Week 4: First Amendment: Prohibiting Speech – Limitations on Student Speech and Filtering

With young people composing a large part of the population in the digital world, concerns about student speech and arguments in favor of Internet filtering come up frequently. This class will explore both the increasing government regulation of what young people are allowed to say and the information they are allowed to receive. In assessing various cases, this class will touch on the “overbreadth” doctrine, central to First Amendment law, which requires government restrictions on speech to be narrowly tailored so as not to unnecessarily trample on free speech.

Required readings:

1. Student Speech:

• Tinker v. Des Moines Independent Community School District, 399 U.S. 503 (1969) – case summary only, available at http://www.abanet.org/publiced/lawday/tinker/case.html.
• Morse v. Frederick, 551 U.S. 393 (2007), available at http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf .
• Doninger v. Niehoff, No. 07-3885-cv (2d Cir. 2008), available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2008-05-29-Doninger%20Second%20Circuit%20Opinion.pdf.

2. Filtering:

• Reno v. ACLU (Reno I), 521 U.S. 844 (1997) (The CDA Case), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=96-511.
• United States v. ALA, 539 U.S. 194 (2003), available at http://www.yale.edu/lawweb/jbalkin/telecom/us_v_ala.pdf.
• Declan McCullagh, N.Y. Attorney General Forces ISPs to Curb Usenet, CNet News, June 10, 2008, http://news.cnet.com/8301-13578_3-9964895-38.html.

Copyright

The court case Eldred v. Ashcroft, 537 U.S. 186 (2006) illustrates how powers, once granted to the U.S. Government (in this case Congress with respect to the duration of copyrights), are almost impossible to take away. The more government is allowed to intervene in the lives of citizens, the harder it is to not only reverse those interventions but also to stop future ones. There seems to be a point of no return.


In Eldred v. Ashcroft the majority opinion justifies the constitutionality of retroactive extensions by arguing that “(1) the first Copyright Act enacted shortly after the Constitution was ratified applied to the works that had already been produced; (2) later Congresses have repeatedly authorized extensions of copyrights and patents; (3) such extensions promote the useful arts by giving copyright holders an incentive to preserve and restore certain valuable motion pictures; (4) as a matter of equity, whenever Congress provides a longer terms as an incentive to the creation of new works by authors, it should provide an equivalent reward to the owners of all unexpired copyrights.” None of these arguments are convincing. Reasons (1) and (2) are invalid as they imply that because something was done a certain way in the past, it should be done that way in the present. Reasons (3) and (4) are easily dismissed in Justice Steven’s dissent. The Court should have checked the power of Congress to retroactively implement an extension – they should have done so not so much as a practical consideration but as one of principle.


Another interesting thing to think about is what an ideal copyright system would look like. If there had been no change implemented in 1976, what would the system look like today? Would we be satisfied with it?

Progress of Science, Aggregation, and Other Thoughts

I think that great ideas have historically built upon the great ideas of previous generations. Accordingly, I have to agree with Lessig that treating creative property like Valenti wants us to would be dangerous because “the old guard” would be protected from natural innovation, thus causing progress to stagnate. I think it’s interesting at this point to consider Eldred v. Ashcroft and the specific clause that deals with promoting “the Progress of Science.” As Justice Stevens suggests in his dissent, the whole idea of protecting creativity through copyright law is valid and admirable because people won’t innovate if their creations can be stolen upon publication, but an extension of the “limited time” clause (and an overall expansion of copyright law) is what is worrisome because the return of intellectual property to the public domain is also vital in ensuring generational progress of science.

One of the other readings this week (Litman, I think) discussed drawing a distinction between those who use music for personal use (your typical teenager downloading a few popular songs) and those whose use of the music affects the market, like Napster—a file sharing system that does little to promote creativity. I like this idea, but I'm unsure where the line could be drawn and how. On a related note, now more than ever, it seems that the Internet has facilitated a marketplace in which it is much easier to profit through aggregating material instead of creating it. We can also see this development through the rise of Google and the fall of newspapers. How does copyright law address this trend towards aggregation and away from creation of content, (if it does at all)?


More Questions for Discussion: When is more creativity encouraged: when we protect the interests of inventors, which in turn, promote people to create? Or is it when copyright laws are not extended and people are able to build upon the work of one another and collaborate without fear of being in violation of copyright? Has the answer to this question changed since the advent of the Internet?

Protecting Creative Appropriation

I found the selections from Copyright’s Paradox were an especially helpful explanation of the challenges facing copyright law in the digital age. While copyright laws were initially designed to encourage creative output, the Court in recent decades has begun to protect the interests of already existing media providers, like production studios and publishing firms, over the interests of those who wish to borrow from already existing media in order to create something entirely their own. Under the DMCA, intellectual property has in effect been transformed from material that will soon be in the public domain into the perpetual property of its creator. Moreover, new technology enables these owners to protect their intellectual property much more than they were able to in the past, and this is stifling new forms of artistic production.

