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Tag: Cyberlaw Clinic (page 2 of 4)

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.

Update on the 2018 Triennial 1201 Rule-Making

Via Cyberlaw Clinic

The Copyright Office has once again opened its triennial rulemaking proceedings for exemptions to the anti-circumvention clauses of the Digital Millennium Copyright Act (“DMCA”). This will be the seventh iteration of the rulemaking proceedings for the Copyright Office since Congress enacted 17 U.S.C. § 1201 in 1998 to reinforce copyright protection against an envisioned increase in piracy due to technological advancement. The anti-circumvention law prohibits the use of technology to bypass technology protection measures (“TPM”) that copyright owners implement, such as encryption tools that prevent consumers from copying movies or songs off a disk or simple password systems for website content or software “locking” mechanisms that prevent copying. Unfortunately, the broad reach of 17 U.S.C. § 1201 also jeopardized many otherwise non-infringing and publicly-beneficial activities that may require circumventing TPMs.

St Jude Medical pacemaker in hand

An artificial pacemaker (serial number 1723182) from St. Jude Medical, with electrode. By Steven Fruitsmaak, via Wikimedia Commons.

In an effort to rescue circumvention for lawful purposes, Congress identified certain classes of permanent exemptions to the anti-circumvention law, allowing, for example, reverse engineering research and security testing to be valid reasons for circumventing technological protections measures. In addition to the permanent exemptions, Congress also created the triennial rulemaking mechanism which creates 3-year temporary exemptions as a catch-all to prevent the anti-circumvention law from prohibiting lawful practices.

For the upcoming 2018 rulemaking proceedings, the Cyberlaw Clinic has submitted an anti-circumvention exemption request on behalf of the Software Preservation Network (“SPN”) and a renewal request on behalf of a coalition of medical device patients and researchers (“Medical Device Coalition”) for the Copyright Office’s seventh triennial rulemaking proceedings for anti-circumvention exemptions under the Digital Millennium Copyright Act (“DMCA”). SPN seeks an exemption for libraries and archival institutions to circumvent technology protection mechanisms for the preservation of software for future research or usage. The Medical Device Coalition seeks a renewal for an exemption that the Cyberlaw Clinic successfully helped to secure in the 2015 rulemaking proceedings, which permits patients and security researchers to circumvent technological measures in medical devices to access output data. The SPN petition and medical device renewal request join 22 other new exemption petitions and 38 other exemption renewal requests submitted for the 2018 rulemaking proceedings.

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Massachusetts Considers Digital Right to Repair

By Alex Noonan J.D. ’19

Via Cyberlaw Clinic

On September 26, 2017, the Massachusetts Joint Committee on Consumer Protection and Professional Licensure heard testimony on proposed digital “right to repair” bills H.143 and S.96. The two proposed bills would require manufacturers of digital devices to provide diagnostic, repair, and service information to independent technicians and owners of devices, information that is currently only available to technicians selected and authorized by the manufacturers. The bills would further require manufacturers allow independent technicians and owners to purchase replacement parts and service tools at a reasonable price. The bills by their terms relieve manufacturers of the obligation to reveal any trade secret; however, they do not address the practicality of providing service manuals and diagnostic information without exposing trade secrets, particularly for manufacturers who rely heavily on trade secret protection.

Massachusetts has tackled right to repair before. In 2012, Massachusetts became the first state to pass right to repair legislation for motor vehicles. Rather than face future legislation from other states, auto manufacturers agreed to make the Massachusetts law their national standard.

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Clinic Files Amicus Brief on Behalf of Members of Congress in Support of Access to Law

Via Cyberlaw Clinic

image of a courthouseOn September 25, 2017, the Cyberlaw Clinic and local counsel Catherine Gellis filed an amicus brief on behalf of members of Congress Zoe Lofgren (D-CA 19th District) and Darrell Issa (R-CA 49th District) in the United States Court of Appeals for the District of Columbia Circuit. The brief supports defendant-appellant Public.Resource.org (Public Resource) in the case American Society of Testing Engineers (ASTM) et. al. v. Public.Resource.org, Case No. 17-7035 (D.C. Cir.). The appeal — a consolidation of two district court cases, both filed by standard developing organizations (SDOs) — addresses the copyrightability of the law and standards incorporated therein. The crux of the case is whether the text of applicable law may be shared freely by non-profit organizations like Public Resource. 

When model codes and standards become part of federal, state, or local regulations, the text is often not reproduced in the location where the law is published. Rather, citizens interested in reading the content of enacted statutes and regs must access the incorporated materials via the SDOs’ publication channels. These may come with high access fees or remain incompatible with online accessibility tools for the disabled. Public Resource acquired copies of a number of standards and codes, made them public, and was sued for copyright and trademark infringement by the SDOs.

The Clinic previously filed amicus briefs on behalf of legal scholars in support of Public Resource in both cases brought in the United States District Court for the District of Columbia.  The district court ruled in favor of both sets of plaintiffs-appellees, the “ASTM Plaintiffs”—ASTMNational Fire Protection Association, Inc. (NFPA), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE)—and the “AERA Plaintiffs”—American Education Resource Association (AERA), American Psychological Association (APA), and the National Council on Measurement in Education (NCME), finding copyright and trademark infringement in the publication on Public Resource’s website of model codes and standards incorporated into law.

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Welcoming Kendra Albert and Kicking Off the 2017-18 Academic Year!

