Session 1: Introduction

Summary
At this session, the seminar members introduced themselves and their research interests. Class members included a Minnesota state legislator studying at Harvard's Kennedy School of Government, a former employee of the National Security Agency, a divinity school student, and law students with interests including encryption, the implications of Internet filtering technologies, online community-building, and intellectual property control.

Instructor Jonathan Zittrain presented a few of the issues (intellectual property, encryption, and content control) that the class would cover the next few weeks. On the intellectual property front, JZ asked the students to think about a recent controversy regarding "meta-tags"—the key words that web site operators embed into their source code to guide search engines. Some companies have been accused of trademark infringement because they used their competitors' trademarks as meta-tags.

JZ also told the class about "Nucleo," a web site within the Harvard network at which students could post messages about the course, chat with classmates, and browse and add to a library of files relevant to the course.

Session 2: Content Control and Encryption

Summary
Daniel Weitzner, Deputy Director of the Center for Democracy and Technology, was the guest speaker for this session. He opened with a discussion of Reno v. ACLU, the recent Supreme Court decision invalidating key provisions of the Communications Decency Act. DW, whose group vigorously opposed the CDA, said that the Court's finding of facts is especially important; it indicates that the Court sees the Internet as a decentralized medium over which centralized control doesn't make sense. What makes more sense, DW explained, is for parents and other Net users to control the content they receive using labeling and filtering standards like PICS—the Platform for Internet Content Selection.

Students engaged DW in a debate about the labeling and filtering alternative, raising questions such as: What would be the appropriate label for a newspaper site that included violent stories? Will third parties that rate sites bother to include those made by small, non-commercial speakers? Will the dominant browser makers use filters to control what people can find online?

In the second half of the session, DW turned to a discussion of the encryption debate. (It is currently illegal to export strong encryption or to send international messages encoded with strong encryption.) The current administration has made various proposals that would permit encryption as long as two U.S. government agencies held the keys—with a proper warrant they could be used together to decode private messages. DW opposes such proposals. He believes the debate turns on whether one sees the government's ability to decrypt Internet messages as simply maintenance of the status quo, or as an expansion of the government's power to search and seize. The government argues that it is merely maintaining the power it already has to wiretap phones. DW argues that because people do things now via the Internet that they used to do in the privacy of their own homes, a government agent decrypting a message is really the equivalent of his kicking one's door down without even the "knock and announce" required in the physical world.

Daniel Weitzner (see http://www.cdt.org/homes/djw.html) is Deputy Director of the Center for Democracy and Technology. Contact: djw@cdt.com

Readings

• Center for Democracy and Technology, "Internet Family Empowerment White Paper," July 16, 1997. (http://www.cdt.org/empower.html)
• Albert Vezza, Platform for Internet Content Selection: What Does It Do? (http://www.w3.org/PICS/951030/AV/StartHere.html)
• Moot court on criminilization of strong encryption, CFP conference, Mar. 28, 1996. (http://swissnet.ai.mit.edu/~switz/cfp96/plenary-court.html)
• Hal Abelson, et al., "The Risks and Costs of Key Recovery," May 21, 1997. (http://www.crypto.com/key_study/report.shtml)
• Reno v. ACLU (http://caselaw.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=96-511)
• ACLU Issues Report on Software Filtering/Blocking: Fahrenheit 451.2: Is Cyberspace Burning? (http://www.aclu.org/issues/cyber/burning.html)
• Paul Resnick & James Miller, "PICS: Internet Access Controls Without Censorship," Communications of the ACM, 1996, vol. 39(10), pp. 87-93. (http://www.w3.org/PICS/iacwcv2.htm)

Session 3: The DNS Mess

Summary
Dr. David Clark, Senior Research Scientist at the MIT Computer Science Laboratory, was the guest speaker at this session. JZ and DC discussed the uncertain future of the Internet domain name system. DC described its origins in the history of Internet governance. Many of the decisions that shaped the architecture of today's Internet were made by a small group of nearly anonymous engineers (including DC) under the auspices of the Internet Society, the Internet Engineering Task Force, and other nongovernmental bodies. Those engineers, concerned initially with the academic research applications of the Internet, did not consider that their addressing system would need to differentiate between United Airlines, United Van Lines, and United Tour Guides of Tibet. DC explained that one person—John Postel—remains in charge of the entire Internet address numbering system.

Regarding alternatives to the current domain name system, Harvard Law School Professor Charles Nesson proposed that the United States Postal Service take over domain name administration. The U.S.P.S. has name recognition and regular contact with all Americans. Several students questioned whether domain names could include more information about what a site's owner does and where the site is located. This might address the confusion—and trademark disputes—that arise when several companies vie for, say, the domain name www.united.com.