It seems to me that the underlying issue here is essentially one of scope. When Bronx DJ Kool Herc began mixing together different records at block parties in the seventies, his violation of copyright law was too local for the record companies to take notice, and arguably constituted fair use. Now that the internet is capable of widely distributing any forms of media, however, those companies with the economic incentive and legal ability to object to copyright violations are doing so as much as possible. Even if the violation borders on fair use, these companies are right to be wary. When a mashup artist like Girl Talk combines samples from Shania Twain with the lyrics of especially vulgar rap songs, Twain probably worries that the rehashing of her song will negatively affect her market audience’s perception of her work. And since mashups like this are available for free download to anyone with internet access, I find her concern legitimate.

At the end of class last week, we considered the feasibility of distinguishing between a local public – your family, your town, your state – and a universal public – the one you reach when you post on Twitter or update your Facebook. In terms of copyright law, it might be helpful to refine this distinction further. In the same way that it was not worth the record companies’ time to prosecute Kool Herc for mixing their songs, I believe minor infractions of copyright law should again go unprosecuted. A worthwhile amendment to the DMCA might redefine fair use in terms of the extent of one’s audience. If the audience for a derivative work remained relatively small, say 5% of the audience of the original, copyrighted piece, then the derivative work would be immune from prosecution. Once its audience grew beyond this size, the creator of the derivate work would either have to acquire rights of reproduction or risk prosecution. Such an amendment would protect the so-called “creative appropriation of mass culture” that the authors of Copyright’s Paradox believe is currently being threatened better than the DMCA as it now exists does. This is not an all-encompassing resolution of the problems of copyright in the digital age, but it is a start.

My question for this week is only somewhat relevant to all this. While reading the excerpt from Digital Copyright, I was a little confused by the mention of “actionable reproduction” on pages 91 and 92. Can someone explain what is meant by “actionable reproduction” and what this has to do with RAM and the former employee of MAI Systems? Thanks.

This Weeks Readings

One of my favorite articles from this week found in Copyright's Paradox brought to light the extreme ambiguities copyright laws have created. For instance, in the case of Tom Forsythe's "Food Chain Barbie" in which Forsythe photographed barbies being attacked by household appliances. His artwork presented a critique on social acceptance of women as objects. I found the court's reasoning behind their ruling to exempt Forsythe extremely vague stating that his artwork "created the sort of social criticism and parodic speech protected by the First Amendment and promoted by the Copyright Act". I believe the "sort of social criticism" the court used to allow Forsythe's artwork should be defined by the court. How does the artwork fall under the Fair Use guideline that the copyright owner would consent to the use of the Barbie product? How does the artwork "promote the goal of 'the creation and publication of edifying matter?" There are many interpretations for the answers to these questions. It would be beneficial if there was a stipulation within the Copyright law at least outlining the "sort of social criticism" that is allowed.

Secondly, I enjoyed how the article brought into light how copyright has infringed people's freedom to speech. As noted in the article, authors of the past cold reference to other author's work without penalty. My favorite example proposed by the article is that if Romeo and Juliet were to be covered by Copyright laws, Westside story could be sued. This leads me to question how much creativity are we currently suppressing under current Copyright laws? What literary, musical, or artistic masterpieces have been kept from being published due to copyright infringement?

Last Weeks Reading

Two articles that I found particularly interesting were "A Declaration of the Independence of Cyberspace" and "A Rape in Cyberspace".

"A Declaration of the Independence of Cyberspace" was particularly striking because it highlights the tremendous amount of freedom it appeared the public once had on the internet. Making extreme claims such as people's "identities have no bodies, so...[they] cannot be obtained by physical coercion". This implies that on the internet people can literally do anything they please without having to face consequences. Throughout the article, Barlow (the author) continues to address the reader in the same tone of "radical freedom", that is to say, complete freedom from law enforcement. However, such a claim now seems quite absurd. People are regularly arrested for sharing music on the internet, and for pedophilia. It is quite easy for businesses like Google to track what a user has been doing on the internet. What I find interesting is that this article was written in 1996, meaning that just within over a decade the internet has tremendously transformed.

In "A Rape in Cyberspace" the article brought up serious questions about Internet safety. In the article, a man in a virtual chat room is able to control other people's characters and "makes" their character perform perverse acts. In the end, it is interesting how the group comes together to regulate to ostracize the man, Mr. Bungle, and cause him to leave the chat room. Obviously, in this instance the participants of the virtual chat room were adults. Still, some of the people were seriously troubled and hurt by Mr. Bungle's actions enough to ostracize him. Some would find their reactions a bit dramatic, and while I agree, I have to question if some sort of filtering process should become a part of the internet experience to avoid people like Mr. Bungle. I do not ask this in an effort to protect the general public, but rather to protect children who can technically gain access to these types of chat rooms. Should the government take part in protecting children from virtual sexual acts? Or is it only the role of the parent to protect the child? What about parents who cannot supervise their children on the internet because they are working full time in an effort to support their family? If aid is not offered, is the current law discriminating against those families?

It was interesting to read about the development of copyright laws from its beginning in the US Constitution and the effect of different events and technologies in society that have subsequently influenced these laws. Netanel presented the best examples in which to illustrate the changes that copyright law has gone through, and as a result he was able to demonstrate that with each advancement in media technology, there was a parallel effect on copyright law, beginning with the brick-and-mortar translation of Mein Kampf to the inclusion of The Simpsons clip in the documentary to the Google Book Search Project. I felt that these examples emphasized the concerns and issues that were brought up in last week's class about whether or not these examples are analogous to one another and whether or not the general copyright law that was applied to the Mein Kampf case is mappable to the Google Book Search Project. In a sense, each of these readings showed how copyright laws intersected with the First Amendment by restricting the actions of citizens and organizations in their expression of speech.