Via Cyberlaw Clinic

With September just around the corner, we here in the Cyberlaw Clinic are eager to get the fall semester underway. And, we are especially excited to announce that the start of the new term comes with a new addition to our practice and teaching team in the form of the one and only Kendra Albert! Kendra is a familiar face around Harvard Law School and the Berkman Klein Center, having worked at Berkman before attending law school at HLS. Kendra was a student in the Cyberlaw Clinic during the spring term of their third year, back in 2016. Kendra spent a year in private practice at Zeitgeist Law in San Francisco from 2016-17 before rejoining us as a Clinical Instructional Fellow this week.  We are delighted to have Kendra on board and anticipate that they will contribute to a wide variety of our projects involving privacy, copyright, and related issues.

Portrait photo of Kendra Albert, Clinical Instructional Fellow, Cyberlaw Clinic

Kendra Albert, Clinical Instructional Fellow, Cyberlaw Clinic

Kendra’s arrival comes in the midst of some additional staff changes at the Clinic. We are delighted to report that Jessica Fjeld has assumed the role of Acting Assistant Director of the Clinic and has been appointed a Lecturer on Law at Harvard Law School. In that capacity, Jess will co-teach the Cyberlaw Clinic Seminar along with Clinical Professor Chris Bavitz this fall. Vivek Krishnamurthy will take on the role of Clinic Attorney, splitting his time between Clinic projects concerning technology and human rights and Berkman Klein Center research initiatives (primarily from his new homebase on the west coast).

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My time at the Cyberlaw Clinic: lessons in tech law and human rights

By Alicia Solow-Niederman J.D. ’17

Alicia Solow-Niederman, J.D. '17

Alicia Solow-Niederman, J.D. ’17

The choice to enroll in the Cyberlaw Clinic was easy for me. Having worked as a project manager at Harvard University’s Berkman Klein Center for Internet & Society before law school, I knew I wanted to participate in this Clinic even before I began 1L year. Yet the night before my first meeting with my clinical supervisor, my mind raced. I worried that this opportunity to combine my three years of legal training and my interest in technology policy would not live up to my expectations.

Fortunately, my fears were allayed as soon as I met my project team. My first assignment was to prepare a paper for a panel at RightsCon, an annual human rights-focused summit on the future of the internet. Working alongside Cyberlaw Clinic Assistant Director Vivek Krishnamurthy, Clinic Advisor Nani Jansen Reventlow, and LL.M candidate Javier Careaga Franco, I was asked to connect academic theories with real-world adjudication through an empirical study of how legal actors in different jurisdictions are currently treating requests to remove online content. For instance, if an administrative agency in France demands that Google take down all links on a particular topic across not only Google.fr, but also across all of its global platforms, how is the claim legally resolved? This work was right up my alley because it allowed me to take theoretical issues and legal questions surrounding freedom of expression, access to information, and privacy rights and apply them in the context of concrete disputes across the globe.

Through this project, I was privileged to collaborate with experts in not only tech law, but also human rights and international public law, which allowed me to learn a great deal about core principles of jurisdiction, territoriality, and sovereignty. I was then able to immediately apply this learning as I collected consistent information regarding each case (e.g., country of origin, party identity, cause of action, etc.), and created the actual taxonomy within which to catalog the cases. I really enjoyed the challenge of how to cogently discuss and arrange cases ranging from requests that an internet service provider block defamatory content to orders that a search engine delist copyright-infringing content to demands that a website remove obscene content.

Next, I had the opportunity to analyze doctrine, theory, and pending legal controversies by taking primary responsibility for the opening portions of the RightsCon working paper. My goal was to provide a concise, balanced, and accessible summary of the ongoing debate over whether and if so, how, legitimate national laws and preferences should be applied and enforced online with regard to content takedown requests. As our working paper describes, “at the core of this dispute is whether public international law doctrines of territoriality extend to digital spaces, or whether different presumptions should govern online.” I am hopeful that our contribution is merely the beginning of this broader dialogue about how to translate human rights and sovereignty principles into the digital ecosystem.

First Circuit Hears Oral Argument in Unusual Copyright Case

Via Cyberlaw Clinic

By Leo Angelakos, J.D. ’17

On April 6, 2017, Cyberlaw Clinic students attended oral argument in a First Circuit copyright appeal involving a curious set of facts and legal issues. The case pitted Richard Goren, a Massachusetts attorney, against Xcentric Ventures, LLC, the owner of an online consumer review website known as the Ripoff Report. Goren was upset by a review of his services posted on Ripoff Report by Christian DuPont, the defendant in a prior case where Goren had represented the plaintiff. Goren initially sued Dupont in Massachusetts state court, alleging that Dupont’s review was defamatory. Dupont failed to appear, and thus defaulted. After obtaining a default judgment, Goren requested that Xcentric remove the posting. Xcentric refused, citing the Ripoff Report’s strict “no removal policy.”

Here’s where the dispute gets weird. Upset by Xcentric’s response, Goren obtained amended relief from the same state court that presided over the defamation suit. This amended relief purported to assign Dupont’s copyright in the post to Goren, and to make Goren Dupont’s “attorney-in-fact” to effectuate the transfer. After obtaining a copyright registration, Goren sued Xcentric in federal district court, alleging inter alia that Xcentric had infringed Goren’s newfound proprietary rights as the post’s “owner.”