Dr. David Clark is a Senior Research Scientist at the Massachusetts Institute of Technology. Contact: ddc@lcs.mit.edu

Readings

• Report from the Forum on Internet Domain Names, July 30-31, 1997 (http://www.cdt.org/dns/report.html)
• The Generic Top Level Domain Memorandum of Understanding (http://www.gtld-mou.org/)
• Stop the gTLD-Mou (http://www.stop-gtld-mou.org/info.shtml)
• History of dispute between the Massachusetts Institute of Technology and Merrit Islands Technology, Inc., over the domain name mit.com. (http://spacecon.ids.net/public/mit.htm)
• Carrie B. Miller, The Future of Domain Names. (http://ksgwww.harvard.edu/iip/cai/cbm_PAE.html)
• Kenneth S. Dueker, "Trademark Law Lost in Cyberspace: Trademark Protection for Internet Addresses," 9 Harv. J.L. & Tech. 483 (1996). (http://jolt.law.harvard.edu/articles/v9n2p483.html)

Session 4: Internet Tax

Summary
Harvard Law School Professor Oliver Oldman joined the class for this session on Internet tax. Students Michelle Spaulding and Alice Johnson helped lead the discussion. Johnson, a Minnesota state legislator, introduced a bill proposing taxation on the sale of Internet services.

A possible objection offered by OO to a tax on Internet service is that it would apply to Internet services used as a business input. The tax is added into the price of consumer goods, which are then taxed again when sold. If the focus of a sales tax is ostensibly consumer consumption, then such a scheme yields double taxation. OO acknowledged that, while there are tax exemptions for some business inputs, they are far from exhaustive. So, as JZ noted, a sales tax on Internet service could be seen as leveling the playing field between Internet services and most other services. Most of the class agreed that the bill is not very objectionable, unless one takes the extreme position that nothing having to do with the Internet should ever be taxed. Class members were much more concerned with schemes to tax goods sold via the Internet. One student noted that such taxes have much greater potential for double taxation (by the state in which the seller resides and the state in which the buyer resides) than taxes on Internet services (which no state other that the buyer's home state is likely to try to collect).

JZ turned the class' attention to the possible constitutional conflicts with some Internet tax schemes. The Commerce Clause, which grants Congress the power to regulate interstate commerce, has been read to imply that a state may not regulate interstate commerce in ways that place undue burdens on interstate commerce or discriminate against out-of-state businesses, nor regulate activities that have no connection to the state. This doctrine is applied to state tax schemes by determining whether what is being taxed has an adequate "nexus" with the taxing state. Because the doctrine is concerned with keeping states out of an area over which Congress has been granted authority, the contours of nexus can be altered by congressional fiat. One of the readings for this week suggested that Congress should pass a law establishing that Internet activity and contracts for service are insufficient to constitute nexus. Moreover, the Senate is considering "The Tax Freedom Act," which would place a moratorium on some forms of state Internet taxation.

Oliver Oldman (see http://www.law.harvard.edu/Academic_Affairs/Faculty-Directory/o.html) is a Professor of Law at Harvard Law School.

Readings

• "The Disappearing Taxpayer," Economist, May 31, 1997, at 15.
• G. Kent Johnson, Jr., "Taxation Without Organization," Webmaster, Oct. 1996, at 24.
• Dean F. Andal, "Read My E-mail, No New Taxes," paper presented to Spring Symposium, Multi-Jurisdictional Taxation of Electronic Commerce, International Tax Program and the Society for Law and Tax Policy, Apr. 5, 1997.
• Jeanne LeFevre, Memorandum on "Nexus and Other Constitutional Considerations in Taxation of Internet Access," prepared for Representative Alice Johnson, Minnesota House of Representatives, Apr. 2, 1997.
• Martin Eisenstein, "The Constitutional Limits on Sales Taxation of Cyberspace," State Tax Notes, Feb. 24, 1997, at 601.
• Dave Lesher, "Political Odd Couple Back Internet Tax Ban," Los Angeles Times, June 9, 1997, at A3.
• Minnesota House of Representatives Internet Sales Tax Bill, Mar. 17, 1997.
• Jonathan Gaw, "Proposed State Tax on Internet Service Providers Expected to Spur Long Debate," Minneapolis Star Tribune, Mar. 26, 1997, at D1.
• President William J. Clinton, Vice President Albert Gore, Jr., "A Framework for Global Electronic Commerce," July 1, 1997.
• James Kim, "Clinton Makes Pitch for Tax-Free Internet," USA Today, July 2, 1997, at 4B.
• U.S. Department of the Treasury, "Selected Tax Policy Implications of Global Electronic Commerce," Nov. 21, 1996.
• "Government Says ‘No’ to New Cyber-Taxes," Seattle Times, Nov. 26, 1996, at B4.
• "U.S. Gives Wide Berth to Taxes on the Internet," Chicago Tribune, Nov. 22, 1996, at 23.
• Eli Noam, "Why the Internet Will be Regulated," Educom Review, Sept./Oct. 1997, at 12.
• Arthur Cordell, "Multi-Jurisdictional Taxation of Electronic Commerce," paper presented at Spring Symposium, Multi-Jurisdictional Taxation of Electronic Commerce, International Tax Program and the Society for Law and Tax Policy, Apr. 5, 1997.