My second point of discussion was a statement that Lessig wrote in chapter ten of Free Culture. Lessig avidly reiterated throughout the chapter that "never in our history have fewer had a legal right to control more of the development of our culture than now." I scoffed at first at Lessig's interpretation of our current world and copyright law but after reviewing Netanel's chapter especially, I have come to see some validity in Lessig's interpretation, though I am concerned that Lessig has taken it to an extreme. For without these copyright restrictions, each of the examples in Netanel's chapter would be able to exist without any objection and, especially in the Google Book Search Project's case, and further the innovation and growth of our culture. My question for this week's discussion is how would Lessig's ideal copyright world play out in our current society, if we were to follow it today? My main instinct would be to say that our copyright laws are in place now because they need to be in order to protect the work of society's creators, but I am willing to be convinced that there could be some loosening or reworking of our copyright laws.

To claim to be a proponent of free culture is also to be unnecessarily pedantic. However, despite compelling arguments on both sides, as given by Lessig, I find that my sympathies align with members of this movement. The copyright owners argue that they have a right to protect their property – this makes sense whether the owner is a private citizen or a multinational corporation. The problem with this argument is that it doesn’t seem like their ownership is limited, contrary to explicit statements in the constitution. I find it incredible that the courts failed to recognize the danger in allowing Congress to extend the length of copyright protection: “Concerning petitioners’ assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of “limited Times,” the court stated that such legislative misbehavior clearly was not before it.” I fail to see how the numerous extensions granted over the past few years could not be considered “legislative misbehavior”. Perhaps the court is overly worried about stepping on the toes of another branch, and, burdened with this concern, feels that the CTEA does not violate the First amendment. Given Congress seems eager to extend these protections – which in my opinion seems to undercut the courts argument that protection and free speech are compatible – I am quite pleased that Golan v. Gonzales laid the foundation for First Amendment jurisprudence hat can limit copyright. Of course, the questions till remains: what will the powers that be – the RIAA, Congress, and the Supreme Court – do about this ruling? My question: how should the government use analogs from a pre-digital age to inform legislation in the digital age? Should it?

Copyright Reformed

Admittedly, my reading of this week’s material was tainted by my reading of Lessig’s novel Remix over Christmas break, which actually uses some of the same tables as the Free Culture book. Perhaps due to that novel, or the fact that I am a digital child raised on Napster and Youtube, I found myself strongly agreeing with the various assertions that copyright law has overextended itself in the digital sphere. However, what I think the debate devolves to is one of copyright’s purpose: if the application of copyright law does not encourage innovation but rather restricts it, does that really serve copyright's original purpose?

As Netanel details in Copyright’s Paradox, we have come a long way from an era where copyrights were granted purely for “maps, charts, and books” and lasted for only 14 years. Indeed, from hip-hop cd’s to digital databases, in the modern era we can create and disseminate information in radically different ways – and these new ways too deserve IP protection. The problem, however, is that copyright is not just protecting old work – it’s pedantic enforcement is stifling new creation. When, as described in Copyright’s Paradox, a documentary cannot show a 4.5-second image without the threat of a corporate lawsuit, we should seriously doubt whether copyright is serving the public interest.

As described, copyright originally was never meant to prevent people from expressing themselves in their homes by singing in the shower or putting on a small play (i.e. it was meant to curb profiting from someone else’s work, not sharing privately with others). Copyright, it seems to me, has always tried to strike a balance between two different and competing cultures: a culture of sharing and collaboration, and a culture of exclusivity and profit. I wonder if you agree with this assertion. Do you think that these two competing cultures frame the debate? And, if so, do you agree that we ought to regulate each of these cultures differently? (Should we regulate differently when high school cheerleaders post a Youtube video of them dancing with a popular song playing in the background versus when an online radio station plays the same song?)

Thankfully, based on the vast new proliferation of debate and discourse on copyright and internet law, I think people are finally beginning to catch on that copyright protections have been overzealous. We simply cannot allow Mickey Mouse protectionism to indefinitely shield corporations or we will hurt the consumer; we simply cannot apply protections to stop people from creating any derivative works or we will hurt innovation. There's some hope that iTunes' new approach to DRM and the use of Creative Commons licenses are finally revolutionizing copyright for the digital age, but only time will tell whether such solutions work effectively.

Also, on a somewhat different note, Litman implies in her descriptions of the Green Paper and White Paper that policymakers are fundamentally disconnected from the interests of the public in their approach to regulating digital media. Anyone peripherally familiar with the Internet would probably concur that the law is behind technology. If policymakers can't keep up, however, what can they do in the first place?

This Friday (1/29): Lecture by Julie Cohen, “The Structural Conditions of Human Flourishing in the Information Society.”

Dear class,

I'd like to bring to your attention a lecture, which may be of interest to many of you. It will take place on Friday, January 29 at noon in the Sterling Memorial Library Lecture Hall.

Julie Cohen, Professor of Law at Georgetown University Law Center, will deliver a lecture entitled “The Structural Conditions of Human Flourishing in the Information Society.” Her talk will be based on her upcoming Yale University Press book The Networked Self: Copyright, Privacy, and the Production of Networked Space.

