Uphill Fight on the Information Frontier

pair of unlikely revolutionaries fight a hard battle that could make file-sharing legal

Charles R. Nesson ’60 is not quite the next Che Guevara, but he sometimes talks like he’s in the middle of a civil war.

“It was almost a riot situation,” Nesson says of the moment when the revolution that would come to consume his time and energy broke out. “I like to think of it in terms of plate-glass windows of record stores smashing and the whole inventory wide open.”

But Nesson wasn’t breaking any glass, and he wasn’t stealing any records either. In fact, the Weld professor of law was probably sitting in his quiet Griswold Hall office when the revolution broke out. Almost overnight, a program called Napster turned an obscure legal interest of his into the focus of a heated national debate. Napster’s debut didn’t just put free music into your playlist—it undermined all traditional notions of property. The battle that ensued is not just a fight between hip listeners and entertainment executives in three-piece suits.

Operating out of his North Yard office, Nesson too is fighting the good fight. He and a handful of Law School professors are hatching a plot to take down the maze of laws protecting the entertainment establishment. In October, Nesson and Berkman Assistant Professor of Entrepreneurial Legal Studies Jonathan L. Zittrain traveled to Washington, D.C., to defend their cause before the Supreme Court. And today, the professors say they’ve just begun the immense project of erasing the laws that killed Napster. Their goal: to rewrite copyright law, transforming it into a form compatible with both artistic compensation and the free flow of information.

But though their aims are high, this team of academic warriors keeps running into brick walls. In January, the Harvard lawyers lost their Supreme Court case, failing to convince Antonin Scalia, Clarence Thomas and co. that a 1998 bill extending the term of an author’s copyright was not only unconstitutional, but archaic for an information age.

Though they’ve vowed to make a project of rewriting copyright law, that has been an uphill battle too.

Across the hall from Nesson, in the computer-crowded office of Zittrain, a former student of Nesson’s, sits a blue hard-bound cover with an imposing title: Internet Law. Zittrain’s name is below the title, as are Nesson’s and a handful of other legal scholars’—but that’s all they have. The pages between the covers are blank.

Unplugged and Uncertain?

The subversive dogmas preached at the Berkman Center for Internet and Society only run so deep. The first time he used filesharing software, Zittrain says he got the same queasy feeling that might have hit the stomach of any of his straight-laced colleagues.

“This is so illegal,” Zittrain recalls thinking to himself. “Not even close.”

Now iTunes, this year’s hot digital music application, is shuffling aimlessly through 9126 songs on one of the computers in Zittrain’s office. Beck and the Velvet Underground, perhaps not every Ivy League professor’s artists of choice, play quietly in the background.

Still, Zittrain hasn’t been pirating Odelay in his spare time: every one of the songs in his playlist is his, fair-and-square, copied for personal use from a legally purchased CD. He isn’t even taking advantage of iTunes’ legal sharing function, which might allow him to listen in on the mp3 collection of Law School Dean Elena Kagan, whose office is three floors down, should she have one. All in all, Zittrain listens to music on his PC the same way your dad might.

How is this man a revolutionary?

A glance around the office reveals the paraphernalia of Zittrain and Nesson’s somewhat quixotic legal quest. By the wall are two dormant computers which spent the fall of 2002 meticulously logging into Chinese proxy servers to compile a comprehensive list of what information the communist government was blocking. Nesson’s laptop, meanwhile, has three filesharing services installed, which he says he starts up from time to time “to see what’s happening.”

It’s a trial-and-error approach the professors share in their efforts to reform copyright law. But beyond their shared distaste for current intellectual-property strictures, the team can’t seem to agree what exactly should take their place.

Zittrain, who says he focuses on the Internet’s cultural middlemen, is fond of predicting dystopias in which average citizens are made to pay for the most basic exchanges of information. Berkman Center Director William W. Fisher III, who is also the Hale and Dorr professor of intellectual property law, has proposed the most concrete alternative: a radical re-engineering which would institute a royalty-style compensation system for artists while keeping music free for consumers. Nesson, for his part, says he is uninterested in such “nirvana solutions,” but offers little in the way of specifics in their place.

The disagreement might seem to dampen their revolutionary spirit. But it’s exactly this uncertainty that makes the present such an exciting time to study electronic copyright law—the chaotic lack of infrastructure, just below an apparently sound surface, that makes a revolution succeed.

Zittrain compares recent developments in copyright law to a very different kind of uprising: the last years of the Soviet Union.

“You still see the tanks in Red Square, and then one day you wake up and the world has changed,” he says.

The War Comes to the Living Room

Zittrain and Nesson, veterans in this newly controversial field, can recall those pre-perestroika days, when their ivory-tower pursuit of choice fought to hold students’ and scholars’ interest next to glamorous criminal and civil law.

“You basically had an obscure field, intellectual property,” Zittrain says. “It just didn’t affect the rest of us so much.”

Harvard has always been an ideal place to study the obscure, he says, explaining that the school is “academic in the best sense of the word—able to take a step back from the day-to-day world and say ‘why,’ or ‘what if.’”

But in recent years, fewer and fewer have been able to say that intellectual-property theory does not affect their lives. The battles over copyright law have been fought individual by individual, computer by computer, far beyond Harvard’s campus.

Zittrain says Harvard has felt each stage of the shock wave acutely. In 1997, a year after he founded the Berkman Center with Nesson, Zittrain says his course on Internet law attracted 25 students; by 2000 the class enrollment had reached 200.

The huge surge of interest produced by the dot-com bubble and feared Y2K disaster—two subjects he says Harvard professors were careful to steer clear of—has already subsided. In 2002, the last year he taught, Zittrain estimates his course had fallen back to a respectable 80 students.

Still, he doesn’t see the shattered windows going back up over copyright law.

“I think the battle is just started,” Zittrain says.