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Tag: Kendra Albert

2019 Summer Speakers Series

By: Olivia Klein

Source: Pexels

OCP’s Summer Speaker’s Series is well underway. The annual program features HLS clinicians, alumni and others who share their personal and professional trajectories in their respective fields of law to Harvard Law School staff and summer interns. Below are a few recaps from the talks that kicked off the series.

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Kendra Albert

Kendra Albert, Clinical Instructional Fellow at the Cyberlaw Clinic, was the first speaker in the series. A member of the HLS Class of 2016, Kendra did impactful work in technology law. Kendra worked at companies such as the Electronic Frontier Foundation, CloudFlare, and Public Citizen. They were also a Research Associate at the Berkman Klein Center for Internet and Society. During their time at the Electronic Frontier Foundation, they argued and won a change in the law that makes it easier for museums and libraries to maintain archives of video games.

After graduating, Kendra worked at Zeitgeist Law in San Francisco, a law firm dedicated to addressing the legal challenges raised by technology. The firm focuses on maintaining privacy and freedom of expression in the digital age, which are matters that Kendra addresses in their own scholarship. At Zeitgeist Law, Kendra co-wrote amicus briefs in Google v. Oracle and Lynch v. Under Seal, while also counseling clients on maters including privacy, contracts, data minimization and security, and handling online abuse.

Since 2017, Kendra has been back at HLS, supervising clinical students as they learn how to practice technology law. Kendra still engages in litigation and produces scholarship covering a wide variety of topics, from transgender privacy to reference rot in legal citations. They filed a brief on behalf of two members of Congress in ASTM v. Public.Resource.org, and worked with security researchers from DEF CON’s Voting Village to publish voting machine vulnerability findings under threat of litigation.

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Phil Waters

On June 21, 2019, Center for Health Law and Policy Innovation (CHLPI) Clinical Fellow Phil Waters started his lunch talk with a question: did anyone in the room always know what they wanted to be when they grew up? Only a few hands were hesitantly raised. Phil chuckled, and he said that those few members of the room were lucky, since he never knew what he wanted to be when he grew up. Phil received his undergraduate degree in Business at the University of North Carolina, at the suggestion of his father, who worked in sales. After graduation, Phil was seeking something that sparked more passion in him. Based on the experiences he had so far, he knew that he wanted to help people and was interested in working in health, and he saw the law as an avenue to do both.

While attending University of North Carolina School of Law, Phil worked with Legal Aid of North Carolina as a Healthcare Navigator within their Medical-Legal Partnership. He also served as a summer associate with the National Health Policy Program. In these positions, Phil engaged directly with clients and with fellow attorneys in active cases, giving him a strong perspective that he brings to his clinical work here at Harvard Law School. Now at CHLPI, Phil focuses on litigation and legislative advocacy to defend and implement public health programs aimed to preserve and expand access to care for vulnerable populations.

One student asked Phil what classes stood out to him during law school. Phil said none really stuck out to him, but said that the most important thing he was taught was how to think like a lawyer.  Phil recommended that the students in the room take classes that might not be directly applicable to their field of interest, using his experience in his 1L Criminal Law class as an example. In his current work, Phil says he needs to read and understand complex documents thick with citations quickly – and learned that skill from his 1L Criminal Law class.

After receiving his J.D., Phil returned to the Legal Aid of North Carolina, where he worked one-on-one with consumers to help them understand changing healthcare laws, primarily having to do with insurance. Phil began to feel frustrated by the repetition of issues facing his clients, and he asked himself what could be done to eliminate the issues altogether, starting at the root of the problem. He found a solution in policy work.

Phil is passionate about implementing and preserving the Affordable Care Act and Medicaid, in addition to other public health programs that protect vulnerable populations, such as those with HIV and other chronic health conditions. He encouraged students to find their passion in either policy work or direct legal services. Both areas are crucial for helping those in need, he said, so it is important to find out which will create the most passion in you.

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Stephanie Davidson

There wasn’t an empty seat in the room for Stephanie Davidson’s talk – not even for Stephanie, who hopped onto a table to address the room. Davidson ’13 spoke about her path to where she is today, immediately engaging all thirty people in the room with her eloquence and storytelling.

After receiving her undergraduate degree from Columbia University, Stephanie joined the New York County District Attorney’s Office as a Sex Crimes Unit Investigative Analyst, noting that it was the office that Law & Order SVU is based on, and yes, her boss did look just like the main character. The process of working with survivors of sexual abuse moved Stephanie to pursue law school, since she wanted to serve the women she worked with in a different way than she could from within the criminal justice system.