The lecture is co-sponsored by the Information Society Project and the Yale University Library, and is part of the library’s Copyright Lecture Series. See http://yaleisp.org/2010/01/julie-cohen-2/ for announcement.

Julie E. Cohen teaches and writes about intellectual property law and privacy law, with particular focus on copyright and on the intersection of copyright and privacy rights in the networked information society. She is a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 2d ed. 2006), and is a member of the Advisory Boards of the Electronic Privacy Information Center and Public Knowledge. From 1995 to 1999, Professor Cohen taught at the University of Pittsburgh School of Law. From 1992 to 1995, she practiced with the San Francisco firm of McCutchen, Doyle, Brown & Enersen, where she specialized in intellectual property litigation. Professor Cohen received her A.B. from Harvard University and her J.D. from the Harvard Law School, where she was a Supervising Editor of the Harvard Law Review. She is a former law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit.

While philosophically I agree with Lessig’s argument that we should be wary of the increase in scope of copyright and the somewhat disingenuous attempts to equate intellectual property rights with physical property rights, I found the explanation of the mechanism somewhat lacking. For example, on pg. 144 of Free Culture, Lessig mentions that when you read a book beyond the permitted number of times, you are hence “making a copy of book contrary” to the copyright owner’s wish. While I am not in favor of that these types of restrictions on electronic content, I fail to understand how exactly reading an e-book is making a copy of it, and this understanding meant that I found the crux of his argument on the expansion of regulated speech to be weak from a technical perspective.

I also found that the supporting opinion and the two dissenting opinions in Eldred v. Ashcroft seemed to come from two very different perspectives. The Court’s opinion seemed to focus mainly on technicalities – is a 20-year perspective “limited”? How does the First Amendment play into this? – while the dissents seemed to examine the issue more broadly, focusing on the economic application of copyright, which leads me to wonder if perhaps the plaintiffs in the case should have framed the issues at hand slightly differently, since it seems that if they had perhaps not attacked the law on such technical grounds, they might have had more success. On the other hand, the economic grounds, while to me morally better, would probably have been on shakier legal ground.

My question for the week is: if one disagrees with Eldred v. Ashcroft, and opposes the 20-year extension of copyright, then on what (legal) grounds should it have been opposed?

Increased Significance of Balkin's "Democratic Culture"

While Lessig’s discussion of the expansion of copyright law in “Free Culture” is convincing to some extent, I would be interested to see exactly why he thinks that this trend is so dangerous. (He may well lay out this reasoning elsewhere in the book, but it seemed conspicuously absent in the assigned reading.) My assumption is that he would come down on the side of Balkin’s “democratic culture” theory, that the notion of free speech applies to the expression of non-political ideas just as much as politically-significant speech. If Lessig can show that the mere creation, transformation, alteration, and manipulation of cultural elements, even those that aren’t remotely political, is fundamental to the democratic ideal of free speech, then his cautionary tale of the dangers of overly broad copyright law is all the more convincing. However, if he is unable to make this point, then his argument suffers greatly. After all, if meaningful freedom of speech remains largely unaffected by copyright expansion, it is not altogether as catastrophic as Lessig suggests if copyright law infringes on previously unaffected means of expression. While I personally side with Balkin, especially in an age when the creation and modification of popular culture is more integral to the formation of an identity than ever before, it seems that this is no small point of contention, a point the “copyright warriors” would not likely concede uncontested. After all, claims of free speech violations are superficially more compelling if they are politically significance than if they seem somewhat trivial. (Few would argue that the hip-hop example is as significant as the “Mien Kampf translation” anecdote in “Copyright’s Paradox”). This is probably due to the ever-salient American emphasis on protecting expressions of political dissent. Nevertheless, those fighting for the protection of free speech would do well to keep this bias at the front of their mind.

Question of the Week: Does Golan v. Gonzales’ reliance on the “traditional contours of copyright law” spell trouble for future attempts to combat aspects of the DMCA as unconstitutional, as Balkin suggests it may?

Derivative Works and Transformations

What struck me most in the past week’s texts on digital copyright is the way the way certain people treated and perceived creativity. Digital copyright law protects an individual’s rights to their own work and to the derivatives of their works, or as Lessig describes, anything which their original work may inspire. In using that definition, then is not every creative work we produce a ‘derivative work? Doesn’t the woman who wrote Twilight owe royalties to Bram Stoker? And Bram Stoker to other writers of his time? (duration put aside). So I take issue with what a ‘derivative work’ is because is not all of our ‘original’ creative work is a synthesis of previous creative ideas and works? That said, however, I do take issue with blatant commercial transformations of my work without permission (if I wrote a book, you should not be able to make and sell a movie about it) - so another question is, where can we draw such a line between what is acceptable transformation and what is not?

Another issue is duration: Lessig makes a compelling case in Eldred v. Ashcroft that adding extensions, even if finite, in practice undermine the spirit of the Copyright clause trying to make sure that protections are temporary, because Sonny Bono Bill Redux could easily come out and tack on another 70 years of copyright protections. The issue lies with the vagueness of the Constitution’s requirement that copyright protections be temporary - what period of time is sufficient?

