there’s a
EPIC, Critical Infrastructure
Protection and the Endangerment of Civil Liberties.
E-mail Snooping Bill Passes into Law"
Sets F.B.I. E-Mail Scanning Disclosure," August 3, 2000 (follow trail
of article links on the right).
Hard copy excerpt from Michael Adler, "Cyberspace, General Searches, and
Digital Contraband: The Fourth Amendment and the Net-Wide Search," Yale
Law Journal 105 (1996): 1093.
Wired News, "Top
Guns Want to Probe Carnivore," August 21, 2000
Weapon in Child-Porn Wars," August 21, 2000
Breaking/Please Read (if Possible):
Description of Carnivore: Please note that we are being joined for class by
the FBI's Thos. Gregory Motta, a lawyer in the Technology Law Unit. Your
familiarity with the Carnivore program will make for a more informed discussion
of the material and will help us make the most of Mr. Motta's participation.
of Dr. Donald Kerr, Assistant Director, Laboratory Division, FBI, to the
House Judiciary Committee, July 24, 2000.
Executive Summary from Critical Foundations:
Protecting America's Infrastructures. The Report of the President's Commission
on Critical Infrastructure Protection (Note: It is very difficult
to download only the Executive Summary so you have to download the entire thing
as one pdf. The content most necessary for our discussion can be found
in a subset of the pages. (pp 13-17; 37-40; 109-115; 120-128) for those not
wishing to read the whole thing.)
Wired News, "Carnivore
to Continue Munching," September 7, 2000
Bias Alleged in Carnivore Review Team," October 4, 2000
Tues., Oct. 10: Defamation, Libel, and Other Harmful Speech. ISP Liability
that you were a small businessperson who operated a real-world business.
You use the Internet occasionally, but don’t rely on it for much.
One day you begin to receive strange phone calls, faxes and letters – a
few at first, quickly becoming a torrent, angry calls referring to something
they’ve read about you on the Internet, something about how you've said
offensive things about an ethnic group. You've never said any such
thing. You want the offending information removed from the Web site where
it's posted, the calls stopped, and the person who has harmed you in this way
brought to justice. Where can you turn? Is the Internet Service
Provider (ISP) required to help you address the issue? What happens at the
intersection of free speech and harmful speech on the Internet?
Zeran v. America Online,
Inc., 129 F.3d 327 (4th Cir. 1997).
The Communications Decency Act of the Telecommunications Act of 1996, Section
230, Public Law No. 104-104, 110 Stat. 56 (1996) (hard copy)
States Constitution, First Amendment
United States v. Jake Baker and
Arthur Gonda, 890 F. Supp. 1375 (E.D. Mich.1995)
Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J. L. Tech. 495 (1997)
"ISP Safe Harbor" provision (see Title II, Sec. 202)
New York Times/Reuters, "Court
Case on Internet Stock Comments," August 21, 2000 (you may need to sign
in, for free, as a New York Times reader in order to access this document
v. Drudge (note particularly the reference to the case, Stratton Oakmont.
Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)).
Mon., Oct. 16: Jane and John Doe: Freedom Fighters or Verbal Terrorists?
Adjust the hypothetical from the last session: now
you're a clerk at a major, publicly-traded US corporation. You're sitting
on some information that you believe the public ought to know about, but you
fear for your job if you blow a whistle. Crouched behind a clever online
pseudonym and from a remote IP address, you publish your information to the Web
in prominent places. Do you have a right to anonymous speech on the
Internet? Does your ISP have the right to turn over your unique
information to the authorities without giving you notice? Is it relevant
whether or not everything you published was accurate? Jane and Joe Doe are
busy people on the Internet -- but are they in for a name change?
