Looking at Cyberlaw
Five law professors from Harvard, Stanford, and NYU are currently shaping the future of law and the Internet.
On July 2, more than 130 people from 28 countries gathered at the nation’s oldest university — Harvard — to compare notes on the newest of legal issues — cyberlaw.
The gathering was part of the first-ever Summer Internet Law Program at Harvard Law School, a kind of Internet law summer camp that ran from July 2 to 6 at Harvard’s Cambridge, Massachusetts, campus. The program, which was sponsored by the law school’s Berkman Center for Internet and Society, featured a series of lectures and seminars by five distinguished professors specializing in Internet law.
The professors included New York University’s Yochai Benkler, the director of the Engleberg Center for Innovation Law and Policy; Harvard’s William Fisher III, co-director of the Berkman Center for Internet and Society; Stanford’s Lawrence Lessig, author of “Code, and Other Laws of Cyberspace” and a monthly columnist for The Industry Standard; Harvard’s Charles Nesson, who has spoken about Internet governance, ICANN, and open versus closed architecture; and Jonathan Zittrain, co-founder of the Berkman Center for Internet and Society and served as its first executive director.
The following is an excerpt of an interview “CyberCrime” co-host Alex Wellen conducted with the professors and students about such controversial topics as copyright protection on the Internet, the digital distribution of music, cybercrime, jurisdiction, free speech, and privacy.
TechTV: I’m going to ask you the very same questions that you just asked us. Tell us, first off, what is the most provoking legal issue facing cyberspace?
Nesson: Well, I’d say the thing that’s most provoked me has been Larry Lessig’s vision — at least as I’m coming to see it more clearly — that the Internet, as we know it, is under tremendous threat, that we’re seeing a march of jurisdictional assertions by different countries that are wanting to express their values, and that that will inevitably lead towards a change in the structure of the Net, so that countries will not only be able to assert their values but do it effectively. That sends a chill through me.
TechTV: And Professor Lessig?
Lessig: Actually, it’s building on why that is chilling, that didn’t really come from anything I said. It’s really a combination of stuff that Yochai has said and then one of the students today in our breakout session, Naomi, was talking about. What do we lose by this increase in opportunity to control, in particular, in the context of creative expression? And what Naomi was describing is we have these technologies that are enabling any body to become a kind of creator, right? Before these technologies there were creators. They were novelists and they were musicians who learned how to write music, and [there] were filmmakers. All of those people were creators [who] produced stuff that other people shared. But this technology could enable an extraordinarily wide range of people to become creators, and not just in the traditional way.
Think about online gaming, where people are building virtual worlds that they share with other people. That’s exactly what a novelist does. And the opportunity to do that is what the technology gives us. And the changes that we’re seeing — in particular, the changes as a function of copyright law — are interfering with the opportunity for this creative process to take off the way it could really take off because the mindset of the copyright is maximal control. There’s no such thing as the gaming culture in a world of maximal control. There’s no such thing as that kind of creativity in the world of maximal control. It’s this vision of the creative opportunity that we will lose that I think begins to capture what’s going on.
TechTV: Professor Fisher?
Fisher: As of right now, the issue that’s most intriguing to me is the relationship between two movements. On the one hand is… the gradual tightening of restrictions on the flow of information of various sorts on the Internet at the behest of content providers. So, broadly speaking, this includes the interpretation and tightening of copyright law, the deployment or modification of tort doctrines, the… enhancement of contract doctrines, technological protections, and associated anti-circumvention provisions. The other movement is restrictions on the flow of information more commonly driven by governments and less commonly motivated by commercial, economic concerns. So, those were the kinds of restrictions that figured most prominently in Larry’s talk earlier today — broadly speaking, controls on what we would think were nearly as [protected as] speech — uses of pornography, political commentary, exchanges of politically controversial materials, and so forth. These two movements share the feature that they are restrictions on the flow of information.
Zittrain: My own interests have run, in large part, to… the ways in which, as the Internet evolves, we just assume bandwidth will just keep getting wider and wider and wider. I think it will, but it will become more discerning as well and, just as not any body can put up a broadcast tower and decide to use some spectrum at the moment — at least for much of the spectrum — similarly, we may find that especially because, to get your packet from here to there there’s a lot of individual people in between that are agreeing to carry that bucket as part of the bucket brigade. The sorts of incentives they’re facing, pressures they’re facing, about whether to just pass a bucket — in one end and out the other — or stare at the contents and decide whether to dump it out or hand it back and the implications of that are what interest me a lot.
TechTV: And Professor Benkler?
Benkler: I agree with Larry that the core seems to be a fundamental shift in how creation happens… In a sense, the potential shift to a system that serves the purposes of those who structure it, those who sell the content, and the repeated entry of… who is able to make meaning as it’s embedded in this network that takes away a network which allows people to make meaning and manipulate and move it and change it and turn into something… I mean, I love the use of the TiVo device because it’s just a much better way of selecting from stuff other people have told you is a good thing — professional, finished products, and just the commercial viewing of it, the consumption viewing of it, and the elimination of the productive ability.
TechTV: What is it that you want to say to the students, particularly to the students that you see in here? What is the emotion or thing that you’re trying to get out to them? And what would you say if, in fact, the classroom were the universe of students out there watching?