After reading the various articles on issues of copyright in the digital age, the issue and how to solve it remains just as confusing and problematic in my mind. I think there are two broad issues that are problematic - how exactly to define what violates fair use, and how the law is meant to be enforced.
Knowing when copyright laws are violated is something someone can sense, even though we lack a set of rules to say how many words or lines must be copied for copyright infringement to occur. The current laws are extremely broad, which means that they probably cover every case of copyright infringement, while also deeming many legal acts illegal. It is no secret that copyright infringements occur on a daily and hourly bass in America, but the majority of the minor violations are never prosecuted. Is there a better way for us to define copyright laws, so that they are not overly broad but still protect original works sufficiently? (Just as a side note, websites generate revenue from visitors and ads, not by you buying an actual book, which is why thy are more hesitant about their content being reproduced. How can companies work to allow people to use and reproduce their content while not losing the web traffic they need for financial survival?)
While it would be nice and good practice to have a clear and precise definition of what copyright infringement is, before the digital age this did not make much of a difference, since copyright infringements could slide by. The problem with the broad definition of copyright becomes more challenging and worrisome with the widespread use of the Internet. It is easier for people to violate copyright laws online, yet it could also become easier for the government and those wanting to protect their works to enforce the stringent copyright laws which are currently enacted.
Whereas it is hard to regulate small copyright infringements that occur offline, it is much easier to do so online. Companies trying to protect certain information, or even the United States Patent Office, could set up search bots to find any small instance of copyright infringement. It would not be too difficult to enforce strict copyright laws online, and this could have a large detrimental impact on our free culture. Given this dilemma, what is the most appropriate way to enforce copyright laws online?

The Public Domain Manifesto

Circling back to our conversation on Barlow's Declaration of Cyberspace and the Internet Bill of Rights one of you suggested, a bunch of high-profile groups have gotten behind the Public Domain Manifesto. Does it track your conceptions of the public domain?

The "App Gap"

A friend sent me this article from the ACLU website that shows just how much information of ours Facebook really makes public. Even if you have your privacy settings as high as possible, some information still can be seen by everyone: your profile picture, current city, friends list, and gender, for instance. If you don't find this worrisome, know also that any external application you download onto your Facebook -one of those dumb quizzes, Farmville, whatever - has access not only to all of the information in your profile but also all the information in your friends' profiles. So you might restrict those pictures of you shotgunning a beer at DKE so that only your friends can see them, but if any app programmer decides that they are an important part of the game he is making, he can go ahead and include them in his code. The ACLU has a petition in protest of this "app gap" and other privacy violations that you can sign if you wish. I doubt Mark Zuckerberg will pay much attention, but you can't start a fire without a spark.

Week 3: First Amendment: Prohibiting Speech – Digital Copyright


Copyright law has expanded drastically over the last 50 years. While copyright was created to stimulate innovation and creativity, it is increasingly used to quash news reporting, creative expression, and cultural critique. Moreover, as copyright law has expanded, the fair use exception continues to contract. This class will consider the growth of copyright and the restrictions it places on the First Amendment.

Required readings:

• U.S. Const. Amend. I, available at http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmenti.
• Eldred v. Ashcroft, 537 U.S. 186 (2003), available at http://www.law.cornell.edu/supct/html/01-618.ZS.html.
• Neil Weinstock Netanel, Copyright’s Paradox (Oxford University Press, 2008), Ch. 2 & Ch. 4, pp. 13-29, 54-80, available in course packet.
• Jessica Litman, Digital Copyright (Prometheus Books, 2006), Ch. 6, pp. 89-100, available in course packet.
• Lawrence Lessig, Free Culture, pp. 116-147, 170-173, available at http://www.ibiblio.org/ebooks/Lessig/Free_Culture/Free%20Culture.htm#p116#nav.
• Jack Balkin, Golan v. Gonzales – How the First Amendment Limits Copyright Law, Balkinization, Sept. 5, 2007, http://balkin.blogspot.com/2007/09/golan-v-gonzales-how-first-amendment.html.

Of the readings that were read and discussed this week, the article that impacted me the greatest was Lessig’s piece “the Law of the Horse: What Cyberlaw Might Teach.” Lessig focused from the very beginning of the article on the differences and distinctions between reality and cyberspace, and from that comparison began to extrapolate the issue of regulations within cyberspace. Although some of his distinctions may seem relatively obvious—for example, in real space, children are prevented from buying porn because of their age that is self-authenticated by their outward appearance, whereas in cyberspace, there is no self-authentication method currently in place that proves the age of a particular individual—they are helpful to the discussion of regulations in cyberspace because they ground the discussion with empirical facts and events rather than the discussion floating into the abstract. In addition, Lessig’s inclusion of the “modalities of regulation” and its application to cyberspace allowed me to think of cyberspace as a more manageable space instead of the “orderly anarchy” as Froomkin described it to be or the utterly independent space that is free of “the tyrannies [the Industrial World] seeks to impose” on cyberspace as Barlow ardently declared. We can discuss the relevance of the Bill of Rights to regulating cyberspace for as long as we desire, but we need discussions that include talks of the representations of reality, structure, and construction of cyberspace in order to create cyberspace regulation policy.

