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.
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.
On 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.
One track of the Berkman Klein Center’s work on artificial intelligence ethics and governance concerns the use of algorithms, machine learning, and related technologies in ways that impact social and criminal justice. Among other things, this research examines technologies employed by courts in their disposition of criminal cases. Increasingly, judicial determinations are informed by software that helps judges perform “risk assessments” of defendants or otherwise process and weigh factors relevant to decisions about sentencing, parole, and the like. The Center (along with collaborators at the MIT Media Lab) is undertaking a number of efforts to evaluate ways in which these kinds of technologies might mitigate or exacerbate bias. The initiative has both technical and legal components, and a significant amount of our work to date has involved technologists and lawyers working together to correlate technical concepts with legal standards (and vice-versa). In the context of these efforts, the Massachusetts Supreme Judicial Court’s recent ruling in Brangan v. Commonwealth — which has nothing to do with algorithms but concerns, broadly, the process of making bail determinations in Massachusetts — is of significant interest.
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.
This past Wednesday — May 24th, 2017 — marked Class Day at Harvard Law School, which takes place each year one day before the University-wide commencement ceremonies. It’s one of our favorite days of the year here at the Cyberlaw Clinic, because it gives us the chance to host an annual get-together for graduating Clinic alums and their families and friends.
The HLS Clinical and Pro Bono programs blog currently features a post by spring 2017 Cyberlaw Clinic student (and graduating Harvard Law School 3L) Alicia Solow-Niederman. The piece highlights Alicia’s work this semester with Clinic Assistant Director Vivek Krishnamurthy and our friend and Clinic advisor Nani Jansen Reventlow. Alicia was part of a team that helped to tackle some complex questions about online jurisdiction, preparing a working paper along with student Javier Careaga Franco (LL.M ’17) entitled “Here, There, or Everywhere?.” The paper offers a methodology and taxonomy aimed at clarifying principles to govern the geographic scope of orders to remove online content.
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.”
Join Mason Kortz from the Cyberlaw Clinic along with an all-star roster of speakers on April 1, 2017, at Harvard Law School about technology and law enforcement — “Over-Policed and Under Protected: Technology, Law Enforcement and Minorities.” Sponsored by our friends at the Harvard Human Rights Journal, the panelists will address the extent to which use of technology in law enforcement exacerbates problems faced by minority groups in the United States. A reception will follow. Panelists include Sahar F. Aziz of Texas A&M School of Law and Harlan Yu of Upturn, with moderator Elana Fogel from the Massachusetts Committee for Public Counsel Services.
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.