Fisher: Well, actually, one of the things I like best about the week as it’s unfolding so far is that the set of students here is, on at least one level, remarkably representative of the participation, worldwide, in the Internet. That level is national coverage. So they’re representatives of 28 countries here from, now, all continents, with the exception of Antarctica. And there are many voices in the room. There’s a disproportionate representation from the United States but that, for better or worse, is also true of the real Internet. So, on that one level, it’s a remarkably representative group. On a different level, it’s not, however. It’s an unusually sophisticated group. I’ve given talks to many different audiences about different aspects of the Internet, and this is actually, I think, the most sophisticated audience I’ve encountered thus far, which is great if it’s not representative in that sense.
TechTV: So, why participate in this week-long course, and what are you hoping to gain now that you’ve gotten a bit of a sample of who you’re dealing with?
Fisher: Good question. There are several different purposes, and I’m realizing the extent to which they are probably in unavoidable tension — hopefully, creative tension — but at least two purposes in tension. One of them is to communicate a lot of information about the current status and trends in Internet law. So it’s a teaching vehicle in a traditional sense in that regard, as one goal. The other goal is to foment creative thinking about what the Internet could and should be. So, broadly speaking, a descriptive and a normative objective, and it’s hard, in the limited amount of time we have, to reconcile those two. In my own presentations, I have felt sometimes difficulties of the trade-off. I want to convey a lot of stuff, but the cost of conveying a lot of stuff is leaving less opportunity for reflection and conversation.
Student: Why does American law seem to stand out or be the one that is emphasized as opposed to laws of other countries?
Lessig: Given my own view of what would be great as far as how the Internet would be structured and how the rules would be set, I would be happy if there were more international leadership here. The fact is that the United States [has] been both designing and regulating in this context. The Americans are leaders in the technology side in a sense because it was here first, and in my view it could flourish here because there was a neutral platform upon which it could grow. That is the kind of accidental fact; it is nothing about America, it is just the way America was at the time. But as to the regulation, what is going on right now in intellectual property, for example, the reason why America is at the core of it is this is one of the most important industries in America, and they have the most amount of power and they are exercising it as strongly as they can. If I had to say this is why you should be focused on a lot about American law, [it’s] because this is having the most significant impact in setting the agenda for the world, in particular in the context of intellectual property rights. If America is convincing the world that this is just the truth we are talking and you should just follow the truth, understanding how to take that apart is not just important… for Americans, but especially for people around the world. What struck me as depressing is how quickly and willingly other countries have been to follow the American lead about the vision of control that is being imposed on the Internet. India is a perfect example of that which has a tradition of intellectual property rights that could be a nice balance to the American tradition. Europe, too, in the copyright context [could] do something more interesting [than] what [it] turned out they did. They did do something interesting in the context of patents when they resisted for a bit the software patents in the name of a different tradition, so it would be great if there were greater diversity out there and obviously the terms have been served in a very American way.
TechTV: What do you think about the fact that we are losing privacy?
Nesson: My personal response is I’m devastated. I’m really scared to see how fast the privacy that I have grown up with is evaporating, and I think the challenge is to articulate the arguments for privacy in powerful enough ways so they can actually be put into some meaningful forms of protection. I’m pessimistic frankly. I feel the powers that we are up against, the combined forces of market on one hand and government forces on the other, are hugely effective, and on the other hand the forces of individual folk who feel this impending swamping of their individuality in the outflow in the information about them is not easily organized and not easily articulated.
TechTV: Is that part of the reason you teach? Is that part of the reason you participate in these [conferences]?
Nesson: My interest in the Internet goes back to the initial perception that one of the most fundamental boundaries in this environment is between open and closed, between that which is public and that which is propriety domain. And I have been just enormously impressed by just the enormous growth of the propriety domain. It has just fueled this huge immense development, and I have been equally impressed by the lack of development of the public domain… the whole .edu domain for example seems to me to be still awaiting a period of growth. I have never understood why educational institutions subject themselves to the status of being customers for propriety software for example when they would be capable of developing their own. As the Internet unfolds, the narrative story of the competition between the forces of openness and the forces of closure continues to be to me the central theme, and at the moment I would say forces of closure, 10, and forces of openness, one.
TechTV: When it comes to compelling state interests in protecting children and protecting copyrights, do you think the courts’ approach to protecting both interests have been appropriate?
Lessig: No, I don’t think the courts’ approach has been appropriate. I think the first point is if you wanted to be consistent you should say we could go quickly in both cases or slowly in both cases, but it is perverse that you would go slow protecting children and quickly in the context of protecting Hollywood. That would be backward. It is that the forces on the propriety side are actually succeeding much more in connecting with a very deep and many ways good American attitude about the value of something which most people think of as property. So, that connects with these very strong forces of propriety control to push courts and legislatures to support this quickly, believing if they don’t it is the end of all things great and American. And I think the challenge for lawyers first and social critics second is to get people to think much more openly about this thing that we call intellectual property and understand how its strong protection can actually reduce the creative opportunities that it was intended to produce. We should go very slowly and just see how it develops. And if there is a need for more protection, step in then, but if anything I think five years from now, or 10 years from now, people will recognize that we have too much protection and not too little protection, and that is a product of just not applying the lesson I thought we’d learned about going slowly in the context of reacting to this change of the Internet.