A question that I had about the Lessig reading was a theory question that can be applied to other issues in the readings. Lessig wrote of restricted access of adult material from children, but what does he mean when he uses the term “adult?” What does this term theoretically encompass? In addition, when we use the term “cyberspace” what does this term encompass? Is everything that is not face-to-face interaction considered to be cyberspace interactions, or is there a tighter line that we can draw to determine the end and beginning of cyberspace?

Cyberspace and the real world

I would like to address the Declaration of Independence of cyberspace, which for me like for others, triggered some strong responses. The Declaration, I will admit, brought up some very interesting and convincing points, and when one were to glance through it quickly, it could be quite convincing. After all, it makes compelling points about limiting the government's interference in a sphere which it has no explicit control over. While it is tempting to believe that since cyberspace is a creation beyond the government's scope of control, this is not actually the case.
Ultimately, the internet is used, viewed, and compiled by human beings, who are all citizens of various countries. The way in which our actions online are an extension of ourselves (citizens of a country who are bound by certain laws) informs the way in which the law can still have jurisdiction over cyberspace. Taking a very concrete example of this, such as someone who manages to steal money from people by getting their credit card information through bogus websites, it becomes clear that there are things people can do online which call for government action. Similarly, there is a problem with the claim that property does not exist online, since in a world which is increasingly based on information, ideas and intellectual property are more valuable than ever. To claim that there need not be regulation of intellectual property could lead to a great deal of damage.
While it might be nice to imagine the internet as a place free of rules and regulations, reality is not that simple. The internet is still used by human beings who live under government rules, and some of what happens online threatens to break those rules. While there is an understandable desire to limit the government's online presence, its presence and regulation cannot be completely eliminated from cyberspace.

Focusing on the Essentials

One of the key ideas that I took away from this week’s reading was something that Tribe said at the end of his explanation of his third Constitutional axiom. Tribe is discussing the debate regarding free speech in cyberspace and the problems that arise when the government selects which types of speech should be permitted and which are not protected. He draws a parallel between cyber viruses and yelling “fire” in a movie theatre to illustrate the flexible nature of Constitutional principles and their ability to evolve as new technological or cultural circumstances arise. I agree with a lot of what Tribe says, especially his emphasis on the importance of extracting the essential features from Constitutional values and ensuring those live on, while not getting bogged down in the superficialities and unnecessary aspects of the law. Of course, many examples can be found in gray areas, such as the Maryland court case regarding the right of the accused to “confront” his accuser. I happen to fall on the side of the dissenting opinion, as I read the Constitutional guarantee to value the physical real-life confrontation between accuser and defendant and all the truth-telling implications/emotional closure that such a meeting connotes.

Meanwhile, in one of the other readings, Barlow evokes an image of an oppressed cyber warrior who has been stripped of his freedoms. I don’t know if my problem with Barlow is a result of his piece having been written more than thirteen years ago (over a century in Internet years), but the obvious interconnectedness of the real and virtual world is extremely problematic for his argument. Reese already covered many of the problems with Barlow, but his declaration that “your legal concepts of property [and] expression…do not apply,” are just fundamentally flawed and not based in the reality of today’s digital age. Our Constitution has adapted and hopefully will continue to adapt to the Internet by focusing on the principles that the Founders put forth.

The examination of the ‘Bungle Affair’ cyber-rape disturb me as I had never realized such a crime could occur online. Though exu and the other victims were not physically harmed, the instance clearly created emotional harm, exu experiencing real-life ‘posttraumatic tears’ and demanding retribution. A governing body may not need to monitor the goings-on of LambdaMoo, but the ‘Bungle Affair’ reinforced the idea that an individual, particularly in cyberspace, has a right to go about their life unmolested and suggests a need for some governing entity to offer these protections.
Lessig demonstrates the technological feasibility of this kind of governance by showing that these bodies could use laws to shape the ‘architecture’ of the internet and how it fundamentally works, thus offering protections in the open environment of the internet, and states that any regulation of the internet ought to be limited by transparency and guided by the principle of not being over-inclusive, but Lessig leaves open who has the sovereignty to regulate the internet, which spans the globe.
Though I take issue with John Barlow’s claim that the internet is a utopian place in which no regulation is required, Barlow’s text makes the point that, though the individuals on the internet are citizens of countries, the open nature of the internet makes it difficult for any one national government to claim full regulatory power over the internet - does crime in cyberspace, which spans across the world, still fall under the jurisdiction of the US government, for example? Given the format of this course and our examination of the Constitution in the context of cyberspace - apparently, yes it does fall under the purview of the US - but given such an open medium, oughtn’t the international community come together to establish a new set of policies which all participants and nations can follow? What am I misunderstanding?

Independence of Cyberspace

In class tomorrow we will discuss who, if anyone, should govern the internet. According to John Perry Barlow in the Declaration of the Independence of Cyberspace, no one should govern the internet. Barlow believes that where there are “real conflicts” in cyberspace, those who reside in it will identify and address those conflicts through their means. Thus, cyberspace has its own Social Contract. The issue remains, however, as to how the Governments of the Industrial World should interact with and behave in cyberspace insofar as the internet is concerned. Should governments be allowed to gather data from cyberspace about their citizens? To what extent should governments be able to access such data? Internal rules do not need to be created to regulate cyberspace; rather, rules need to be created to protect the independence of cyberspace and to determine who has access to its information.