Goren’s strategy was dubious. He attempted to use copyright law as a backdoor to remedy the alleged defamation. This amounted to a misuse of copyright to censor speech, which is ironic given that copyright law is meant to incentivize the distribution of creative works to the public. Unfortunately, Goren’s strategy is not unprecedented. Similar attempts to use copyright as a means of censorship have been rejected in both the Eleventh and Ninth Circuits. See Katz v. Google Inc., 802 F.3d 1178, 1184 (11th Cir. 2015); Garcia v. Google, Inc., 786 F.3d 733, 736 (9th Cir. 2015) (“[A] weak copyright claim cannot justify censorship in the guise of authorship.”)

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Clinic Students and Staff Release Working Paper on Online Content Takedown Orders

Via Cyberlaw Clinic

In areas ranging from the so-called “right to be forgotten” to intellectual property to defamation, there is an ongoing debate over how legitimate national laws and preferences should be applied and enforced online in the content takedown context. At the core of this dispute is whether public international law doctrines of territoriality extend to digital spaces, or whether different presumptions should govern online.

In a new working paper released today entitled “Here, There, or Everywhere?”, Cyberlaw Clinic students Alicia Solow-Niederman (J.D. ’17) and Javier Careaga Franco (LL.M ’17), along with the Clinic’s Assistant Director Vivek Krishnamurthy and Clinic Advisor Nani Jansen Reventlow, offer a descriptive perspective on this debate. Using a case study method, the paper seeks to answer the question of what formal legal process determines whether objectionable online content remains accessible or removed and what territorial principles are emerging on the ground as courts tackle these questions.

By so doing, the develops a a taxonomy of global content takedown orders. Within the observed sample, the intended territorial scope of courts’ orders predominantly aligns with geographic boundaries, with this trend especially dominant in copyright disputes. This descriptive finding sets the stage for both further empirical work and policy prescriptions about the ideal role of the legal system in this domain.

Nani Jansen Reventlow and Vivek Krishnamurthy will be presenting the key findings of the paper at RightsCon in Brussels on March 30, 2017. More details on the event can be found here.

Clinic Files Amicus Brief Supporting Family’s Right to Access Dead Relative’s Emails

Via Cyberlaw Clinic

On February 21, 2017, the Cyberlaw Clinic filed an amicus brief on behalf of several trusts and estates law scholars and practitioners in Ajemian v. Yahoo!, Inc., Mass. Supreme Judicial Court No. SJC-11917. The brief supports the plaintiffs-appellants in the case. The Ajemian case arises out of a dispute between Yahoo and the family of John Ajemian, who died unexpectedly in 2006. After Mr. Ajemian’s death, the administrators of his estate contacted Yahoo about gaining access to his email account. Yahoo refused, claiming that the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., prevented it from doing so. Among other things, Yahoo argued that the “lawful consent” exception found in § 2702(b)(3)—authorizing providers to disclose stored communications “with the lawful consent of the originator or an addressee or [the] intended recipient”—requires the express consent of the user.

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A Warm Welcome to Yan, Mason, and Phil

The Office of Clinical and Pro Bono Programs extends a warm welcome to Yan Cao (Attorney and Fellow) of the Project on Predatory Student Lending, Mason Kortz (Clinical Fellow) of the Cyberlaw Clinic, and Phil Waters (Clinical Fellow) of the Health Law and Policy Clinic.

Yyc-profile-pic-10-17-16an Cao
Attorney and Fellow, Project on Predatory Student Lending

Yan Cao joined the Legal Services Center as an attorney and fellow for the Project on Predatory Student Lending in 2016.  Previously, Yan was a staff attorney and fellow at Brooklyn Legal Services where she provided assistance to low-income student loan  borrowers.  Yan also clerked for Judge Raymond J. Lohier, Jr. on the U.S. Court of Appeals for the Second Circuit and for Judge J. Paul Oetken on the U.S. District Court for the Southern District of New York.  Yan is a graduate of Simon’s Rock College of Bard and Stanford University, and received her J.D. from NYU Law School where she was a Root-Tilden-Kern Public Interest Law Scholar and served as Editor-in-Chief of the NYU Law Review.

Masonmk Kortz
Clinical Fellow, Cyberlaw Clinic

Mason Kortz is a clinical instructional fellow at the Harvard Law School Cyberlaw Clinic, part of the Berkman Klein Center for Internet & Society. His areas of interest include online speech and privacy and the use of data products (big or small) to advance social justice. Mason has worked as a data manager for the Scripps Institution of Oceanography, a legal fellow in the Technology for Liberty Project at the American Civil Liberties Union of Massachusetts, and a clerk in the District of Massachusetts. He has a JD from Harvard Law School and a BA in Computer Science and Philosophy from Dartmouth College. In his spare time, he enjoys cooking, reading, and game design.

img_0740Phil Waters
Clinical Fellow, Health Law and Policy Clinic

Phil joined the Harvard Law School Center for Health Law and Policy Innovation in October 2016 as a Clinical Fellow. Phil received his J.D. from the University of North Carolina School of Law, and is an active member of the North Carolina State Bar. During law school, Phil pursued various experiential opportunities in health law and public interest, including working as a summer associate with the National Health Law Program and serving as an extern for Legal Aid of North Carolina’s Medical-Legal Partnership. While at UNC, Phil worked for three years as a volunteer Healthcare Navigator and oversaw training and coordination of volunteer navigators from UNC with Legal Aid of North Carolina. Prior to law school, Phil received a Bachelor’s of Science in Business Administration at the Kenan-Flagler Business School at UNC.

Cyberlaw Clinic and Berkman Klein Researchers Submit NTIA Comment on Broadband Research Agenda

Via Cyberlaw Clinic

Drawing from their experience studying trends in internet services pricing across the country, a team of researchers, including Berkman Klein Center Research Director Rob Faris,  Cyberlaw Clinic project coordinator Kira Hessekiel, Berkman Klein fellow David Talbot, and HLS ’18 student Danielle Kehl, submitted a comment to the National Telecommunications and Information Administration and National Science Foundation to advocate for more comprehensive public information on the price of internet access services.

