Building in Cyberspace

bridge.jpgNew Models of Online Education
Charles Nesson was an early proponent of bringing legal education into cyberspace, and his groundbreaking Evidence course continues to be a laboratory for testing how the Internet and multimedia can enrich students’ experience of law and justice. Nesson has several education projects running at the center, including "A Civil Action," a project to develop multimedia online teaching tools about the famous Woburn toxic tort case for which Nesson was an adviser.

In 1998 Professor Arthur Miller launched his pioneering Privacy in Cyberspace, the center’s first interactive lecture and discussion series, free and open to the public, from syllabus to Socratic exchanges. Professor William Fisher’s (’82) Intellectual Property in Cyberspace also went on line in 1998; the two projects drew 1,500 participants from all over the world, from high school students to retirees, and were offered again this spring. In another inventive online offering this year, Jury Trial in Cyberspace, Professor Charles Ogletree, Jr. presided as judge in an online trial deliberating the evidentiary issues of President Clinton’s impeachment trial. And in the Digital China/Harvard project, Professor Howell Jackson ’82 offered multimedia lectures on financial systems to graduate law students at the University of Beijing.

"The whole idea of a commons environment on the Net is to make content accessible," Nesson says. "A lot of us at the Berkman Center are coding [programming], and putting our content out there for everyone to use" - including other academic institutions and educators, policy makers, and public interest groups. By sharing its open platform, the center encourages the educational community to see how open-source software can benefit them.

With this aim in mind, the center is launching H2O (Harvard 2.0), a "virtual university space" in which HLS students and members of the Internet community can access, contribute, and share open-code software tools for distance learning, collaborative work, and other online communications. The center recently released its proposal for this new nonprofit organization and is examining how to establish it on the Net, how to make the tools contributed to H2O accessible to all, and how to incorporate and govern H2O.

Student Coders and Courseware
The hls student as software programmer is an unlikely image, but in fact students are among the busiest Berkman coders. For example, last fall Jonathan Zittrain’s Internet & Society course showcased innovative courseware developed by Alex Macgillivray ’00 and Wendy Seltzer ’99, who is writing her 3L paper on regulation through code.

Seltzer and Macgillivray’s courseware package consists of integrated programs that structure and display the professor’s materials for a particular course - from syllabus to class calendar to assignments - and make the lesson plan interactive. Their innovations include online polling and pro v. con questioning. For Zittrain’s course, they added something new at his behest: the "question rotisserie."

Here’s an example of the courseware in action. To start students thinking about weekly assignments, Zittrain drafted questions for the Bot to send out to the class. The Bot, an e-mail "bug-me" function, invited students to return to the class Web site to respond to such questions as: "A Boston mayoral candidate has voiced concern that computers in school libraries are used to view pornography. Take a stand." Zittrain would get a round of answers shortly before class, and often asked students in the seminar to explain their positions. In "rotisserie mode," the Bot didn’t stop there; it also delivered each answer to another student for further discussion. On the library question, it asked students to oppose the candidate whose platform they received. All responses went into an online archive, where a class scribe summarized the discussion and points of contention.

The latest version of the courseware is now in use. Macgillivray adds that the server running nearly all Berkman Center courseware, as well as the database engine and operating system, "is open-source from the ground up."

Head teaching fellow for Miller’s Privacy in Cyberspace, Seltzer notes that the courseware offers new ways to interact with students. "As we teach about privacy, we’re also learning how to teach in an online environment. We build up the structure, try to see how it works, and learn along with class participants."

Litigating On Line
In keeping with its "open content" credo, the Berkman Center has formed a public coalition called Copyright’s Commons, to mount a legal challenge to the Sonny Bono Copyright Term Extension Act of 1998.