Blake A. Bell, "Dealing
with the 'Cybersmear,'" April 19, 1999, and e-Securities,
-- One Victim's Tale"'Cybersmear'
Lawsuits Raise Privacy Concern,'" November 28, 1999
Public Citizen (News Release), "Consumer
Group Helps Citizen Control Legal Pest," December 3, 1999
SF Gate, "Online
Speech Hit with Offline Lawsuits"
Go to / Skim:
Terminix - Consumer Alert site
Browse through "My Terminix Nightmare"; skim "Terminix
Note the companies that have been involved in cybersmear controversies.
Skim the sample analysis and sample report. Browse "Avoid Public
PR Disasters" and "Benefits".
One of our guests, Paul Levy, and his colleagues at Public Citizen, have
written a number of briefs
on this issue, such as this
one related to the Dendrite International case.
Release, May 8, 2000
Bond University (Australia) IT course's syllabus
page for cybersmear day
Makes Arrest in Emulex Hoax Case", August 31, 2000.
Aims at Short-Sellers", August 30, 2000.
Tues., Oct. 17: Corporate Surveillance
Should you trust The Man? When you surf popular
Internet sites for significant periods of time, you are likely being tracked,
traced, profiled and data about you sold to the highest bidder (or to all
bidders, in some cases). As an employee, your employer may be watching,
too -- and without necessarily warning you clearly about the company's
surveillance policies. We'll test the limits of your privacy rights online
and the interests of businesses to ply their trade freely on the Web. By
the way, when was the last time you read the Harvard Law School network's
Lessig, Code, Chapter 11, "Privacy," pp. 142 - 63.
Solveig Singleton, Privacy as Censorship: A Skeptical
View of Proposals to Regulate Privacy in the Private Sector, Cato Policy
Analysis No. 295, January 22, 1998.
Profiling: A Report to Congress," June, 2000
Industry Standard, "Toysmart
Settles with FTC," July 21, 2000
States Object to Sale of Toysmart's Customer List," July 21, 2000
Marketing Firm Receiving Personal Information," July 31, 2000
Tests New Cookie Management Features," July 20, 2000
West v. FCC
Network Advertising Initiative's Self-Regulatory
P3P and Privacy on the Web FAQ
Interactive Week Online, "Can Net Privacy Coexist with E-Commerce?", December 17, 1997
Joel R. Reidenberg, Lex Infomatica, 76 Tex. L. Rev. 553 (1997).
Richard M. Smith, Privacy
Foundation Advisory, August 30, 2000
Wired News, "FTC
Commish: Regulate Thyself", October 11, 2000
Module III: The Markets for Control
Mon., Oct. 23: Weblining and Price Discrimination
So now that a company has collected all this information
about you, they want to be able to act on that information -- of course,
"to provide you with the best possible online experience." (Or
maybe to extract the most money possible from your shiny new cyberwallet.)
After all, one of the value propositions of the Internet for businesses of all
sorts is the ability to target customers better. We'll look at the
controversial practice of Weblining and get some help from economists as to
whether price discrimination has a place on the Internet.
Business Week, "Weblining"
CRM Forum paper, “How
To Manage Bad Customers or…Profits are from heaven, customers are from
“Special Report: Privacy on the Net”
“Get Inside Your Customers’ Heads”
The Law and Economics of Price Discrimination (hard copy only)
Skim the company's corporate overview and the "Measurement and
Skim descriptions of DART for Advertisers and DART Analyzer in DoubleClick
TechSolutions. Skim Abacus Online info in the "Advertisers"
section. Browse DoubleClick's privacy page: www.privacychoices.org.
Wired News, "Online
Prices Not Created Equal," September 7, 2000
Tues., Oct. 24: Content Control for Ideology: PICS and CDA.
