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Tag: Cyberlaw Clinic (page 1 of 4)

How to balance safety and privacy with a car tracker

Via The Parallax

By: Kristin Burnham

Source: Pexels

Last month, North Carolina teenager Macy Smith credited a GPS tracker on her phone, along with a Bible within reach, for her survival after she lost control of her car during a heavy rainstorm. It hydroplaned, flipped, and slid down a ravine, pinning her below it. Hours later, her family used the Find My Friends app to pinpoint her location.

Smith, who suffered neck and nerve injuries from the crash, was lucky that her phone, which she couldn’t reach, had battery power, cellular connectivity, and an active location-tracking app that she’d shared with loved ones. For parents terrified about what might happen when their fledgling drivers hit the road without them, an always-on car-tracking device can help alleviate a fear or two.

By tracking details like location, speed, and sudden braking, these devices can help people keep tabs on where and how their cars are being driven, not to mention whether their teens are obeying curfews. On the other hand, privacy experts caution that car trackers can be used to stalk, intimidate, or otherwise invade drivers’ privacy.

“The No. 1 thing people should remember is that once data exists, it can be a challenge to keep it secure and private,” says Nate Wessler, staff attorney with the ACLU Project on Speech, Privacy, and Technology. “A long-term record over time can give away information about which doctors you visit, which people you spend time with, people’s love lives, and more.”

This data might be valuable to a number of parties: data brokers and marketers, which may gain access to it through corporate data-sharing partnerships; law enforcement agencies, which often (but not always) need to obtain a search warrant to access it; and hackers, who find ways to access it through unsecured cloud storage or data leaks.

“Individual location data is incredibly valuable to companies who are trying to serve up ads and do marketing analysis,” Wessler says. “People should not have their location data leaked in that way without express consent and full knowledge of what’s happening. Location data is part of a huge gray market of data brokers who are packaging it and reselling it to end users.”

Before purchasing a GPS tracker, Wessler advises gathering some data yourself. Read the company’s privacy policy for information on whether it resells or shares user data with third parties, how long it retains data, and what measures of security and privacy it has in place.

Another important consideration, he says, is the legality of installing such devices. According to a report from the National Conference of State Legislatures, it’s legal for individuals to install GPS tracking devices on vehicles they own, either as a private citizen or as an employer.

It’s generally illegal to install GPS-tracking devices on vehicles you don’t own, though you may be able to legally install one on the car of someone (like a child or an incapacitated adult) for whom you are a legal guardian.

The privacy and security concerns of these devices are not unlike those associated with mobile devices and vehicles’ built-in GPS capabilities, Wessler notes.

“Unless you turn these settings off, the phone you carry with you in the car is already tracking your location,” he says. “Modern cars have GPS-enabled systems with mapping functions. Think twice before purchasing other devices that do the same thing—but know that there are things you can do to help ensure that you data is safe.”

If you’re in the market for a car tracker, you might feel a sense of relief hearing that some of today’s best-selling devices (listed below) have a privacy policy that indicates safe data practices, including detailing security tools and disclosing how they use customer data. That said, the policies often prioritize corporate flexibility over technical specificity, says Kendra Albert, clinical instructional fellow at Harvard Law School’s Cyberlaw Clinic.

“Companies that have reasonably good practices for notifying consumers of privacy policy or terms of service changes tend not to make them incredibly specific,” Albert says. “Vagueness can provide companies flexibility to do legitimate things with data that consumers don’t need details on, such as switching from [Amazon Web Services] to another provider.”

Continue reading.

The unpredictable legal implications of Trump’s Twitter-blocking defeat

Via The Verge

By: Adi Robertson

Source: Twitter

Earlier this week, a federal appeals court ruled that President Donald Trump couldn’t block his critics on Twitter. More specifically, the court determined that Trump’s Twitter account is a “public forum” where citizens have a right to engage with his comments, the same way they’d be able to attend a town hall. This ruling could shape how all government officials use social media — from the US president to local garbage collectors.

The Knight First Amendment Institute at Columbia University sued Trump in 2017, arguing that Trump had violated the First Amendment rights of seven Twitter users — all of whom had been blocked after tweeting criticism at the @realDonaldTrump account. The Knight Institute argued that Trump was preventing these users from participating in a public discussion since these discussions were taking place in replies to Trump tweets.

A lower court ruled in favor of the Knight Institute last year. The Second Circuit Court of Appeals agreed on Tuesday, saying it was unlawful for “a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.”

As Cornell Law School professor James Grimmelmann puts it, “Of course Trump can say whatever he wants” on Twitter. And he can choose to boost specific posts by retweeting them. But he can’t make it harder for certain people to participate in the conversation around those tweets, which is exactly what blocking somebody on Twitter does.

Grimmelmann says the facts in this case were “particularly stark” since Trump clearly uses Twitter as an official White House communication tool. But it raises questions for other politicians and governmental agencies. Rep. Alexandria Ocasio-Cortez was recently sued for blocking Republican primary candidate Joseph Saladino, and courts will have to decide whether she’s created the same kind of public forum with her social media presence. “[Trump] made this a very easy case. It’s a harder question if a politician is using it to interact with the public but is not claiming to use it for official business,” he says.

Overall, “what this case pushes toward is a pretty strong separation of official and personal capacities,” says Grimmelmann. If you’re a politician maintaining a mostly campaign-focused or personal account, the ruling might not matter. Otherwise, “it pretty much tells you that your social media presence kind of has to be one-way: you can respond to interact with people, but you’re not going to be able to use anything stronger than muting on inbound content.”

Kendra Albert, an instructor at Harvard Law School’s Cyberlaw Clinic, believes the Second Circuit’s decision is unnecessarily ambiguous. The Trump administration has argued that its account is government speech, or speech that the government is performing on its own behalf, which isn’t regulated by the First Amendment. Albert argues that the original ruling clearly separated the account’s “government speech” content from the interactive forum in the replies. “The lower court decision actually does a really good job of explaining why it matters that people are blocked, even if they can just log out of Twitter and see the president’s tweets otherwise,” Albert said, “and it’s because there’s sort of this discursive space going on underneath the tweet.”

The new ruling refers to Trump’s whole account as a public forum, then draws finer lines between tweets that are government speech and independent tweets by other users. “I think it’s still a case that can be cited by plaintiffs in order to show that government officials can’t sort of just be willy-nilly blocking people from their official Facebook or Twitter pages,” Albert says. “But it’s certainly less clear than the district court opinion and it means they have to spend more time explaining why things aren’t government speech.”

Government accounts will need to block some users if they want to keep their digital spaces usable. The ruling doesn’t prevent this, but administrators will have to avoid doing it in a way that’s politically biased, which could lead to some difficult decisions. What if, Grimmelmann says, a municipal waste authority accepts comments on a Facebook page about trash collection? “Does this case now mean that they can’t remove comments screaming at them that recycling is a communist plot?” he asks.

The same difficult decisions could come up with harassment. “It may be difficult to ban or block someone for harassing you kind of generally, unless you have a sustained pattern of harassment,” says Albert. The best solution, they suggest, would be for officials to establish clear moderation rules that could be enforced across the board, the way a town hall could expel people who genuinely disrupt a meeting, even if they’re engaging in political speech.

There’s tension between First Amendment protections and social media moderation rules. White supremacist rhetoric is protected under American law, for instance, but it’s banned as hate speech on Facebook. Grimmelmann says that this speech could still be removed as long it’s based clearly on Facebook’s moderation guidelines, not the government’s.

Crucially, this case doesn’t discuss whether Twitter itself is a public forum or determine how Twitter can moderate users. It just rules on the actions that individual government-related accounts can take.

It’s also not the final say on government social media accounts. The Fourth Circuit Court of Appeals ruled in January that county officials couldn’t bar critics from their Facebook pages. But a different court has maintained that Kentucky’s governor can block constituents on Facebook and Twitter. “I think that as different circuits coalesce around a kind of collective test — or at least a way of handling things like Twitter and Facebook and maybe Instagram,” says Albert, “it’ll sort of become more consistent over time.”

Becoming a Cyberlaw Advocate

By: Alexandra Noonan, J.D. ’19

Alexandra Noonan, J.D. ’19

I have had two wonderful opportunities to work with the Cyberlaw Clinic. Reflecting back on my time at Harvard Law School, both of these opportunities shaped me as a lawyer and as an advocate.

I originally decided to participate in the clinic because its work aligned with my interests and values. I entered HLS very interested in intellectual property, digital civil liberties, and privacy and wanted a chance to learn about these areas in a hands-on way. During my first project, I worked primarily on my client-counseling skills as my partner and I helped a city develop its first data privacy policy. Professor Susan Crawford supervised us but let us define the scope of the project, work directly with our clients, and interview other city officials all over the world.

It was during my advanced clinical with the Cyberlaw Clinic  that I developed enough ownership in my work to consider myself an advocate. Over the 2019 winter term, I drafted an amicus brief for a group of former United States Magistrate Judges advocating for the unsealing of government surveillance orders  and applications. Jason Leopold, a BuzzFeed News journalist, and the Reporters Committee for Freedom of the Press appealed a district court decision granting the parties only limited access to the old sealed applications and orders for pen registers, trap and trace devices, and other types of surveillance for which Leopold had petitioned. As amici, the United States Magistrate Judges wanted to help the D.C. Circuit understand why unsealing these old surveillance applications and orders would not place undue administrative burdens on the judges who would actually process them. They also wanted to explain why focusing on administrative burdens place undue limits on the public’s common law right of access to judicial records.

This project was my first opportunity to write a brief from start to finish. Although I had assisted with parts of briefs in the past, this was my first opportunity to define the main arguments and structure, draft the brief in full, and refine it with my clients. In just a few weeks, I learned everything about sealed surveillance applications and orders, from the law governing their approval and use to what judges on the ground do when they receive them. Each of my clients had tens of years of experience on  the bench and with sealed orders, but they were extremely gracious and appreciative of my work. At the same time, my supervisors Kendra Albert and Mason Kortz helped me work on  structuring an amicus brief and improving my prose, even though we were up against a very tight deadline. I have worked on a lot of projects in my time at HLS, but this one in particular took me from law student to lawyer.

I am so grateful for my time in the Cyberlaw Clinic and for the incredible instruction I received there. The projects I have worked on were exactly the kind of work I had hoped to do when I decided to attend HLS. Although I plan to practice patent litigation next year at a law firm, the skills that I have acquired in the clinic have helped me become a more confident lawyer and more effective advocate.

A Guide to Fourth Estate v. Wall-Street.com

Via Cyberlaw Clinic 

Source: Pixabay

By: Sylvia Zhang, J.D. ’19

Section 411(a) of the Copyright Act states that “no civil action for [copyright] infringement…shall be instituted until preregistration or registration of the copyright claim has been made.”[1] In other words, copyright owners must “register” their copyrights before suing for copyright infringement. In Fourth Estate v. Wall-Street.com, decided in March 2019, the Supreme Court clarified that “registration” for the purposes of Section 411(a) occurs only when the Copyright Office registers a copyright and provides a certificate of registration and not when an applicant files for copyright registration.[2] Under this decision, copyright owners must wait for the Copyright Office to decide on their registrations before they are allowed to sue others for infringement. This decision could potentially create a substantial time lag during which copyright owners, especially those with limited budgets, are able to enforce their copyrights. This blog post summarizes the Fourth Estate case and its reasoning, the implications of the new rule, and some ways for copyright owners to respond, including how to register for copyright.