Will Rodger, "The Internet Tax Battle Heats Up," Interactive Week, Feb. 9, 1998. (http://www.zdnet.com/intweek/print/980209/284000.html)

Session 5: Recap

Summary
During this session, class members discussed the last few sessions, in particular the extent to which problems identified by different speakers could be addressed through changes in the architecture of the Net. Several students noted that many sources of Internet controversy—including trademark disputes and confusing, duplicative tax liability—might be eliminated if all domain names and email addresses included some indication of where their owners resided. Thus, Brown’s Grocery Store of Ohio might not fight with Brown’s Grocery Store of Alaska over a domain name, if for example brownsgrocery.oh.com and brownsgrocery.ak.com were both available names, and if consumers knew to include a geographic identifier when guessing at probable URLs. Furthermore, businesses trying to avoid the onerous taxes imposed by a state would have an easier time avoiding liability there because they would know when they were transacting with a resident of that state.

Session 6: Cyberkeley or Cyburbia?

Summary
Andrew Shapiro, a Fellow at Harvard Law School's Berkman Center for Internet & Society, was this week's guest speaker. AS discussed the place of the Internet in civic society, arguing that the Net will not fulfill its potential if it is limited to the filtered merchandise of commercial interests.

Although the Internet promises abundant space for speech by diverse speakers, in reality small independent speakers have difficulty rising above the roar of commercial speech. Even though the medium itself is not scarce, the attention of its users is. If the glut of information on the Net makes it impossible for anyone to hear a noncommercial speaker's message, then he is no better off than he was without the Internet.

AS contends that filtering of Internet content is no solution; filters are likely be controlled by commercial speakers or their agents, and filtering might preclude the serendipity by which noncommercial speakers are sometimes discovered online. Instead, AS suggested, commercial speakers should bear some responsibility for establishing public spaces on the Internet—providing visitors to their sites with public service messages, as it were, linking to noncommercial sites to which Net users might not otherwise be exposed.

AS also touched the future of online privacy protection. He suggested that people increasingly will be able to choose the level of privacy they want for their Internet activities. Those who place a low value on their privacy might be able to "sell" their privacy to vendors willing to provide free Internet content in exchange for valuable consumer information.

Andrew Shapiro (see http://cyber.harvard.edu/shapiro.html) is a Fellow at the Berkman Center for Internet & Society at Harvard Law School. Contact: ashapiro@law.harvard.edu

Readings

• Andrew Shapiro, Untitled manuscript on the politics of new media, Oct. 1997.
• Andrew Shapiro, "Privacy for Sale: Peddling Data on the Internet," The Nation, June 23, 1997.
• David Shenk, "Village of Babel," and "Superdemoncracy," in Data Smog: Surviving the Information Glut 108 (1997).
• Steven Johnson, "Agents," in Interface Culture: How New Technology Transforms the Way We Create and Communicate (1997).
• Andrew Shapiro, "Keeping On-Line Speech Free: Street Corners in Cyberspace," The Nation, July 3, 1995.

Session 7: Frames and Blames

Summary
This week's guest was Bruce Keller, a partner at Debevoise & Plimpton. BK represented the plaintiffs who sued TotalNews Corp. for linking to and framing their news web sites, in other words displaying their news stories surrounded by TotalNews logos and advertising. BK defended themisappropriation theory that the plaintiffs argued. He contended that the Net poses serious dangers to companies that invest heavily in developing Internet content. At the heart of these dangers is the ease with which small companies can inexpensively enter the content delivery business by doing nothing more than compiling the work of others.

