Toby’s blog

Having just celebrated its tenth anniversary in April, the Berkman Center for Internet and Society kicked off its eleventh year by bringing together academics across disciplines, activists, and educators to discuss the potential of digital tools for civic engagement among young people. In a recent event held by the Digital Natives Forum, Professor John Palfrey prompted the panel with the question of how digital media tools can enable youths to motivate one another to create meaningful change.

Dr. Sunshine Hillygus, Director of the Harvard Program on Survey Research, framed civic engagement among youths in terms of capacity to get involved, motivation, and recruitment. “The most effective recruitment to vote comes from people we know, and new opportunities have been created to get people involved in the process,” she said. However, the expansion of instantaneous modes of communication has complicated the engagement process by making it difficult for parties to foment unified support among young voters.

Yet for Nasser Weddady, the Director of Outreach at Hands Across the Mideast Support Alliance (HAMSA), it’s not motivation that’s lacking but the freedom to overcome repressive systems that don’t allow for civic engagement. “Our problem at HAMSA is identifying vocal leaders to push reforms online and then of course, how do we transfer online energy into the real world?”

Likewise, Keli Goff, a political analyst on youth and minority voters, believes the internet has succeeded in youth unification. Author of Party Crashing: How the Hip-Hop Generation Declared Political Independence, Goff pointed to the nationwide outcry for the Case of the Jena 6 last year. “Before we get too pessimistic about the power of internet activism, the Case if the Jena 6 put the young black blogosphere on the map.” For Goff, the potential of the Obama campaign is the untold story of the pockets of voters banding together in a peer-to-peer movement.

One of the ways to enlist these “pockets,” suggested recent Yale-grad Paul Selker, is to empower first time voters to do meaningful service. The Director of Outreach and Communications at Obama Works, Selker has been working to “proudsource agency” among students looking to get involved and leave their mark on the cyberworld. “We want to folks to organize and what we give them in return is the prestige of having their own webpage on our site for their local chapters.”

Be sure to check out the Berkman Center’s Tuesday Lunch Series!

For anyone who works regularly with students, the fault lines of social change are distinct and become slowly visible over a period of just a few years. Having been out of college now for a decade, the ways in which students engage their professors, their parents, and with each other on political issues has become almost entirely digitized. To speak to these issues, the Berkman Center for Internet and Society recently invited social entrepreneur Allison Fine to discuss Millennials, a group she defined as people aged 15-29 who practice a nascent model of civic participation that combines immersion in social causes, idealism, and digital fluency.

“We’ve reached an age where the definition of citizen is being changing… to social citizen,” Fine said. As the number of Millennials surpasses that of Baby-Boomers, the public policy are not yet clear. In a recent study that researched Millennial relationships across a vast cyber network that included Facebook, Fine determined that Millennials have converted the tools of democracy into digitized form. “Young folks are drawn to corporations as consumers, they look for social responsibility among companies, and they are extremely drawn to causes,” she reported. “Interestingly and overwhelmingly, Millennials are not drawn to government or public policy, though the current presidential campaign has instigated an enormous amount of interest.”

Fine then posed several questions on the direction of social change. After noting the hesitation of young citizens to engage in the public policy “offline”, Fine suggested that there was a need to transport the impetus for social change from a solely online phenomenon. “It’s just fundamentally different from last century… Will Millennials engage in public policy and government beyond electoral campaigns? Can we break the ‘bubble culture’ of online social networks and create dialogue across networks?”

In response, several roundtable members questioned whether the growing lack of interest in government wasn’t arising out of a generation raised in an era in which Washington has been ignored as a means to achieve anything. “They see how little of their parents’ activism paid off in the 60s, and they’re committed to doing otherwise,” one student posited. Others feel that public schools are shying away from promoting government and policy advocacy to keep issues from “blowing up in their faces.” “It’s just easier to promote Habitat for Humanity… civic education has been replaced by volunteerism.”

It’s always interesting to catch up with HLS grads who have been out in the “real world” for a few years. They often provide great insight into their fields and offer sound retrospective advice. We recently caught up with Steven Callahan ‘04, an associate at McKool Smith in Dallas. Steven specializes in IP and commercial litigation.

