Building in Cyberspace

by Julia Collins
Berkman CenterEven if mp3, perl, xml, portals, crypto, metatags, and Linux mean nothing to you, even if e-mail and constitute your online experiences - the Internet demands more of your attention every day. Consider these Net topics in the news of late: the unfolding Microsoft antitrust case, the debate over how to protect children from electronic pornography, the Oregon Web site posting "Nuremberg Files" on abortion providers, the "Melissa" virus, disputes over workplace e-mail privacy, online war reports from Kosovo, even the electronic auction of heavy-hitter Mark McGwire’s historic 70th homerun ball.

In the fast-changing realm of cyberspace, the Berkman Center for Internet & Society at Harvard Law School is a launch pad for exploration and development. The center’s faculty, students, fellows, and affiliates work like a think tank, analyzing Internet issues from electronic commerce to intellectual property, and offering up visions for the future. They are also a construction crew of sorts, actively designing and "building out into cyberspace" as they produce new online resources, collaborations, and meeting places.

A New Public Commons
We are building a commons in cyberspace" is the rallying cry of Professor Charles Nesson ’63, the center’s founder, director, and its "visionary," to quote numerous Berkman denizens. Explaining the philosophy that unites the far-flung Berkman Center agenda, he says: "Our interest is in openness and how it is applied on the Internet. We investigate the real and possible boundaries between open and closed systems of architecture, commerce, government, education, and their relationship to law. Our mission is to claim a balanced part of cyberspace for the public interest, to create a common space so people can have access to free and open resources."

A donation from the estate of Jack Berkman ’29 and his wife, Lillian Berkman, and his son Myles Berkman ’61 established the Berkman Center in 1998 and endowed the professorship held by cyberlaw expert Lawrence Lessig. Along with Nesson, other faculty leading the center are Professor Lessig and Jonathan Zittrain ’95, HLS lecturer and executive director of the center. Professors Arthur Miller ’58 and Charles Ogletree, Jr. ’78 are codirectors. Many other HLS faculty are involved in center projects, along with students and Berkman Fellows hailing from business, practice, journalism, and Internet-related pursuits.

The center also seeks to involve HLS alumni. Nesson and Zittrain recently traveled to California with Dean Robert Clark ’72 to meet with graduates working in Silicon Valley-area law firms - many of whom are high-tech and cyberlaw experts - and give them a multimedia introduction to the Law School’s newest research program. This was the first of what the Berkman team hopes will be many such roadshows, to update graduates on the center’s efforts and solicit their insights.

For Alex Macgillivray, 2L, a Berkman Center research associate, the center is the magnet that drew him to HLS: "The only places that can compete with Harvard are Berkeley and Stanford, with their proximity to Silicon Valley." At the center "you can easily work 90 hours a week and never do the same thing. It opens horizons. I have lots of contact with professors, and lots of awareness of what is going on in industry."

And the center represents the School very well, Macgillivray says. "The Berkman Center breaks down Harvard stereotypes; it is very accessible. And it’s not just about learning highfalutin theory, but also about doing things, getting down and dirty."

The center’s physical home is classic academe: crowded offices on Pound’s fifth floor, full of the usual drab computer equipment, only more of it, with software packages far outnumbering law books. The flow of students is nonstop. The phones ring incessantly, often with calls from reporters seeking expert opinions on the latest Internet to-do. While Berkman experts are often quoted in the media on hot Internet issues, the center’s primary telescope is directed elsewhere. "We try to think hard about what’s new and different about cyberspace," says Zittrain. "We take five long paces away from traditional issues in cyberspace, into new territory." And if that sounds a bit like Star Trek’s imperative to "boldly go where no one has gone before," that’s okay with the center.

Furthermore, Zittrain adds, "in all our explorations we’re interested in the society part as much as we are the Internet part" of the center’s mission. This includes, for example, the different personalities people adopt when they go on line, such as Nesson’s playful online persona of "eon."

The best introduction to the Berkman Center is its Web site,, which posts a deluge of multimedia information about Copyright’s Commons, Eldred v. Reno, ICANN, The Judicial Gatekeeping Project, and other Berkman ventures. Pay a visit and read the latest edition of the Filter, the center’s newsletter, or works-in-progress on "Lawyering the Internet" by contributors to the spring Harvard Law Review. Watch the Webcast of Boston-area high school students deliberating the pros and cons of school rules. Offer input for a legal brief that is being drafted on line. Review the center’s multimedia archive from the Second International Harvard Conference on Internet & Society chaired by Nesson and Ogletree. Skim the profiles - often colorful and certainly unconventional - of the current Berkman Fellows.

At the Berkman Center, "all of us are leveraged as much as possible," says Andrew McLaughlin ’94, a resident fellow of the center. "Our challenge is staying focused because the Internet presents infinite possibilities, and we get flooded with great ideas for projects. We have had to trim our sails and say, ‘What we’re about is the project of building an open foundation on which new institutions of cyberspace will be constructed.’"

The Great Open-Code v. Closed-Code Debate
What one can do and say in cyberspace is shaped not only by traditional law and social norms, but also by technical architecture, or "code." Put as simply as possible, code is the system of characters and functions programmed into the software that runs on the hardware, which together constitute the architecture that shapes and defines cyberspace. Code regulates entry into cyberspace, and, once you’re in, monitors your whereabouts, determines your access to information, and allows or constrains your interactions with fellow "Netizens."

Path and QuoteAuthor of the forthcoming Code, and Other Laws of Cyberspace, Professor Lawrence Lessig has been the leading articulator - sounding a wakeup call to many - of code’s power to impose far-reaching regulation. Open-code software, which is generally free or inexpensive, is published with its source code - the instructions written in programming language that tell the software, and in turn the hardware, what to do and how. Closed, or proprietary, code is published without its source code. To illustrate the value of open code, Lessig offers the analogy of scientific research. "Scientists publish their findings and conclusions. Anyone can look at these findings, the logic, the conclusions, and apply them to their own use." The code used to write for the World Wide Web - currently HTML, or Hypertext Markup Language - is open-source software, he explains, which means anyone can examine the code that goes into creating a Web page, to see how it’s built and improve upon it.

At the Berkman Center, Lessig says, "we’re trying to talk about the value of commons, and how open code contributes to the commons of software." The center promotes open code through its own software platform and programming, and in May held a conference on open platforms for teaching and discussion, attended by academics, software mavens, industry leaders, and foundation leaders.

While code talk makes many glaze over, the open/closed debate recently has captured the attention of the general public because of the Microsoft antitrust case. Jonathan Zittrain likens the case to a horse race, in which observers in the stands are waiting to see whether closed-code systems like Microsoft’s will predominate, or be toppled by open-code operating systems parallel to the open network - the Internet - that links them all together. "This horse race could really matter," he says. "It’s an error to think that whenever we turn on our computers, the code will simply be there, and that it’s all fungible."

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