Bruce Keller (see http://www.ljx.com/public/firms/debevoise/attorneys/keller.html) is a Partner at Debevoise & Plimpton. Contact: (212) 909-6000

Readings

• Jeremy McCarter, "Summary: TotalNEWS"
• Jeremy McCarter, "Summary: Ticketmaster v. Microsoft"
• David Shaw, "Fierce Battles Fought Over Web Guides for Arts, Sports," Los Angeles Times, June 18, 1997.
• Larry Armstrong & Amy Cortese, "Ticketmaster v. Microsoft," Business Week, May 12, 1997.
• Alan J. Hartnick, "‘Framing’: Internet Equivalent of Pirating?", New York Law Journal, Apr. 4, 1997 & Apr. 11, 1997.
• Bruce Keller, Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property, forthcoming in the Winter Issue, Volume 11, of the Harvard Journal of Law and Technology.

Session 8: Research Brainstorming

Summary
There was no guest speaker for this session, during which students reported on the progress they had made on their research papers and the problems that they had encountered.

Session 9: Information Piracy

Summary
Douglas Lichtman, Fellow of the Information Society Project at Yale Law School, was the guest speaker for this session. DL argued that information piracy—including illegal copying of software—can be socially desirable. Software manufacturers implicitly acknowledge this, DL contended, by pricing their products based on the expectation that some owners will let others copy their software illegally.

Douglas Lichtman (see http://www.law.yale.edu/infosociety/infosoc1.htm) is a Fellow of the Information Society Project at Yale Law School. Contact: douglas.lichtman@yale.edu

Readings

• Maria Seminerio, "Piracy Within U.S. a Growing Problem, Microsoft Says." (http://www.zdnet.com/pcweek/news/0126/29apirate.html)
• Survey, Have You Ever Pirated Software? (http://www.zdnet.com/pccomp/ipoll/results.html)
• John Perry Barlow, The Economy of Ideas. (http://www.wired.com/wired/2.03/features/economy.ideas.html)

Session 10: What’s on the Net

Summary
There was no guest speaker for this session. JZ demonstrated a series of web sites that students might find useful as they finished their research projects. For example, he showed "The Lost Library of MOO" (http://luciens.sims.berkeley.edu/moo.html), a collection of social science scholarship about the dynamics of online virtual environments. He then demonstrated a live MOO (MUD object oriented); a MOO is like a souped-up chat room in which participants can converse with each other, manipulate virtual objects, and create (by programming the software that underlies the space) their own objects—books, animals, robots, anything.

Session 11: Electronic Commerce

Summary
A student in the class presented the practical side of electronic commerce by discussing his plans to devise and launch an Internet business. His intention is to establish a series of web sites (http://www.e-niche.com) that facilitate commerce between individual collectors of rare records and other collectibles. People interested in buying or selling an item would enter the particulars into a database that other potential sellers and buyers could search. In addition, he would act asgo-between once a potential buyer and seller had identified each other. The seller would ship her merchandise to him, and he would collect the purchase price (retaining a percentage for commission) after confirming that the merchandise was geniune and in good condition. The class was especially interested in his plan to set up chat rooms and bulletin boards on his site. His strategy is to attract traffic to the site by establishing a sense of community among site visitors.

Readings

• Randy Whitestone, "Auctioneer Ready for Public Time?," Interactive Week, Feb. 9, 1998. (http://www.zdnet.com/intweek/print/980209/284001.html)
• Greg Alwang, "Meeting of the Minds: Whether You Run a Public Web Site or a Private Intranet, a Discussion Servers is a Must-Have to Create a Sense of Community." (http://www.zdnet.com/products/content/pcmg/1704/272573.html)
• E-Niche (http://www.e-niche.com/)
• Onsale Auction Supersite (http://www.onsale.com/)

Session 12: Online Property Control

Summary
The guest speaker for the seminar's final session was Professor James Boyle from the Washington College of Law at American University. JB tied together several themes of the course. He described how the architecture of the Internet could be changed in order to give commercial content producers tight control over intellectual property. Technologies known as "trusted systems" could be employed to prevent cutting, pasting, and copying of online content. Congress is considering legislation that would make it illegal to tamper with such systems. The class discussed how this technological and legal development would prevent the types of creative modifications of other people's original expression that is currently widely considered fair use.

James Boyle (see http://www.wcl.american.edu/pub/faculty/boyle/Boylebio.htm) is a Professor of Law at American University's Washington College of Law. Contact: boyle@wcl.american.edu

Readings

• James Boyle, "Foucault in Cyberspace," forthcoming in the University of Cinncinnati Law Review. (http://www.wcl.american.edu/pub/faculty/boyle/foucault.htm)
• James Boyle, "Sold Out," New York Times, Mar. 31, 1996. (http://www.ese.ogi.edu/sold.out.html)