Cyberlaw Clinic

Today, the Cyberlaw Clinic filed a brief on behalf of the Electronic Frontier Foundation, defending the location privacy of the people of Massachusetts in the case of Commonwealth v. Rousseau. The Supreme Judicial Court had called for amicus briefs, asking the question of whether a passenger in a vehicle tracked by GPS had the legal right to challenge the collection of their location data. We argue that a passenger does have such standing, primarily because of the passenger’s reasonable expectation that their movements will not be tracked by the government without the issuance of a valid warrant. We also point out that courts must be vigilant in applying traditional legal safeguards against unreasonable searches and seizures in the context of increasingly invasive surveillance technologies.

For more, read EFF’s press release on the case. 

Thanks to our students’ hard work this semester and the advice we received from the 3D printing community, we have identified several patent applications whose broad claims threaten to stifle open innovation. We are now asking the community to take a look at the applications and send us documentation showing that the technology described in those applications existed or was obvious before those applications were filed. For more details, consult the call for prior art at EFF’s website.

Yesterday, a group of former telecommunications officials filed a brief in the case of Verizon v. FCC, currently on appeal in the District of Columbia federal appeals court. The Cyberlaw Clinic assisted with research in the preparation of this brief, which responds to Verizon’s radical argument that the First Amendment denies Congress the power to protect end-users from Verizon’s censorship and content-based discrimination. You read that right – Verizon argues that Congress must allow a private gatekeeper unfettered power to selectively block or slow down access to ideas over the Internet, cynically relying on the First Amendment for an argument that is completely at odds with free speech values.

The brief encourages the court to emphatically reject Verizon’s argument and to affirm that the information utilities on which we rely are subject to laws designed to protect consumers and the public discourse needed for a free society.

The full brief may be found here.

We at the Cyberlaw Clinic are very excited to be partnering with EFF once again to take on overbroad patents. This time, we’re going after 3D printing patents, hoping to nip them in the bud by using a new procedure that allows us to intervene at the U.S. Patent and Trademark Office before a patent is even issued.

Here’s how it works:

1. With the help of the 3D printing community, we identify recently-published patent applications that are overly broad and likely to inhibit the crowd-based innovation that has made 3D printing accessible to ordinary people.
2. Again with the help of the community, we identify prior art that will narrow or eliminate the claims that can be made by the patent applicants.
3. We submit that prior art to the USPTO to assist their examiners in ensuring that undeserved patents do not issue, so that the open hardware community can continue to innovate amazing 3D printing technology.

The project launched yesterday with a blog post over at EFF, explaining the promise of 3D printing and some ways in which patenting has held it back. Please consult the project’s launch page to get in touch with us and let us know about applications that threaten open innovation in 3D printing.

The phenonemal new documentary, Code of the West, has its Boston-area premiere on Thursday April 26, 2012 at the Somerville Theater as part of the 10th Annual Independent Film Festival Boston.  Details are available here.

The Cyberlaw Clinic is honored to have had the opportunity to work with filmmaker Rebecca Richman Cohen on the film, which follows the 2011 Montana State Legislature as it debates the fate of medical marijuana.  As the director herself says:

My team and I have tried to capture the human story behind the legislative process of state-level marijuana policy reform – a messy, tangled affair that has implications for policy reform in other states as well as the democratic process in the nation at large. Though the federal government considers marijuana a Schedule I narcotic (with no accepted medical use), an increasing number of states disagree. Today sixteen states and Washington DC have legalized medical marijuana use for people suffering from debilitating medical conditions including cancer, epilepsy, severe nausea, multiple sclerosis, and chronic pain. But the way in which we regulate a drug that is also widely used by adults and teenagers who don’t suffer from these conditions – and which has become a powerful symbol in a much wider debate about cultural values – raises the sort of hard questions that drove me to make this film.

The Clinic congratulates Rebecca on the film’s success and encourages everyone to see this thought-provoking take on an important and timely issue.

In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel.  Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.

OpenCourt is based at WBUR and funded by the Knight Foundation. It offers a live audiovisual stream from the Quincy District Court in Quincy, MA at its website, along with an archive of recordings of past proceedings. The project seeks to use technology to significantly enhance access by the press and public to the judicial branch.