Lawrence Lessig is leading work on the lawsuit, Eric Eldred and Eldritch Press v. Janet Reno. "It’s an open-code law campaign," he says. "We’re writing the brief on line, inviting criticisms as we develop it. Anyone can participate, and see exactly what we’re doing" - and that means the suit’s adversaries too. Lessig’s cocounsels are Charles Nesson, Jonathan Zittrain, and Hale and Dorr attorney Geoffrey Stewart ’76, with a number of HLS students helping to manage the case. The coalition is open to all interested parties.

The original plaintiff, Eric Eldred, runs a nonprofit press that posts public-domain literary works on the Internet. Ten other plaintiffs have since joined the suit, including a choir director and film archivists, who represent a wide range of interests in public domain works.

The Sonny Bono Act extending copyright for 20 years is the latest of several extensions since the ’60s. "Congress keeps pumping up the terms of copyright," says Lessig. "Our basic claim is that Congress’ power under the copyright clause is quite restrictive. It is to use the power to create an incentive to produce. Incentives are prospective; Congress can’t create a retroactive incentive. [American composer] George Gershwin, for example, is dead. He will not be writing anything more."

The Supreme Court, he says, has hinted that the goal of creating incentives to produce works should be balanced with the goal of protecting the public’s interest in commonly held works. The Copyright’s Commons group plans to move for summary judgment this summer. "We’ll see if litigating in the open makes for a better case," Lessig says.

"We really are interested in a clinical exploration of these issues, and it doesn’t mean having to be ideological about it," Zittrain adds. He points out that the center’s "big tent" includes codirector Arthur Miller, "who is very much in favor of the copyright term extension."

Governing the Internet
At first, the Internet was described in Wild West terms: a new frontier, untamed and unregulated, open to all. But as cyberspace, like the old West, becomes more densely settled, competing interests and disputes increase.

The story of ICANN demonstrates how technology affects governance in cyberspace. Many Berkman people are involved in studying and helping shape this little-known global entity. The Internet Corporation for Assigned Names and Numbers, a.k.a. ICANN, is the new nonprofit corporation charged with managing central pillars of Internet architecture: the Internet Protocol (IP) number system and the Domain Name System (DNS).

"The Net is a vast network of networks all over the world, and individual computers need a way to find each other," explains Molly Shaffer Van Houweling ’98, a Berkman Fellow and ICANN senior adviser. Through the IP number system, networked computers are assigned unique numbers. DNS maps domain names like to these numbers to make navigating from computer to computer easier. Originally, the U.S. government coordinated these systems, subcontracting for key functions. But as the Internet went global, "the U.S. decided it was time for government to get out of the way, and for the private sector to lead," Van Houweling says. After contentious debate, in which the center took part, the government signaled in late 1998 that it would pass oversight of these systems over to ICANN.

While the domain names game sounds dull, it leads to heated competition and new legal dilemmas. For example, because short and sweet names work best in cyberspace, companies vie for the right to use the same key word from their trademarked names in the physical world. Furthermore, corporations and major institutions can afford to scoop up names, making it harder for small entities, nonprofits, and individuals to be seen and heard on-line. Van Houweling cites examples including "the father who registered for his young daughter, and was threatened by the publishers of Archie Comics; and the child nicknamed Pokey, who was threatened by the creators of Gumby and Pokey for using the domain name" Then there are the "cybersquatters," who arguably tie up the system by snapping up domain names to sell to the highest bidder.

How ICANN performs its governance tasks will have enormous impact, and changes are already afoot, such as opening up some DNS functions to new competition. Jonathan Zittrain is leading a Berkman initiative to propose possible models for ICANN membership; the draft report was presented this spring in Singapore. Berkman Fellows Andrew McLaughlin (ICANN’s senior legal adviser) and James Fishkin (chair of the Department of Government at the University of Texas) are at work on the design of an international deliberative poll, to help shape ICANN policies and proposals.

Representing the diverse interests of its global constituency is one of ICANN’s greatest challenges. Says Van Houweling: "Some think ICANN should be a streamlined technical organization, while others think it’s a global Internet government for which we need a constitutional convention."

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