At HLS, Stephanie joined the Harvard Legal Aid Bureau (HLAB) as a family law attorney and relished her time delivering quality legal services. She is now a Clinical Instructor in the Family and Domestic Violence Law Clinic, helping survivors of domestic violence obtain safety, ensuring that domestic violence is not a legal barrier to a client’s legal rights. She finds it crucial to build strong relationships with her clients in order to best serve their needs.

Stephanie sees social justice as essential to the work she does. She hopes to mobilize more people in social justice spaces to find systemic solutions to domestic abuse, though she recognized that one challenge is identifying what to ask for, other than for perpetrators to stop hurting people. She notes that the cycle of domestic abuse can increase the risk of homelessness and poverty of individuals for generations. Despite the hardships her clients face and the intensity of her work, Stephanie enjoys her work thoroughly. “Working in the clinic shows me more and more every day just how resilient humans are,” Stephanie said, which keeps her eager to take on the challenges her clients face.

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Tom Smith and Lenita Reason 

Tom is the Executive Director and Co-founder of Justice at Work, an organization driven to provide legal support for low-wage worker organizations and their members. During the lunch talk, Tom Justice for All’s as falling into three buckets: performing legal intake for workers whose rights have been violated; training staff at worker centers to help their communities “know their rights and know how to access them”; and supporting groups of workers who want to proactively improve working conditions. He stated that his goal in starting Justice at Work was to find a way to create power for organizations like worker centers, such as Lenita’s.

Lenita Reason is Community Organizer, Office Manager, and OSHA Outreach Coordinator at the Brazilian Worker Center (BWC) in Boston, which works in collaboration with Justice at Work. Lenita said that BWC was created by workers for workers, and all of the initiatives the organization takes on come directly from the workers participating in the Center. The BWC provides a wide variety of services, from health and safety training to ESL education to legal services, and Lenita is very well-versed in all areas of the wide-reaching organization.

Justice at Work and the BWC co-founded the Building Justice Committee in 2014, and Lenita and Tom both lit up with joy when discussing the committee. The committee trains workers to t o train and educate each other on their legal rights surrounding topics such as wage theft. Lenita smiled saying that she feels like a proud mother to the men who willingly give time on top of their busy work schedules to come to the BWC and learn how they can help uplift one another. She said that she can see how proud the men are of the work they do with the Building Justice Committee, and they are leaders even if they may not realize it.

Tom also touched on the topic of community lawyering, stating that the term does not necessarily need to mean you work as a public lawyer. Some of the attorneys who most embody community lawyering, he said, do private work. Tom stated that the most important aspect of community lawyering is the way you go about providing the legal service, touching on the importance of cultural competency. Whether there is a language barrier or not, Tom says it is most important to show that you are committed to the work, and you know why you are committed. Lenita backed this up with a “what not to do” attorney horror story that had the whole room aghast.

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Shelley Barron 

Shelley described her upbringing as one of privilege. She was the daughter of two doctors and lived in a wealthy Boston suburb. She wanted to use her privilege to do work that allowed her to give back to others and use her power to do good in the world. She decided on law school.

After receiving her J.D. from Northeastern University, Shelley worked at Community Legal Aid (CLA) in Worcester, MA. At CLA, Shelley learned about and worked in every area of the organization, including family, domestic violence, housing, and immigration law. This experience served her well when she continued on to work as a Staff Attorney at Casa Myrna, a community-based organization which she said allowed her to work with social justice in a different way, with a greater focus on empowerment and creating systemic change.

Timing has been an important part of Shelley’s journey. She applied for her current position as a Clinical Instructor at the TAP right when she was reevaluating her career priorities after having a child. She called her current position a “perfect change.” Working in the HLS environment is exciting, Shelley said. She is able to teach students and work with clients on housing law matters, but she is also surrounded by other clinics doing incredible work that she is eager to help out with wherever she can, once again finding broad knowledge of public service law useful.

One intern asked Shelley what TAP’s work entails on a day to day basis. Shelley explained that TAP is filling a gap in access to justice by assisting people living in public housing who are threatened with an eviction and are facing administrative hearings, which is the step before entering the criminal justice system. Shelley stated that TAP’s goal is “to keep [the case] out of court,” emphasizing the importance of an attorney’s help in these housing law issues.

Shelley shared valuable resources with the interns, including AccessLex to help students plan for potential loan repayment options and receive law school financial education. The interns had many questions for Shelley, many regarding career advice for working in civil legal aid. Shelley also provided tips for making a career in the civil legal aid field, suggesting: get as much practical experience during law school as you can, whether it be through clinics, externships, or pro bono work; be proactive about networking; volunteer and cultivate relationships at the organizations you want to work at, since a foot in the door goes a long way; and if you can be flexible with where you are willing to live, that is always helpful.