The two agencies put out a request for comments in early September to advise them in framing a National Broadband Research Agenda to further the recommendations of the Broadband Opportunity Council, a project of 25 federal agencies led by the Department of Commerce, of which NTIA is a division, and the Department of Agriculture.

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Welcome Clinical Instructor Jessica Fjeld!

Via Cyberlaw Clinic

fjeld-headshot-2016We could not be more excited to announce that Jessica Fjeld has joined us as a Clinical Instructor in the Cyberlaw Clinic!  Jess graduated from Columbia University and Columbia Law Schooland has an MFA in Poetry from the University of Massachusetts.  She was an associate at Skadden and most recently worked with our good friends and frequent collaborators on the Business & Legal Affairs team at WGBH Educational Foundation, which owns and operates WGBH-TV (our local public television station in the Boston area and developer of programming seen on PBS stations nationwide) and WGBH-FM (which broadcasts on 89.7 FM in Boston and is an National Public Radio member station).  We expect that Jess will work with Clinic students on a wide range of matters relating to intellectual property, media and entertainment, and freedom of expression and will be more broadly integrated into the research community at our the Berkman Klein Center for Internet & Society.  Welcome, Jessica!

Cyberlaw wins two victories in local court

Via HLS News

In recent decisions, the United States Court of Appeals for the First Circuit found New Hampshire’s ban on “ballot selfies” unconstitutional and the Massachusetts Supreme Judicial Court issued a ruling restricting seizures and searches of cell phone by police without probable cause or a search warrant. Harvard Law School’s Cyberlaw Clinic, which provides pro-bono legal services to clients in matters involving the Internet, technology and intellectual property, filed friend-of-the-court briefs in both cases.

On Sept. 28, the First Circuit struck down a New Hampshire law that made it illegal to share a photo of a completed ballot on social media. The New Hampshire ban on ballot selfies was held unconstitutional, with the court finding that the law “could not survive even the lower threshold of intermediate scrutiny.” The Cyberlaw Clinic filed an amicus brief in the case, Rideout v. Gardner, with the New England First Amendment Coalition and the Keene Sentinel, a New Hampshire newspaper. The brief argued that the law is unconstitutional under the First Amendment, as it prohibits a variety of speech important to monitoring the government, educating voters and engaging in political debate.

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Susan Crawford makes the case for the Responsive Communities Initiative

Via HLS News

As part of Boston’s HUBweek, Harvard Law School Clinical Professor Susan Crawford addressed a gathering of more than 100 people at Harvard Law School in September and made the case for her new Responsive Communities Initiative, a three-pronged program aimed at addressing issues of social justice, civil liberties, and economic development involving high-speed Internet access and government use of data. The initiative is based at HLS and the Berkman Klein Center for Internet & Society.

In her talk, Crawford traced the arc of her career and how her experiences and passions have led her to this moment, and this initiative. She described discovering the Internet in the early 90s when she was a junior lawyer at a firm: “I fell in love with the idea of the Internet. I became quite interested in the idea of connecting people at a distance and helping them achieve their best selves, that the Internet was truly an empowering medium, unlike anything we’d ever seen before.”

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NH Ban on Ballot Selfies Held Unconstitutional

Via Cyberlaw Clinic

united_states_court_of_appeals_for_the_first_circuit_seal-svgOn September 28, 2016, the First Circuit issued its opinion in Rideout v. Gardner, holding that New Hampshire’s prohibition on sharing photos of marked ballots (or “ballot selfies”) — N.H. Rev. Stat. Ann. § 659:35 (as amended in 2014) — is unconstitutional. The district court had found that that the law was a content-based restriction on speech and that it failed strict scrutiny under the First Amendment. The First Circuit opinion authored by Judge Lynch upheld the district court’s decision on narrower grounds, finding that — whether or not the law was content-based — it could not survive even the lower threshold of intermediate scrutiny. Previous blog posts provide more information about the amicus brief filed by the Cyberlaw Clinic in the case (on behalf of the New England First Amendment Coalition and the Keene Sentinel) and about the oral argument, which took place on September 13th before Judges Lipez, Lynch, and Thompson.

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Congratulations to Anna, Sara, and Vivek on their new positions

The Office of Clinical and Pro Bono Programs extends heartfelt congratulations to Anna Crowe (International Human Rights Clinic) on her new position as Clinical Instructor, Sara del Nido Budish (Harvard Negotiation and Mediation Clinic) on her new position as Clinical Instructor and Lecturer on Law, and to Vivek Krishnamurthy on his new position as Lecturer on Law and Assistant Director of the Cyberlaw Clinic.

Anna Crowe

Anna Crowe

At the Human Rights Program (HRP) and the International Human Rights Clinic, Anna Crowe LL.M ’12 has focused her work on the right to privacy and the right to a legal identity, as well as humanitarian disarmament and transitional justice. She has supervised students on research, fact-finding, and advocacy projects in these areas. She has also been a leader and mentor of the student practice organization, HLS Advocates for Human Rights.

Before she joined HRP, Anna was a Legal Officer at Privacy International, a leading human rights organization that campaigns against unlawful communications surveillance across the globe. She also spent a year in Colombia as a Henigson Human Rights Fellow, working with the International Crisis Group in the field of transitional justice.

