IDEA BANK

2. A critical review of extant cyberstalking legislation (at both the federal and state levels) with a view toward the development of a model statute that would better reconcile the goals of (a) protecting the victims of stalking; (b) respecting free speech rights; and practicability of implementation.
[This idea comes from Prof. Terry Fisher.]
 

3. A review of the current state of the law re:  digital discovery with a focus on Enron.
[This idea comes from Donna Wentworth, web publications editor of the Berkman Center.]
 

4. Does Carnivore, the FBI's surveillance tool for intercepting Internet communications, violate the Fourth Amendment when used properly? Alternatively, or in addition, does the use of Carnivore violate federal statutory privacy laws. 
[This idea comes from Orin Kerr, George Washington University, through Lawtopic.org.]
 

5. There is a very difficult problem in worldwide Internet and e-commerce business about how to handle jurisdiction for Internet commerce. US companies that sell goods and content worldwide need protection from lawsuits in various jurisdictions, particularly in Europe. The US tradition allows companies to state jurisdiction in their contracts. Such jurisdiction clauses are generally respected in US courts. However, the European tradition generally allows plaintiffs to sue in their home jurisdiction. A similar problem arises for content providers that need to know where they can seek injunctions for infringing use of their copyrights. The outcome, which is far from clear, could have wide-ranging effects on the future of the Internet and e- commerce.
[This idea comes from Ron Miller, Gibson Dunn and Crutcher, L.L.P. (London), through Lawtopic.org. He is willing to discuss this question with interested students.]
 

6. There is currently much discussion about passing federal legislation that would regulate use by Internet companies of user's personal information (information that can be used to identify the user). Europe has passed a directive that requires EU member states to adopt stringent privacy requirements for use of personal information (not only by Internet companies) including a specific requirement that such information not be "exported" to countries without adequate safeguards. The US, which currently is mostly unregulated in the privacy area, is not considered to provide adequate protection, but receives vast amounts of information, including personal information, from Europe. To deal with this problem, the US Commerce Department and the EU negotiated (over two years of difficult wrangling) a safe harbor to exempt US companies who receive information from Europe if they voluntarily self certify to the FTC that they meet safe harbor standards. Although the safe harbor has been available for a year, very few US companies (who worry about liability) have self-certified, creating much tension with Europe, which feels it made significant concessions to the US in the safe harbor. Meanwhile, the US Congress has been working to come up with legislation addressing privacy. The EU is becoming more concerned as the US dithers and recently rejected the US appeals for review of standard form contracts to address privacy of personal information (another way that US companies can comply with EU standards by showing "adequate" safeguards). The EU member states have delayed enforcement of their privacy standards for exports of personal information to the States until now, but patience is growing thin. Against this backdrop, there is substantial room for an argument in favor of US national standards that would satisfy Europe without causing a huge strain on US business. What could these standards be? What are their limitations? What are the foreseeable benefits and negatives?
[This idea comes from Ron Miller, Gibson Dunn and Crutcher, L.L.P. (London), through Lawtopic.org. He is willing to discuss this question with interested students.]
 

7. Detailed information about consumers is collected from them without their knowledge through the use of cookie files, web bugs and other technologies that monitor web surfing. Recently, it was alleged in a civil suit that such practices violated the Electronic Communications Privacy Act, the Wiretap Act, and the Computer Fraud and Abuse Act, but a federal judge disagreed. Analysis of the myriad causes of actions consumers may bring against data collectors, along with commentary about the likelihood and desirability of success in these causes of actions, might make a good paper, as would analysis/critique of pending data privacy legislation. 
[This idea comes from Ann Bartow, University of South Carolina School of Law, through Lawtopic.org.] 
To pursue this topic, Ann Bartow recommends looking at the pending cases against internet data harvesters such as Doubleclick Further insight may be gleaned from: "Privacy Law" by Turkington & Allen (West), law review articles by folks such as Jerry Kang, Anita Allen, Paul Schwartz and Pamela Samuelson, the EPIC website (www.epic.org)(see especially EPIC publications, including the Privacy Sourcebook, edited by Marc Rotenberg).

8. Can the "open code" concept really be adapted to the content area? Why? Why not?

9. Are strong intellectual property laws good for developing economies or bad for them? In pursuing this question, it may be useful to think about particular applications of IP laws such as the effect of patent rights on access to AIDS medication.

10. Is parody possible on the Internet in light of the 4th Circuit opinion in peta.org?  <http://laws.lp.findlaw.com/getcase/4th/case/001918P&exact=1>
If so, what are the limits on the manner of expressing it?

11. Review the "sucks" cases.

a. For example, trademark litigation uses a standard of "likelihood of confusion as to source or origin" to measure infringement of the mark owner's rights. In the US, TrademarkReallySucks.com would not confuse any consumer into believing that the Trademark owner owns that domain name. On the other hand, many mark owners have bought up sucks domain names just to keep them out of the hands of critics, so perhaps confusion actually would exist.
b. How do foreign language issues impact on intellectual property rights and free speech on the Internet? Those who do not speak English, or are not aware of US colloquialisms, may think that "sucks" is just another product line. This has led to many inconsistent UDRP decisions. <http://www.icann.org/udrp/> Is there a resolution?
 

