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Tag: Kendra Albert

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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