A few years ago, the United States Congress got worried
that our nation's children were exposed to too much dangerous material on the
Internet, and a majority passed into law the Communications Decency Act of 1996
(which you looked at a few short weeks ago). The theory was that content
made too free and easily accessible posed a threat; so the Congress took a
sledge-hammer to it. The sledge-hammer approach -- the CDA -- didn't pass
the scrutiny of the Supreme Court. But that has not stopped those who
would control content for ideology. We'll consider some of the
technological solutions to the problem posed by unfettered content online and
we'll try to answer a basic question about one of those technologies: is PICS
Lessig, Code, Chapter 12, "Free Speech," pp. 164 - 85. Be sure
to read carefully the passages on PICS (pp. 177-8). Also, recall the chapter
entitled "Privacy", pp. 142-63, which discusses the closely-related notion of
Mainstream Loudoun v. Loudoun County Library, U.S. District Court, Eastern
District of Virginia, Case No. 97-2049-A. (November 23, 1998)
v. Loudoun County Library, (Tech Law Journal Summary)
Lawrence Lessig, Tyranny of
the Infrastructure, Wired 5.07 (July 1997)
Board of Education
ACLU Report, "Fahrenheit 451.2: Is Cyberspace
Reno v. ACLU
Electronic Frontier Foundation
Browse the Free Expression page, Censorship & Free Expression archive and
the Content Filtering archive.
Platform for Internet Content Selection
Skim the "PICS and Intellectual Freedom FAQ". Browse
"What Governments, Media and Individuals are Saying about PICS (pro and
Mon., Oct. 30: Fly-out week (no class)
Tues., Oct. 31: Fly-out week (no class)
Mon., Nov. 6: E-commerce and Venture Capital
How many times have you heard someone say "the Internet is the wave of the
future"? Or, "The Internet has transformed the global economy"?
Or, "The Internet is changing the way we do business forever"? It's become
almost a cliché to adopt an Internet strategy for a business or to found a start-up
Internet company. But what's really going on in the E-commerce Revolution?
What, if anything, has changed about how we do business? How much of the
"dot com" phenomenon is hype and how much is reality? Are the astronomical
valuations -- in markets around the world -- of recently-formed Internet companies
even remotely justified? What are venture capitalists really looking for
(or, what are venture capitalists, for that matter)? What will the next
wave of e-businesses look like? This session will delve into the changing
landscape of e-commerce by examining business models and conventional e-wisdom
past, present and future. We will also examine novel problems -- legal
and otherwise -- caused by the e-commerce revolution.
We will be joined by four distinguished guests:
Paul Brountas, Esq., Senior Partner, Hale & Dorr
Bill Martin, Founder, Raging Bull
John McQuillan, CEO, Analine.com
Jonathan Roosevelt, CEO, Epesi Technologies
Conventional Wisdom, circa 1995-1996 (ISPs and Search Engines):
RedHerring.com, "Road Map for the Internet"
Upside.com, "Tim Koogle Defends
Yahoo's Outrageous Valuation"
Conventional Wisdom, circa 1997-1998 (Portals and B2C):
RedHerring.com, "Give or Take $100 Billion"
Upside.com, "Diary of a Start-up"
Conventional Wisdom, circa 1999-2000 (from B2B to Wireless, Optical,
Infrastructure and beyond):
Stock of 1999"
Fortune, "The B2B Tool that Really
Is Changing the World"
Washington Post, "Risky
Business," August 27, 2000
Optional: Trouble in Paradise?
MIT Technology Review, "Software Patents Tangle
Forbes, "When Start-ups Become
CNET, "US to Mull Influence
of Growing B2B Sector"
Knowledge@Wharton / CNET, "High
Traffic Streams Need Not Lead to More Business," July 24, 2000
SF Gate, "Wrath
of the Dot-Com," July 27, 2000
Big Three strike back
New York Times, The
Chaos at the Core of Prosperity, November 5, 2000
Tues., Nov. 7: The Microsoft Case
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 in fascinating ways,
with enormous potential implications for the law of cyberspace as well as antitrust
law in general. The many themes of the Microsoft case also tie back to
the Code as Content segments, such as open v. proprietary code day.
Jonathan Zittrain, "The Un-Microsoft Un-Remedy:
Law Can Prevent the Problem That it Can't Patch Later," 31 Connecticut
L. Rev. 1361 (1999). This link will lead you to the .pdf file of
this paper, which you'll need to view using Adobe Acrobat.
