As part of our first-ever OpenNet Initiative conference in May, we are participating in a debate at the Oxford Union. The resolution is: “This House believes that the Internet is the greatest force for Democratisation in the World.”
In preparation for the final class of the semester in Internet, Law and Politics 2007 at Harvard Law School, I am posting a draft of the core themes of the course to the class wiki. Comments, as always, most welcome.
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Internet Law and Politics, 2007: Themes of the Course
- The puzzle of this course is to figure out how information and communications technologies — including but not limited to Internet per se — are changing the way that democracies work, the way campaigns are run, and the manner in which citizens communicate with one another and interact with their states. What are the most important of the changes that the use of these technologies is bringing about? Do we consider these changes to be desirable or undesirable? If you accept the premise that the use of these technologies does matter in this context, what could be done to ensure that we maximize the desirable and mitigate the undesirable? Are the changes most fundamental from the viewpoint of participatory democracy; economic democracy; semiotic democracy; or some other viewpoint altogether?
- We should acknowledge at the outset that we’re inquiring into issues that are still playing themselves out; the terrain is unsettled. The scholarly field studying these topics is still emerging. Empirical evidence is awfully hard to come by. The fault lines in the relevant debates are becoming clear, but there’s no consensus as to likely outcome or impact. Our frame of reference should be skeptical, if hopeful.
- As with any neutral technology, Internet and other digital communications tools fundamentally can be used for good or for ill. It’s not about the technologies themselves; it’s about how people choose to use the technologies. A lot turns on who is making the decisions about how they can be used. Does the citizen decide, or does the state or the technology company or the market or her peers decide for her?
- As we study and participate in this breaking story, we need to keep asking: can people really use Internet in a way that affects democracies in a *meaningful* way, or is it just cool and edgy and marginal? We saw this debate in each segment of the course: in the participatory democracy context, if Howard Dean’s campaign is the paradigmatic “success” of online campaigning, but he didn’t make it past the first few primaries, how meaningful can it really be (isn’t it all about raising money, whether or not online, to run persuasive 30 second TV spots, really)? Does e-government really change anything, other than how efficiently you can get your driver’s license renewed? If every city provided lower-cost wifi, would we really be any better off in terms of civic engagement or bridging the digital divide or other social aims? Are enough people making mash-ups that it represents a shift in control over our cultures (and is it just elites in wealthy countries who have wifi and lovely Macs with too much time on their hands talking to one another)? Is von Hippel wrong that user-centric innovation is a big deal and here to stay, or does that only work when the example is kite-surfing or other fringe (also elite) activities?
- Sometimes the changes wrought by citizens’ use of these new technologies is troubling. For instance, Cass Sunstein’s Daily Me argument represents a worry worth monitoring. clay Shirky’s power law argument draws our attention to the extent to which we are recreating traditional power relationships from the offline world in the new ordering of the online world. Some scholars argue that this framing of the debate is totally missing the point (Dean, Lovink, Anderson, Rossiter, et al.).
- The fundamental, and most promising, change is about how people can use these tools to change the relationship between individuals and institutions.
- An individual can have more autonomy via Internet and related digital tools than ever before. This change has the power to change politics. It has already changed business in a democratizing fashion (see e.g., eBay; the open source movement; and perhaps more fundamentally, von Hippel & Benkler).
- Often the way this change is manifested is via quickly and easily formed groups. Lightweight collaboration is a critical part of what’s different here. We can become members of many different groups quickly and easily and can leverage our collective power more easily than before, with vastly lower transaction costs involved. (Facebook groups are a good example of this dynamic — almost instantly, groups can express and harness broad opinion; but shouldn’t we meanwhile worry about the “Herdict,” as Jonathan Zittrain does in his forthcoming book, “The Future of the Internet — and How to Stop It”? Are the crowds really so very wise? Can you get recourse if harmed by the crowd?)
- The ability for individual citizens and activists to tell the narrative of political events directly — whether using blogs, wikis, or SMS text messages blasted to zillions of cell phones — is a big part of the change. Intermediaries, whether the state or big corporations, still have a role and can still dominate the discourse if they try hard enough, but individuals, and groups of individuals that form around ideas or campaigns, are fast gaining influence and power. This change might map to a new kind of “semiotic democracy,” or might be seen in more classic terms as part of the participatory democracy story.
- States that do not wish for the individual to have more autonomy, or more power relative to the institution of the state, have ways to push back. Censorship and surveillance, including using private intermediaries, are the surest signs of this push-back. (See the work of the ONI, RSF, HRW, and others for elaboration.) Often, the state needs to rely upon private parties to carry out this push-back. Those private parties might well be based in another part of the world, bringing up complicated questions of international law and politics.
- Private parties sometimes do not like these changes either. Intellectual property, defamation law, computer security provisions are invoked to protect the power of private institutions.
- It may not be the case that we want the power to shift wholly away from institutions to individuals. We may seek a balance between autonomy of the individual and the power of institutions. The state and private corporations, for instance, serve important functions in modern society. Most of us would not choose to bring them down. But in the shifting sands of power that are taking place on the Internet, we should be aware that our decisions involve resetting this power balance.
- How much difference can the law make in the outcome of this narrative? If you adopt Lessig’s view of what counts as “law,” the answer is quite a bit. If you limit the frame to “East Coast Code,” (i.e., what legislators pass or regulators enforce), the answer is sometimes a lot and sometimes not much. In certain contexts, the law doesn’t have all that much impact; in others, the law is quite important.
