Today, Wednesday, is the third day of our PIL2003 version of Internet Law, taught here on the Harvard Law School campus.  PIL is primarily about continuing education for lawyers.  If you’re admitted to the bar of a state that has a requirement of “continuining legal education,” you need to head back to class somewhere each year to brush up your knowledge of law.  If you follow along with the blogs each day and even read the readings (which are available online as are virtually all of our class materials), you might get the gist of the discussion (if not CLE credit).

Today’s topic is Digital Democracy.  It’s always a bit hard to find the legal hook for Digital Democracy, but it seems like too important and far-reaching a topic for us to pass up entirely.

Prof. Nesson starts today picking up on the end of yesterday’s IP session: so, how should universities respond to the issues raised by file-sharing on campus?  The Sen. Hatch story of this morning has everyone talking, he says, about the possibility of interdiction technologies as one option, as injudicious as Sen. Hatch’s statement may have been.  Prof. Nesson defines a denial of service attack and a distributed denial of service attack, which is much more like a popular movement, as used by the likes of moveon.org.

Consider the following statutes:

* The Computer Fraud and Abuse Act: Consider (a) (4), or (a)(2)(C).  Do they outlaw this type of interdiction?  Did the Congress really want to stop activities without fraud involved, as (a)(2)(C) implies?

* The Digital Millennium Copyright Act‘s Safe Harbor provision, in its Section 512.  Universities want to avail themselves of this safe harbor, but it’s a big hassle.

How should universities respond?  JZ seeks to give closure on the issue by defining the problem as one of “points of control.”  One path: 1) The technology will change from general-purpose PCs to locked-down PCs that can do only what the manufacturer wants it to run.  Instead, it will be like video games and TiVo.  If you can build computers that won’t run morpheus or KaZaa or a virus for that matter, then you’re saved from yourself and the content distributors are saved from rampant piracy if boxes can’t run P2P programs.  Congress has been asked by publishers to pass a law that would steer the barge of technology in this direction.  Another path: 2) We acknowledge that computers can make these perfect copies.  We try to deal with the road-kill that ensues.  The legal reality will have to bend to it.  And in this hypo, university administrators are stuck in this reality.  They have to take the path of least legal resistance.  So they play ball with the publishers and avail themselves of the safe harbor.  Harvard’s approach is to establish a punishment of a one-year network shut-off (incidentally beyond the strict requirements of the DMCA) after a student has twice violated the file-sharing rules.

Prof. Nesson is back, seguing from JZ’s points of control to the digital democracy topic of today.  The tension between property & commons were rooted right from the beginning of the Net, and even before.  The story is about economic imperialism.  IP is the single largest form of US export.  In 1980, some things were different.  Piracy, a word we now associate with IP, was thought about in quite a different way.  There’s been an information campaign since then, by the US entertainment industry, to make us think about piracy. 

A parallel story: The Caribbean Basin Recovery Act included a provision that allowed the United States president to pass on whether there was too much piracy involved.

More broadly: TRIPS: An extension of IP protection through international treaty, linking trade and the attack on piracy.  This campaign by US publishers has gone very well, as many other countries have adopted strong intellectual property laws that make piracy, anti-circumvention, and related activities illegal.

If you’re a developing country, should you be encouraging your populace to use 1) freely available open source software or 2) American-made propriety software?  You’ve got a tension there.  To the extent that you’re worried about piracy, you’re concerned that you might violate your TRIPS obligations.  Likewise, you want your economy to grow by using as much good software as you deploy.

JZ, with background about open source technology: Computer code is thought of as IP, just as the Lion King or Madonna’s Like a Virgin is IP.  First, there’s source code, which looks like what a human might say to tell a computer to do something.  (He demonstrates grabbing some source code from an ordinary html page and recreates that page as a new web page — a prima facie copyright violation, he acknowledges, but a teaching tool here in Vorenberg Classroom.)  And then there is object code, most commonly embodied for our purposes in .exe files.  If you were to take the .exe from one machine and run it on another machine, that is also a prima facie violation of copyright.

Along comes Richard Stallman.  If you could create a machine that copies hamburgers — you put one hamburger in and two equally good hamburgers come out the other side — it would be unethical not to do so and make it freely available.  The core of this idea is the notion of non-rivalrous goods.  Copyright doesn’t account appropriately this notion.  Stallman himself wrote lots of code and gave it away, quite true to principle.  He introduced a new way of licensing code: copyleft.  GNU is not released for free, but rather copyrighted.  But he did not reserve all rights.  Stallman reserves *some* rights.  What can you do?  Copy and distribute verbatim copies of the source code, subject to some restrictions.

If Richard Stallman is the Jerry Brown of the free software/open source movement, then Eric Raymond, author of The Cathedral and the Bazaar, may be the Bill Clinton.  He’s less the ideologue and more the pragmatist.  Which approach leads to better software?  The Microsoft model, or the free software movement model?  There are religious wars on this issue along many axes.

Prof. Nesson concludes by setting up the hypo for starting tomorrow: you’re now the policy-maker in a developing country.  Proposed legislation: henceforth in this country, we’ll give preference to open source/free software.