New York Times, "Closing
Arguments Underscore Gap Between Microsoft and U.S." This link
will lead you to the New York Times on-line; you may need to sign in for free
with the New York Times to access this article. If you do not wish to
do so, please look it up on Lexis-Nexis or in hardcopy in the library.
Red Herring, "The Case Against
the Microsoft Suit"
Required Readings (handed out in hard copy):
-Paul David, Clio and the Economics of QWERTY, 75 American Economic
Review, 332 (1985).
-Stan Liebowitz & Stephen E. Margolis, Should Technology Choice Be a
Concern of Antitrust Policy?, 9 Harv. J. L. & Tech. 283, selections
The Microsoft Case Homepage
Judge Thomas Penfield Jackson's Findings of Fact,
November 5, 1999
Jonathan Zittrain, IntellectualCapital.com, "The Right
Microsoft Remedy -- and Beyond"
Red Herring, "It Reads
Like a Novel"
Red Herring article, "Pondering
Microsoft's Breakup Valuation"
Slate Discussion, Jonathan Zittrain & George Priest, "Microsoft:
Did Judge Jackson Get it Right?"
Module IV: Between the Public and the Private:
Implications of Architectures of Control
Mon., Nov. 13: ICANN Revisited: No Class
Watch a key segment of the ICANN meeting Web cast, either live or archived.
Look through the ICANN
Briefing Book. Some of the readings were developed by your IS2K colleagues.
Optional Background Readings (NOT in printed materials):
Original Letter from Ralph Nader
and James Love to Esther Dyson, June 11, 1999
Response Letter from Esther
Dyson, June 15, 1999
ICANN Status Report to the
Department of Commerce, June 15, 1999
National Journal, "ICANN't Believe What They're
Doing," June 17, 1999
Business Week Online, "What's in a Name?,"
September 6, 1999
The Industry Standard, "ICANN:
Slow as the Nile," March 13, 2000
ICANN At-Large Members Site
Associated Press, "Supreme
Court Turns Away Cybersquatting Appeal," June 26, 2000
Wired News, "WIPO Launches 'Squat
Fight'," July 10, 2000 or CNET, "UN
Widens Effort to Prevent Cybersquatting," July 10, 2000
New York Times, "Domain
Disputes," July 28, 2000
Tues., Nov. 14: Agency and Transparency
Some argue that the modern-day Internet is a great leveling force, allowing
nearly anyone on the planet cheap and easy access to much more information than
we have had access to in the past. There's an element of truth to that
statement: without question, more information is available to a mass market than
ever before, and at very little cost in many cases. But when you open a
browser to get onto the Internet, are you really in control? What other
agents are playing a part in between you and the hard data that you are
after? Are you aware of the presence of those agents? And do you
have any ideas what they're doing -- either to or for you?
The agency and transparency class begs these questions, and others, related to
life in a world, some contend, that is plagued by data smog. We'll explore
who these agents are, what they're doing, how transparent their actions are, and
whether, in the end, it actually matters.
Nicholas Negroponte, "Being Digital," Chapters 1
Michele Evard, "What
Joel Achenbach, "The Information and Communication Revolution," Chapter
6, "Reality Check"
Keith Abouchar and James Henson, "The
World Wide Web as Political Public Space"
David Shenk, "Buckle
Up: Safety Instructions for a Speedy Life"
David Shenk, Smog-free
The IEEE's Society
on Social Implications of Technology
News in the Future
Mon., Nov. 20: The Real-time Black Hole List
Paul Vixie, MAPS RBL Rationale
Paul Vixie, MAPS RBL Usage
Getting Into the MAPS RBL
Getting Off the MAPS RBL
David Post, "Of
Black Holes and Decentralized Law-Making in Cyberspace," January 31,
Business Week, "Web
Sites That'll Change the World," January 28, 2000.