Summary of the Case

Fourth Estate is a news organization that licensed journalistic works to Wall-Street.com, a news website. Wall-Street eventually canceled the licenses but continued to display Fourth Estate’s works on its website without Fourth Estate’s consent. Fourth Estate then submitted copyright registration applications for these works and immediately sued Wall-Street for infringement. Wall-Street moved to dismiss the suit because the Copyright Office had not yet acted on Fourth Estate’s applications. The key dispute of this case is whether the Section 411(a) requirement of “registration” was met when Fourth Estate submitted a completed registration application or would only be met when the Copyright Office actually acted on the application. The Supreme Court sided with Wall-Street, holding that registration only occurs when the Copyright Office acts.

Circuit Split

Before the Fourth Estate decision, there existed a circuit split on this question. Some courts in the Fifth, Eighth, and Ninth Circuits followed the “application approach,” where the submission of a completed application to the Copyright Office was sufficient to meet the Section 411(a) requirement that “registration…has been made.”[3] Fourth Estate was a proponent of the “application approach.”

On the other hand, the Tenth and Eleventh Circuits followed the “registration approach,” which required the Copyright Office to make a decision on the application to meet the Section 411(a) requirement.[4] Wall-Street was a proponent of the “registration approach.” Because the Fourth Estatecase was originally brought in the Eleventh Circuit, the trial court and court of appeals both followed the “registration approach” and ruled in favor of Wall-Street.[5]

Supreme Court’s Reasoning

In Fourth Estate, the Supreme Court resolved the circuit split in favor of the “registration approach.” In a unanimous opinion authored by Justice Ginsburg,[6] the Court’s reasoning focused primarily on the statutory interpretation of Section 411(a) and the legislative history of the Copyright Act.

First, the Court focused on the basic statutory interpretation principle of keeping definitions consistent within a single statutory provision. The first sentence of Section 411(a) prohibits the initiation of an infringement suit until “registration…has been made.” The second sentence of Section 411(a) allows for the copyright applicant to initiate an infringement suit even if “registration has been refused” as long as the applicant serves notice to the Copyright Office.[7] In the second sentence, registration can only be refused if the word “registration” refers to a decision by the Copyright Office. Therefore, consistent with the principle that words within a single statutory provision should retain the same meaning, the Court reasoned that “registration” in the first sentence of Section 411(a) mustrequire a registration decision by the Copyright Office, and cannot refer to the mere submission of a registration application.[8] The Court also looked to other Copyright Act provisions that use the term “registration” to support its interpretation and applied the principle of avoiding statutory interpretations that create superfluous language.[9]

Second, the Court looked to legislative history. It found that, when Congress revised the Copyright Act in 1976, it endorsed the rule that an action by the Copyright Office is required to trigger a copyright applicant’s entitlement to sue.[10] Specifically, the addition of the second sentence of Section 411(a) in the 1976 revisions would be unnecessary if Congress meant to allow copyright owners to sue upon submitting an application. In addition, in 1993, Congress considered but declined to adopt a change that would allow a copyright applicant to sue immediately after submitting a registration application.[11] These pieces of legislative history supported the Court’s decision in favor of Wall-Street.com

The Court also dismissed Fourth Estate’s policy arguments. It found that waiting for registration from the Copyright Office would not deprive copyright owners of their rights, because once the Copyright Office decided on the application the applicant could still win damages for past infringements that occurred before registration.[12] The Court also pointed to preregistration (discussed in more detail below) as a way for time-sensitive works to acquire more protection.[13] Lastly, the Court noted that the long registration processing times at the Copyright Office cannot be a reason to interpret §411(a) differently. It said that the backlog is due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”[14]

In sum, the Supreme Court adopted the “registration approach,” which means that copyright owners do not automatically have the right to sue once they submit a completed registration application but, rather, must wait until the Copyright Office actually provides a certificate of registration (or denial thereof).[15]

Implications

The Fourth Estate decision is likely to have at least five major sets of implications:

  • Impact on Copyright Owners. One crucial implication of the Fourth Estate decision is that it reduces the leverage of copyright owners by taking away their ability to threaten and initiate immediate legal action if they have not yet obtained registration decisions from the Copyright Office. Currently, it takes between one and seven months, with an average of five months, for the Copyright Office to process an application.[16] Copyright owners may be unable to seek preliminary injunctions that prohibit alleged infringers from using their work during that time. However, as the Supreme Court noted, the decision does not change the ability of copyright owners to eventually recover damages from infringement that occurred before registration and from the infringer’s profits.[17]

 

  • Inequitable Impact on Small Copyright Owners. Although the Fourth Estate rule applies to all copyright owners, the impact of the rule may disproportionately harm small copyright owners. As explained below, the Copyright Office offers an “expedited process” that costs $800 per registration and provides a registration decision much more quickly than the regular process. When faced with infringement, deep-pocketed corporate copyright owners are much more likely to be able to afford the expedited process than small and individual copyright owners. Moreover, the Fourth Estate registration rule favors copyright owners that have the resources to consistently register their works for copyright over those who would be hard-pressed to register each of their works.

 

  • DMCA Takedowns. It may also be more difficult for copyright owners to sustain a DMCA takedown request. After a copyright owner files a DMCA takedown to remove allegedly infringing work from the Internet,[18] an alleged infringer can file a counter-notice and have the work reinstated.[19] After a counter-notice has been filed, platforms or Internet service providers may refuse to respond to a second DMCA takedown notice unless the copyright owner presents proof that it has initiated a court proceeding. If a copyright owner cannot initiate court proceedings absent a copyright registration, the intermediary may put content back up before a lawsuit can be commenced.

 

  • More Registrations. Now that merely filing a registration application is not enough to bring suit, copyright owners are more incentivized to apply for registration as soon as possible. Before Fourth Estate, some copyright owners filed for registration only when they were planning to sue for infringement. Now, the Fourth Estate rule may cause an influx of registrations (both regular and expedited) at the Copyright Office, which could cause processing times to increase beyond the current average of five months. On the other hand, Fourth Estate has brought the issue of administrative lag at the Copyright Office to the attention of some senators, and could potentially lead to Congress’s provision of more resources to the Office and relieving some of the backlog.[20]

 

  • Less Forum Shopping and Fewer Frivolous Claims. Under Fourth Estate, the registration rule is now consistent throughout the country, which means that plaintiffs will no longer have an incentive to bring infringement cases in circuits where the rule was favorable to them. Moreover, the higher barrier to bringing copyright infringement suits may stop plaintiffs from bringing frivolous or peripheral copyright claims in order to threaten high statutory damages.

All in all, Fourth Estate does not change the copyright landscape drastically, because copyright owners have always had to register their works before suing for infringement and they can still recover all monetary damages, even those incurred before registration. The primary difference now is that there may be a substantial delay between application for registration and filing an infringement suit.

How Should Copyright Owners React? Register for Copyright.

Under Fourth Estate, a copyright owner must have a registration decision from the Copyright Office before it can sue someone for infringing its copyrightable work. If a copyright owner applies for registration only after it finds out about the infringement, the copyright owner could be waiting five or more months before the Copyright Office registers your work.

There are three ways for copyright owners to avoid the wait.

First, a copyright owner can apply for registration as soon as its works are published, so that it will have a registration decision from the Copyright Office at the ready. Early submission of registration applications may turn out to be the best and simplest approach for copyright owners in the wake of the Fourth Estate. Although this will not necessarily decrease the copyright owner’s total wait time, it could mean that the copyright owner will have a certificate of registration ready if its work is ever infringed, and it will not feel pressured to expedite the registration process. Moreover, registration also provides other benefits. For example:

    • Registration is prima facie evidence of the validity of copyright, which means that courts will presume that that the copyright owner’s work is protected by copyright.
    • When registration is made within the first three months of publication, the copyright owner will be eligible to win statutory damages and attorneys’ fees in an infringement suit, potentially making the threat of a lawsuit more alarming for the infringer.
    • Registration creates a public notice of the fact that a work is protected and of the identity of the copyright owner. This could help people who want to license the work to find the copyright owner.[21]

Registrations can be done online through the Electronic Copyright Office Registration System (called eCO) as well as through mail-in paper applications. Electronic applications are, however, cheaper and are reviewed faster than paper applications. Currently, the most basic application, which is for a single work owned by a single claimant who is also the author of that work, costs $35. Other online filings cost $55, while paper applications cost $85 or more. Photographers may be able to register up to 750 published photographs in one application under the Group Registration for Published Photographs procedure, as long as they were created by the same author in the same calendar year. For more information on how to register copyrights, see the two following guidance documents published by the Copyright Office: “Registering a Copyright with the U.S. Copyright Office” and “Copyright Office Fees (Circular 4).”

Second, for certain types of time-sensitive works, a copyright owner can apply for preregistration, which allows one to sue for infringement even before the works are published. Like registration, preregistration allows a copyright owner to initiate an infringement suit.[22] But, preregistration is limited to only a few types of works that tend to be infringed prior to authorized commercial distribution—specifically motion pictures, sound recordings, musical compositions, books, computer programs, and advertising or marketing photographs.[23] Other types of works are not available for preregistration. Moreover, preregistration is not a replacement for normal registration, so a copyright owner must still complete a registration application after publication. Preregistration is only available online and currently costs $140 per application.[24] For more information on preregistration, see the Copyright Office’s webpage.

Lastly, if necessary, a copyright owner can utilize the expedited application process and obtain a decision from the Copyright Office with much less delay. Expedited registration — which the Copyright Office calls “special handling” — is available for all types of works but is only granted in some specific circumstances. One such circumstance is where there is pending or prospective litigation.[25] For a registration with a special handling request, the Copyright Office “will make every effort to complete its examination of the claim…within five working days” of the request being made. But, it cannot guarantee that every claim will be registered within that time frame.[26] A copyright owner can request special handling when it first submits an application, as well as for an application that is already submitted.[27] Special handling for registration currently costs a hefty $800 per claim in addition to the regular application fee.[28] For more information on special handling, see the guidance document “Special Handling (Circular 10)” published by the Copyright Office.

Sylvia Zhang (HLS JD 2019) was an advanced clinical student in the Cyberlaw Clinic during the spring semester 2019. Note:  This post is informational and does not constitute legal advice; if you have questions about the applicability of the Fourth Estate decision to your own copyright registration activities, please consult a lawyer.

[1] 17 U.S.C. § 411(a) (2017).

[2] 139 S. Ct. 881, 892.

[3] See, e.g., Apple Barrel Prods. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006); Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir. 2010).

