Berkman Klein Center for Internet & Society Scholarly Articles

The first full-length study of self-reference and paradox in law, this book will intrigue and instruct anyone interested in law, logic, philosophy, or political theory. History shows that self-amendment - for example, the use of a constitution's amending clause to amend itself - is commonplace; legal analysis shows it to be lawful, even if (as some logicians have alleged) it is self-contradictory; and philosophical analysis shows it to be foundational for legality. The lawfulness of self-amendment, therefore, sheds important light on legal reasoning and rationality, and shows that we no longer need accept the immutability of any level of law.

We collected data on the methods, scope, and depth of selective barriers to Internet usage through networks in China. Tests conducted from May through November 2002 indicated at least four distinct and independently operable Internet filtering methods - Web server IP address, DNS server IP address, keyword, and DNS redirection with a quantifiable leap in filtering sophistication beginning in September 2002.

In this paper, the Berkman Center's Digital Media Project has conducted an exploratory case study on Apple's iTunes Online Music Store from a legal and business perspective. The objective of this analysis is twofold: First, it seeks to gain advanced knowledge of the relationships among copyright law, contract law, digital rights management schemes and business modeling processes in the Post-Napster world. Understanding such interactions is crucial when attempting to balance the divergent interests of consumers, artists, the entertainment industry, and technology manufacturers through regulatory mechanisms such as law, code market mechanisms, and adjustment of social norms. Second, the paper is intended as a further step toward expanding the knowledge base of the Digital Media Project beyond U.S. law to include a more detailed coverage of the legal and regulatory frameworks of other countries. The focus of the comparative law analysis conducted in this initial study is on European jurisdictions and selected nations in the Asia-Pacific.

The online environment and new digital technologies threaten the viability of the music and film industries' traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders' control of content: technical interference with and potential liability of P2P services; copyright infringers' civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM). This paper seeks to support policymakers' decision making by delineating the potential consequences of policy actions in these areas. To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media. The authors caution that government intervention is currently premature because it is unlikely to strike an appropriate balance between achieving industry goals while supporting other social values, such as consumer rights, the diversity of available content, and technological innovation.

China's Internet filtering regime is the most sophisticated effort of its kind in the world. Compared to similar efforts in other states, China's filtering regime is pervasive, sophisticated, and effective. It comprises multiple levels of legal regulation and technical control. It involves numerous state agencies and thousands of public and private personnel. It censors content transmitted through multiple methods, including Web pages, Web logs, on-line discussion forums, university bulletin board systems, and e-mail messages. Our testing found efforts to prevent access to a wide range of sensitive materials, from pornography to religious material to political dissent. We sought to determine the degree to which China filters sites on topics that the Chinese government finds sensitive, and found that the state does so extensively. Chinese citizens seeking access to Web sites containing content related to Taiwanese and Tibetan independence, Falun Gong, the Dalai Lama, the Tiananmen Square incident, opposition political parties, or a variety of anti-Communist movements will frequently find themselves blocked. Contrary to anecdote, we found that most major American media sites, such as CNN, MSNBC, and ABC, are generally available in China (though the BBC remains blocked). Moreover, most sites we tested in our global list's human rights and anonymizer categories are accessible as well. While it is difficult to describe this widespread filtering with precision, our research documents a system that imposes strong controls on its citizens' ability to view and to publish Internet content. This report was produced by the OpenNet Initiative, a partnership among the Advanced Network Research Group, Cambridge Security Programme at Cambridge University, the Citizen Lab at the Munk Centre for International Studies, University of Toronto, and the Berkman Center for Internet & Society at Harvard Law School.

In summer 2005, the United States Supreme Court issued a decision which is surely destined to play a significant role in the interrelation between law and technology in the coming years. The case, Metro-Goldwyn-Mayer Studios Inc., et al. v. Grokster, Ltd., et al., pitted copyright holders against the operators of certain peer-to-peer online file-sharing services and was awaited by many in both the legal and technology communities as a referendum on the landmark legal precedent set in the Sony-Betamax case. The Sony case came to represent the legal standard for determining when manufacturers of dual-use technology - technology capable of both legally noninfringing and infringing uses - should be given a safe harbor from liability for acts on the part of their consumers which violated copyright law.

Surprisingly, the Supreme Court's decision did not center around an affirmation or rejection of the Sony ruling; rather the Court based their opinion on a common law principle which, they held, was not preempted by the holding in Sony. The inducement to infringe copyright, although not a completely novel cause of action, has been perceived by some commentators to introduce a change in the legal landscape of secondary liability for copyright infringement. In this article, we provide an extensive exposition of the Court's decision and discuss the disposition of the decision including the implication of the two concurring opinions. We also speculate on the impact that the Court's decision will have on the technology sector and on technological innovation in particular. Ultimately, we grapple with new questions which the decision has presented for industry and the continued existence of peer-to-peer file-sharing.

