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Key Readings in Information Law and Policy, Spring 2007
In little more than a decade, scholarship in information law and policy has burgeoned, fueled by developments in technologies of computing and digital communications; new media forms; an evolving patchwork of controversial court decisions, laws, and regulations; landmark events; and a series of compelling issues evoked by the entry of digital technologies into life and society. The seminar will cover key readings in the field, selected on the basis of: 1) their influence on discourse, depth, rigor, aspirational ideals, creativity, contribution to foundational thinking, etc. and 2) their coverage of as broad a range of topics as possible, including privacy, online speech, Internet governance, intellectual property in digital media, information commons, and computer crime, recognizing that literatures in the sub-areas have not developed at equal pace. Recognizing that each topic could itself fill a course the seminar aims for a broad overview of issues and events, a sufficient grasp of basic concepts and principles (as articulated and developed by leading thinkers in the field) to provide a solid foundation for independent future explorations, and an ability to apply these concepts and principles to cutting edge research questions. Seminar Website The most up-to-date syllabus can be found on the Blackboard course homepage, which should be consulted frequently. Readings All articles are available through the seminar website. The following books are recommended, though the course will deal directly only with those marked with a “*”. * Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, CT: Yale University Press, 2006.
Requirements and Grading The seminar assumes active participation on the part of all students, including turns as discussion leaders. It will require that students be willing and able to pursue independent research in areas of special interest to them, beyond assigned readings. Grades will be assigned as follows: Term paper of approximately 20 pages (50%)
Syllabus 1/22 Introduction This session will serve as an overview of seminar content, rationale, objectives, and expectations. We will discuss the assignment of paper and presentation topics toward the goal of matching students to topics by the end of the meeting. To prepare for this session, students should begin thinking about topics/readings of particular interest to them – ideally more than one. We will also review the seminar website and hopes for the discussion board. 1/29 Internet Governance 1 A decade ago, David Johnson and David Post broke ground declaring that Cyberspace was a new world ungovernable by the traditional institutions and processes of physical space. Their landmark article generated much attention in the scholarly and popular literatures, both laudatory and critical, including Larry Lessig’s famous book, Code and Other Laws of Cyberspace which, along with Reidenberg’s work, extended the discussion of governance of the online realm with the idea of governance through technology (“code”). Barlow, John Perry. "Coming into the Country," Communications of the ACM, January 1991. Goldsmith, Jack L. “Against Cyberanarchy.” University of Chicago Law Review 65, no. 4 (Fall 1998): 1199-1250. Johnson, David R., and David G. Post. “Law and Borders – The Rise of Law in Cyberspace.” Stanford Law Review 48 (1996): 1367. Post, David G. “Against ‘Against Cyberanarchy.’” Berkeley Technology Law Journal 17, no. 4 (Fall 2002): 1365. (enrichment) Netanel, Neil. “Cyberspace Self-Governance: A Skeptical View from Democratic Theory” 88 California Law Review (2000). 2/5 Internet Governance 2 (enrichment) Benkler, Yochai. “Overcoming Agoraphobia.” 11 Harv. J.L. & Tech. 287 (1998): 1-113. Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. (esp. chapters 1-9)
Reidenberg, Joel R. “Lex Informatica: The Formulation of Information Policy Rules Through Technology.” Texas Law Review 76, no. 3 (February 1998): 553-93. Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, CT: Yale University Press, 2006. pp. 379-412. David Isenberg. “Dawn of the Stupid Network.” (enrichment) J.H. Saltzer, D.P. Reed and D.D. Clark. “End-to-End Arguments in System Design,” (Published in ACM Transactions in Computer Systems 2, 4, Nov, 1984, 277-288.) Ed Felten. “Nuts and Bolts of Net Neutrality.” (enrichment) Paul Kouroupas. “How Law Enforcement Undermines the Dumb Pipe Theory.” 2/12 Intellectual Property 1 This is the most developed of the subfields in Information Law and Policy. The seminar recognizes three sub-areas: 1) IP rights in software; 2) IP rights in creative works; 3) Conceptual rivals of IP including information commons and access to knowledge. John Perry Barlow, The Economy of Ideas, 2.03 WIRED 84 (March 1994) Elkin-Koren, Niva. “Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace.” Cardozo Arts & Entertainment Law Journal 14, no. 2 (1996): 215-95. Litman, Jessica. “The Exclusive Right to Read.” Cardozo Arts & Entertainment Law Journal 13, no. 1 (1994): 29-54. Litman, Jessica. Sharing and Stealing. 26 COMM/ENT L.J. (forthcoming 2004), pp. 1-25. Samuelson, Pamela. “The Copyright Grab.” Wired, January 1996. 2/19 Presidents' Day 2/20 Intellectual Property 2 James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 L. & Contemp. Probs. 33 (2003) Elkin-Koren, Niva. “Exploring Creative Commons: A Skeptical View of a Worthy Pursuit.” The Future of the Public Domain. Edited by P. Bernt Hugenholtz and Lucie Guibault. Kluwer Law International, 2006 (forthcoming).
Ginsberg, Jane. “From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law.” Columbia Law School Public Law & Legal Theory Working Group Papers, No. 8.
Radin, Margaret Jane. “Incomplete Commodification in the Computerized World.” In The Commodification of Information, edited by Niva Elkin-Koren and Neil W. Netanel, 13-21. The Hague: Kluwer Law International.