Anna is a graduate of Harvard Law School and an alumna of the International Human Rights Clinic.  “Since Anna returned to the Clinic as a fellow in 2014, she has demonstrated a gift for teaching and a commitment to promoting human rights and international humanitarian law,” said Bonnie Docherty, Senior Clinical Instructor and Lecturer on Law. “She has trained clinical students in the skills of our field, earning their respect and inspiring them to perform at the highest levels.  She has published multiple reports in the areas of disarmament, privacy, and refugees, all of which have had real advocacy impact.  Outside of the Clinic, she has mentored members of HLS Advocates and collaborated with some of our visiting fellows.”

Sara del Nido Budish 

Sara served as Clinical Fellow in the Harvard Negotiation and Mediation Clinic before becoming a  Clinical Instruction and a Lecturer on Law for the Negotiation Workshop. As a Clinical Fellow, she supervised several Alternative Dispute Resolution (ADR) student groups and collaborated on many special projects such as HNMCP’s new podcast, The Listening Room.

Sara is also an alumna of the Clinic and while she was a student she and her teammate created and delivered a series of customized trainings to a group of healthcare providers with a focus on communication and difficult conversations. Sara was deeply involved in the ADR community throughout law school, serving as Advanced Training Director for the Harvard Mediation Program; research assistant to Professor Robert Bordone; and Online Executive Editor for the Harvard Negotiation Law Review.

Vivek Krishnamurthy

Krishnamurty_Vivek_pressBefore joining the Cyberlaw Clinic as a Clinical Instructor in 2014, Vivek Krishnamurthy clerked for the Hon. Morris J. Fish of the Supreme Court of Canada and worked as an associate in the International and Corporate Social Responsibility Practices at Foley Hoag LLP. He specializes in the international aspects of internet governance and on the human rights challenges associated with offering new internet-based services in different legal environments around the world. Vivek is a graduate of the University of Toronto, Yale Law School, and the University of Oxford, where he was a Rhodes Scholar.

Congratulations Anna, Sara, and Vivek!

Cyberlaw Clinic — Academic Year in Review: 2015-16

Via Cyberlaw Clinic

As often happens during the heat of the New England summer, we on the Cyberlaw Clinic team find ourselves thinking about the past academic year and looking ahead to the next. It is a great time to pause and reflect on the work of our students and the overall state of our program, which has now served the HLS student body and the broader technology law and policy community for more than sixteen years. This post serves as something of an “academic year in review” for the 2015-16 school year and a preview of things to come.

The Clinic settled into an energized and productive routine over the last two years due in large part to the fact that our stellar students have been led by a stellar teaching team — Clinical Professors Chris Bavitz and Susan Crawford, Clinical Instructor and Lecturer on Law Dalia Ritvo, Clinical Instructor Vivek Krishnamurthy, Clinical Fellow Andy Sellars, and Project Coordinator Kira Hessekiel. Given all our successes of the past couple of years, it is with mixed emotions that we bid farewell to two integral members of that team — Dalia Ritvo and Andy Sellars — each of whom is moving on from the Clinic this summer. Dalia, our former Assistant Director, is heading home to Colorado, where she will be closer to family. And, Andy is taking the helm of a brand new tech clinical program just across the Charles River at Boston University, where he and his students will serve BU and MIT students. Both Andy and Dalia will maintain ties to the Berkman Klein Center in 2016-17 as Affiliates, and we know that they will continue to be friends, colleagues, and collaborators in years to come.

In the midst of these changes, we are pleased to report that Vivek Krishnamurthy has been promoted to Assistant Director of the Cyberlaw Clinic and will play a vital role in managing the program going forward. Vivek has also been appointed Lecturer on Law for the coming academic year and will co-teach the Cyberlaw Clinic Seminar with Chris Bavitz. Vivek joined the Clinic in fall 2014, and his diligent work in recent years has significantly expanded the Clinic’s focus on issues relating to human rights, digital civil liberties, and corporate social responsibility. We could not be more excited to have Vivek on board in these expanded roles.

And, as if that weren’t enough excitement on the staffing front…  we’re hiring! Multiple positions, in in fact — a Clinical Instructor and one or two Clinical Fellows. Please help spread the word far and wide as we look to expand our team.

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Clinic Supports Public Citizen and EFF in Small Justice Amicus Effort

Via Cyberlaw Clinic

The Cyberlaw Clinic supported Public Citizen and the Electronic Frontier Foundation in filing an amicus brief (pdf) today in the case, Small Justice LLC v. Xcentric Ventures LLC, Case No. 15-1506, pending before the United States Court of Appeals for the First Circuit.  The case raises important questions about the interplay between copyright law and laws protecting free expression, including the immunity granted to platforms that host content uploaded by users pursuant to Section 230(c) of the Communications Decency Act.  Paul Levy of Public Citizen wrote a detailed post about the brief here.

The case has a long and somewhat convoluted history, arising from a report entitled “Complaint Review: Richard A. Goren” (“the Report”). The Report was posted to the consumer reporting website Ripoff Report on January 31, 2012.  Mr. Goren filed a defamation lawsuit against the pseudonymous poster of the Report, and a justice of the Massachusetts Superior Court ruled that the copyright in the Report should be transferred to Mr. Goren.  Mr. Goren and his company, Small Justice LLC, then used the transferred copyright in an attempt to enforce rights against Ripoff Report’s parent company, Xcentric Ventures, and have the review removed.