Compare to the RBL. Are there legally-significant differences?
The Industry Standard, "Spam Watchdog
Floats New Service Ideas"
Larry Lessig in The Industry Standard, "The Spam
CNET, "NSI Threatens
to Sue Black Hole List Operator"
New York Times, "In
Spam Case, Another Defeat for State Laws"
ZDNET, "Spam Hits
the House of Representatives"
CNET, "Opposed Groups
Agree on Anti-Spam Strategy"
USA Today, "AOL, Others, Sued for
Approves Anti-Spam Legislation"
Finds Filter only Catches Fraction of Spam," June 15, 2000
Assailed as Spam Contract Surfaces," November 6, 2000
Tues., Nov. 21: The End of End-to-End? Marsh and
Marsh v. Alabama, 326 U.S. 501 (1946).
v. Hamidi - Tentative Ruling on Motion for Summary Judgment, April 28, 1999
Bill McSwain, Harvard Law Review, "The
Long Arm of Cyber-reach."
J.H. Saltzer, D.P. Reed, and D.D. Clark, "End-to-End
Arguments in Systems Design," November, 1984.
D.P. Reed, "The
End of the End-to-End Argument," April, 2000.
Module V: Reflections: Tying it All Together
Mon., Nov. 27: Case Study: Comparative International Cyberlaw
N.B.: Papers NOT due today but instead on Wednesday, November 29 in hard copy
Student-led Class: Aaron Hutman and Stephen Park
Ever wonder why other countries have two-letter prefixes
on the Internet whereas the US does not? And why can't you access cnn.com
in China? Will ICANN or the WTO be the most important institution
regulating the Internet a decade from now?
The Internet has had a profound impact on countries
throughout the world apart from the United States. This class session is
devoted to various approaches taken by national governments and international
organizations to regulate the Internet.
Many countries decry the encroachment of Western values on
the Internet (crying "cultural imperialism!"), pointing to the
predominance of American, English-language content. Singapore and China
are two examples of countries that have attempted to restrict individual access
to the Internet by claiming to protect their societies in the name of moral
values and social stability.
Meanwhile, the Internet has become, literally, a
multi-trillion dollar enterprise. E-commerce - think amazon.co.jp - has
become a buzzword around the world. The World Trade Organization is now
entering the fray...
Business Week, "Cultural Imperialism is No
Joke," November 30, 1998. Find it on Westlaw at: 11/30/98 Bus. Wk. 26
/ 1998 WL 19885252.
LA Times, "Why
the French Hate the Internet," January 27, 1997 (edited for class in
hard copy; entire reading linked here).
LA Times, "China
Represents Ethical Quagmire in High-Tech Age," January 27, 1997 (edited
for class in hard copy; entire reading linked here).
Dickinson Journal of International Law, "The Internet
in China: Embarking on the 'Information Superhighway' with One Hand on the Wheel
and the Other Hand on the Plug," Spring, 1997. Find it on Westlaw or
Lexis at: 15 Dick. J. Int'l L. 621.
Transnational Lawyer, "From the Great Firewall of
China to the Berlin Firewall: The Cost of Content Regulation on Internet
Commerce," Fall, 1999. Find it on Westlaw or Lexis at 12 Transnat'l
Elisabeth Staksrud, "How
to Censor the Internet," (article on the Internet in Singapore). Two
parts, plus bibliographical references. (Included in the original
reading packet, not in the supplement).
Should We Care About the WTO and the Classification Dispute?"
and "The Classification Issue
-- How Should the WTO Treat Digital Products on the Internet?",
WTO Work Programme on Electronic Commerce, "Communication
by the European Communities and Their Member States" and "Proposal by
the United States".
Broadcasting Agency (government agency responsible for regulating the
Internet in Singapore).
and Basic Facts
on the World Trade Organization from the WTO officials Web site.