[4] See, e.g., LaResolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200-01 (10th Cir. 2005); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 note 4 (11th Cir. 1986).

[5] See Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, No. 16-60597, 2016 U.S. Dist. LEXIS 187499, at *3 (S.D. Fla. Mar. 23, 2016); Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1341 (11th Cir 2017).

[6] Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).

[7] 17 U.S.C. § 411(a).

[8] See Fourth Estate, 139 S. Ct.at 889.

[9] See id.

[10] See id. at 890-91.

[11] Id. at 891.

[12] See id. at 891.

[13] See id. at 892.

[14] Id. at 892.

[15] If the Copyright Office refuses registration, the applicant is allowed to sue for infringement as long as it serves a copy of the complaint to the Register of Copyrights (i.e. the director of the Copyright Office). In such a suit, the presiding court will also decide on the issue of registrability. See17 U.S.C. § 411(a) (2017).

[16] Registration Processing Times, U.S. Copyright Office (2019), https://www.copyright.gov/registration/d…See also FAQs, Copyright Office, https://www.copyright.gov/help/faq/faq-w… (last visited May 19, 2019).

[17] See Fourth Estate, 139 S. Ct. at 891; 17 U.S.C. § 504 (2017).

[18] See 17 U.S.C. § 512(c)(3) (2017).

[19] See id. at § 512(g)(3).

[20] See Steve Brachmann, Senators Tillis and Coons Express Concerns with Fourth Estate in Letter to Copyright Office, IP Watchdog (Mar. 26, 2019), https://www.ipwatchdog.com/2019/03/26/senators-tillis-coons-express-concerns-fourth-estate-letter-copyright-office/id=107697/See also Letter from Sen. Thom Tillis and Sen. Christopher Coons to Karyn Temple, Acting Register of Copyright (Mar. 14, 2019), [21] See U.S. Copyright Office, Circular 1: Copyright Basics 5 (2017), https://www.copyright.gov/circs/circ01.pdf.

[22] 17 U.S.C. § 411(a).

[23] Preregistration, U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-prereg.html (last visited May 19, 2019).

[24] U.S. Copyright Office, Circular 4: Copyright Office Fees 3 (2018), https://www.copyright.gov/circs/circ04.pdf.

[25] U.S. Copyright Office, Circular 10: Special Handling 1 (2017), https://www.copyright.gov/circs/circ10.pdf.

[26] Id. at 2.

[27] Id. at 5.

[28] Id. at 2.

Clinic Files Brief Supporting Cert Petition in Oracle v. Google

Via the Cyberlaw Clinic

Source: Pixabay

The Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Supreme Court in Oracle v. Google, No. 18-956, on behalf of a group of intellectual property law scholars. The brief supported Google’s petition for certiorari, asking the Supreme Court to review decisions of the United States Court of Appeals for the Federal Circuit. Google’s petition is the latest stage in a nearly decade-long litigation battle between Oracle and Google concerning Google’s use of Oracle’s application programming interface (“API”) in Google’s Android smartphone platform.  The case raises two major sets of copyright issues.  The first concerns the scope of copyright protection for APIs and the line between protectable expression and purely functional elements of computer code.  The second concerns whether, if an API is protected by copyright, use of that API may fall under fair use. The Clinic’s brief supports Google on the second of those points, urging the Court to take the case and resolve the fair use issue.

By way of background, in 2010, Oracle sued Google for copyright and patent infringement. A jury in the Northern District of California reached a verdict in favor of Google on May 31, 2012. Oracle appealed the case to the United States Court of Appeals for the Federal Circuit, which reversed the verdict and remanded for a retrial.  The Federal Circuit held that the “structure, sequence and organization” of software is copyrightable. Google petitioned for a writ of certiorari, which was denied.

A second trial began in 2016 and ended with another verdict for Google — this time on the grounds that Google’s use of the Oracle API constituted fair use within the meaning of Section 107 of the Copyright Act.  The Federal Circuit reversed again, this time holding that Google’s use of Oracle’s API code was not fair use.

Amici who joined the Clinic’s brief are intellectual property scholars who are concerned that the Federal Circuit’s decision below misapplied the fair use doctrine. In arguing that the Supreme Court should grant certiorari in this case, amici described at least three ways in which circuits have split in applying fair use standards.  First, while several other circuits have been applying the clear error standard, the Ninth Circuit interpreted the Supreme Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) to require de novo review of fair use determinations. Second, the Supreme Court first articulated the “transformative use” test for fair use in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), but lower courts have had trouble drawing clear lines in its application. Third, the Supreme Court never clarified the relationship between Campbell and Harper, resulting in some courts ruling that Campbell’s “transformativeness” test overruled Harper’s market-oriented test based on 17 U.S.C. § 107, while others held on to Harper’s holding, creating a circuit split in fair use applications. The brief concluded by asking the Court to grant Google’s petition for a writ of certiorariand hear the case on its merits.

Amici on the brief included:

  • Prof. Michael Kasdan is a partner at Wiggin and Dana LLP, and an Adjunct Professor of Law at New York University School of Law;
  • Prof. Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law;
  • Prof. Lydia Loren is the Henry J. Casey Professor of Law at Lewis & Clark Law School;
  • Prof. Mark McKenna is the John P. Murphy Foundation Professor of Law at Notre Dame Law School;
  • Prof. Lateef Mtima is a Professor of Law at Howard University School of Law;
  • Prof. Elizabeth L. Rosenblatt is an Associate Professor of Law at Whittier School of Law, and a Visiting Professor of Law at University of California, Davis, School of Law;
  • Christopher B. Seaman is an Associate Professor of Law at Washington and Lee University School of Law; and
  • Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School.

Many other amicus briefs supported Google’s petition for certiorari, including a brief (.pdf) filed by a separate copyright scholars coalition led by Pam Samuelson and Catherine Crump at UC Berkeley and a team from Berkeley’s Samuelson Law, Technology & Public Policy Clinic. That brief focused on questions of copyrightability and the scope of protection for APIs.

Fall 2018 Cyberlaw Clinic students Robert Joynt and Madeline Salinas and Spring 2019 Advanced Cyberlaw Clinic students LeHeng Li and Jaisel Patel contributed to the amicus brief, working with Clinical Professor Christopher Bavitz. The Clinic team collaborated closely with Professor Rebecca Tushnet to develop the arguments in this brief.

Template License and Collaboration Agreements for AI Art

Via the Cyberlaw Clinic 

As the Cyberlaw Clinic has continued to deepen its practice in AI-generated art (and as AI art has increasingly cropped up in the news), it’s become clear that developers and artists are looking for guidance on how to handle rights in these new works. Clinical Instructors Jessica Fjeld and Mason Kortz have previously written about how to conceptualize the anatomy of AI art for rights purposes; translating that theory into practice was an obvious next step, and today marks the release of a new set of templates created with input from Sarah Schwettmann and SJ Klein of MIT.

We’ve launched the template project with agreements for the two most common situations:

  • license template, for when someone undertaking an AI art project wants to use existing works of art (music, visual art, writing, etc.) as inputs for their system, for example as training data
  • collaboration agreement template, for when two or more people are working together to build, train, and run an AI art system

The templates are accompanied by a how-to guide, which explains the choices that the template authors made in drafting the agreements, and what additional information users will need to provide.

While AI art projects often produce cutting-edge, boundary-blurring results, the community that produces them is collaborative and interdependent. For this reason, the templates encourage (but do not require) parties participating in the creation of these works to open-source their outputs, under Creative Commons or comparable licenses.

The licenses are themselves released under a CC0 public domain dedication, and we hope users will iterate on them and share useful changes back with the community through Github.

Cyberlaw Clinic Files Amicus Brief for Former Magistrate Judges re: Surveillance Orders

Via the Cyberlaw Clinic

Source: Pexels

The Cyberlaw Clinic filed an amicus brief (pdf) last week in the United States Court of Appeals for the D.C. Circuit on behalf of a group of former United States Magistrate Judges, supporting the unsealing of government surveillance orders and applications. The brief supports Jason Leopold, a BuzzFeed News journalist, and the Reporters Committee for Freedom of the Press (“RCFP”). The appeal arises out of a petition that Leopold filed in the D.C. District Court to unseal applications and orders for pen registers, trap and trace devices, tracking devices, stored email, and other types of surveillance, many of which remain sealed indefinitely in practice. He argued that, once the seal is no longer necessary, public access to these judicial records is required under the First Amendment and common law right of access to court records. Leopold was later joined by RCFP.

The parties originally worked with the United States Attorney’s Office for the District of Columbia to narrow the scope of the request, but although some information was turned over, the majority of the applications and orders remained sealed. On February 26, 2018, the district court denied petitioners access to any additional old surveillance matters and granted only very limited access to surveillance applications and orders going forward. The court based its decision largely on the administrative burden the full request would place on the government.

Leopold and RCFP have appealed the district court decision to the D.C. Circuit, asking for the court to grant access to the records under the First Amendment and the common law right of access to judicial records. Although the lower court decision is specific to the context of the D.C. district, Leopold’s case has the potential to shape how federal courts generally handle requests for information regarding government surveillance practices.

Amici are all former United States magistrate judges with a shared interest in unsealing federal surveillance orders and a diverse set of experiences on and off the bench:

  • Judge Mildred Methvin has served as judge in Louisiana, Maryland, and Pennsylvania and is a former AUSA. She is currently an attorney and mediator in Louisiana.
  • Judge Brian Owsley has served as a judge in Texas and is a former trial attorney for the U.S. Department of Justice.  He is currently an assistant professor of law at University of North Texas at Dallas College of Law.
  • Judge Viktor Pohorelsky served as a judge in New York. Prior to his judicial appointment, he had a fourteen-year career as a litigator in private practice and as an AUSA.
  • Judge Stephen Smith served as a judge in Texas and is the current director of the Fourth Amendment & Open Courts program at Stanford Law School’s Center for Internet and Society.
  • Judge David Waxse served as a judge in Kansas and is the former President of the Kansas Bar Association and former Chair of the Kansas Commission on Judicial Qualifications.

Based on their more than 90 years of collective experience on the bench, amici explain the practical consequences of unsealing surveillance matters. Amici outline the process of unsealing surveillance applications and orders in their courtrooms and discuss places where the administrative burden can be reduced, including the shift to e-filing of sealed surveillance applications and orders.

Amici further explain why the burdens of unsealing are not as dire as the district court predicted: surveillance filings can be easily redacted, the majority of unsealings of old surveillance matters proceed unopposed, and properly redacted surveillance documents present no real risk to law enforcement practices. Amici also explain the downsides of considering government inconvenience when determining whether the public should have access to surveillance orders. As administrative practices vary greatly across judges and across government offices, taking the administrative burden into account would effectively make the common law right depend on the size, efficiency, and workload of the government office who made the request or the judge who received it.