The United States District Court for the District of Massachusetts refused to give force to the involuntary transfer of copyright.  Amici argued in their brief to the Court of Appeals that this was the right result, noting that, “[i]f Goren’s end run around section 230 were permitted to succeed, it could create a roadmap whereby any plaintiff, regardless of the merits of his claims, could skew public discussion by suppressing critical speech.”

Fall 2015 Harvard Law School Cyberlaw Clinic students Charles McGonigal and Will Piereson and former Clinical Fellow Andy Sellars, along with the Clinic’s Managing Director Christopher Bavitz, contributed to the brief.

Cyberlaw Clinic Supports Amicus Effort in Border Shooting Case

Via Cyberlaw Clinic

The Cyberlaw Clinic and attorney Mahesha Subbaraman of Subbaraman PLLC submitted an amicus brief to the United States Court of Appeals for the Ninth Circuit this week on behalf of civil liberties advocacy organization, Restore the Fourth, in the case, Rodriguez v. Swartz.  As set out in more detail in the brief and summarized in  a statement by Restore the Fourth, the case concerns the 2012 shooting of a Mexican teenager by United States Border Patrol agent Lonnie Swartz.  The victim — 16-year-old Jose Antonio Elena Rodriguez — was in Nogales, Mexico; the agent fired shots from the U.S. side of the border, through a border fence, killing Rodriguez as he walked home following a basketball game.

The civil suit brought by the victim’s mother against the agent raises questions about whether the agent can claim qualified immunity and, in turn, whether the killing is subject to the Fourth Amendment’s requirements regarding the reasonableness of searches and seizures.  The case has potentially far-reaching implications regarding the scope and continuing viability of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) — in which the United States Supreme Court addressed the applicability of the Fourth Amendment to a search of a Mexican citizen’s home in Mexico — and more broadly about the extraterritorial reach of the Fourth Amendment’s protections.

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Cyberlaw Clinic Protects the Right to Post “Ballot Selfies”

Via Cyberlaw Clinic

The Cyberlaw Clinic filed an amicus brief (PDF) at the United States Court of a Appeals for the First Circuit, on behalf of the New England First Amendment Coalition and the Keene Sentinel. The case, Rideout v. Gardner, concerns a law passed by the State of New Hampshire to prevent “ballot selfies” – photos of completed ballots that are posted on social media. The brief argues that the law is unconstitutional under the First Amendment, as it prohibits a variety of speech important to monitoring the government, educating voters and engaging in political debate.

The statute at issue is N.H. Rev. Stat. Ann. § 659:35, which prohibits “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media.” As the brief notes, if the statute were allowed to stand, it would prohibit many types of speech that play important roles in elections, and democracy more generally. The law bars voters from raising questions about improprieties they find on their ballots, criticizing the government for poor ballot design, or engaging in advocacy for a candidate. The brief notes specific examples of times when photographs of ballots helped the public clear up misunderstandings about government conduct, demonstrated how to ensure that one’s vote would be counted, and conveyed messages about civic participation and advocacy for a candidate that could not expressed with words alone.

A copy of the brief is available here, and more information about it can be found at NEFAC’s website. Spring 2016 Cyberlaw Clinic students Michael Linhorst and Jacqueline Wolpoe took the lead on this brief, working closely with Managing Director Chris Bavitz and Clinical Fellow Andy Sellars.

Cravath fellows travel globally to experience international and comparative law

Via HLS News

Thirteen Harvard Law School students were selected as the 2016 Cravath International Fellows. The fellows traveled to 12 countries for winter term clinical placements or independent research with an international, transnational, or comparative law focus. Below are accounts of the experiences of four of the new fellows.

Crystal Nwaneri ’17

Crystal Nwaneri ’17 spent winter term in Singapore, conducting research on the legal and technological implications of a court ruling permitting a third party to retransmit over-the-air television without permission of the broadcasters. For Nwaneri, this was a chance to further explore her long-standing interest in the legal challenges brought about by rapidly advancing technology.

As an undergraduate, Nwaneri examined public policy and how legislators and private organizations shape and regulate the technology industry. Prior to law school, she worked at Dell’s government relations office in Washington, D.C., briefing their executives on the internet technology issues discussed at Congressional hearings.

Upon entering Harvard Law, she enrolled in a reading group with Professor of Practice Urs Gasser about the future of online privacy, joined the Women’s Law Association and the Harvard Black Law Students Association, and began working as an editor at the Journal of Law and Technology. As a 2L, she is focusing on the legal infrastructures that support technology innovation, which may affect access for underserved communities. She also supports clients in the Cyberlaw Clinic and is a research assistant with the Student Privacy Initiative at the Berkman Center.

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Cyberlaw Clinic and Lumen Project Reps Contribute to Section 512 Study

Via Cyberlaw Clinic

Copyright OfficeOn April 1st, the Copyright Office closed the initial comment period for a public study undertaken to evaluate the impact and effectiveness of the Digital Millennium Copyright Act (“DMCA”) safe harbor provisions, embodied in Section 512 of the United States Copyright Act. On April 7th, the filed comments were released online.

Commenters submitted a total of 90,967 comments in connection with the study. The Cyberlaw Clinic filed one of those comments on behalf of Berkman Center for Internet & Society Project Coordinator Adam Holland, who manages the Center’s Lumen project (formerly known as Chilling Effects), and Harvard Law School Clinical Professor (and Cyberlaw Clinic Managing Director) Christopher Bavitz, who serves as Lumen’s principal investigator at Berkman. As described herein, the comment submitted by the Clinic advanced the twin propositions that:  (a) data is crucial to informing reasoned policy debates, including debates about policies that govern intermediary liability and obligations to police content online; and (b) transparency is intrinsically related to accountability, oversight, and process and is generally good for the public at large in a society that values free expression.