Tell me a little bit about your career path since leaving HLS.

After I graduated from HLS, I was an associate at WilmerHale in Boston for about a year. I worked on securities and products liability cases, and a pro bono case involving police brutality. On the pro bono case, I took depositions and appeared in court, which was great experience. My wife and I then decided to move to Dallas, Texas. I ended up at my current firm, McKool Smith, a litigation boutique based out of Dallas, Texas.

A degree from HLS is a tremendous asset when interviewing for a lateral position at law firms. I currently practice intellectual property and complex commercial litigation. Over the last year, I’ve been involved in two patent trials, both in the Eastern District of Texas. In the first case, we obtained a $156 million jury verdict for our client against AT&T. The case settled on appeal. In the second case, the jury awarded our client $21 million against Nintendo. The verdict is now on appeal to the Court of Appeals for the Federal Circuit. At the moment, I’m working on a patent infringement case involving fiber optic technology and a case involving allegations of misappropriation and patent infringement relating to semiconductor chips.

What classes or activities exist at HLS for those students interested in IP law?

I took an intellectual property law class taught by Professor Weinrab that explored copyright, patent, and trade secret law. The class was great, and piqued my interest in intellectual property law. There are many other intellectual property avenues at HLS to explore, such as the course Trademark and Copyright Litigation, the Journal of Law & Technology, and taking advantage of the immense resources that the Berkman Center for Internet and Society has to offer.

Having been out in the world of IP law now for a few years, what would you tell someone interested in following a similar path?

I’d recommend taking intellectual property law courses, joining an intellectual property law journal, and possibly publishing an article on an IP subject. I’d also recommend exploring a clerkship on the Court of Appeals for the Federal Circuit or in a district court known for its intellectual property expertise (such as the Northern District of California, Eastern District of Virginia, or Eastern District of Texas), as such clerks are in high demand. On the whole, however, the skills acquired just in the process of obtaining a HLS degree will serve students well for any career path they take.

Do you find yourself emptying your wallet every semester for costly course packets? Did you ever angrily speculate that, as part of the public domain, you should be allowed free access to your materials? Scholar and writer Lewis Hyde, a fellow at Harvard’s Berkman Center for Internet and Society, gave a talk recently to discuss the reclamation of fair use rights and to brainstorm on what educators should do to lobby on behalf of their fair use rights.

According to Hyde, fair use regulations came into being centuries ago to benefit the public good. “This concern began to shift to a focus on the commercial good with Justice Joseph Story following the case of Folsom v. March in 1841,” said Hyde. “The question of free speech versus the ownership of ideas began to be scrutinized….fair use as a concept comes from the spreading range of copyright control.” However, the fair use defense of copyright infringement was not formally codified until 130 years later under section 107 of the 1976 Act. When considering fair use of an original work, the user should take into account (1) the purpose and character of use; (2) the nature of copyrighted work; (3) the amount and substantiality of portion used in relation to the copyrighted work as a whole; (4) and the effect of use upon the market or potential market for the original work.

“The problem here of course is the vagueness of these guidelines,” said Hyde. “There’s no distinction between derivative works such as translations and transformative works, which mark a departure from the original work.” Hyde explained the that, for scholars and teachers, infringement has little meaning. “The doctrine is too general, and where it is specific, it’s too specific for application.”

The real question then is how to adopt educator-developed practices of fair use. After weighing the abolition of fair use and the implementation of further guidelines, Hyde proposed developing a system of best practices by convening communities of scholars to discuss normative use. “There needs to be a research phase to identify the problems and limits of fair use…culminating in a publication that articulates the case of the community in question.” Hyde insisted that this system would allow educators, musicians, and authors, among many others, to return to their professional norms in determining right and wrong fair use behavior. “The publication must then be taken to adjudicators to ensure that it is in line with current legal practices… and then the community conducts outreach.”

“Educational fair rights use has been eroded,” concluded Hyde. “Now is the time to return to the mission of higher learning and the dissemination of knowledge.”