2/26 Intellectual Property 3
Benkler, Yochai. “Coase’s Penguin, or, Linux and The Nature of the Firm.” Yale Law Journal 112, no. 3 (December 2002): 369-446.
Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, CT: Yale University Press, 2006. (selections)
3/5 Civil Liberties: Speech
One of the earliest tests of civil liberties online was freedom of speech. The familiar constellation of challenges have
demanded reappraisal in light of distinctive features of the new medium: threats, particularly to children, of rapid and
uncontrollable spread of pornography and obscenity, hate speech, and other socially offensive speech; conflicts between
copyright and free speech; the role of online speech in liberal democracies; the promise of private and public filtering; and
liability for illegal speech. Courts, legislative bodies, and scholarship have sought to find the right balance between protecting
freedom in speech and restricting it in the name of countervailing social and legal values.
Balkin, Jack M. “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society.” New York University Law Review 79, no.1 (April ‘04).
(enrichment) Benkler, Yochai. “Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain.” New York University Law Review 74 (May 1999): 354-446.
Hunter, Dan. "Phillipic.com" 90 California Law Review 611 (2002)
Netanel, Neil. "Market Hierarchy and Copyright in Our System of Free Expression." Vanderbilt Law Review Vol 53, Nov. 2000.
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Samuelson, Pamela and Suzanne Scotchmer. “The Law and Economics of Reverse Engineering.” Yale Law Journal 111, no. 7 (May 2002): 1575-1663.
3/12 Spring Recess
3/19 Intellectual Property 4
Guest: Professor Eben Moglen
Moglen, Eben. “Anarchism Triumphant: Free Software and the Death of Copyright.” First Monday 4, no. 8 (August 1999).
Samuelson, Pamela, Randall Davis, Mitchell D. Kapor, and J.H. Reichman. “A Manifesto Concerning the Legal Protection of Computer Programs.” Columbia Law Review 94, no. 8 (December 1994): 2308-2431.
3/26 Privacy 1
Threats to privacy due to information technologies come in a variety of forms. The law has struggled to respond not only
because interests vested in the outcomes are divergent and competitive but because the concept is frustratingly muddy in
both its descriptive and normative uses. Although legal scholarship on this subject is vast, it has yet to deliver a canon.
Readings are clustered under topical headings: searching for a plausible moral and legal concept, challenges of information
technologies, and meeting the challenges of information technologies.
Warren, S. and L. Brandeis. 1890. The Right to Privacy [The Implicit Made Explicit]. In Philosophical Dimensions of Privacy: An Anthology. (4): 193-220: Harvard Law Review.
Gavison, R. 1980. Privacy and the Limits of Law. The Yale Law Journal. 89(3): 421-471.
Nissenbaum, Helen. “Privacy as Contextual Integrity.” Washington Law Review 79 (2004): 101-139.
(enrichment) Prosser, William L. “Privacy” California Law Review, vol 48, no.3 August 1960, 383-424.
4/2 Privacy 2
Froomkin, Michael. “Anonymity in the Balance.” In Digital Anonymity: Tensions and Dimensions (C. Nicoll et al. eds., 2003).
Kang, Jerry. “Information Privacy in Cyberspace Transactions.” Stanford Law Review 50, no. 4 (April 1998): 1193-1294
Schwartz, Paul M. “Property, Privacy, and Personal Data,” Harvard Law Review 117, no. 7 (May 2004) 2055-2128.
Solove, Daniel. “A Taxonomy of Privacy” University of Pennsylvania Law Review 154 (2006): 477.
4/9 Privacy 3
Cohen, Julie E. “A Right to Read Anonymously: A Closer Look at ‘Copyright Management’ in Cyberspace.” Connecticut Law Review 28, no. 3 (Spring 1996): 981-1039.
(enrichment) Cohen, Julie. “Examined Lives: Informational Privacy and the Subject as Object,” 52 Stan. L. Rev. 1373 (2000).
Eugene Volokh. “Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You.” Stanford Law Review 52 (2000): 1049.
4/16 Crime
How well to old categories of crime serve us in the so-called “Information Age”? Do crimes of information, committed via
digital electronic networks call for new strategies of law enforcement; or new forms of punishment?
Burk, Dan L. “The Trouble with Trespass.” Journal of Small and Emerging Business Law 3 (1998).
Kerr, Orin S. “Cybercrime’s Scope: Interpreting ‘Access’ and ‘Authorization’ in Computer Misuse Statutes.” NYU Law Review 78, no. 5 (November 2003): 1596-1668.
O’Rourke, Maureen A. “Is Virtual Trespass an Apt Analogy?” Communications of the ACM 44, no. 2 (2001): 98-103.
4/23 Information Intermediaries
With the entry of information technologies into key spheres of society, we have seen the rise of new intermediaries,
predominantly in communications, creative production, and in the search and retrieval of information. Alongside the rise of
these new intermediaries, controversial questions have arisen about optimal regulations for them. Two will be considered in
the seminar: ISP liability and the role and responsibilities of search engines.
Elkin-Koren, Niva. "Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing." 26 Dayton Law Review, 180 (2001).
Freiwald, Susan. "Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation." 14 Harv. J. L. & Tech. 569 (2001).
Introna, L. and H. Nissenbaum. "Shaping the Web: Why the Politics of Search Engines Matters." The Information Society, 16(3):1-17, 2000
Lichtman, Douglas and William Landes. "Indirect Liability for Copyright Infringement: An Economic Perspective." 16 Harv. J. L. & Tech. 395 (2003).
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