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Cyberlaw Clinic FAQ — 2016-17 Registration Starts Soon!

Via Cyberlaw Clinic

HLS clinical registration for the 2016-17 academic year is just around the corner.  We in the Cyberlaw Clinic often field questions this time of year from HLS students thinking about enrolling in the Clinic, trying to determine how we operate and whether the Clinic would be a good fit. To help guide students in their decision-making, we have assembled answers to some of the most commonly-asked questions:

Q:  How much time do students spend working in the Clinic during the semester?

A:  Students have different hours requirements depending on on the number of credits for which they are enrolled.  Beginning next academic year, students will be able to enroll for 3, 4, or 5 credits, which corresponds to 144, 192, or 240 hours over the course of semester.  Given that the semester is twelve weeks long, that works to an average workload per week of 12, 16, or 20 hours.

Q:  I’ve heard stories of students who enroll in a clinic and then work ten times as many hours as they expected.  Is that going to happen to me in the Cyberlaw Clinic?

A:  The Cyberlaw Clinic team strives to be realistic about what we expect in terms of hours, and we carefully consider students’ credits and hours into consideration as we help scope projects and distribute the Clinic’s workload among students.

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Improving Copyright’s Anticircumvention Law

Via Cyberlaw Clinic

1201 cover pageThe Cyberlaw Clinic has filed a comment (PDF) before the Copyright Office as part of the office’s Section 1201 Study, which looks into copyright’s anticircumvention law, embodied in Section 1201 of the United States Copyright Act. Anticircumvention law prohibits bypassing or evading “technical protection measures” on copyrighted works — such as CSS encryption on DVDs or digital locks present on many eBooks — even if one’s use of the underlying work otherwise does not infringe copyright. As required in the statute, the Copyright Office holds hearings every three years to consider requests for temporary exemptions when the law works to prohibit noninfringing uses of others’ works. The Clinic’s comment in the 1201 proceeding addresses deficiencies present in the Office’s approach to this triennial rulemaking, and recommends a set of solutions.

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Cyberlaw Clinic Helps Produce Fair Use Resources w/Berkman’s DLRP

Via Cyberlaw Clinic

DLRPHarvard Law School students Olga Slobodyanyuk and Leo Angelakos of the Cyberlaw Clinic recently teamed up with the Berkman Center‘s Youth and Media team to develop a set of resources regarding the legal doctrine of fair use. Olga and Leo helped to develop three new sets of resources for students and teachers. Together, they produced a podcast in collaboration with Radio Berkman; a guide for teachers (including a number of education-specific resources); and an infographic to explain fair use doctrine in a visual way. You can find out more about the resources here.

The release of these resources coincided with Fair Use/Fair Dealing Week, an annual event meant to celebrate, promote, and explain the doctrine of fair use. This year, it took place from February 22nd to February 26th. Fair Use Week represents a concerted effort among a variety of entities—ranging from individuals to large institutions—to release and share information about fair use. The resources developed by the Youth and Media project and the Clinic will help grow Berkman’s Digital Literacy Resource Platform, an evolving collection of tools about online safety, privacy, creative expression, and information quality that can help users navigate connected learning environments and the digital world.

Olga and Leo report that they had a great experience working on the project:

We were super excited to work on this project! Creating the podcast on fair use was a lot of fun. In the end, working together with Radio Berkman, we created a quick and conversational piece that covers the essentials of fair use and provides some examples of how the doctrine is applied.

The infographic was interesting in that it aimed to portray legal doctrine in a visual manner. For the resource guide, we focused on materials that would be most helpful to teachers. We included comprehensive guidelines, FAQs, infographics, short videos, and databases of legal cases.

As clinical students, this was a unique project. Instead of producing a legal research memo, we were asked to creatively describe the doctrine in an interesting and digestible way, accessible to a broad audience. We look forward to future collaborations between the Clinic and Andres and Paulina from the Youth and Media team.

Fair Use Week “is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.” The Clinic is pleased to have played a role in promoting the broader goals of Fair Use Week and supporting the DLRP.

Cyberlaw Clinic, Law Profs Submit Second Brief on Standards and Law

Via Cyberlaw Clinic

Last week, the Harvard Law School Cyberlaw Clinic, on behalf of a group of law scholars, filed an amicus brief (pdf) in the United States District Court for the District of Columbia in American Educational Resource Association (AERA) v. Public.Resource.org, Case No. 1:14-cv-00857-TSC (D.D.C.). In January, amici joined a similar brief in the case, ASTM v. Public Resource, Case No. 1:13-cv-01215-EGS (D.D.C.), which is pending before the same court. As in the previous case, the plaintiffs in this case are organizations that develop standards (SDOs). They include AERA, the American Psychological Association, Inc., and the National Council on Measurement in Education, Inc. Plaintiffs allege copyright and trademark infringement by defendant Public Resource, a non-profit organization dedicated to making government information accessible to the public, for publishing on its website privately developed standards that have been incorporated into federal law.

This latest brief advances many of the same legal arguments made in the previous brief with reference to model codes and applies them to privately developed standards. Amici argue that privately developed standards that are later incorporated into law are not, and should not be, copyrightable. Ourearlier blog post on the previous brief summarizes those arguments in detail.

Spring 2016 Cyberlaw Clinic students Allison Kempf and Ben Murray took the lead on this brief, working closely with Chris Bavitz and Andy Sellars, and drawing on the earlier work of Clinic students Joseph Posimato, Michael Gocksch, and Miranda Means. Attorney Cathy Gellis again assisted with the filing.

