A History of Online Gatekeeping

The bulk of this Article puts together the pieces of that history most relevant to an understanding of the law's historical forbearance, describing a trajectory of gatekeeping beginning with defamation and continuing to copyright infringement, including shifts in technology toward peer-to-peer networks, that has so far failed to provoke a significant regulatory intrusion.

The Generative Internet

This Article explores ways - some of them bound to be unpopular among advocates of an open Internet represented by uncompromising end-to-end neutrality - in which the Internet can be made to satisfy genuine and pressing security concerns while retaining the most important generative aspects of today's networked technology.

Regulating Search Engines: Taking Stock and Looking Ahead

This paper outlines the history of the technological evolution of search engines and explores the responses of the U.S. legal system to the search engine phenomenon in terms of both litigation and legislative action.

The Move to the Middle: The Enduring Threat of Harmful Speech to Network Neutrality

This paper traces the evolution of thinking about the technical concept of the end-to-end principle and the legal concept of the regulation of the flow of packets across the Internet.

The Future of Music and Film Piracy in China

This paper contemplates what the future holds for the protection of audiovisual works in China. It is meant to provide cultural and historical context to the copyright piracy epidemic in China, and, with that context in mind, realistically assess three policy directions from which the Chinese government might choose going forward as it seeks to defeat piracy in the Internet age and develop vibrant domestic music and film industries.

Reluctant Gatekeepers: Corporate Ethics on a Filtered Internet

Corporations are increasingly finding themselves caught in the crosshairs as they are asked by local authorities to carry out censorship and surveillance online. This chapter describes this growing, thorny problem and some possible means to resolve it. The most promising approach is neither local law nor a new international covenant, but rather a strong, enforceable code of conduct created by the corporations themselves, in concert with nongovernmental organizations (NGOs), academics, states, and other stakeholders.

Overcoming the Achilles Heel of Copyright Law

This article challenges the legitimacy of the three-step test which sets up a one-size-fits-all standard for copyright protection. It also puts forward a proposal aimed at reshaping the three-step test. Moreover, this article argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular.

Podcasting Legal Guide: Rules for the Revolution

Podcasting Legal Guide: Rules for the Revolution -- a collaboration between Creative Commons and the Berkman Center Clinical Program in Cyberlaw reviewing copyright, trademark and other legal issues related to podcasting and providing a helpful list of resources for podcasters.

Amicus Brief: MGM vs. Grokster (Supreme Court Case No. 04-480)

In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), this Court held that the manufacture and distribution of technology that is sometimes used to engage in copyright infringement does not give rise to secondary liability so long as the technology in question is “capable of substantial noninfringing uses.”

Internet Points of Control

The online availability of pornography and unauthorized intellectual property has driven Internet growth while giving rise to efforts to make the Net more regulable. Early efforts to control the Internet have targeted the endpoints of the network - the sources and recipients of objectionable material - and to some extent the intermediaries who host others' content. Recently attention has shifted to intermediaries near would-be recipients of content. The U.S. Commonwealth of Pennsylvania permits its attorney general to obtain a court order requiring Internet service providers to block Pennsylvanians' access to Internet locations designated as containing illegal pornography. If successful, this approach could be employed for other regulatory purposes, such as controlling the online distribution of copyright-infringing materials. While the Pennsylvania law suffers from a number of technical limitations and Constitutional vulnerabilities, with some adjustments to Internet architecture and data carriage practices, this approach could become a comprehensive scheme for widespread content control that overcomes a number of enforcement barriers and jurisdiction-related objections. (March, 2003)

The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age

This foundational white paper reports on a year-long study by the Berkman Center for Internet and Society, funded by a grant from the Andrew W. Mellon Foundation, examining the relationship between copyright law and education. In particular, we wanted to explore whether innovative educational uses of digital technology were hampered by the restrictions of copyright. We found that provisions of copyright law concerning the educational use of copyrighted material, as well as the business and institutional structures shaped by that law, are among the most important obstacles to realizing the potential of digital technology in education.

The Cluetrain Manifesto

The End of Business as Usual

The Cluetrain Manifesto: The End of Business as Usual by, Christopher Locke, Rick Levine, Doc Searls, David Weinberger

Promises to Keep

Technology, Law, and the Future of Entertainment

Promises to Keep: Technology, Law, and the Future of Entertainment by, William W. Fisher III

Free Culture

How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity

In his two previous books, CODE and THE FUTURE OF IDEAS, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in FREE CULTURE, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they’re inflicting are poisoning the ecosystem that fosters innovation.

Code: Version 2.0

Lessig's "Code and Other Laws of Cyberspace" was published in 1999. The book quickly began to define a certain vocabulary for thinking about the regulation of cyberspace. More than any other social space, cyberspace would be controlled or not depending upon the architecture, or "code," of that space. And that meant regulators, and those seeking to protect cyberspace from at least some forms of regulation, needed to focus not just upon the work of legislators, but also the work of technologists. Code v2 updates the original work. It is not, as Lessig writes in the preface, a "new work." Written in part collectively, through a Wiki hosted by JotSpot, the aim of the update was to recast the argument in the current context, and to clarify the argument where necessary.

Who Controls the Internet?: Illusions of a Borderless World

Who Controls the Internet?: Illusions of a Borderless World by, Jack Goldsmith and Tim Wu

The Wealth of Networks

How Social Production Transforms Markets and Freedom

In this comprehensive social theory of the Internet and the networked information economy, Benkler describes how patterns of information, knowledge, and cultural production are changing -- and shows that the way information and knowledge are made available can either limit or enlarge the ways people can create and express themselves.