If computers took over the world, what would happen to Medicaid? I recently sat in on a presentation given by visiting professor Danielle Citron who argued that the computer systems used by governmental agencies that are increasingly automating their due process decisions. This mechanism is ill-suited to protect individuals from arbitrary agency action.

“I am currently developing a new model of procedural regularity and policy-making that can operate when pivotal government decisions are made by automated systems and the programmers who design them,” said Citron. “Computer systems are designed to make decisions about individual rights including the termination of Medicaid benefits and excluding certain passengers from flying on commercial airliners.”

The decisions these systems make, therefore, have potentially devastating implications. Take, for instance, CBMS, Colorado’s public benefits agency, whose IT employees and an outside vendor crafted a rulemaking algorithm that translated food stamp eligibility policies into code. “The automated program required eligibility workers to ask individuals seeking food stamps and other cash benefits whether they were ‘beggars,’ even though neither federal nor state law required an answer to that question,” explained Citron.

Among the reasons Citron cited for automation problems were the distortion of policy language into code and the computer’s inability to understand the complexities of the human language. “My piece aims to shape a response to these problems,” she explained. “For one thing, agencies should begin insisting on audit trails… we must also tackle the automation bias.” Citing the CMBS case, Citron explained that a programmer’s political views or bias may have influenced the wording of questions that discriminated against certain groups. “It is possible that a programmer could have encoded consequences to certain answers to that question that would reflect the programmer’s political views.”

Other ways Citron recommended combating automation bias are instituting norms of transparency among programmers and policymakers and conducting thorough tests on the systems for legal compliance. “There’s a gap in legal programming, and lawyers really ought to lend an eye to this problem,” commented one attendee.

Sounds like this might be an interesting consideration for cyber-savvy law students!

Over Winter Term, 2Ls and 3Ls have the option to take one of a variety of interesting classes such as Cyberlaw: Points of Control, taught by intellectual property whiz Jonathan Zittrain. I had the chance a few weeks ago to sit in on Professor Zittrain’s class for an afternoon of student discourse on the defense of Wikis and the blunders of sockpuppetry.

With course themes ranging from new modes of control over intellectual property to the expression of conflicting interests of commercial and individual internet broadcasters, Zittrain encourages his students to think critically about why IP law has developed the way it has, and how changes in technology have pushed the law to change.

The topic of the day I visited included an engaging and humorous discussion of a Wikipedia assignment requiring students to individually update any Wikipedia page. Then, groups of 5-6 students were asked to help resolve one of the many ongoing disputes on the site through Wikipedia’s semi-formal dispute resolution procedure. The mixed reactions to the group who chose the contentious subject of “waterboarding,” for instance, threw the world of Wikipedian editors into a dither as they scrambled to react to Zittrain’s innovative teaching methods that include requiring students to take risks and, as they did in the Wikipedia assignment, potentially step over the line of cyberlaw norms. Yet, as one message boarder quipped, “Wait… a group of Harvard Law students want to edit Wikipedia and this is a bad thing?”

The bold energy and expertise with which Zittrain approaches this course is palpable in the reaction of his students. “This class ties copyright, defamation, privacy, and other legal concepts to the real world in a way that no other class that I have experienced here does,” said 2L Arjun Mehra. “It also helps that [Zittrain], a co-founder of the Berkman Center, is on the cutting edge of this dynamic legal field.” Nika Engberg, also a 2L and a line editor for JOLT, agreed and said that she feels this course is great preparation for further IP class work. “For example, the issue of whether and how to grant IP rights to software developers comes up in both copyright and patent contexts (as well as trade secret contexts), and I believe that this class is giving me a stronger background in these kinds of issues.”

On the heels on my class visit, Admissions staffer Julia Foresman sat down with Elizabeth Stark, a recent graduate, Berkman Center fellow, and Cyberlaw teaching assistant to further discuss the course and new laws governing the Cyberlaw community.