Shortly after OpenCourt went live last year, it became the subject of two separate emergency petitions to a Single Justice of the Massachusetts Supreme Judicial Court. Both petitions were assigned to Justice Botsford. In one case (Barnes), the Commonwealth argued that the district court should have the ability – at the close of a public proceeding – to order OpenCourt not to publish recordings that it lawfully made during that proceeding or to require specific redactions before the recordings are posted online in order to address concerns about the privacy of victims. In the other (Diorio), a criminal defendant represented by the Committee for Public Counsel Services argued that OpenCourt’s archiving of audiovisual recordings of his pre-trial proceedings impacted his right to receive a fair trial under the Sixth Amendment. Justice Botsford referred both cases to the full SJC; the cases were fully briefed last fall, and the Court heard oral argument in November.

In today’s decision, the Court ruled in favor of OpenCourt’s right to stream and archive court proceedings notwithstanding the objections of the Commonwealth in Barnes and the defendant in Diorio. The Court correctly held that orders like those at issue in the two cases would constitute unlawful “prior restraints,” which violate the First Amendment in all but the most narrow of circumstances:

We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In reaching this conclusion, the Court rejected arguments that the unique nature of OpenCourt’s operation (including its use of cameras to permit an online stream and archive) suggested a prior restraint analysis was improper. Although there is no constitutional right to record or broadcast court proceedings, the SJC held that “if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.” Indeed, the Court noted, even if a lower court were found to have abused its discretion by permitting a recording, “there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”

Considering arguments advanced by the Commonwealth and Diorio, the SJC held that neither had proffered sufficient evidence to support a finding that the interests in question – the interest in protecting the privacy of a minor victim in Barnes and the interest in a criminal defendant’s right to a fair trial in Diorio – were sufficiently compelling to justify a prior restraint. And, even if those interests were sufficiently compelling, the SJC ruled that a prior restraint would not be the “least restrictive means” of addressing the Commonwealth’s and Diorio’s concerns.

Although the Barnes and Diorio cases arise in the context of new technology, the decision issued today is very straightforward. That is because the question of whether a court may restrain one who attends a public court proceeding from disclosing information that he lawfully obtained during that proceeding (whether he records his impressions on paper or film or hard drive or simply preserves those impressions in his own head) is a very simple one: such restraints are strongly disfavored under a long line of First Amendment cases. By applying those cases to the facts before it, the SJC reached the right result.

The Clinic wishes to thank all of the students who contributed to the briefs in the Barnes and Diorio cases, including fall 2011 Harvard Law School Cyberlaw Clinic students Alan Ezekiel, Xiang Li, Matt McDonell, and Tom Spencer and summer 2011 Cyberlaw Clinic intern and New York University School of Law student Ava McAlpin.

Last month, Berklee College of Music and MIDEM — in association with the Berkman Center for Internet & Society and Harvard Business School — put on a conference called Rethink Music.  The conference addressed issues relating to “Creativity, Commerce, and Policy in the 21st Century,” and it brought together a wide range of stakeholders to “engage in critical dialogue examining the business and rights challenges facing the music industry in the digital era” and “formulate ideas for the creation and distribution of new music and other creative works.”

The Cyberlaw Clinic played an active role in the event.  Spring 2011 Clinic student Adam Gottesfeld worked with Berkman Center Research Assistant Joey Seiler and Cyberlaw Clinic Assistant Director Christopher Bavitz to assemble the Berkman Center’s “Rethinking Music” briefing book, which conference attendees received.  Gottesfeld, Seiler, and Bavitz prepared the Center’s framing paper, which introduced the book and teed up a number of important issues addressed during the conference.  Clinic student Cristina Fernandez worked with WGBH‘s Deputy General Counsel, Jay Fialkov, on another piece included in the book, “Music Rights Clearances and Public Media.”