Clinic Works w/Law Scholars to Argue Against Copyright in Legal Codes

Via Cyberlaw Clinic

Cover PageThis week, the Harvard Law School Cyberlaw Clinic, on behalf of a group of esteemed law scholars, filed an amicus brief (pdf) in the United States District Court for the District of Columbia in American Society for Testing and Materials (ASTM) v. Public.Resource.org. Amici argue in the brief that model codes incorporated into law are not, and should not be, copyrightable. Several standards developing organizations (SDOs) – including ASTM, theNational Fire Protection Association (NFPA), and the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) – filed the lawsuit against Public Resource back in 2013, alleging copyright and trademark infringement. After a lengthy discovery process, the federal District Court in D.C. is currently considering motions for summary judgment from both parties.

SDOs are groups – generally non-profits – that, with the help of experts and volunteers, promulgate model codes and standards to address the needs of particular technical fields. Some of these organizations sell their codes in print and digital formats, often for steep prices.

While compliance with a model code is initially voluntary, compliance becomes mandatory when that code is incorporated into law. Such incorporation means that all citizens of a relevant jurisdiction are obligated to follow the text of the code to the letter.

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Clinic Supports EPIC Drone Filing, FAA Cites Comments

Via Cyberlaw Clinic

EPIC CoverIn November 2015, the Cyberlaw Clinic supported the Electronic Privacy Information Center in submitting comments to the Federal Aviation Administration regarding a proposed registration regime for operators of Unmanned Aircraft Systems (“UAS”), commonly known as drones.  Fall 2015 Clinic students Katherine Kwong and Sophia Choi contributed to EPIC’s comments, in which EPIC expressed general support for a drone registration requirement but raised concerns about the inclusion of personal information about drone operators in a registration database.  

In its filing, EPIC noted the risks that UAS (particularly smaller drones) might be used to conduct surveillance.  But, EPIC expressed privacy concerns regarding the maintenance of a database containing personal information of registrants and specifically noted the privacy interests of drone hobbyists (who are more likely than commercial operators to register using home addresses).

The FAA’s Interim Final Rule on this subject, issued on December 16, 2015, cited EPIC’s comments extensively.  The Rule highlighted EPIC’s concerns about surveillance and interest in ensuring registration requirements were tailored to meet the goals of ensuring “individuals and title search companies to determine the legal ownership of an aircraft” and providing “aircraft owners and operators information about potential mechanical defects or unsafe conditions of their aircraft in the form of airworthiness directives.”

Cyberlaw Clinic Files Amicus Brief in SJC Cell Phone Search Case

Via Cyberlaw Clinic

Onyx White Triplicate Final - reducedThe Cyberlaw Clinic filed an amicus brief (PDF) in the Supreme Judicial Court of Massachusetts on behalf of the American Civil Liberties Union of Massachusetts (ACLUM) in Commonwealth v. White, SJC-11917. This is the third case in as many years in which Massachusetts’s highest court has sought the input of amici to help clarify when law enforcement may glean information from a cell phone to advance a criminal investigation.

At issue in White is the question of what evidence is required to establish probable cause to seize a cell phone without a warrant – especially in view of an allegation that the cell phone contains a remote wipe feature, raising the specter of its contents being erased if the police don’t immediately seize it. The case also considers the length of time after which the warrantless seizure of a phone becomes constitutionally unreasonable due to the police’s continuing failure to obtain a warrant.

ACLUM argues that the ubiquity of cell phones, their powerful functionality, and their capacity to store enormous amounts of private information are reasons that they merit the very strongest privacy protections as enshrined in the Bill of Rights and the Massachusetts Declaration of Rights.

Applying these protections, the brief argues first that the enormous capability of cell phones to store materials of evidentiary value does not automatically establish probable cause to search a criminal suspect’s cell phone, anymore than the enormity of what can be stored in a criminal suspect’s house automatically gives rise to probable cause in that situation. Rather, law enforcement must show some specific and objective indication that the suspect ever stored incriminating evidence on it or used it in relation to the crime to establish probable cause.

Second, the brief argues that the “remote wipe” capabilities built into all modern cell phones does not automatically establish an exigent circumstance allowing law enforcement to seize cell phones without a warrant. Absent some some specific, non-speculative evidence that the feature will actually and imminently be deployed, warrantless seizures of cell phones are every bit as unreasonable as every other kind of warrantless seizure.

Third, the brief argues that it is constitutionally unreasonable for law enforcement to hold on to a suspect’s cell phone for nearly ten weeks before applying for a warrant to search it, in view of the strong privacy interest that individuals have in their cell phones given the vast amounts of information that can be stored on one.

The White appeal follows closely on recent SJC and Supreme Court decisions reaffirming individuals’ privacy interests in their cell phones. These cases include the SJC’s recent decisions in Commonwealth v. Estabrook (where the Cyberlaw Clinic filed an amicus brief on behalf of ACLUM and the EFF), andCommonwealth v. Augustine (where ACLUM represented the defendant and the Clinic filed an amicus brief on behalf of the EFF).

The case is scheduled for argument on Tuesday, December 8th at the John Adams Courthouse in Boston. Special thanks go to HLS Cyberlaw Clinic students Kenneth Monroe (HLS JD ’16) and Brian Pilchik (HLS JD ’17), who worked closely with Vivek Krishnamurthy, Andy Sellars, and the amici to prepare and file the brief.

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