Elizabeth Stark: (13:40)

What do you get when you cross a Pulitzer-Prize winner with a Fox News antagonist of Bill O’Reilly and a punchy staff writer for the New Yorker? Just another typical night of discussion at HLS, apparently. Moderated by Noah Feldman and sponsored by the HLS Law and the Arts Initiative, the evening elicited banter and frank colloquy on marrying the media with the law among three highly regarded journalists who also happen to be HLS alumni: James B. Stewart’76, Pulitzer Prize Winner, 3-time Loeb Award Winner, and NYT Bestselling Author of Den of Thieves and Disney War; Jeffrey Toobin’86, New Yorker Staff Writer, CNN Legal Correspondent, and NYT Bestselling Author of The Run of His Life: The People v. O.J. Simpson and The Nine: Inside the Secret World of the Supreme Court; and Lis Wiehl ’87, Legal Analyst, Fox News and Co-Host, The Radio Factor, Author of The 51% Minority: How Women Still Are Not Equal and What You Can Do About It, and Winning Every Time: How to Use the Skills of a Lawyer in the Trials of Your Life.

Before they were bestselling journalists and media pundits, however, Stewart, Toobin and Wiehl all did time at big firms. “I never intended to stay at Cravath longer than three years,” said Stewart, “and then literally one day someone who knew I wanted to make the switch to writing approached me about getting in on the ground floor of what became American Lawyer magazine.” Wiehl’s story was a bit more happenstance, but she advocated being focused and proactive. “I had taken a class on the 1^st Amendment from [New York Times columnist] Anthony Lewis… after working at a firm in Seattle for a bit, I contacted him about putting me in touch with Jonathan Landman at the New York Times… I worked on the law page at the Times for three years.”

While all three panelists had worked on their college papers or done amateur radio, none foresaw the media opportunities that became available after HLS when, in the early 1990s, the networks discovered the need for legal analysts to interpret the legalese of nationally headlining cases. When asked by Feldman about reporting on the ‘crimes of the century’ and how they explain the legal implications of the stories they cover, the panelists admitted that it is a struggle. “Crime is an incubator of stories,” said Stewart,” that sweeps in elements of public discourse that include race, gender, celebrity, you name it.” Toobin agreed. “The O.J. Simpson case was a perfect combo of high and low in terms of the legal value attached to issues of race and sex… but it was also interesting and entertaining. The challenge is to invest the sleazy coverage with a level of intelligence,” he said, alluding to the Duke rape case. Stewart’s view on the mass media onslaught was less optimistic. “I tend to stay away from larger cases… the phalanx of cameras and the circus of the mass media freaks me out,” he said.

Scott Neuman wrote to me about his experience with music and a different take on intellectual property south of the equator:

“A software engineer prior to law school, I have always been intensely interested in software development and adoption. In my first year at law school, I had the pleasure of taking a cyberlaw class with Jonathan Zittrain. To this day, I remain fascinated by the reading he assigned on South America’s transition to open-source software (for example: http://www.theregister.co.uk/2005/02/10/…). In researching further, it proved clear that the Center for Technology & Society is spearheading this movement (CTV is an affiliate of Brazil’s FGV law school in Rio de Janeiro, quite analogous to the Berkman Center at HLS).

“And my timing couldn’t have been better. The same week I arrived in Rio, my cubicle-mate (Ronaldo Lemos) was elected the new head of Creative Commons  creativecommons.org). I couldn’t believe I had the first opportunity to interview the new head of an organization I had so often discussed in law school classes. And to my delight, we share a real interest in using technology to facilitate free culture & fight media centralization. No doubt Brazil is predisposed to embracing free culture. Simple economics drive much of the switch to open source software. And in music, artists like Gilberto Gil (now the head of the ministry of culture) have pushed tropicalismo since the 1960s. This cannibalistic style of music relies heavily on sampling prior recordings. Heck, even Bossa Nova reflects a fusion of Jazz & Samba.

“But I really got interested in CTV’s research on Technobrega, a type of music prevalent in the relatively poor Northern regions of Brazil. Interestingly, no more than 10% of these artists have ever been contacted by major recording labels. And these artists actually encourage street vendors to sell pirated copies of their CDs & DVDs, equating it to advertising (much like radio play). The artists make money selling concert tickets and selling authentic CDs & DVDs at these concerts. To my astonishment, these artists make more money, and generate far more new music on average than their peers in the southern regions. And these artists voice no interest in signing with the major labels. And why should they? They’ve developed a complex & profitable industry where IP constraints are a non-factor.