The Cyberlaw Clinic is honored to have represented such august amici and hopes the D.C. Circuit Court of Appeals will seriously consider their input. Fall 2018 Cyberlaw Clinic student Akua Abu helped develop arguments for the brief, and the brief was written by Winter 2019 student Alexandra Noonan with assistance from Clinical Fellow Kendra Albert and Clinical Instructor Mason Kortz.

In Suing Boston, Airbnb Argues It’s Not Responsible For Illegal Listings

Via WGBH 

Source: Flickr

By: Isaiah Thompson

Last summer, Boston’s City Council and Mayor Marty Walsh passed Boston’s first ordinance regulating short-term rentals in the city, aimed at allowing homeowners to make extra money while stopping investor owners from buying up real estate to establish de facto Airbnb hotels.

The ordinance allows homeowners to rent extra rooms, or one entire apartment, as long as they register with the city and pay a small fee; and it prohibits short-term rentals by absentee, or so-called “investor” owners.

Airbnb lobbied hard against the measure; when it passed, the company threw the book at the City of Boston: Airbnb sued the city in federal court, arguing the ordinance is illegal.

The lawsuit here could have national implications.

That’s because central to the company’s case is a federal law called the Communications Decency Act – or CDA – specifically, one part of that act known as Section 230.

It says that internet companies can’t be held responsible for what users post on it.

“So basically what that means is I cannot be held responsible as the publisher of information that a user puts up there,” says Mason Kortz. Kortz is a clinical instructional fellow at Harvard Law School Cyber Law Clinic.

“If I post something defamatory about you on Facebook – I can be held liable, Facebook cannot be held liable,” Kortz explains. “Because they didn’t post the defamatory material, they just provided a service.”

In this case, Airbnb is taking aim at parts of Boston’s ordinance that penalize any quote ” booking agent” for listing rentals that violate the city’s new rules.

Airbnb argues it’s just publishing those ads — if people want to post illegal rentals — according to the Communications Decency Act – hey, that’s not Airbnb’s problem.

Airbnb did not respond to a request for comment.

Of course, Airbnb doesn’t just publish other people’s ads – the platform helps users register and post listings, it connects hosts and prospective renters, it provides feedback and ratings – and of course, it takes a cut of the rental proceeds.

“The argument I think Boston is likely to bring here is that they’re not holding Airbnb liable for publishing the advertisements that are put up by third-party hosts,” says Kortz.

“They’re holding them liable for facilitating third-party booking.”

It’s not the first time that argument’s been raised. The City of San Francisco raised the same argument, after Airbnb sued over a similar ordinance there – and a federal district judge sided with San Francisco.

“The district court said publishing the listings was not a problem,” says Eric Goldman, a professor of law at the University of Santa Clara and a co-director of the school’s High Tech Law Institute.

“However the moment that Airbnb took money on behalf of the listing vendor, then the city could regulate its activity and impose basically unrestricted sanctions..”

Airbnb appealed that decision, but the lawsuit was settled before the higher courts could rule one way or another.

That’s why Airbnb’s lawsuit against the City of Boston could set the stage for how and whether local communities across the country can regulate Airbnb and other and other Internet giants.

Goldman, who helped write an amicus brief supporting Airbnb in its motion for an injunction, says he understands cities’ concerns with preserving rental housing. But he disagrees with the district court’s ruling.

“Imagine if we were talking about a business like Ebay … the logic seems to be saying anybody could impose restrictions on Ebay … now Ebay has to be in the business of policing millions of small vendors that it doesn’t have the ability of policing,” Goldman argues. .

“Now we start to say any online market place can be turned into a police state.”

But other legal scholars disagree.

Abbey Stemler is a professor of Business Law and Ethics at Indiana University; Stemler also wrote an amicus brief, in a similar lawsuit brought by Airbnb against the City of Santa Monica – but on behalf of the city, not Airbnb.

“Section 230 has been grossly misinterpreted,” argues Stemler. The act, she says, “has been invoked to say, ‘We cannot be regulated we cannot be deputized to regulate ourselves.”

Stemler agrees that the CDA’s protections in many ways helped foster a better, freer internet – but says that the Act was never meant to immunize deep-pocketed companies like Airbnb from cities’ and towns’ traditional right to govern and regulate their own communities.

“Local communities have to be able to have a say on how these two thing interact, the physical and the digital,” Stemler says.

“Section 230 was never meant to to prohibit all forms of regulation for technologies that use the internet – it simply wasn’t.”

But Stemler says there could be trouble ahead for Boston – especially because of another part of the city’s ordinance, that requires Airbnb to submit regular reports to the city detailing where, when and for how many days its users are engaging in short-term rentals.

Another federal law – also cited in Airbnb’s lawsuit – protects online platforms from sharing user information. And because Airbnb doesn’t make host addresses public, the city will have an uphill battle enforcing its own ordinance without that information.

Stemler says the city might have to settle for spot enforcement – or relying on complaints.

Meanwhile, Airbnb and the city have called a temporary cease-fire: the city agreed to hold off enforcing the parts of its ordinance that could punish Airbnb, while the federal judge overseeing the cases decides whether or not to grant Airbnb a temporary injunction.

The ordinance remains in full effect for prospective hosts.

Clinic Releases Guide to Anti-Circumvention Exemption for Software Preservation

Via the Cyberlaw Clinic 

The Cyberlaw Clinic is pleased to announce the release of “A Preservationist’s Guide to the DMCA Exemption for Software Preservation,” a document created in collaboration with the Software Preservation Network and hosted on the SPN website. The guide —authored by fall 2018 Cyberlaw Clinic student Kee Young Lee and Clinical Fellow Kendra Albert — builds on work that the Clinic and SPN have done together over the past year on the 2018 round of anti-circumvention exemptions announced by the Copyright Office in October of this year.

As we noted in a previous blog post, the Copyright Office conducts a rulemaking every three years to identify situations in which individuals should be exempt from liability under Section 1201 of the Copyright Act in cases where they circumvent a “technical measure that effectively controls access” to a copyrighted work. We were pleased that the latest round of exemptions included one that allows libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired software for the purposes of preserving software and materials that depend on it. The guide released today aims to frame that exemption in useful, practical terms for the librarians and archivists who will rely on and benefit from it.  “Getting the exemption is just the first step — SPN and the Cyberlaw Clinic are dedicated to supporting practitioners in using the exemption to preserve software,” said Mx. Albert.  “This is the first of a set of guides we plan to release to help institutions make the most of their rights under the law.”

The Sneaky Fight to Give Cable Lines Free Speech Rights

Via Wired  


Source: Flickr

By: Susan Crawford

When you make a phone call, I’m willing to bet you don’t think of the phone line as having free speech rights of its own. That phone line has one job: getting the sound of your voice to the place you want it to go. It isn’t planning to deliver a speech or getting ready to go on Broadway. Although life may be boring for the phone line as a result, it is actually getting a great deal: The phone line can’t get blamed for whatever lousy thing you say during your call.

But if the cable industry gets its way, internet access—today’s basic utility—will be treated just like the press for First Amendment purposes, giving it a free pass in perpetuity from any governmental oversight. In the US, the First Amendment gives the press the right to be free from governmental interference when it publishes or speaks. Any laws or regulations restricting that speech are likely to be subject to rigorous scrutiny by courts and found unconstitutional.

It seems counterintuitive that a phone line could be a “speaker.” But the cable industry very much wants to ensure that the act of transmittingspeech from Point A to Point B is protected by the First Amendment, so that making a cable connection carry any speech it isn’t interested in amounts to unconstitutional “forced speech.”

The addition of Justice Brett Kavanaugh to the Supreme Court roster gives the industry a significant boost. In a 2017 DC Circuit dissenting opinion, Justice Kavanaugh made it clear that he supports giving internet access providers “speaker” privileges, saying that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers.”

Everything we do and every policy we care about—according a world-class education to every child, responding to climate change, ensuring access to health care—depends on reliable, cheap, nondiscriminatory internet access. So wrapping the internet access industry in the flag of the First Amendment is a terrible idea. It’s a particularly bad idea when it comes to the cable industry, which in most American metros is a local monopoly. Comcast, for example, has very deep pockets and lots of side businesses, giving it both the ability and incentive to pick and choose among the speeches (read: businesses) it prefers.

What’s amazing is that the cable industry seems happy to accept the increased liability that accompanies being treated like a newspaper. Apparently freedom from all rules is worth the risk of someday dealing with lawsuits. The reason: They’ve got plenty of cash to pay lawyers with. It’s a good time to be Spectrum or Comcast.

All the furor over Facebook and Amazon has diverted public attention from Comcast and Charter, just when the cable industry’s risk of regulation has been substantially eliminated through the helpfulness of FCC chairman Ajit Pai. Both companies are peacefully coining profits.

Charter, which sells connectivity under the Spectrum moniker, made about $11 billion during the third quarter of 2018, a period when it added more than 300,000 new subscribers to its roster, and Wall Street is pleased with its “pricing power.” The company can raise its prices whenever it wants, because it faces little or no competition in the cities where it operates. Margins are growing, the company is buying back its stock, and its capital expenses are going down. Charter is in a milking phase, as is Comcast, which just had one of its best quarters in years. As analyst Craig Moffett puts it, cable companies are “infrastructure providers.” And their infrastructure is essentially unchallenged, either by competition or oversight.

The cable industry’s constitutional gambit is part of a broad movement to use the First Amendment as a tool to avoid regulation. Justice Elena Kagan has colorfully described this movement as the “weaponizing” of free speech rights, saying that companies are “turning the First Amendment into a sword.” The public interest group Public Knowledge recently filed a brief with the Ninth Circuit pointing to the Kimberly-Clark corporation, which claimed a First Amendment right to label wipes as “flushable” even if it disagreed with a governmental assessment that they weren’t. A drug supplier (identified only as M7) recently claimed that selling lethal drugs suitable for use in executions to a state was an “expression of political views, no different than signing a referendum petition or selling a T-shirt.”

Those examples sound almost funny. But for the cable industry, this is serious business—a strategy that will have particularly pernicious consequences for communications. Treating the transmission of data as “speech” will make it virtually impossible for the government to say anything at all about internet access. If the government tries to regulate someday, you can be confident that the industry will make a lot of noise in the form of lawsuits focused on cable’s First Amendment rights to carry out its “editorial discretion,” in hopes that Justice Kavanaugh will get a chance to lock in the industry’s status as a member of the press. The “speech” of a handful of giant companies will be privileged over the ability of all Americans—including all other American businesses—to communicate.

Treating these transmitters of online data like constitutionally protected “speakers” would be a disaster. Recently, Charter exercised its “editorial discretion” by refusing to carry the channels of an African American–owned television company, Entertainment Studios, which had been able to make distribution deals with Verizon, AT&T, and DirecTV. Entertainment Studios could barely get a meeting with Charter. It was able to show that white-owned, lesser-known networks were able to sign contracts with Charter during the same period. Charter argued that any racial discrimination claim was blocked by the First Amendment, because laws cannot be used “to force cable companies to accept channels they do not wish to carry.” Last month, the Ninth Circuit refused to go along with this argument, pointing out in simple language that Charter was prohibited from discriminating against networks on the basis of race. Why? Because the Civil Rights Act of 1866 says so.