13. Whose law should govern? The Internet poses all sorts of conflicts of laws questions that have yet to be ironed out. Take the case of Sallen v. Corinthians (1st Cir. 2001), which involves a conflict between the global Uniform Dispute Resolution Policy and the U.S. Anticybersquatting Consumer Protection Act and two parties in different countries. The outcome seems to be a relatively dangerous precedent from the perspective of international decision-making. The issue is more complex, I think, than the civ pro-style jurisdictional problem that we think about in the ordinary course of business.

14. Internet & radio: Does the cutting edge of the Internet mean a new life for the old standby, radio? Radio is hip, uniquely communicative, and enjoying a bit of a renaissance. What is it about the Internet that is playing a part in this phenomenon? Is it all about money (i.e., a new distribution channel for those who want to charge for radio) or is there
something deeper going on?  Chris Lydon, formerly of National Public Radio and presently a fellow at the Berkman Center, is available to discuss this idea with interested students.

15. Internet & consumerism: What's the long-term effect of the Internet on the way we consume? We've only seen the opening salvo with the dot-com boom and bust cycle for online businesses. Will consumers be more empowered over time or is the Internet just another distribution channel? Can consumers get over their (our?) collective action problem and use the technology to fare better in the marketplace? The issues quickly go beyond books and CDs to more complex products, like securities. Can/should consumers be able to reduce margins through Internet technologies (whether the provider is a book-seller or an underwriter) or have businesses retaken the advantage?

16. Is there a solution to the domain name squeeze?

The alleged problem is that trademark owners have a legal incentive to grab all versions of their marks in every new Top Level Domain that ICANN approves. The new registries actually give trademark owners first rights to register. The result is that opening new gTLDs hasn't really opened up the domain name space for alternative users, particularly non-commercial users who don't have trademarks. Since most common words are trademarked by one entity or another, very few English language words are available now. Trademark owners simply sit on most of these and only use the .com version actively. Foreign character domain names will also be subject to trademark priority since a translation of a mark is considered an infringement.

Is there any factual support for these arguments? Are all the "good" generic and common words registered to TM owners?

What methods are governments utilizing to monitor the activity of on-line protestors? For example, what is the on-line equivalent to a government sponsored photographer at a civil resistance demonstration?

What laws are currently available in the developed world to protect protestors' rights to on-line freedom of expression and privacy?
[This idea comes from Rohan Kariyawasam, Berkman Center fellow.]

18. Are monopolies bad when systems benefit from network effects? Is the Internet "just like" railroads and telephone companies, or is it a special case?
[This idea comes from Justin Chan, Berkman Center fellow.]

19. Does the DMCA (and other laws that extend the sphere of copyright) - by protecting a US-dominated entertainment and information industry - violate the WTO agreement? In letter? In spirit?
[This idea comes from Justin Chan, Berkman Center fellow.]

20. Should there be a multilateral body that regulates the charging rates for international backbones? What could (should) its objectives be?
[This idea comes from Justin Chan, Berkman Center fellow.]

21. Review and analyze the impact of proposed universal Net jurisdiction principles.

HAGUE CONFERENCE RELEASES JURISDICTION DOCUMENTS
The Hague Conference has released several new documents
relating to its Draft Convention on Jurisdiction and the
Enforcement of Judgments. The documents focus on the
present state of the negotiations, the impact of the
Internet on the project, and choice of court agreements in
international agreements. Documents at
<http://www.cptech.org/ecom/hague/hague16feb2002-bureaurefects.rtf>
<http://www.cptech.org/ecom/hague/hague17feb2002-ah-internet.rtf>
<http://www.cptech.org/ecom/hague/hague18Feb2002-ah-choiceofcourt.rtf>
[This idea comes from Diane Cabell, Clinical Instructor at the Berkman Center.]

23. Set up a fileshare system similar to Gnutella, except that it works as follows:
People with music they own on CD rip it to .rm or some other streaming media (possibly in a central bank, possibly not) and someone writes a wrapper that enables only one stream of a song at a time.  (1 stream per copy of the song.) This would come very close to reaching the threshold for what is considered "permissible sharing" (i.e. I am allowed to lend you my CD, basically because lending it to you means I no longer have it.  This fileshare system is a virtual replication of the sharing exception to copyright protections because only one person "has" a song at a given time, and no one is allowed to make a copy). The applications are quite broad.  For instance, libraries could use this to lend their videos.  (At Harvard, an interested student could pair with one of the undergraduate House libraries or the University libraries that lend videos to work out a real-life application of this idea.)  The library could digitize its video collection and start making the videos available by stream to students.  Is this theoretically any different from the current system where a student walks to the library and borrows the movie at no charge?
[This idea comes from Rebecca Nesson, Berkman Center fellow and HLS '01.]
Becca thought this might make an interesting project because:
-There is an interesting copyright analysis paper that could be written that analyzes the legality of all of the file-sharing systems out there, from Napster to Gnutella to PressPlay (a very similar idea to this one but by the record companies) to myMP3.com.
-There is the possibility of a fun tech project of actually implementing
this system.
-There is an interesting possibility of getting sued for it.  
-There is some chance that some organization at Harvard, like one of the House libraries or something else that possesses a media collection, might be willing to be the initial server of the content.