“For a fan of media decentralization, this research proved fascinating. And while in Brazil, I was also introduced to the Nollywood revolution. It turns out that Nigeria is churning out tons of new movies, and within 15 years, likely will have more movies under its belt than Hollywood. And this same community recently launched a new television station, Africa Magic, which became the most watched channel in Africa within months. I’m already looking to travel there after graduation and continue my research. I can’t wait!”

Just got this e-mail from the Berkman Center — pretty interesting stuff! They are always on the cutting edge of law & technology:
Beyond Broadcast 2007: From Participatory Culture to Participatory Democracy

February 24th, 2007
Kirsch Auditorium, Stata Center
Massachusetts Institute of Technology
Cambridge, MA

For 50 years broadcast media have played a powerful role in shaping political culture and mediating citizen engagement in the democratic process. Now a participatory culture is putting the tools of media creation and critique in the hands of citizens themselves. We invite you to explore the means and meaning of this transformation.

Beyond Broadcast 2007 builds on the overwhelming success of last year’s sold-out event, “Beyond Broadcast 2006: Reinventing Public Media in a Participatory Culture.” The conference is hosted by the MIT Comparative Media Studies program, in collaboration with the Berkman Center for Internet & Society at Harvard Law School and the Information Society Project at Yale Law School. The one-day event will bring together industry experts, academic leaders, public media professionals, and political activists for panel discussions and focused working groups. Henry Jenkins, Director of the Comparative Media Studies program at MIT and author of “Convergence Culture: Where Old and New Media Collide,” will give the Keynote Address, followed by panel discussions with media makers and policy commentators.

In the second-half of the day, the conference turns its focus to working groups that attendees will help organize. Participants will target specific issues or questions and join efforts with the diverse crowd of others. Many attendees last year expressed their appreciation for this hybrid conference approach in which they had a chance to “do something before heading home.” There will also be an evening reception, called “Demos and Drinks,” showcasing groups that are doing exciting work related to conference themes. After the demos, attendees can keep discussion flowing in informal birds-of-a-feather dinners around Cambridge.

Registration is only $50, and includes lunch and the evening reception. There is also a special 50% discount for students. We suggest that you register early to avoid losing a spot if Beyond Broadcast sells out again this year.

Info & registration: http://www.beyondbroadcast.net
Questions: info@beyondbroadcast.net

———————————————————————————————
Save the Date:

Internet & Society 2007: How Open Should Universities Be to Internet & Society?

May 31 - June 1, 2007
Harvard Law School campus
Stay tuned for more information!

“We’re always seeking scholarship with impact,” says John Palfrey, the executive director of the Berkman Center for Internet & Society.

“So, when we study the extent to which the Chinese state is blocking Internet access to dissidents, we hope that something will get done in that regard. That there will be more light shed on the practice. Maybe one state that might have planned to do it won’t do it, because of some of the attention we bring. Maybe there’s a law that gets passed. Maybe there’s some international human rights activity that stems from it. So we’re focusing on research where people’s lives actually change as a result, in the public interest area that we’ve identified, which is obviously Internet and intellectual property.”

‘Impact’ perfectly describes the work of the Berkman Center. In fact, the impact extends well beyond the Law School, playing a significant role in global discourse about new media, the Internet and society. Whether providing an active voice against the suppression of free speech, supporting projects like the award-winning Global Voices or Chilling Effects, or engaging students (roughly 100 at a time, who work enthusiastically on everything from intellectual property research to grassroots blogging and podcasting to coding for computer projects), the Berkman Center generates one jaw-dropping project after another and somehow makes it all work.

Four faculty members, including Palfrey, provide famously rich and compelling courses every semester, and the Center hosts a multitude of conferences on every aspect of the Internet imaginable. The Berkman Center makes Harvard Law School truly unique.

What could possibly be next?

Says Palfrey: “Lots of bigger and better things. The Berkman Center is an ambitious place.”