Given another chance, Charter or Comcast will unquestionably bring this same “forced speech” argument into the context of internet access. They might argue, for example, that a particular online site does not have a right to reach consumers and businesses. Justice Kavanaugh has already signaled his readiness to support this move, saying that “deciding whether and how to transmit ESPN”—the cable TV channel, something a payTV provider can choose whether to carry—”and deciding whether and how to transmit ESPN.com“—the website, presumably reachable over the internet—”are not meaningfully different for First Amendment purposes.”

The next time around, the evidence Entertainment Studios was able to muster may not matter, particularly if such disparate treatment isn’t so obviously based on race or other protected classifications. Comcast has already arguedthat a Vermont requirement that it expand its service area “amount[s] to undue speaker-based burdens on Comcast’s protected speech under the First Amendment.”

Right now, the cable industry is unquestionably operating a service that customers view as a utility. But it is subject to vanishingly few obligations. And now it wants to ensure that it will be wrapped in the Constitution if the government ever tries to change this situation. This should be intolerable.

How Podcast Platforms Respond to Hate Speech: Clinic Releases New Memo

Via the Cyberlaw Clinic

Source: Pixabay

By: Carol Lin and Zach Glasser

Content regulation emerged as a controversial topic earlier this year after right-wing personality and frequent conspiracy theorist Alex Jones had his Infowars podcast removed from most platforms, including Apple, Spotify, Stitcher, and RadioPublic. Amid a social media firestorm, platforms rushed to ban Jones, sometimes within hours of each other, and often without articulating how exactly Jones’ speech violated their terms. The incident drew attention to the ethical and logistical challenges podcasting platforms face in balancing safety, diversity, and respect for free speech principles when articulating what content they allow on their services, and the difficulties in implementing such policies consistently.

Recognizing the importance of a principled approach, the Cyberlaw Clinic is pleased to release a new memorandum on content regulation policy for the podcasting community drafted by current Clinic students Zach Glasser and Carol Lin with Assistant Director Jessica Fjeld. We gratefully acknowledge the assistance of podcasting platform RadioPublic, whose co-founder and CEO Jake Shapiro is a member of the Berkman Klein Fellows Advisory Board.

The memo emerged from the Clinic team’s discussions with RadioPublic following the Infowars controversy, and shares the results of our research about how the industry is presently dealing with hateful content through an analysis of major podcast platform content regulation policies. It lays out a concrete range of options platforms have to moderate offensive speech. It’s our hope that this memo helps tailor the wider conversation about content moderation, including the recent release of guidelines from the Change the Terms coalition, to the particular needs of podcasting platforms.

Learn more here.

A Victory for Software Preservation: DMCA Exemption Granted for SPN

Via the Cyberlaw Clinic

Source: Pixabay

By: Kendra Albert

The Library of Congress handed a significant win to digital preservationists. On October 26, 2018, the Library of Congress granted an exemption to the DMCA’s anti-circumvention provision for libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired software for the purposes of preserving software and materials that depend on it. This exemption will significantly reduce the legal risk involved in preserving software that is no longer available for purchase. The new exemptions [went] into effect on October 28, 2018. The announcement came after a year of rulemaking proceedings before the Copyright Office, and the involvement of several semesters of Clinic students, including Evelyn Chang, Anderson Grossman, Jillian Goodman, Erika Herrera, Austin Bohn, and Erin Thomas. You can read our previous blog posts about the Clinic’s involvement here and here.

Background

17 U.S.C. § 1201 prohibits circumvention of a “technical measure that effectively controls access” to a copyrighted work. This provision has the effect of forbidding someone from breaking “digital rights management” or “DRM” technology – think, for example, of the copy-control technologies that restrict copying of DVDs or CDs (containing film or software). Under Section 1201, the circumvention of the access control measure is itself a violation — one can be held liable for violating Section 1201 by breaking DRM even if the underlying use of the work protected by that DRM is lawful. This can lead to strange results — e.g., someone copies a clip from a DVD for educational purposes (clearly a fair use under Section 107 of the Copyright Act, no liability) but breaks DRM on the DVD in doing so (thus violating Section 1201 and incurring potential liability for that violation).

Recognizing this problem, the law provides that the Copyright Office shall conduct a rulemaking proceeding every three years to consider requests for exemptions from liability under Section 1201. Since the Notice of Proposed Rulemaking initiating the seventh triennial Digital Millennium Copyright Act (DMCA) rulemaking proceedings last fall, the Cyberlaw Clinic has represented the Software Preservation Network (SPN) before the Copyright Office. The SPN and the Library Copyright Alliance (LCA) sought an exemption to the DMCA anti-circumvention provisions to allow libraries, archivists, museums, and other cultural heritage institutions to preserve software and software-dependent materials. SPN is an organization dedicated to digital preservation and ensuring long term access to software. The LCA represents librarians in the United States and Canada in addressing copyright and related IP issues.

Why Software Preservation Matters

Software is an important part of our daily lives, and it has changed how we interact with the world. Many writers turn to word processing software instead of the typewriter, and many artists turn to graphics tablets instead of the canvas. As a result, many creative works today are “born digital,” unlike traditionally analog works like literary manuscripts or paintings. We even rely on software to create digital copies of these old analog works to protect their contents from the inevitable degradation of the physical media.

This increased dependence on software as a medium for creative expression has led to increased efforts for preservation of software and software-dependent materials by university libraries and research institutions. Preservation of these works indisputably serves two laudable purposes: to allow historians to document an important aspect of modern culture, and to enable researchers to understand how older software worked and how past users experienced that software.

But the unrelenting march of technology stymies the efforts of digital preservationists. New software products become outdated and obsolete rapidly due to continuing advancements in hardware and software. The modern practice in the software industry of periodically releasing new products and versions while dropping support for old products and versions means that archivists and preservationists may never be able to obtain copies of certain software for preservation purposes. And since computer programs often use proprietary file formats that can change across versions, losing access to software also means losing access to digital files that can only be opened using that software. For example, current versions of AutoCAD do not support opening old AutoCAD files. And even if some computer programs currently support backward compatibility, there is no guarantee that they will continue to support old filetypes going forward.

How the Law Gets in the Way of Preserving Software

Despite the importance of software preservation and the known technological challenges faced by digital preservationists, current legal frameworks frustrate, rather than facilitate, preservation efforts. Even if a copy of old software can be located, preservationists may have difficulty seeking licenses or permissions because the current holders of rights to the old software may not be identifiable. The older the software, the more difficult. And even if rightsholders can be located, they may have little incentive to incur the transaction costs associated with licensing their old software because no market exists for the software.

Legally obtaining copies of old computer programs is not the end of preservationists’ troubles. Computer programs often include built-in technological protection measures (TPMs) to prevent access by unauthorized users. TPMs may require the user to provide product keys or passwords, insert a CD or dongle, or connect to an Internet server for authentication. But preservationists may not be able to access the software using TPMs in the manner intended by the developers, especially for older software. Old TPMs may require using obsolete operating systems, or inserting floppy disks despite modern computers no longer supporting floppy disk drives. If librarians or preservationists circumvent these TPMs in their efforts to study and preserve old computer programs and files, they would be subject to legal liability under the DMCA. Even if rightsholders never actually bring lawsuits against preservationists for circumventing TPMs, as friend of the Clinic Brandon Butler’s recent report suggests, the mere threat of legal liability causes a chilling effect. The consequence is forever losing software and software-dependent materials to the ages.

The Exemption

Most parties, including the opponents, agreed that software preservation is a worthwhile endeavor. While the opponents objected to the broad scope of SPN’s proposed exemption, the Acting Register of Copyrights agreed that librarians, archivists, and preservationists need more latitude in their ability to access computer programs and computer program-dependent materials. And after a year of public comments and hearings, the Librarian of Congress, adopting the recommendation of the Register of Copyrights, issued a final rule containing an exemption that encompasses much of what the SPN requested.

The final rule allows eligible libraries, archives, and museums to circumvent technological protection measures on certain lawfully acquired computer programs (including video games) to preserve computer programs and computer program-dependent materials. The final rule includes the SPN’s suggestion, in consideration of the opponents’ concerns about breadth, that the exemption be limited to computer programs that are no longer reasonably available in the commercial marketplace. The Library of Congress did create some limitations on the exemption, requiring that the computer program is not distributed outside the physical premises of the eligible library, archives, or museum.

Conclusion

On the whole, the new exemption gives digital preservationists significantly more leeway to continue their important work without living under a cloud of litigation risk. The Cyberlaw Clinic will continue to work with the SPN and other software preservation groups to ensure that the law does not inhibit continued access to software for scholarship and research, and will release a more comprehensive guide to the new exemption for preservationists in the coming weeks.

Regulatory Hackers Aren’t Fixing Society. They’re Getting Rich

Via Wired.com 

Source: Pixabay

By: Susan Crawford

Recently I was invited to join a panel to discuss Regulatory Hacking: A Playbook for Startups, a new book by venture capitalist Evan Burfield. The book is sort of a guide for new companies looking for a win-win—doing good by doing well—in highly regulated sectors like health and education. It argues that startups have the opportunity to make trillions of dollars solving global challenges that, in the past, would have been addressed by governments or nonprofits.

Burfield sat at the center of our semicircle of five speakers, all female save for him. He’s a large-framed, confidence-radiating man with a light English accent—an earlier generation might have called him “clubbable.” His message was one of intelligent cooperation by startups with government. He urged the small crowd of students to “map power dynamics” when they launch their businesses. The book’s introduction says it “provides a history of Elon Musk as the ultimate regulatory hacker,” but Musk’s name didn’t come up—maybe because the Musk news of late hasn’t been that adulatory.

The panel discussion took place on sunny afternoon, in a high-floor classroom that looked east over the towers of upper Manhattan. Burfield spoke easily and at length, and as he did I watched a large private helicopter loop lazily toward its landing pad by the East River.

Once the event petered to a close, he ran off to catch a plane. He’s a busy, successful person, a family man as well, with a daughter named Endeavour. (She makes an appearance in the first sentence of the book, asking Alexa to play a song for her.)

Two other speakers on that panel were women with experience as New York City employees—one current, one former— who talked about weaving startups into the workings of government in various ways. They too were confident and competent, as was the woman entrepreneur who, with me, rounded out the panel. We were all appropriately deferential to Burfield; it was his book, after all. (The New York Times, in its review of Regulatory Hacking, called it “chock-full of checklists, matrices, diagrams and jargon all of uneven usefulness.”)

But the talk and the helicopter darkened my mood. It’s tough to find moments of clarity in the calamitous, disorienting era we’re in, but for me that afternoon stands out. Something was off.

