A Symposium for John Perry Barlow
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DUKE LAW & TECHNOLOGY REVIEW Volume 18, Special Symposium Issue August 2019 Special Editor: James Boyle THE PAST AND FUTURE OF THE INTERNET: A Symposium for John Perry Barlow Duke University School of Law Duke Law and Technology Review Fall 2019–Spring 2020 Editor-in-Chief YOOJEONG JAYE HAN Managing Editor ROBERT HARTSMITH Chief Executive Editors MICHELLE JACKSON ELENA ‘ELLIE’ SCIALABBA Senior Research Editors JENNA MAZZELLA DALTON POWELL Special Projects Editor JOSEPH CAPUTO Technical Editor JEROME HUGHES Content Editors JOHN BALLETTA ROSHAN PATEL JACOB TAKA WALL ANN DU JASON WASSERMAN Staff Editors ARKADIY ‘DAVID’ ALOYTS ANDREW LINDSAY MOHAMED SATTI JONATHAN B. BASS LINDSAY MARTIN ANTHONY SEVERIN KEVIN CERGOL CHARLES MATULA LUCA TOMASI MICHAEL CHEN DANIEL MUNOZ EMILY TRIBULSKI YUNA CHOI TREVOR NICHOLS CHARLIE TRUSLOW TIM DILL ANDRES PACIUC JOHN W. TURANCHIK PERRY FELDMAN GERARDO PARRAGA MADELEINE WAMSLEY DENISE GO NEHAL PATEL SIQI WANG ZACHARY GRIFFIN MARQUIS J. PULLEN TITUS R. WILLIS CHARLES ‘CHASE’ HAMILTON ANDREA RODRIGUEZ BOUTROS ZIXUAN XIAO DAVID KIM ZAYNAB SALEM CARRIE YANG MAX KING SHAREEF M. SALFITY TOM YU SAMUEL LEWIS TIANYE ZHANG Journals Advisor Faculty Advisor Journals Coordinator JENNIFER BEHRENS JAMES BOYLE KRISTI KUMPOST TABLE OF CONTENTS Authors’ Biographies ................................................................................ i. John Perry Barlow Photograph ............................................................... vi. The Past and Future of the Internet: A Symposium for John Perry Barlow James Boyle ................................................................................. 1 A Declaration of the Independence of Cyberspace John Perry Barlow ....................................................................... 5 Selling Wine Without Bottles: The Economy of Mind on the Global Net John Perry Barlow ...................................................................... 8 Is the Internet Over?! (AGAIN?) James Boyle ............................................................................... 32 Barlow’s Legacy Cory Doctorow .......................................................................... 61 Inventing the Future: Barlow and Beyond Cindy Cohn ................................................................................ 69 A Political Economy of Utopia? Yochai Benkler .......................................................................... 78 Internet Utopianism and the Practical Inevitability of Law Julie E. Cohen ............................................................................ 85 Revisiting Barlow’s Misplaced Optimism Benjamin Edelman ..................................................................... 97 The Enigma of Digitized Property: A Tribute to John Perry Barlow Pamela Samuelson & Kathryn Hashimoto .............................. 103 Imaginary Bottles Jessica Litman .......................................................................... 127 John Perry Barlow’s Call for Persuasion Over Power Jonathan L. Zittrain .................................................................. 137 Dancing on the Grave of Copyright? Anupam Chander & Madhavi Sunder ..................................... 143 What Didn’t Happen: An Essay in Speculation Peter Jaszi ................................................................................ 162 A Declaration of the Mission of University in Barlowspace Charles R. Nesson .................................................................... 174 AUTHORS’ BIOGRAPHIES Yochai Benkler is the J&L Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School and the Berkman Klein Center for Internet and Society at Harvard University. Since the 1990s he has played a role in characterizing the role of information commons and decentralized collaboration to innovation, information production, and freedom in the networked economy and society. His books include Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (Oxford University Press 2018) and The Wealth of Networks: How social production transforms markets and freedom (Yale University Press 2006). His work can be freely accessed at benkler.org. James Boyle is William Neal Reynolds Professor of Law at Duke Law School and founder of the Center for the Study of the Public Domain. He has written a distressing number of articles and books on intellectual property, internet regulation, legal theory and legal argument. His other books include two graphic novels, both co-authored with Jennifer Jenkins: Bound By Law, on fair use and the permissions culture in intellectual property, and Theft: A History of Music, a 2000 year long history of musical borrowing from Plato to rap. Professor Boyle was one of the founding