Internet Law 2003
Program of Instruction for Lawyers, Harvard Law School
June 16 - 20, 2003, 9:45 - 11:15 a.m., Langdell North (Vorenberg Classroom)
zittrain at law.harvard.edu; nesson at law.harvard.edu; jpalfrey at law.harvard.edu
The Internet is maturing. With it, the laws and the norms that surround the use of Internet technologies have less of an edgy feel than they did just a few years ago. Yet much of the promise of the technology and the uncertainty of the legal environment remain. This continued promise and this uncertainty keep things interesting.
This week-long "second period" PIL course will draw you into five core areas of Internet law, each of which continues to evolve. The globalization of both the Internet and the law lie at the core of what's interesting about these five themes and enable them to hang together.
Monday, June 16: Jurisdiction (Zittrain)
This session starts off the course with the issue of jurisdiction on the internet. Is it possible to reconcile the global reach of the Net with the desire for home rule in local jurisdictions? We will cover three 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 second, a U.S. company struggles to resist enforcement of a judgment under French law. In the third case, we'll look at the approach an Australian court took to jurisdiction relative to a global media publisher. Lastly, we will consider technological "solutions" to the problem of compliance across disparate jurisdictions and their implications for the evolution of the internet.
Jonathan Zittrain, “Be Careful What You Ask For: Reconciling a Global Internet and Local Law,” (forthcoming, Cato Publishing, 2003)
John Perry Barlow, A Declaration of Independence of Cyberspace
Real-time notes (in weblog format) from the jurisdiction day.
Tuesday, June 17: Intellectual Property (Zittrain & Palfrey)
Napster started a revolution. A couple of guys, a cool idea, and a simple technology awakened the sleeping giants of the music publishing business and made them very, very afraid. A legal battle was joined, and some of America's most famous lawyers fought it out in court. Some of America's richest venture capitalists lost their shirts, and a business deal closed out the first chapter of the story. The retaliation against the P2P movement by some of the content owners and distributors has combined law with code in an attempt to lock down digital content more than ever before. A potent combination of the Digital Millennium Copyright Act and its siblings plus powerful trusted systems threaten to shift the pendulum yet further in the opposite direction -- but try telling that to the hundreds of millions of subscribers to the P2P networks. Meanwhile, convincing, definitively legal business models to distribute online content to the mass market seem to be eluding even the deep-pocketed players in the media business. Some of the players have changed since the Napster days -- now it's KaZaA and Grokster and Morpheus rather than Napster -- but the stakes are just as high and the issues maybe even more complex. This whirlwind overview of the pitched battle over intellectual property in cyberspace will touch down on digital music and video in particular. We will also look ahead to the next round of legal battles and will assess likely outcomes.
John Perry Barlow, The Economy of Ideas
Fred Von Lohmann, Peer-to-Peer File Sharing After Napster
Amy Harmon, New York Times, Recording Industry Goes After Students over File Sharing
Digital music on campus networks:
Digital Millennium Copyright Act, Section 512
RIAA v. Verizon, Civil Action No. 03-MS-0040 (DC Circuit, 2003)
Real-time notes (in weblog format) for the IP day (thanks to Donna Wentworth of the Berkman Center).
Wednesday, June 18: Digital Democracy (Nesson & Palfrey)
Over the past 15 years, digital information and communication networks have spread rapidly across the globe, bringing with them hopes for, and claims of, fundamental change in the dynamics of power and influence across a range of political, economic, social, and semiotic dimensions. With a global scope, this session will take a closer look at the possibilities, realities, successes, and failures of digital technology to decentralize power and democratize influence. Topics to be covered include political democracy, including digital electronic voting, online elections, and Internet-based campaigning and activism; economic democracy, including the global effort to bridge the digital divide; and semiotic democracy, or the decentralization of the power to make cultural meaning.
Evan Schwartz, "Direct Democracy," Wired 2.01, 1993.
Farhad Manjoo, "Voting into the Void," Salon.com, November 5, 2002.
Andrew McLaughlin, "Internet Exchange Points," GIPI Working Paper, June, 2002.
Eggleston et al., "Information and Communications Technologies, Markets, and Economic Development," (2002).
Dave Winer, "What Makes a Weblog a Weblog?," May, 2003.
Tim Berners-Lee, "Semantic Web Road Map," September, 1998.
Real-time notes (in weblog format) for Digital Democracy day.
Thursday, June 19: Litigation and the Digital Environment (Nesson)
The explosion of digital technologies has altered the process of bringing litigation in the United States court system. New technologies present tough issues from start to finish: in pretrial discovery, in jury selection, in case presentation, in access to the courtrooms and in the record-keeping of court documents after the litigation ends. We will look at how some new software re-opens questions about race and gender in jury selection. And we will delve into the hard questions about how much information is too much information; about whether what we're really looking for is the truth; and about what we really think trials are for. The digital environment puts these questions to us in powerful new ways that unsettle and challenge us to re-examine our core beliefs about litigation.
Charles Nesson on Digital Discovery, including cases Batson v. Kentucky, 476 US 79 (1986) and J.E.B. v. Alabama, 511 US 127 (1994)
Demo of SmartJury
Real-time notes (in weblog format) for Litigation day.
Friday, June 20: Privacy (Nesson & Palfrey)
Privacy on the Net has been one of the most thorny issues from the early days of cyberlaw. The Net makes possible both new forms of anonymity and powerful new ways to invade privacy. Threats to our privacy come from our neighbors, our government, our employers, our schools, our commercial partners, and many others. Widespread access to the Net, at least in rich countries, has significantly shifted the boundaries that once stood between one person and information about another. Many of these Net privacy issues from the boom years of the 90s remain unresolved and new issues continue to emerge. The respective roles of the Internet Service Provider, search engines and national governments in limiting and shaping our expectations of privacy continually give rise to hard questions. Intellectual property issues increasingly have major privacy ramifications, particularly as distributors of content become more and more aggressive about enforcing copyrights against allegedly infringing users. This session will cover a range of current issues related to online privacy at a brisk pace.
Privacy vis-a-vis the State:
Katz v. United States, 389 U.S. 347 (1967).
Kyllo v. United States, 533 U.S. 27 (2001).
Executive Summary of the Terrorism Information Awareness Program, DARPA, May 20, 2003.
Privacy vis-a-vis the Private Sector:
FTC, "Online Profiling: Report to Congress," June, 2000.
Jonathan Zittrain, "Welcome to Second Class," CIO, March 1, 2001.
Simson Garfinkel, "An RFID Bill of Rights," Technology Review, October, 2002.
Skim the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (the so-called "EU Data Directive").
Real-time notes (in weblog format) for Privacy day.
online discussion group linked from this site are *completely optional*
and are provided for those of you who may wish to engage more deeply
with the materials. We will presume that those attending the in-class
PIL sessions have not participated in the online discussion, though
we may draw upon interesting threads that emerge from the online discussion.