- How and when is this all going down? This story is playing out right now, all around us, on a global basis. There will be no single constitutional moment for cyberspace. These are decisions being made constantly, all the time, by very many actors — including each of us. In the readings by Goldsmith and Wu, as well as the final chapter of Benkler, these institutional battles are described differently, but with the same core premise: there’s a quiet battle going on right now, between institutional players as well as individuals, for who will control the Internet and how it is used now and in future.
- There are many ways to get it wrong: too much autonomy for too many individuals or loosely formed groups could result in tyranny of a majority or chaos; too much power retained in the hands of institutions could thwart the innovation and other positive changes afoot online. If we can figure out how to get it right, the net effect could be a very good thing for democracies.
- So, where do you come down? For me, in a grand sense, the potential benefits in terms of strengthening democracies outweigh the potential harms. The clearest example of this promise, to me, is Global Voices. People can use the Internet to empower themselves and others, and to empower loosely organized groups, to have greater voice — and, in turn, relative impact — in political and cultural contexts than ever before. In the cyberlaw literature, the arguments for why this matters are set out most explicitly in Benkler, Wealth of Networks; Lessig, Free Culture; and in the work of Jack Balkin and Terry Fisher (broadly, the literature of semiotic democracy and the Net).
Prof. Eric von Hippel has written one of my favorite books: Democratizing Innovation. Prof. von Hippel teaches at MIT’s Sloan School of Management and runs the Innovation Lab there. Our class of Harvard Law School students focused on Internet, Law and Politics have created a wiki page of questions for Prof. von Hippel in advance of his visit here.
We at Harvard have amazing neighbors at MIT, with whom we do not do enough collaboratively. I’m hugely grateful to Prof. von Hippel for coming through the rain to guest-lecture at HLS and help bridge the unnatural gap between 02138 and 02139.
The challenge for this class today is to find the connect points between von Hippel’s findings from the business world and Benkler’s findings in The Wealth of Networks and to draw conclusions from this intersection about the core themes of our course.
Prof. Wendy Seltzer, one of the original Berkman team and still a fellow, is our honored guest at lunch today. She’s telling the story of her back-and-forth with the NFL over the 30-second clip she posted to YouTube, as chronicled in the Wall Street Journal’s law blog, her own blog, and elsewhere. Wendy’s claim is that the clip is fair use. She has a strong case on the four-factor test. She’s being asked here about whether the NFL is materially misrepresenting their position in this matter. Wendy points to the second take-down notice, at which point a human being had to have reviewed the clip. She notes also the Diebold case, in which the judge concluded that no reasonable copyright holder could have believed that fair use did not attach in that instance — and that this case certainly meets or comes very close to this standard. (The video of Wendy’s lunch talk will be posted on MediaBerkman if you missed it live or on the webcast.)
Cary Sherman, president of the Recording Industry Association of America, participated in a web chat about the RIAA’s new Anti-Piracy Campaign on US university campuses — sending pre-litigation notices to digital natives accused of illegal activity on peer-to-peer networks, which the universities are asked to pass along to the students. The Berkman Center’s Lewis Hyde tossed in a question. Here’s Lewis’s question:
“The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?
“Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.
“If colleges ‘pass along messages’ that direct students to ‘pay lump sums to record companies,’ colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.
“For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?”
Go here for Mr. Sherman’s response.
The Apache Foundation is accusing Sun of holding out on a license related to a Java test kit. In an open letter, Geir Magnusson Jr of the Apache Foundation says to Jonathan Schwartz, the Sun CEO:
“Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE. This test kit, called the ‘Java Compatibility Kit’ or ‘JCK’, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun’s specification license. The JCK license Sun is offering imposes IP rights restrictions through limits on the ‘field of use’ available to users of our software.
“These restrictions are totally unacceptable to us. As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) - the governing rules of the JCP - to which Sun is contractually bound to comply as a signatory.”
Interoperability in the software context — especially the free/libre/open source software context — so often turns on field of use and similar provisions in the relevant intellectual property licenses. Sun has been a huge supporter of the open source movement in many ways, so Mr. Schwartz certainly knows this. One wonders whether this decision, presuming Apache’s claims are true, to deny such a compatible license was a high-level policy decision or one that just hasn’t been run past the right person at Sun. We’ll find out, I suppose.
This year, the Berkman faculty and fellows will publish four books on topics related to our field. Join us for the celebration of the first of the four to come out, John Clippinger’s “A Crowd of One: The Future of Individual Identity,” published by PublicAffairs Books. The celebration will take place on Thursday, April 19, 2007,at 5:30 PM at Harvard Law School in Pound Hall 200 with John speaking about the book, and will continue with a cocktail reception at the Berkman Center at 6:30 PM, located at 23 Everett St., also located on the law school campus. Please send an e-mail to rsvp AT cyber.law.harvard.edu to let us know if you plan to attend.
Here’s the promo blurb: “John Clippinger, one of today’s preeminent experts on how technology influences business and society, offers a fresh and provocative perspective, grounded in everyday and historical examples, that presents a vision for a new scientific understanding of human nature and identity. In A CROWD OF ONE, Clippinger takes us through the historical origins of identity and the way it is influencing—and being influenced by—today’s world. He examines origin narratives from around the world and the religious underpinnings of many people’s identities, and explores the competing theories of human nature developed by Hobbes, Adam Smith, and some of the other leading philosophical minds throughout history. His conclusions will have profound implications for everything from social networking and virtual worlds, to leadership strategies in business and technology, to the structure of today’s military operations around the world.”
Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)