By temperament and by training, I am optimistic most of the time. In that room, though, I sensed the assumptions of our age operating in high, silent gear: Business is the most important agent of change in society; government exists to “cooperate” and is mostly incapable and toothless (while simultaneously, if ineptly, threatening); nothing is going to be done about the harrowing, multiple, structural unfairnesses of our time; women who want to survive and be invited to future panel discussions need to be appropriately deferential; and our destiny as a society is being charted by people who never use public transportation. Or fly commercial.

I did speak up, politely, that afternoon. I said many things are profoundly wrong with the way we live in America, and that what we really need to do is make sure government has the capacity and resources to ensure—using technology as a tool, but mostly through sound policy—that everyone with a belly button can lead a thriving life. I urged the students in the audience to spend some time working in government themselves, so that they could see how many people at City Hall are doing their best against impossible odds. I smiled as I spoke; I don’t like sounding like a crank. But it was both saddening and alarming.

Luckily, someone seemingly at the very heart of the Aspen-Davos-Harvard win-win consensus has emerged with a terrific book that takes up many of these themes: Anand Giridharadas, with Winners Take All: The Elite Charade of Changing the World. Giridharadas’ work gives me hope that we can start marking a cut in the continuous history we inhabit. We may be launching a new historical narrative.

Giridharadas is an insider. He’s been on the TED stage, at the Aspen Ideas Festival, at the Harvard Kennedy School. (Although I teach at Harvard, I’ve never met him.) And he, like me, is horrified by the blinkered, superficial, and self-serving rhetoric of the privileged class as it looks to avoid personal pain in a thoroughly unfair world.

Giridharadas crisply categorizes the breathless rhetoric of individual startuppy idealism that rolls out from the stages of conferences on the social enterprise circuit. The language routinely used by startup leaders claiming to improve people’s lives—”we will change the world!”—masks a profound desire to avoid confrontation with the unfair and unequal status quo experienced by many Americans. The way things are, after all, is serving the interests of the well-born and well-connected.

One jarring anecdote in Winners Take All has a budgeting startup called Even doing some user-centered-design-ish interviewing of a gig-economy worker, named Heather Jacobs. Jacobs is barely making it, panicked by a punishing commute, staggering student debt, and insecure work hours. The interviewer wants to make sure that Even will meet Jacob’s needs. Could a subscription app help smooth Heather’s jagged paychecks, ensuring by automatic saving of excess incoming cash that she had enough money each month to cover her bills?

“If you asked the question, ‘What is the best way to help Heather Jacobs?’ the honest answer probably wouldn’t be to charge her $260 a year to smooth her income,” Giridharadas writes. He points out that you might, instead, try to fix the systems that are keeping Heather Jacobs poor—you would want to make sure that transit, affordable housing, and student loan assistance were part of the fabric of American life. But then you wouldn’t have much of a startup.

Giridharadas’ message is that the world could be arranged in different ways. But no one in the well-connected world he documents is interested in that restructuring. The people Giridharadas writes about are looking to make a pile of money from doing good, assisted by thought leaders, most foundations, and a guileless, money-oriented public. They face little foundational, structural criticism; no one on the conference circuit wants to be a harsh critic or a genuine public intellectual. Who wants to attack the people who have flown you in to speak?

Most of the time, we are ants crawling across a vast tablecloth, unaware of our context or our destiny. But right now things are off enough that we might want to raise our heads to look around. Hacking is not going to cut it.

Copyright Law Just Got Better for Video Game History

Via Motherboard.com

Source: Pexels

By: Ian Birnbaum and Matthew Gault

A new ruling from the Librarian of Congress is good news for video game preservation. In an 85-page ruling that covered everything from electronic aircraft controls to farm equipment diagnostic software, the Librarian of Congress carved out fair use exemptions to the Digital Millennium Copyright Act (DMCA) for video games and software in general. These exemptions will make it easier for archivists to save historic video games and for museums to share that cultural history with the public.

“The Acting Register found that the record supported granting an expansion in the relatively discrete circumstances where a preservation institution legally possesses a copy of a video game’s server code and the game’s local code,” the Librarian of Congress said. “In such circumstances, the preservation activities described by proponents are likely to be fair uses.”

These rules are definitely good news for single-player games. “The big change for single-player games happened during the last DMCA review process in 2015, when the Copyright Office decided that museums and archives could break the online authentication for single-player titles that were just phoning home to a server for copy protection reasons,” Phil Salvador—a Washington, DC-area librarian and archivist who runs The Obscuritory, a site that focuses on discussing and preserving obscure, old games—told Motherboard. That 2015 ruling was due to expire this year, but thanks to pressure from activists it was renewed today instead.

“These rules are a big win,” Kendra Albert, a Clinical Instructional Fellow at the Cyberlaw Clinic at Harvard Law School, told Motherboard. Albert represented the Software Preservation Network, which was one of the parties arguing for the change at the Copyright Office. “The 2015 rules cracked the door open for many things, but the exemptions that were granted here are potentially much, much broader.”

 

Read the full article here.

Cities Are Teaming Up To Offer Broadband, and the FCC is Mad

Via Wired.com

Source: Pixabay

By: Susan Crawford

This is a story that defies two strongly held beliefs. The first—embraced fervently by today’s FCC—is that the private marketplace is delivering world-class internet access infrastructure at low prices to all Americans, particularly in urban areas. The second is that cities are so busy competing that they are incapable of cooperating with one another, particularly when they have little in common save proximity.

These two beliefs aren’t necessarily true. Right now, the 16 very different cities that make up the South Bay region of Southern California have gotten fed up with their internet access situation: They’re paying too much for too little. So they are working together to collectively lower the amounts they pay for city communications by at least a third. It’s the first step along a path that, ultimately, will bring far cheaper internet access services to the 1.1 million people who live in the region.

You might think this is impossible. It’s true that many city officials have argued that regional collaborations are resource-intensive and bound to fail. That’s the case in the Boston area, where a city official in Malden (7 miles from Boston City Hall) bluntly told researchers, “I couldn’t support regional government at all. Each community has its own unique set of circumstances and facts and issues.”

The South Bay partnership suggests a promising alternative: Maybe cities can cooperate and save money without compromising their local autonomy. At this same moment, though, the FCC is on a march to smother local authority by blocking states from regulating any aspect of broadband service, supporting states that have raised barriers to municipal networks, deregulating pricing for lines running between cities, and removing local control over rights-of-way that could be used to bring cheaper access into town.

Read the full article here.

Evaluating the Impact of Artificial Intelligence on Human Rights

Via Harvard Law Today

By: Carolyn Schmitt

From using artificial intelligence (AI) to determine credit scores to using AI to determine whether a defendant or criminal may offend again, AI-based tools are increasingly being used by people and organizations in positions of authority to make important, often life-altering decisions. But how do these instances impact human rights, such as the right to equality before the law, and the right to an education?

A new report from the Berkman Klein Center for Internet & Society (BKC) addresses this issue and weighs the positive and negative impacts of AI on human rights through six “use cases” of algorithmic decision-making systems, including criminal justice risk assessments and credit scores. Whereas many other reports and studies have focused on ethical issues of AI, the BKC report is one of the first efforts to analyze the impacts of AI through a human rights lens, and proposes a new framework for thinking about the impact of AI on human rights. The report was funded, in part, by the Digital Inclusion Lab at Global Affairs Canada.

“One of the things I liked a lot about this project and about a lot of the work we’re doing [in the Algorithms and Justice track of the Ethics and Governance of AI Initiative] is that it’s extremely current and tangible. There are a lot of far-off science fiction scenarios that we’re trying to think about, but there’s also stuff happening right now,” says Professor Christopher Bavitz, the WilmerHale Clinical Professor of Law, Managing Director of the Cyberlaw Clinic at BKC, and senior author on the report. Bavitz also leads the Algorithms and Justice track of the BKC project on the Ethics and Governance of AI Initiative, which developed this report.

Read the full article here.

Harvard Cyberlaw Clinic Backs Airbnb In Rowdy Guest Suit

Via Law360

By: Joyce Hanson

Mason Kortz, Clinical Instructor, Cyberlaw Clinic

Harvard Law School’s Cyberlaw Clinic has urged the Ninth Circuit not to touch a lower court decision ending a corporate landlord’s lawsuit accusing Airbnb of helping tenants break building rules and host rowdy guests, saying that a revival of the suit could undermine Communications Decency Act protections of internet startups.

The law clinic’s friend of the court brief, filed Thursday and written on behalf of nonprofit technology policy group Engine Advocacy and Santa Clara University School of Law professor Eric Goldman, opposes a bid by Apartment Investment and Management Co. to revive the suit based on Aimco’s argument that the Central District of California was wrong to conclude that Airbnb Inc.’s home-sharing website was immune from the suit under Section 230 of the Communications Decency Act of 1996.

Aimco wants to hold Airbnb liable by advancing two theories that threaten Section 230’s protections, but Ninth Circuit jurisprudence doesn’t support either argument, according to the brief written by Mason A. Kortz, a clinical instructor at the Harvard Law School Cyberlaw Clinic.

First, Aimco says Airbnb is liable for providing “brokerage services” — facilitating payments, taking and holding reservations and performing other rental services — a theory that runs contrary to the court’s interpretation of Section 230, which holds that Airbnb’s brokerage services are inseparable from its core service of publishing third-party content, Kortz wrote.

Secondly, he asserted, Aimco wrongly argues that Airbnb has illegally developed content for users who make unlawful offers on the internet. Airbnb’s content-generation, search and anonymization tools can be used lawfully or unlawfully, and the site is not liable as a content developer under Section 230, according to Kortz.

“Aimco’s narrow reading of Section 230 is not only legally unsound, it also has negative consequences from a policy perspective: it would result in less competition and less innovation online, which will be detrimental not only to platform operators, but also to internet users,” Kortz wrote. “Allowing plaintiffs to plead around Section 230 would create legal uncertainty, increase exposure to liability, and remove an important tool for early dismissal of meritless cases.”

Kortz told Law360 on Friday that he wrote the brief because he believes Aimco’s legal arguments threaten to undermine the protections that Section 230 affords small and vulnerable startups.

“Larger companies have the resources to police content on their websites as well as fight legal battles like the one Airbnb is fighting now,” Kortz said. “But smaller companies and early stage startups don’t have those resources. It’s possible that the plaintiff’s interpretation of Section 230 is a very narrow reading of those protections, and the arguments they make vis-a-vis Airbnb could provide a road map for holding any number of online services liable.”

Read the full article here.

Cyberlaw Clinic Represents Amicus Party in Net Neutrality Case

“DC Circ. Sets Net Neutrality Oral Arguments For February”

Via Law360

By: Kelcee Griffis

The D.C. Circuit has set oral arguments in the consolidated net neutrality cases for the morning of Feb. 1, when attorneys in the contentious suit will get face time with the court to air their positions against the Federal Communications Commission’s deregulation of internet service providers.

According to the Friday order, the court will begin arguments at 9:30 a.m. on that day, but more details about how the testimony will be apportioned will be released as the date gets closer.

