ARTS & FARCES internet

During the first five days of July, the Berkman Center for Internet & Society at the Harvard Law School held its Internet Law Program. San Jose Mercury News technology columnist Dan Gillmor published his running notes from the seminars:

• Monday 1 July 2002
• Tuesday 2 July 2002
• Wednesday 3 July 2002
• Thursday 4 July 2002
• Friday 5 July 2002

The first program speaker was Stanford University law professor Lawrence Lessig who said he wants us to set aside any idea that cyberspace can’t be governed as it indicates an underestimation of the power of governments and business concerns to foment change. Lessig sees four constraints on our freedoms:

1. The law
2. Cultural and social norms
3. Markets
4. Architecture

Of these constraining factors, we understand the least about how architecture influences our behavior and freedom. Gillmor quotes Lessig's example of building ramps: "If there are no ramps coming into the building, that's a way of saying people in wheelchairs may not enter." An even more apt example Lessig used is that of Napoleon rebuilding Paris with wide streets so as to make it harder for revolutionaries to hide.

Perhaps the most compelling example Lessig used to illustrate the way in which architecture can be used to regulate behavior and limit freedom is the way a New York developer responded to the legally mandated end of segregation. "In the 1950s, when the Supreme Court made segregation illegal, New York's mega-builder, Robert Moses, 'had a clever way to guarantee that beaches would continue to be segregated,'" Gillmor reports. "Some roads would have low bridges. Others didn't. The ones with low bridges couldn't accommodate buses, the transport mode of the poor and lower classes. This left them restricted to certain beaches, whereas people with cars could go where they wanted."

Under several of the proposed content-based billing schemes, this would likely be exceptionally easy to implement on the Internet.

Already, according to Lessig, the Internet's core architecture is being changed and supplemented -- through technologies like cookies, packet sniffing, and IP mapping -- to allow regulation of behavior and freedom.

In his presentation during the second day of the program, William Fisher III, Harvard Law professor and faculty director of the Berkman Center for Internet & Society, pointed out that technological innovations have consistently served to provide enormous benefits to the entertainment industry. Fisher pointed out several cycles of modern (post "Betamax case") innovation and resistance:

The AHRA introduced the Serial Copyright Management System (SCMS) that prevents consumer-grade equipment from creating "grandchild" copies of a digital recording as well as a tax on all recording equipment sold. The AHRA also introduced a safe harbor provision for noncommercial copying:

"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

Gillmor's notes cover the entire program and are highly recommended.