Tues., Nov. 28: Digital Content Revisited
We began the semester by looking at some of the most controversial issues in
the story of the technologies and politics of control, circa 2000, such as the
breaking Napster case. Today, as the term draws to a close, we'll
re-examine the questions of how the law should and does enable control of
digital content online. We'll reconsider the cases we addressed earlier in
the term, but will also press ahead into the world of online video content, and
the DeCSS case in particular. We'll be joined by a crack panel of experts
to help synthesize digital content issues.
Guest Panelists: Prof. Charles Nesson, Harvard Law School; Wendy Seltzer,
Berkman Center for Internet & Society; and Charles Sims, Proskauer Rose.
New York Times, "DVD
Case Will Test Reach of Digital Copyright Law," July 14, 2000
OpenLaw: Open DVD: New York DeCSS Case Concludes
Salon.com, "Code on
Wired News, "Studios
Score DeCSS Victory," August 17, 2000 and "Only
News that's Fit to Link," August 23, 2000
New York Times Magazine, "Boom
Box," August 13, 2000 (this article is found in the New York Times
archive, so you may need to register with nytimes.com in order to view it online).
from the Berkman Center, Prof. Terry Fisher and Jocelyn Dabeau
Optional (but please do look at it if you have the time):
Judge Kaplan's decision
in the DeCSS case (please follow the link part-way down the page to the .pdf
file -- you'll need Adobe Acrobat to view or down-load the file).
Look around and see if you can determine what exactly Microsoft is doing to
pursue its "streaming media" strategy. Try to separate the pure
hype from the substance. Have they figured it out yet? Does the
"it" have possible further anti-trust implications?
Mon., Dec. 4: Student Led Class: Kids Revisited - COPA
As we learned during the October 24 class on PICS and CDA, many players view
content control on the Internet as a high-stakes game - parents, content providers,
legislators, educators, free speech advocates. What happens when you get these
folks together in a room and charge them with creating the optimal policy for
protecting children from harmful to minors Net speech? We'll take a behind-the-scenes
look at what the COPA Commission, a congressionally mandated panel, did when
charged with just that. Then we'll have the chance to play policymakers ourselves
- drawing upon everything we've learned in class this semester, how would we
have approached the challenge facing the COPA Commission? What are the practical
realities of regulating cyberspace in an actual political climate rather than
in the classroom? Class will be followed by a special reception to celebrate
the completion of a great semester (one day early).
amended statute 47 USC § 231 (see especially second half mandating creation
of Commission on Online Child Protection)
Declan McCullagh, Wired News, "Court
Says Anti-Smut Law Illegal," (summarizes Court of Appeals' June 2000 decision
to uphold lower court's finding against COPA; for full opinion, see ACLU v.
Reno 217 F.3d 162 in "Background Materials" below)
Commission Report excerpts (the list is long, but each excerpt is short; for
full report, including detailed discussion of final recommendations and Appendix
containing procedural records, see "Background Materials" below):
Commissioners and affiliated organizations
(Commission Chair's) bio
and methods (describes Commission's overall methodology and rating system)
Ratings of individual technologies and methods (includes descriptions, ratings
and commentary for each child-protective technology and method examined by
resources and family education programs
top level domain/zoning
Personal statements of individual Commissioners (sampling to highlight range
of opinions among individual Commission members):
F. Ganier III, Education Networks of America
M. Parker, Crosswalk.com
Srinivasan, Yahoo! Inc.
of technologies and methods rankings in Commission report (Excel spreadsheet).
If you have time, play around with the spreadsheet to see if you can discern
the logic underlying the Commission's rating system.
Declan McCullagh and Nicholas Morehead, Wired News, "COPA:
Snoozin' in the Cabaña," Examines what happens when different interests
come together to jointly shape policy.
David McGuire, Newsbytes, "Child
Protection Commission is Broke," What does money buy?
Karen G. Schneider, American Libraries, "Round
up the Usual Suspects: Filters, COPA, and All That." Can a filter that relies
on deciphering flesh tones really distinguish porn from Olympic swimmers?