The FCC decision at issue overturned prohibitions on internet service providers, or ISPs blocking, throttling or granting paid prioritization to preferred web content, and it reclassified the internet as a Title I information service. The reclassification returned online abuses to the regulatory sphere of the Federal Trade Commission, as the internet had been treated before the 2015 Open Internet Order took effect. The FCC’s Republican majority says the move will return the internet to the “light touch” regulatory framework that helped the web thrive in its early stages.

Petitioners in the case disagree with that optimistic view of deregulation. In opening briefs, critics including Mozilla and Public Knowledge said the agency backfilled its reasoning for scrapping the regulatory regime and ignored millions of public comments that urged the commission to leave the Obama-era rules intact. Other primary challengers include Etsy, Incompas, nearly two dozen state attorneys general and other government entities.

Amicus filers that chimed in to support the petitioners include Twilio, the Internet Association, the Computer and Communications Industry Association, Consumers Union and Engine Advocacy. Those groups argued in amicus briefs that the FCC ignored data that suggested the market for internet services isn’t competitive and refuted the FCC’s reasoning that broadband providers will be held in check by fierce broadband competition in most communities, among other points.

In particular, Twilio took issue with the FCC’s reasoning for its actions, which the agency described as necessary to encourage broadband providers to invest in and expand their networks. However, Twilio said, contradictory evidence suggests new products and services are most likely to proliferate and drive demand for network capacity when platforms are guaranteed unbiased internet access. Engine similarly said the reversal harms venture investors and startups that relie on the open internet rules.

The consolidated case was originally assigned to be heard in California, but the parties won an unopposed transfer to the D.C. Circuit, where other net neutrality cases have played out. Final briefs are due Nov. 27, according to the docket.

Mozilla is represented by Markham C. Erickson and Georgios Leris of Steptoe & Johnson LLP.  Public Knowledge is represented by Kevin Kendrick Russell of Goldstein & Russell PC.

Twilio is represented by Adrienne E. Fowler of Harris Wiltshire & Grannis LLP. CCIA is represented in-house by Matt Schruers and John A. Howes Jr. The Internet Association is represented by Christopher J. Wright, Scott Blake Harris, Stephanie Weiner and E. Austin Bonner of Harris Wiltshire & Grannis LLP. Consumers Union is represented by Andrew Jay Schwartzman and James T. Graves of the Institute for Public Representation at Georgetown University Law Center. Engine is represented by Christopher T. Bavitz of the Cyberlaw Clinic at Harvard Law School.

The FCC’s in-house representation includes lead counsel Thomas M. Johnson Jr.

The lead case is Mozilla Corp. v. FCC, case number 18-1051, in the U.S. Court of Appeals for the District of Columbia.

Why An Army of Small Companies is Defending the Sprint/T-Mobile Merger

Via Wired.com 

Source: Pixabay

Cyberlaw Clinical Professor of Law Susan Crawford writes about why small companies are supporting the T-Mobile/Sprint merger and what the consequences are for consumers if the merger occurs:

Last month, Reuters reported that T-Mobile was asking the small operators that resell T-Mobile’s excess network capacity to write letters and opinion pieces in support of the company’s proposed $36 billion merger with Sprint.

T-Mobile’s request wasn’t unusual. Trumping up support for deals that aren’t actually in the public interest is common practice in the swamp we know as US telecom policy. When Comcast was working on its merger with NBCU at the beginning of this decade, supportive comments poured into the FCC from companies across the country who had an interest in keeping Comcast happy. By helpfully suggesting talking points to resellers—or MVNOs, for Mobile Virtual Network Operators—including Mint Mobile, Republic Wireless, and Ting, all of which lease access from the Big Four network operators (Verizon, AT&T, Sprint, and T-Mobile) in order to sell phone and data services to customers, T-Mobile is following the usual “air of inevitability” merger playbook.

What’s so troubling about T-Mobile’s get-out-the-vote campaign is who is aiding the company’s lobbying. MVNOs, who don’t own their own infrastructure but collectively account for about 10 percent of the consumer wireless market in the US, primarily target “value” consumers, otherwise known as low- and medium-income Americans. These small companies, who are utterly dependent on the goodwill of the Big Four, are serving Americans who are making barely enough to survive.

Continue reading.

Cyberlaw Clinic Welcomes (Back) HLS Students, Preps for AY 2018-19

Via the Cyberlaw Clinic

The Cyberlaw Clinic is pleased to welcome back returning 2Ls and 3Ls and welcome new 1Ls and LLMs to Cambridge for the start of the 2018-19 academic year! We hope that everyone had a restful and reinvigorating summer. As we ramp up for the fall semester, we offer some announcements about the program and thoughts on the coming year.

First, on a bittersweet note, we bid farewell to our dear friend and colleague Vivek Krishnamurthy. Vivek is returning to private practice at the law firm, Foley Hoag LLP, after four years working with us in the Clinic. Vivek joined us from Foley back in 2014, and his practice and teaching activities in the Clinic have focused on international human rights and civil liberties issues. Vivek will be sorely missed, but we are happy to report that he will remain involved at Harvard Law School and the Berkman Klein Center—co-teaching the Counseling and Legal Strategy in the Digital Age seminar at HLS this fall with Chris Bavitz.  Vivek also joins our our illustrious roster of Clinic Advisors, with whom we regularly collaborate. We wish Vivek success in his new endeavors and expect that we will continue to work closely together in the months and years to come.

We are delighted to report that Jessica Fjeld has been promoted to Assistant Director of the Cyberlaw Clinic and will assume a central role in managing our program. Jess has done tremendous work over the past two years in the Clinic, helping to lead our copyright practice and working with students to advise a wide range of individuals and startups with an emphasis on clients in media, arts, and the creative industries. Jess joins the board of the Global Network Initiative and is also a Clinical Instructor and Lecturer on Law at HLS.  She will be co-teaching the Cyberlaw Clinic Seminar this falland spring.

The Clinic is also thrilled to announce that Mason Kortz, who has been with us for almost two years as a Clinical Fellow, has assumed the role of Clinical Instructor. Mason has deep expertise with civil liberties and privacy issues, and he brings his strong technical background in data science to bear on many of our projects. He is also a key member of the Berkman Klein Center’s research team, contributing to the Center’s Ethics and Governance of Artificial Intelligence initiative and producing valuable scholarship on the role of explanation in law and AI.

Kendra Albert begins their second year with us as a Clinical Fellow, managing projects that related to computer security research, vulnerability disclosure, circumvention, and a host of related issues. Kendra was instrumental this past year in overseeing the Clinic’s involvement in the Copyright Office’s Section 1201 triennial rulemaking proceedings, leading a student team that represented the Software Preservation Network in filing comments and testifying before the Library of Congress about the need for exemptions from liability to promote archival activities.  Kendra has also been the Clinic’s point person in managing work relating to voting technology and election security in the runup to the November 2018 midterms. In the spring, Kendra will be co-teaching Advanced Constitutional Law: New Issues in Speech, Press, and Religion with Professor Martha Minow.

Project Coordinator Hannah Hilligoss will continue to keep the Clinic’s trains running on time while contributing to BKC research efforts on topics ranging from telecommunications policy to the human rights implications of AI technologies. Hannah has also played a major role in the launch of Harvard’s new “Techtopia” initiative, which promises to connect faculty and students across Harvard with an interest in the ethical, social, political, and legal implications of emerging digital technology.

Susan Crawford and Chris Bavitz round out the Clinic team, managing student projects and teaching courses about law and regulation as they relate to communicationsmusic and digital mediaautonomous vehicles, and the Internet.

We kept projects afloat this summer with an all-star cast of law school interns, and we expect more than thirty students to join us for the fall term (including three advanced clinical students, returning after working with us this past spring). The Clinic’s substantive docket will cover our usual wide variety of projects, with a few practice areas being especially active. Those include:

  • answering questions about bias in the use of algorithms and machine learning technologies by companies and government actors;
  • addressing legal issues raised by existing and future art-generating AI technologies, as we consider the interaction between algorithmic tech, the human creative process, and our system of intellectual property laws;
  • supporting efforts to promote government transparency and accountability through targeted use of freedom of information laws and broader open government initiatives; and
  • advising digital archives on questions surrounding online access to materials, particularly around IP issues that arise in connection with cross-border operations.

We could not be more excited to welcome our incoming students next week.  Best wishes to all for a fruitful 2018-19 academic year!

Ninth Circuit Holds Cross-Border Killing Violated Victim’s 4th Amendment Rights

Via the Cyberlaw Clinic

The Ninth Circuit issued an important decision last week in Rodriguez v. Swartz, allowing a Mexican mother to sue a United States government official over a cross-border shooting. The Court held that the defendant — Border Patrol agent Lonnie Swartz — violated the Fourth Amendment rights of 16-year-old Jose Antonio Elena Rodriguez when Swartz shot and killed Rodriguez. The shooting took place while Rodriguez was in Nogales, Mexico and Swartz was on the US side of the border.

The Cyberlaw Clinic and attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief in the case on behalf of civil liberties advocacy organization, Restore the Fourth. Although the case did not directly concern cyber- or tech-related issues, the court’s reasoning may have long-term implications with respect to government activities in a wide range of contexts where actions occur on US soil but have extraterritorial effects.

 

Former Clinic Students Present Harvard Law Review Student Notes

Via the Cyberlaw Clinic

Of the four students whose work is represented in the Harvard Law Review’s April 2018 “Developments in the Law” issue, three are former students in the Cyberlaw Clinic and all have taken classes with our staff. The issue of the Law Review focuses on challenges posed by the vast amount of personal information that individuals now store digitally and with third party technology companies. The student authors, Audrey Adu-Appiah, Chloe Goodwin, Vinitra Rangan, and Ariel Teshuva, presented on their work to a packed room on Thursday, April 18, at the Law School, followed by a conversation moderated by Chris Bavitz.

Adu-Appiah presented on her Note, “The Video Privacy Protection Act as a Model Intellectual Privacy Statute,” arguing that while the VPPA is often seen as niche legislation and has been somewhat compromised by recent amendments, as originally passed it could be a strong model for a more general intellectual privacy regime which would apply to written materials as well as audio-visual ones.

Summarizing her Note, “Cooperation or Resistance? The Role of Tech Companies in Government Surveillance,” Goodwin argued that the two narratives that dominate discussion of tech companies’ involvement in government surveillance — that they are either doormats or bulwarks, depending on your perspective — is a vast oversimplification. Goodwin calls for new regulation that will align these companies’ incentives with those of their users.

Teshuva presented on a related topic to Goodwin’s, but focused particularly on the issue of standing to challenge legitimate surveillance of foreign individuals that sweeps up the communication of people located in the U.S., which would otherwise require a warrant from law enforcement. Her Note, “Standing, Surveillance, and Technology Companies,” points out that the present state of the law makes it extremely difficult for individuals to gain standing to challenge these practices, and vests the protection of their interests largely in the tech companies whose platforms they are using.

In what she described as a “hard right turn,” Rangan looked at how trusts and estates law is being impacted by these same developments. In her Note “What is an ‘Electronic Will’?” she argued that state legislatures need to parse the various types of electronic wills in order to instruct probate courts on how to properly evaluate this evidence of testators’ intent.