Since the creation of the first pre-Web Internet search engines in the early 1990s, search engines have become almost as important as email as a primary online activity. Arguably, search engines are among the most important gatekeepers in today's digitally networked environment. Thus, it does not come as a surprise that the evolution of search technology and the diffusion of search engines have been accompanied by a series of conflicts among stakeholders such as search operators, content creators, consumers/users, activists, and governments. While few tussles existed in the initial phase of innovation where Internet search engines were mainly used by 'techies' and academics, substantial conflicts emerged once the technology got out of the universities and entered the commercial space. When search technology advanced and search services gained commercial significance, these conflicts became more severe and made their way into the legal arena. At the core of most of these disputes were controversies over intellectual property, particularly trademark and copyright issues.

This report – representing one of three case studies that are part of a transatlantic research project aimed at exploring the potential relation between ICT Interoperability and eInnovation – examines issues surrounding DRM interoperability within the context of music content. Recognizing that interoperability will likely be defined differently by different stakeholders, we begin by establishing a rough, holistic working definition of interoperability and then assess the implementation of DRM in the music content market and associated problems with regard to interoperability. We then go on to explore the technological, market, and legal environments in their relation to and impact upon the achievement of interoperable DRM systems. In part 2, we analyze potential benefits and drawbacks of an interoperable DRM environment for the music content market. We then evaluate both private and public-initiated approaches towards the accomplishment of interoperability using a series of qualitative benchmarks. Lastly, we conclude by summing up the merits and demerits of the various approaches. Our findings lead us to surmise that normative considerations weigh in favor of greater interoperability in general. The challenge of determining the optimal level of interoperability and the best approach for attaining it, however, points toward consideration of a number of complex factors. We conclude that the best way to determine the optimal level of interoperability and means of accomplishing it is to rely upon economic-based assessments on a case-by-case basis.

As the Internet has exploded over the past fifteen years, recently reaching over a billion users, dozens of national governments from China to Saudi Arabia have tried to control the network by filtering out content objectionable to the countries for any of a number of reasons. A large variety of different projects have developed tools that can be used to circumvent this filtering, allowing people in filtered countries access to otherwise filtered content. In this report, we describe the mechanisms of filtering and circumvention and evaluate ten projects that develop tools that can be used to circumvent filtering: Anonymizer, Ultrareach, DynaWeb Freegate, Circumventor/CGIProxy, Psiphon, Tor, JAP, Coral, and Hamachi. We evaluated these tools in 2007 -- using both tests from within filtered countries and tests within a lab environment -- for their utility, usability, security, promotion, sustainability, and openness. We find that all of the tools use the same basic mechanisms of proxying and encryption but that they differ in their models of hosting proxies. Some tools use proxies that are centrally hosted, others use proxies that are peer hosted, and others use re-routing methods that use a combination of the two. We find that, in general, the tools work in the sense that they allow users to access pages that are otherwise blocked by filtering countries but that performance of the tools is generally poor and that many tools have significant, unreported security vulnerabilities.

The report was completed in 2007 and released to a group of private sponsors. Many of the findings of the report are now out of date, but we present them now, as is, because we think that the broad conclusions of the report about these tools remain valid and because we hope that other researchers will benefit from access to the methods used to test the tools.

Responses from developers of the tools in question are included in the report.

Robert Faris and Jonathan Zittrain chart the highs and lows for free expression online in 2009: from the triumph over Green Dam to cyber attacks.

New digital networked technologies enable users to participate in the consumption, distribution, and creation of content in ways that are revolutionary for both culture and industry. As a result, "Digital Natives"—young people growing up in the digital world with access to the technologies and the skills to use them in sophisticated ways—are now confronting copyright law on a regular basis. This article presents qualitative research conducted with students age 12-22 that explores youth understanding, attitudes, and discourse on the topic of digital creativity and copyright law. Our findings suggest that young people operate in the digital realm overwhelmingly ignorant of the rights, and to a lesser degree the restrictions, established in copyright law. They often engage in unlawful behavior, such as illegal peer-to-peer music downloading, yet they nevertheless demonstrate an interest in the rights and livelihoods of creators. Building upon our findings of the disconnect between technical, legal, and social norms as pertaining to copyright law, we present the initial stages of the development of an educational intervention that posits students as creators: the Creative Rights copyright curriculum. Educating youth about copyright law is important for empowering young people as actors in society, both in terms of their ability to contribute to cultural knowledge with creative practices and to engage with the laws that govern society.