Clinical and Pro Bono Programs

Providing clinical and pro bono opportunities to Harvard Law School students

Tag: Mason Kortz

Cyberlaw Clinic Files Amicus Brief Arguing Dr. Seuss/Star Trek Mash-Up Is Fair Use

Via Cyberlaw Clinic

The Cyberlaw Clinic filed an amicus curiae brief (.pdf) last week in the United States Court of Appeals for the Ninth Circuit in Dr. Seuss Enterprises v. ComicMix, on behalf of several individuals and non-profit organizations (including groups that advocate for freedom of expression and individual science fiction authors). The brief supports the creators of Oh, the Places You’ll Boldly Go! (“Boldly”), a Star Trek-inspired mash-up of several Dr. Seuss works, including Oh, the Places You’ll Go!, Horton Hears a Who!, and How the Grinch Stole Christmas! The case has implications for the scope of fair use protection for mash-ups and other works that incorporate original works.

The appeal arises from a copyright infringement action brought against the creators of Boldly by Dr. Seuss Enterprises, the current copyright holder of Dr. Seuss’s works. Last spring, a lower court granted ComicMix’s motion for summary judgment, finding that Boldly constituted fair use. In applying factors one and four of the fair use test, the court found that the purpose and character of Boldly’s use of Dr. Seuss works was transformative and that it was thus not presumed to infringe on the market for Dr. Seuss works.

Amici have an interest in advocating for the interests of creators and promoting freedom of expression. Based on decades of experience, Amici urged in the brief that the Court of Appeals affirm the lower court’s ruling in favor of defendants. The brief explains that, for purposes of a fair use analysis, Boldly is a transformative work that comments on both Star Trek and the works of Dr. Seuss. More generally, works like Boldly (i.e., works that fall in the category of mash-ups) have significant transformative value as they can add commentary, humor, or insight to the underlying works and can imbue those works with new meaning. Fair use should protect the creation of these kinds of culturally-valauble works, the creation of which might be chilled under a system that requires licensing.

Amici on the brief include:

  • the Electronic Frontier Foundation, a member-supported, non-profit civil liberties organization that works to protect free speech and privacy in the digital world;
  • the Organization for Transformative Works, a non-profit organization dedicated to protecting and preserving non-commercial fan works based on existing works, including popular television shows, books, and movies;
  • Public Knowledge, a non-profit organization dedicated to preserving the openness of the Internet, promoting creativity through balanced intellectual property rights, and protecting the rights of consumers to use innovative technology lawfully;
  • Francesca Coppa, a Professor of English and Director of Women’s and Gender Studies at Muhlenberg College;
  • David Mack, a New York Times bestselling author who has written episodes for Star Trek: Deep Space and several Star Trek novels; and
  • Magdalene Visaggio, the writer and creator of the Eisner-nominated comic series Kim & Kim and Eternity Girl.

EFF has its own writeup of the case and the amicus brief here.

Fall 2019 Cyberlaw Clinic students Katie Lin and Tyler Bowen contributed to the writing of the brief, along with former Clinic interns Shenelle Salcido and Michelle Rodriguez, former EFF intern Carmen Sobczak, Professor Francesca Coppa, and Chris Bavitz and Mason Kortz from the Clinic.

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

Via the Cyberlaw Clinic

Source: Pexels

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

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

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

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

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

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

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

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

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

Via WGBH 

Source: Flickr

By: Isaiah Thompson

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

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

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

The lawsuit here could have national implications.

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

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

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

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

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

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

Airbnb did not respond to a request for comment.

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

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

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

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

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

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

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

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

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

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

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

But other legal scholars disagree.

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

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

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

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

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

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

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

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

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

The ordinance remains in full effect for prospective hosts.

Harvard Cyberlaw Clinic Backs Airbnb In Rowdy Guest Suit

Via Law360

By: Joyce Hanson

Mason Kortz, Clinical Instructor, Cyberlaw Clinic

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

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

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

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

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

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

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

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

Read the full article here.