For example, according to one of my classmates, who is doing his senior essay on privacy in the technological age, the US Government is allowed to access all emails after 30 or 60 days after they are received. Should this be allowed? What are the implications of allowing this to occur? This violation of privacy needs to be acknowledged and addressed. If it is not, people may continue to lose more and more privacy until it is gone which is a situation that no one wants to occur.

When I was reading Barlow’s declaration of the Independence of Cyberspace, I was struck by how naïve it happened to be. In the 15-odd years since Barlow made his declaration, we have seen that by no means is cyberspace fundamentally independent from the greater world as a whole, one example being the conflict between Wikipedia and two German murderers: a German law stating that one could not make reference to the criminal status of criminals after a certain time (their “debt to society” being served) conflicting with this information being present on Wikipedia, which is hosted in the US. This is definitely different than what Barlow is stating in his frankly somewhat overblown manifesto.

I was also struck by how prescient in some ways Tribe’s post was. Perhaps I am merely remembering incorrectly, but it seems to me that in 1991 one would have been somewhat hard-pressed to predict the degree to which the Internet, web business and other web ventures would have flourished. Tribe notes that a bookstore owner isn’t a “publisher” and isn’t liable for the material and notes that computer gateways and bulletin boards are analogous bookstore owners. It’s very similar to what happened with Craigslist, which denies responsibility for the actual content posted on its boards, a position which I believe has been generally supported.

I’d like to question, then, to what degree we should attempt to predict what will happen in the future when we create legislation having to do with cyberspace? Clearly, one of the problems that we’re facing now is that legislation written anywhere from 20 to 200 years ago seems not very applicable to current problems. But should we attempt to preemptively create legislation for digital frameworks that may not yet exist?

Evolution of the Internet

In many of the readings for the week the authors give the impression that, because the Internet is so new a medium of interaction, the Constitution is hopelessly behind in its ability to address the activities of Internet users. Tribe, for instance, writes,

“The Constitution’s core values, I'm convinced, need not be transmogrified, or metamorphosed into oblivion, in the dim recesses of cyberspace. But to say that they *need* not be lost there is hardly to predict that they *will* not be.

Tribe’s underlying idea is that the Internet is going to continue to expand and always be one step ahead of regulation, despite the implementation (at least in part) of Lessig’s reccomendations to regulate the Internet through its laws, architecture, etc. This expansion, however, does not worry me greatly.

To begin with, I am hesitant to accept so quickly that the Internet is an autonomous entity that seeks to circumvent the law, thereby making any efforts at control merely temporary. The media regularly presents Wall Street in this light –trying to exploit every loophole and unregulated area for the sake of increasing profit margins– which might explain why the concept does not seem out of place as we read this week’s assignment. But I do not think it is appropriate to consider the Internet in a similar manner to Wall Street. As we saw in Froomkin’s “Introduction,” the internet is, and always has been a collaborative effort between many individuals. Certain websites may be worse at preserving civil liberties than others, but I argue that when the risks involved are exposed these websites either lose popularity or are treated more warily by their users. For instance, the stigma that people attach to posting personal ads on Craigslist is a direct result of the many cases of child molestation that such postings have brought about. Likewise, I believe that as the consequences of posting large amounts of personal information on Facebook become increasingly clear, users will begin to consider more carefully how, and even if, to use the site.

EJH’s blogpost this week asks us to consider the economic implications of the digital age, and I think we are right to do so. My economics background is admittedly limited, but I want now to apply an Invisible Hand of sorts to the Internet. Users will stop frequenting sites if they become aware that their rights are being violated, and better sites will replace them. This, I believe, is the best protection of civil liberties in a Digital Age where the law is usually going to be one step behind. The Internet will continue to evolve. But it is foolish to consider this evolution in terms of a spiraling out of control. Evolution tends towards order, and I believe that this will be the case for the Internet as well.

Immersion in the Virtual World

In this week’s reading, what came as the largest surprise was the degree to which people tend to immerse themselves in fully digital arenas. Seen primarily in Dibbell’s piece on cyberrape, but also in Froomkin’s mention of “mailbombing,” this complete engagement in an alternate reality seemed much different than what I’ve always assumed to be the role of the internet in mainstream culture. While I understood there were some individuals who devote great time and energy to their online exploits, I always thought that the vast majority of people viewed the internet as a supplementary means of expression and information, one which complemented “real life” but never came close to overtaking it. But as I read Dibbell’s admission that he couldn’t think objectively about the situation because he was so entrenched in the LamdaMOO mindset, and as Froomkin described the phenomenon of large numbers of Usenet users independently responding maliciously to spam as if it were an attack on their real life home, I realized that many more than I originally guessed largely define themselves through their online experiences. This has an interesting implication for the discussion of civil liberties in this course. While discussion last week largely centered around unintentional consequences of the availability of personal information online, this online immersion suggests that regulation of online behavior and freedoms may actually be infringing on the identity of individuals, interfering with their ability to define themselves as they see fit. This seems to be somewhat related to Balkin’s theory of freedom of expression, and the right to participate in and contribute to a democratic culture.

My (unrelated) question for the week: Is it problematic that we have a great number of decision-makers and policy-makers (Congressmen and Supreme Court Justices the most obvious examples) who have very little understanding of the internet and its processes? As an individual actually born in the digital age, I am still at times confused by the complexity of the system, so how can non-digital natives be expected to make prudent decisions regarding the digital world?