Board Members of Creative Commons. He has been awarded the Donald McGannon Award for communications policy, a World Technology Network Award for Law and the Electronic Frontier Foundation’s Pioneer Award for his work on the public domain and the second enclosure movement that threatens it. Anupam Chander is Professor of Law at Georgetown University Law Center. The author of the widely-reviewed book, The Electronic Silk Road (Yale University Press), he is an expert on the global regulation of new technologies. A graduate of Harvard College and Yale Law School, he clerked for Chief Judge Jon O. Newman of the Second Circuit Court of Appeals and Judge William A. Norris of the Ninth Circuit Court of Appeals. He practiced law in New York and Hong Kong with Cleary, Gottlieb, Steen & Hamilton. He has been a visiting law professor at Yale, the University of Chicago, Stanford, Cornell, and Tsinghua. He previously served as the Director of the California International Law Center and Martin Luther King, Jr. Professor of Law at UC Davis. A member of the American Law Institute, he has also served on the Executive Council of the American Society of International Law, where he co-founded the International Law and Technology Interest Group. He serves as a judge of the Stanford Junior International Faculty Forum. A recipient of Google Research Awards and an Andrew Mellon grant on the topic of surveillance, he has served on ICTSD/World Economic i Forum expert groups on the digital economy. He serves as an Adjunct Senior Research Scholar at Columbia University’s School of International and Public Policy, a faculty advisor to Georgetown’s Institute for Technology Law and Policy, and as a faculty affiliate of Yale’s Information Society Project. Cindy Cohn is the Executive Director of the Electronic Frontier Foundation, which was founded by John Perry Barlow in 1990 and for whom he was a Board member, serving as Vice Chair and, eventually at his request, the Rockin’ Chair (of course) until he passed away. From 2000–2015 Ms. Cohn served as EFF’s Legal Director as well as its General Counsel. Ms. Cohn first became involved with EFF in 1993, when EFF asked her to serve as the outside lead attorney in Bernstein v. Dept. of Justice, the successful First Amendment challenge to the U.S. export restrictions on cryptography in 1993. In 2018, Forbes included Ms. Cohn as one of America’s Top 50 Women in Tech. The National Law Journal named Ms. Cohn one of 100 most influential lawyers in America in 2013, noting: “[I]f Big Brother is watching, he better look out for Cindy Cohn.” She was also named in 2006 for “rushing to the barricades wherever freedom and civil liberties are at stake online.” In 2007 the National Law Journal named her one of the 50 most influential women lawyers in America. In 2010 the Intellectual Property Section of the State Bar of California awarded her its Intellectual Property Vanguard Award and in 2012 the Northern California Chapter of the Society of Professional Journalists awarded her the James Madison Freedom of Information Award. Julie E. Cohen is the Mark Claster Mamolen Professor of Law and Technology at the Georgetown University Law Center. She teaches and writes about surveillance, privacy and data protection, intellectual property, information platforms, and the ways that networked information and communication technologies are reshaping legal institutions. She is the author of Between Truth and Power: The Legal Constructions of Informational Capitalism (Oxford University Press, forthcoming 2019); Configuring the Networked Self: Law, Code and the Play of Everyday Practice (Yale University Press, 2012), which won the 2013 Association of Internet Researchers Book Award and was shortlisted for the Surveillance & Society Journal’s 2013 Book Prize; and numerous journal articles and book chapters. She is also a co-author of Copyright in a Global Information Economy (Aspen Law & Business, 4th ed. 2015), the leading textbook in copyright law. Professor Cohen is a member of the Advisory Board of the Electronic Privacy Information Center. ii Cory Doctorow (craphound.com) is a science fiction author, activist, journalist and blogger—the co-editor of Boing Boing (boingboing.net) and the author of Radicalized and Walkaway, science fiction for adults, a YA graphic novel called In Real Life, the nonfiction business book Information Doesn’t Want to be Free, and young adult novels like Homeland, Pirate Cinema and Little Brother and novels for adults like Rapture of the Nerds and Makers. He works for the Electronic Frontier Foundation, is a MIT Media Lab Research Affiliate, is a Visiting Professor of Computer Science at Open University, a Visiting Professor of Practice at the University of South Carolina’s School of Library and Information Science