Following the students’ presentations, Professor Bavitz led an engaging discussion, highlighting issues such as the role of individuals in effecting change that drew connections between all four of the Notes presented.

Cyberlaw Clinic Year in Review: 2017

Via Cyberlaw Clinic

We in the Cyberlaw Clinic believe that the statute of limitations on year-in-review blog posts expires at the end of the first quarter of the following year. (If you require evidence for this claim, we’ll kindly point you to Orin Kerr’s “Theory of Law.”) With that in mind — as we dig into our newest batch of projects during the Harvard Law School spring term — it seems like a good time to look back and reflect on the past year.  It was — to say the least — an eventful one here in the Cyberlaw Clinic, for students and staff alike.

Students

We had two students enrolled in the Clinic during winter 2017, thirty-four in the spring, and 31 in the fall. Three summer interns ably helped to keep our docket of projects afloat during the summer months. We continued in the mode in which we’ve operated in recent years, with a Cyberlaw Clinic Seminar in the spring and fall complementing the day-to-day work of the Clinic and offering students an opportunity for discussions about substantive and procedural aspects of technology law, including through case rounds focused on our own ongoing projects. We are thrilled that we have been able to scale the program, actively engaging our students and zealously representing our clients as the program has continued to expand.

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The Cyberlaw Guide to Protest Art

Via Cyberlaw Clinic

In the wake of Trump’s election and the resurgence of political art inspired by movements like the Women’s March, the Cyberlaw Clinic was approached by artists seeking clarification of their rights and responsibilities as creators and activists online. In response, a team of Berkman Klein staff, Clinic students, and allied creative folks created this Guide. It’s in plain language, meant to be accessible and helpful for folks across the political spectrum who are using art to engage in civic dialogue, to minimize their risks and maximize their impact.

We took on this project because art plays a significant role in American democracy. Across the political spectrum, protest art — posters, songs, poems, memes, and more —inspires us, gives us a sense of community, and provides insight into how others think and feel about important and often controversial issues.

While protest art has been part of our culture for a very long time, the Internet and social media have changed the available media and the visibility of protest artists. Digital technologies make it easy to find existing works and incorporate them into your own, and art that goes viral online spreads faster than was ever possible in the analog world. Many artists find the law that governs all of this unclear in the physical world, and even murkier online.

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Cyberlaw Clinic Assists with Amicus Effort in Byrd v. U.S.

Via Cyberlaw Clinic

The United States Supreme Court heard oral arguments last Tuesday, January 9th, in Byrd v. United States, Case No. No. 16-1371.  The case concerns the question of whether a person can assert Fourth Amendment protections in connection with a search of a rental car in which that person was not an authorized driver.  The case raises important questions about privacy in response to law enforcement, including about standing to assert defenses under the Fourth Amendment and about the interplay between private contracts (such as the contract between one renting a car and the rental car company) and Fourth Amendment rights.

The Supreme Court has posted a transcript and audio recording of the oral argument. Helpful reports about the case and argument include:

The Cyberlaw Clinic was pleased to have had the opportunity to support our friends and regular collaborators Restore the Fourth with the drafting of an amicus brief, filed in support of petitioner Terrence Byrd.  The brief focuses on the interplay between contracts and Constitutional protections, arguing that private agreements should not limit Fourth Amendment rights.  Fall 2017 Cyberlaw Clinic students Chloe Goodwin, Matthew Sacco, Devony Schmidt, and Brian Yost worked on the brief alongside Kendra Albert and Vivek Krishnamurthy on the Clinic’s teaching team, and Mahesha Subbaraman, Restore the Fourth’s counsel.

Cyberlaw Clinic files amicus briefs in patent and online privacy cases

Via Harvard Law Today

The Berkman Klein Center’s Cyberlaw Clinic, which provides pro-bono legal services to clients on issues relating to the internet, technology and intellectual property, has written in support of a number of technology cases in recent weeks.

In December, the Clinic filed an amicus brief in the U.S. Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2. The case—commonly known as the “Microsoft Ireland case”—presents the question of whether a search warrant can compel Microsoft to produce to the US government the contents of an email account stored on Microsoft servers in Ireland.

Also in December they filed an opening comment on behalf of the Software Preservation Network and the Library Copyright Alliance, asking the Library of Congress to grant an exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technology protection measures in order to preserve software and software-dependent materials (digital files that require on software access to be readable).

Last week they helped file an amicus brief with Professor Bernard Chao of the University of Denver Sturm College of Law on behalf of eighteen intellectual property law professors, supporting petitioners’ request that the Supreme Court review a decision of the US Court of Appeals for the Federal Circuit.  That decision—Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017)—awarded patent damages against petitioners. But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits.

For more information on these and other Cyberlaw Clinic endeavors, visit their blog.

Cyberlaw Clinic Supports Supreme Court Amicus Effort on Patent Damages

Via Cyberlaw Clinic

The Clinic was pleased to have had the opportunity to work with Professor Bernard Chao of the University of Denver Sturm College of Law on an amicus brief that Professor Chao filed in the United States Supreme Court this week.  The brief, submitted on behalf of eighteen intellectual property law professors, supports petitioners’ request that the Supreme Court review a decision of the United States Court of Appeals for the Federal Circuit.  That decision – Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017) – awarded patent damages against petitioners.  But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits. 

The brief points to a long line of precedent describing how patent damages should be apportioned – evaluating “the profits that the patent holder would have made but for the defendant’s infringement” and then “apportion[ing] the calculated profits between those attributable to the infringing features of the product, and those attributable to other, non-infringing, features.”  Amici argue that the Federal Circuit’s decision below is legally deficient (insofar as it fails to follow this precedent) and represents bad patent policy (insofar as it may adversely impact high-tech defendants, which develop products covered by hundreds or thousands of patents, and improperly overcompensate patentees).

Fall term Harvard Law School Cyberlaw Clinic students Brian Lebow and Ben Shiroma worked with Chris Bavitz in the Clinic, and with Professor Chao, on the brief.

Cyberlaw Clinic Files Brief for UN Special Rapporteur in Microsoft Ireland Case

Via Cyberlaw Clinic

On December 13, 2017, the Cyberlaw Clinic filed an amicus brief in the United States Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2.  The case – commonly known as the “Microsoft Ireland case”– presents the question of whether a search warrant issued in the United States pursuant to a U.S. statute (the Stored Communications Act, 18 U.S.C. § 2703) can compel Microsoft to produce to the U.S. government the contents of an email account stored on Microsoft servers in Ireland.  The Supreme Court is hearing the case this term on appeal from a decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which held that the U.S. could not enforce a warrant seeking digital information stored on overseas servers.

The Clinic’s brief on behalf of Special Rapporteur Cannataci supports neither party with respect to the question of domestic law at the heart of the case.  But, it offers important context about Internet jurisdiction and places the right to privacy in its proper context against the backdrop of global human rights laws and norms.  Specifically, the brief urges the Supreme Court “to recognize the universality of the right to privacy, as first recognized in New York on December 10, 1948 when the U.N. General Assembly adopted the Universal Declaration of Human Rights.”

The brief goes on to note that, because of the complexities associated with applying traditional international law principles of territoriality to online privacy, there are no easy answers to the questions raised in this case.  Moreover, a sweeping ruling from the Court could have significant repercussions on international efforts–including those already underway–to develop streamlined processes that balance competing interests in scenarios like the one presented by this case.  In light of those efforts, we argue on behalf of Special Rapporteur Cannataci, the Court should rule narrowly and thereby “respect the privacy interests of other nations and foster international cooperation.”

Mason Kortz and Vivek Krishnamurthy on the Cyberlaw Clinic team worked with fall 2017 Clinic students Osvaldo Galeano-Gamera, Devony Schmidt, Jon-Paul Berexa, and Levi Barry – along with Special Rapporteur Cannataci – on the brief.

Software Preservation Comments Filed in 1201 Rulemaking

Via Cyberlaw Clinic

image of blurred, close up code running on a computerBack in December, the Cyberlaw Clinic filed an opening comment in the seventh triennial proceeding for exemptions to the anti-circumvention clause. The comment, on behalf of the Software Preservation Network and the Library Copyright Alliance, asks the Library of Congress to grant an exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technology protection measures in order to preserve software and software-dependent materials (digital files that require on software access to be readable).

As software becomes the default method of production for more and more artistic and cultural works, preserving it gains vital importance, both for the continued longevity of cultural objects, and for the study of software itself. Existing legal alternatives, such as seeking licenses or permissions from rightsholders, have proved insufficient to tackle the substantial problems of preserving software and software dependent materials. To put it simply, digital preservationists need an exemption to anti-circumvention law in order to ensure that software is available to future generations.

Students Evelyn Chang, Jillian Goodman, and Anderson Grossman researched and drafted the comments. As discussed previously on the blog, the digital preservation petition is one of 22 new exemptions being requested in the 2018 rulemaking petition. Opposition comments will be due in February 2018, and the Library of Congress’s final rule is likely be released by next fall.

You can read the full comment, as well as user stories from digital preservationists, here.

My Experiences in the Cyberlaw Clinic: Expectations Met and Exceeded

By Niklas Andree LL.M. ’18

Participating in the Cyberlaw Clinic was one of the great opportunities that attracted me to pursue my LL.M. degree here at HLS. Upon finishing law school in my home country of Germany, I figured the best way to enhance my academic experience abroad would be to not only focus on the areas of law that I am most interested in — legal education in Germany follows a very broad approach, with wide-ranging basic knowledge being taught rather than specializations in certain fields — but also gain practical real-world experience. The Cyberlaw Clinic promised to offer exactly that, the chance to work on cutting-edge legal matters related to the Internet and technology, as well as learn about today’s major issues of tech advocacy and policy in the accompanying seminar.

The projects I worked on range from very specific questions of copyright law to contributions in a large-scale undertaking of software preservation. As a result, I’ve learned about problems people face in today’s digital age that I had never heard of before. For example, librarians, archivists and academics are being confronted with the issue that their valued digital records may be inaccessible because of outdated software programs, raising the need to preserve such software for future generations. In this project, I had the opportunity to contribute my own ideas and solutions and play a part in an important initiative.

Working in the Cyberlaw Clinic has been a fun and interesting experience. Through my involvement in projects I’ve been able to gain deeper insights into the substantive areas of the law and develop new skills, not only by collaborating and communicating with my team but also by managing tasks independently.  Being self-reliant and able to schedule working hours and deadlines independently is important and something I expected to hone during the semester. Beyond that, the most valuable skill I’ve gained is handling projects and clients on my own. The Cyberlaw Clinic gave me the opportunity to take increasingly more responsibilities in the development of the case/project. This is true for all clinic students: after working closely with supervisors at the beginning, they soon get to communicate with clients and later set up meetings and lead discussions with clients by themselves – valuable opportunities certainly not many internships or even first-year contracts would offer.

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