Wendy McAuliffe, ZDNet UK, "Children's
Groups Slam Yahoo!" About regulation of inappropriate to minors content
on chat groups.
Skim these sites to get a sense of what's currently available to protect children
To hear what free-speech advocates have to say, go to http://www.cdt.org/speech/
(Center for Democracy & Technology) and http://www.peacefire.com/
(a "people for young people's freedom of speech" organization).
Review readings from October 25 (Content Control for Ideology: PICS and CDA),
of Education v. Pico
Lessig, Code, Chapter 12, "Free Speech," pp. 164 - 85; and "Privacy," pp. 142-63.
Reno v. ACLU
Background Readings (optional; NOT in printed materials)
Full Commission Report.
This site will give you access to related documents, including testimony at
public hearings before the Commission. For a summary of the last public hearing,
For media and public reactions, skim "No
Filtering Recs in COPA Report," and "COPA
Commission Issues Report to Congress". ACLU
v. Reno, 217 F.3d 162 (3rd Cir. 2000, No. 99-1324), affirming lower court
decision to issue preliminary injunction against COPA enforcement.
See also lower court case, ACLU
v. Reno, 31 F.Supp.2d 473 (E.D. Penn. 1999, No. CIV.A. 98-5591). Children'
Internet Protection Act. This hard-wrangled amendment to a federal spending
bill would require schools and libraries to install filters/blocking as condition
of federal technology funding.
View these articles about the case: "Government
Shouldn't Legislate Net Filters," "Down
to the Filter," "Filtering
Facts" (in favor of filtering), and "Funding
Stalemate Puts Internet-Filter Mandate on Hold". For more comprehensive
discussion, see Brigette Nowak, "The
First Amendment Implications of Placing Blocking Software on Public Library
Computers", 45 Wayne L. Rev. 327, Spring, 1999. For a legal liability
perspective on inappropriate content, see James
v. Meow Media, Inc., 90 F.Supp.2d 798 (civil action that raises question
of whether makers of obscene website can be sued for negligence). Jennifer Zwick,
Seton Hall Constitutional Law Journal, "Casting
a Net over the Net: Attempts to Protect Children in Cyberspace." Provides
good overview of First Amendment problems with attempts to shield children from
inappropriate content (COPA), as well as implications of Internet on privacy
rights of children (COPPA).
Lawrence Lessig and Paul Resnick, "Zoning
Speech on the Internet: A Legal and Technical Model."
Center for Democracy & Technology, "An
Analysis of the Bertelsmann Foundation Memorandum on Self-Regulation of Internet
Content: Concerns from a User Empowerment Perspective." Argues that Bertelsmann's
controversial proposal for self-regulation of Internet content would jeopardize
free speech by supporting global rating systems and collective ISP control over
Denied, Version 2.0: The Continuing Threat Against Internet Access and Privacy
and Its Impact on the Lesbian, Gay, Bisexual and Transgender Community."
Takes different perspectives to show that filtering software can have devastating
effects on an already marginalized community.
Liza Kessler and Gregory G. Rapawy, Association of Trial Lawyers of America
Annual Convention Reference Materials, "Cyberspeech
and the First Amendment: Can Community Standards Be Determined on the Internet?"
Examines the difficulty of establishing community standards for Internet content
given the Internet's global reach, and argues that families and Internet users
are best equipped to strike the balance between accessing information and enforcing
values. The Council of the European Union, "The
Recommendation on Protection of Minors and Human Dignity."
Eric A. Zimmer and Christopher D. Hunter, Annenberg School for Communication,
University of Pennsylvania, "Risk
and the Internet: Perception and Reality." Presents results of content analysis
to determine link between public perception of offensive material on the Internet
and actual percentage of such material.
Peacefire. Reports results
of study analyzing percentage of sites blocked in error from random sample of
1,000 .com domains.
Mon., Dec. 5: Wrap-up (or, What JZ Really Thinks)
N.B.: Last Class