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Anna Crowe 

Hailing from New Zealand, Anna first came to HLS to receive her LLM in 2012, going on to receive an HLS Henigson Fellowship to work in Columbia for a year with the International Crisis Group. Anna then joined Privacy International as a legal officer before returning to HLS to work in the Human Rights Program, where she now serves as the Assistant Director, a Clinical Instructor, and Lecturer on Law of the International Human Rights Clinic.

The interns had a lot of questions about Anna’s work in human rights law, and more than half of the hour was spent answering those questions during discussion. Interns asked about truth commissions, the Universal Declaration of Human Rights, the trade-off between peace and justice, the value of living outside the society you grew up in, the difference between theory and practice in her work, and mental health for workers in the human rights field. The interns got a glimpse of Anna’s professorial skills from all the academic and theoretical human rights discussion. It was easy to imagine how engaging and exciting her seminar class might be.

Anna also shared valuable career advice with the interns. Speaking to the beginning of her career, Anna said it is important to look beyond the options you see in front of you. She did not find her passion working as a New Zealand government lawyer after receiving her undergraduate degree, so she made the decision to expand her horizons and come to HLS. On the same note, she emphasized the importance of flexibility in any career field, but specifically in human rights work. “You need to be comfortable with uncertainty” to work in human rights, Anna said. “I never had a ten-year plan. You need to be okay with not knowing where you’ll be in ten years’ time.” When an intern asked how to break into a field as nebulous as human rights, Anna said that mentorship was a big factor in her career, and it is important to be proactive about reaching out to people who have careers you want to emulate.

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Cathy Mondell 

Cathy Mondell is a mediator and a Clinical Instructor in the Harvard Mediation Program (HMP).

Cathy’s professorial nature came out when speaking to the interns, as she paced the room and took questions from many engaged interns. She described her time as a student at Harvard Law School, her entrance into the corporate world of law, where she worked at Ropes & Gray for eighteen years, and her decision to switch from being an advocate to being a neutral: becoming a mediator.

When deciding to make her career switch, Cathy said that she wanted to focus on things she enjoyed the most from her corporate career and do more of them in a new way. “I get to be selfish, it’s my career,” she said, met with laughter and nods from the room. The things she wanted to focus on were mediation, teaching, and jury research – all of which come together in her current work at HLS and in her private practice, Mondell Dispute Resolution.

The question and answer portion of Cathy’s talk started off with one intern asking: “What is mediation?” Cathy was more than happy to explain, and she took the group through an overview of her work in commercial mediation and HMP’s work in small claims court. Cathy and the interns went on to discuss the debate over court-ordered mediation, the potential of online dispute resolution, and mediation on the international level. Another intern asked what the most important skill for a mediator to have is, and Cathy replied that genuine curiosity is crucial, as well as adaptability, since no two mediations are the same.

When the room fell quiet once the interns ran out of questions, Cathy let the pause linger. “This is what’s known in the mediation world as ‘using silence’,” she said, and the silence disappeared as everybody laughed. Cathy encouraged the interns to consider becoming mediators in the future, citing programs all over the country made for people of all backgrounds to become mediators.

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.

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.

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.”

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.

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.

City Attorney Sues Blogger for Libel. Is It ‘A Threat Designed to Silence?’

Via the Miami Herald 

By: Sarah Blaskey

Cyberlaw Clinical Instructional Fellow Kendra Albert was quoted in an article by the Miami Herald about a lawsuit where the North Bay Village, FL attorney is suing a blogger for alleged libel:

“The suit is part of a growing trend of public officials taking bloggers to court for posts they see as harmful to their personal or professional image, according to Kendra Albert of Harvard Law School’s Cyberlaw Clinic. Melania Trump filed a high-profile libel suit against a Maryland blogger that settled last year in her favor, with a full retraction and significant reparations. While some cases are legitimate, Albert said, the increase in lawsuits against journalists (think Hulk Hogan vs. Gawker) has publications thinking twice before publishing. These days, even facts can be expensive to defend.

‘Journalistic entities need to have a fair amount of money in order to defend themselves, and I do think that does represent a threat,’ Albert said. ‘Lawsuits can be weaponized by folks with more power to shut down speech they don’t like. But that’s not necessarily what’s happening here.’ Albert did not review the specifics of the case.”

Read the full article here.

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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