The Global Internet

Overview

Thursday, 2:30-3:30pm
Format: Lecture, featuring guest respondents
Leads: Herbert Burkert and Urs Gasser
Participants: Catharina Maracke, Susan Crawford, others TBD

In the global online space, traditional legal frameworks, such as public international law and international private law, come together with new developments, such as evolving Internet law (focused on new regulations addressing international Internet issues), to create different models for, and forms of, digital governance. Processes and structures, such as online dispute resolution systems, Terms of Use policies, and other mechanisms also shape user activity and permissible behavior. Actions and interventions by private actors, NGOs, and international organizations, also exert control, by defining use and activity, permitting or denying access, and facilitating policy making–all with varying degrees of harmonization, conflict, and evolution. Through a series of case studies, the attributes, influence, and evolution of these mechanisms will be explored in the context of e-commerce, media and free expression, technical and organizational infrastructure, and other values.

Required Readings

Governance

• Jonathan Zittrain, "Be Careful What You Ask For: Reconciling A Global Internet And Local Law," Cato Institute (2003).
• Daniel Rosenthal, "Assessing Digital Preemption (and the Future of Law Enforcement?," New Criminal Law Review (Fall 2011).
• Susan P. Crawford, "The ICANN Experiment," 12 Cardozo Journal of International Comparative Law 409 (Fall 2004).
  • Note: access to this file has been somewhat flaky, it is also available on Westlaw (cite: 12 CDZJICL 409). If you do not have Westlaw access and need access to file, email ilaw@cyber.law.harvard.edu.

Law and Global Commerce

• Rachel Donadio, “Larger Threat Is Seen in Google Case," New York Times, February 24, 2010.
• James Vicini, “Supreme Court rejects Tiffany trademark appeal vs Ebay,” Reuters, November 29, 2010.
• Mark Sweney, “Google wins Louis Vuitton trademark case," The Guardian (UK), March 23, 2010.
• OUT-LAW.COM, “eBay not obliged to protect trade marks, says High Court," May 27, 2009.
• Gabriele Accardo, “Advocate General advises ECJ that eBay should not be held liable for users’ breach of trademark," TTLF Technology Law & Policy News Blog, January 10, 2011.
• Grant Gross, “RIAA tells FCC: ISPs need to be copyright cops," Computer World, January 15, 2010.
• Michael Geist, “Putting Together the ACTA Puzzle: Privacy, P2P Major Targets,” Blog, February 3, 2009.

Competition

• Urs Gasser, "Regulating Search Engines: Taking Stock and Looking Ahead," 9 Yale Journal of Law & Technology 124, Spring, 2006.
• “Antitrust: Commission probes allegations of antitrust violations by Google,” November, 2010.
• Court of Justice of the European Union Press Release: “Google has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors’ trade marks,” March, 2010.

Recommended Readings

Berkman Center's Independent Review of Accountability and Transparency at ICANN

• Independent Review

The State of Online Business

• Dion Hinchcliffe, "The app store: The new ‘must-have’ digital business model," January, 2010.
• Donnie Dong, “Ten Websites Lead You Understanding the Features of Cinternet,” January, 2010.
• Andrew Keen, "Why We Must Resist the Temptation of Web 2.0," The Next Digital Decade, Berin Szoka and Adam Marcus (Eds.), (Washington, DC: TechFreedom), 2010.

Related Case Examples

• GNI/Role of Intermediaries

Student Reflections

By Karissa Fleming and Amanda Vaughn

Globalization is the process of change that cuts through geographical layers. In this session, Professors Gasser and Burkert presented an overview of the problem of reconciling a global Internet with local norms and values, suggesting that governance of the Internet has progressed in three phases: the inter-local, the harmonization of the inter-local in an attempt to ease the tension between local laws and the global medium and, finally, the quest for global order.

In the inter-local phase, the Internet, as a disruptive technology, challenged incumbent players and business models, creating a “crisis” of the copyright industry. Incumbents eventually responded by activating the legal system, attempting to apply old, existing laws to the new phenomenon of the Internet. National courts produced numerous cases in their attempt to capture the Internet using existing legal norms. In addition, as cross-border transactions became available over the Internet, new jurisdictional questions arose concerning personal jurisdiction, choice of law and enforcement as courts continued to apply national norms to global issues. Catherina Maracke shared her experiences as international director of Creative Commons, in which the organization has attempted to reconcile these problems by providing licenses that are accepted and recognized in many different jurisdictions. She left us with the question of whether or not we need more regulation or less to solve the problem.

In the harmonization phase, there are multiple approaches to easing the tension between local laws and the global nature of the Internet: top-down, centralized; top-down decentralized; bottom-up, centralized; or bottom-up, decentralized. Governments can attempt to implement a truly global internet law. For example, the Uniform Domain-Name Dispute Resolution Policy. There might also be attempts to harmonize on a more regional level. Floriana Fossato presented the Russian experience as an example of this attempt at harmonization. After entering a bilateral agreement with the US to reduce pirating, it had effects throughout the country, shutting down the pirating industry and thus reducing competition and raising prices. Fossato called for more cooperation and the formation of new spaces and interaction between citizens that will shape harmonization in a way that works for everyone.

Finally, in the global order phase, Susan Crawford discussed the battle over the Internet that is currently being waged between two visions – one in which governments are the only actors involved in governing the internet, the other a multi-stakeholder approach. She called for us to work for a multi-stakeholder approach and to encourage better funding and better tools for civil society actors attempting to be a part of the conversation. Harris Chen, a prosecutor in Taiwain, shared his opinion that the Internet existed as a very powerful tool for criminal investigation to be harnessed by governments

Questions we were left with afterward:

1. Do we need more or less regulation to solve the problems of a global internet?
2. How strong a rationale is crime prevention for restricting the internet, especially when considering that the point of the criminal law is arguably to enhance freedom?
3. What is the best way to ensure that interested parties are at the table to decide how the internet should be governed? What groups should and should not be included?