Is Barlow serious?

I was quite struck by the audacity (and seeming ignorance) of the Declaration of the Independence of Cyberspace - I cannot honestly imagine how Barlow thinks he can support his claims. Since ISPs are based in particular locations in real space, and particular countries have their own ccTLD that identifies them (not to mention, as Lessig points out, ISP addresses and other data), it is clear that particular countries have jurisdiction not only over users, but also over software companies that enable internet access. Further, as Dibbell points out in his anecdote, the emotional responses of human beings are clearly affected and occasionally provoked by events that happen in cyberspace. In response to especially severe provocations, there are repercussions by the offended parties, as illustratedin both Dibbell's and Froomkin's pieces. Perhaps the best way to view cyberspace is as an extension of a person's physical persona, but at the same time not the same as the person's physical body. That way, norms that apply to personal conduct may be enforced, and information collected about the person over the internet may be used to paint the proper context for judging the appropriate response - the terrorist who proclaims his plans to bomb a building can be prosecuted, while the Twitterer who makes jokes about such material can receive a stern talking to instead of facing similar consequences. In this sense, cases involving purely virtual offenses - such as Dibbell's - could be enforced by the appropriate authority, namely, the administrators of the forum.

A New Economy Requires New Thinking

While during our first seminar meeting we were able to touch on the role of speech in the digital age, namely 1^st and 4^th Amendment protections, we are yet to explore the revolutionary economic nature of digitization. Indeed, we are in a new “digital age”: the world has shifted from product-oriented businesses to intellectual capital industries. We have shifted from an economy based on raw materials or the circulation of finished goods to an economy built on intangibles.

Quite simply, in the 21^st Century, we are going to need to rethink our traditional assumptions about the economy. For instance, conventional product economies express decreasing returns. However, the internet era and web 2.0 may naturally operate on “increasing returns.” That is, due to a “networking effect,” the benefits of scale may actually be amplified. For an excellent explanation of this, see the Harvard Business Review.

What does all this imply? This means that our prior assumptions and old laws may need to be applied to the new economy. Craigslist and Facebook, for instance, might be “natural monopolies” that merely harness “the network effect.” Alternatively, IBM’s core business may revolve around protecting intangible code rather than producing any material product. And, the line between the “home” and the outside world may be more blurred than ever before.

Of course, all this strikes at the heart of this week’s reading on the relevance of law in cyberspace. In his declaration, John Barlow labels cyberspace a “civilization of the mind.” And yet, while Barlow hopes for near-absolute freedom on the web, merely because it is intangible probably does not mean that all laws not apply.

For instance, Julian Dibbell’s essay on a “cyberrape” by a user named Mr. Bungle in an online game suggests quite the contrary. While an online act may not be material, it may have real-world consequences like “trauma.” Should we prosecute such an act? Perhaps.

The new economy will require new rules. Some, like Tribe did this week, will inevitably suggest that we cannot abandon all of the old rules (i.e. we need to keep the Constitution applicable). But, at the very least, a digitized economy will require modification.

PS The "Digital" Convict

Should you care if the government can see your Tweets?

Today's paper has an interesting story about a UK man being arrested and interrogated by police about a joke he posted on his Twitter account.

Although it involves the UK -- not the US -- government, this story is a good illustration of what we were talking about during last week's class regarding new (digital) forums for social interaction, and related expectations of privacy. It speaks to David's question about why exactly we might be concerned with the government being allowed to look at our Facebook pages, etc.

I think this anecdote points up an important problem with the new digital environment, in that it's often difficult to understand context. It raises questions about how we should treat (protect?) social networking spaces.

Related (though not precisely the same issue), are instances of police actions taken against activists in the US using Twitter to exercise their rights to speech and assembly.

Week 2

Week 2: Relevance of Law in Cyberspace

While digital technologies have firmly entrenched themselves into daily life, the dramatically different architecture of cyberspace from real space, makes it impossible to simply transpose the protections afforded by the Bill of Rights onto online activities. This class will consider questions about who, if anyone, should govern the Internet and how the Internet should be governed.

Required readings:

• Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach.
• John Perry Barlow, A Declaration of the Independence of Cyberspace.
• Laurence H. Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier.
• Michael Froomkin, An Introduction to the “governance” of the Internet.
• Julian Dibbell, A Rape In Cyberspace.

Week 1

Week 1: The Digital World and the Bill of Rights

This week we will review the Bill of Rights and discuss the historical backdrop in which the Amendments were drafted. Then with this as our frame, we will explore the role of digital technology in daily life. We will assess the many areas of our lives in which we have become a digitally dependant society and the many ways in which digital technology enhances some of the fundamental values underpinning the Bill of Rights.

Required readings:

• U.S. Const. Amend. I-X.
• Jack Balkin, Digital Speech and Democratic Culture, 79 N.Y.U. L. REV. 1 (2004).
• John Palfrey & Urs Gasser, Born Digital: Understanding The First Generation of Digital Natives (2008), Ch. 1: Identities and Ch. 2: Dossiers.
• John Perry Barlow, The Economy of Ideas, WIRED, Mar. 1994.

Welcome

Welcome to the CSTC 220 class blog! We'll make use of this on a frequent basis.