Working with the Berkman Center’s Program Coordinator, Amar Ashar, Bavitz helped to manage Berkman’s overall role in the event.  The Berkman team oversaw an academic call for papers that resulted in the selection of an article by Mary LaFrance of UNLV’s William S. Boyd School of Law.  LaFrance’s article, which concerns public performance rights in sound recordings, will be published in the Harvard Journal of Sports & Entertainment Law.  Bavitz also joined Berklee’s Allen Bargfrede in an interview with WBUR about the event and the state of the music industry.

Harvard Law School’s website published an overview of the conference, and the Berkman Center offered its own roundup of coverage.  Livestream has several videos of panel discussions and presentations at the conference.

The Cyberlaw Clinic and Harvard Law School‘s Journal of Law and Technology hosted a fantastic talk earlier this month by David Hosp of Boston law firm Goodwin Procter LLP and Ed Weiss, formerly of Time Warner, Inc. and currently General Counsel for New England Sports Ventures, about Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008), known as the “Cablevision” case.   The case concerned the legality of a “Remote Storage Digital Video Recorder” or “RS-DVR” system, and it has enormous ramifications as more and more content moves off individuals’ hard drives and into the cloud.

The JOLT Digest has a post that summarizes the presentation, which offered some unique perspectives on this important decision.

The Citizen Media Law Project (CMLP), with the Electronic Frontier Foundation (EFF), and Public Citizen, submitted an amicus curiae brief to the United States Court of Appeals for the Second Circuit, urging the court to apply First Amendment scrutiny to the recently resurgent “hot news misappropriation” doctrine in Barclays Capital, Inc. v. Theflyonthewall.com, Inc.  The coalition worked with Harvard Law School’s Cyberlaw Clinic on the brief.

The case involves a financial news website Theflyonthewall.com (“Fly”) that reports on equity research from Wall Street investment firms.  Several firms sued the website, claiming that Fly’s reporting of their stock recommendations before the market opens constitutes hot news misappropriation.  The United States District Court for the Southern District of New York agreed and issued an injunction requiring Fly to delay its reporting of these recommendations until later in the day.  The injunction applies even when Fly obtains information about the recommendations from published news reports.  Fly appealed to the Second Circuit.

The amicus coalition did not support either side in the case, but rather asked the appellate court to consider the strong First Amendment protections the Supreme Court has developed to encourage and protect the sharing of truthful statements on matters of public concern.  The Supreme Court created the hot news tort in 1918, before the advent of modern free speech jurisprudence, and no court has seriously addressed the tension between the doctrine and the First Amendment.  The brief highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.

Amici argue in the brief that First Amendment protection for sharing factual information is especially important in today’s online media environment.  “The hot news doctrine was conceived in an era of top-down newsgathering and dissemination, and the Second Circuit has an opportunity in this case to calibrate the doctrine to today’s democratic, conversational model of news and information sharing,” said CMLP Assistant Director Sam Bayard.  “Fast-paced online dissemination of news, such as we saw in the wake of January’s earthquake in Haiti or the 2009 Iranian elections, could be stalled or chilled if hot news plaintiffs can claim a property right in facts, even for a short time.”

CMLP collaborated with the Cyberlaw Clinic and EFF in preparing the brief.  Sam Bayard of CMLP worked closely on the brief with EFF Senior Staff Attorney Corynne McSherry, Cyberlaw Clinic Assistant Director Christopher Bavitz, and Clinic legal interns Sara Croll, a rising 2L at Harvard Law School, and Andy Sellars, a rising 3L at The George Washington University Law School.  CMLP and the Cyberlaw Clinic are based at Harvard’s Berkman Center for Internet & Society.

The brief can be found at http://www.citmedialaw.org/sites/citmedialaw.org/files/Fly Amicus Brief.pdf.

One of our spring term Cyberlaw Clinic students contributed to a great post over at the Citizen Media Law Project’s blog last week.  The post relates to the scope of Section 230 of the Communications Decency Act and whether the protections afforded by CDA 230 apply to sites that undertake “traditional editorial functions” with respect to content supplied by users

As noted in the post:

Today, it’s settled law that website operators are protected even if they change the content of users’ postings. The leading case interpreting Section 230, Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), held that “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred” (emphasis added). Since Zeran, numerous courts have reaffirmed the principle. The Ninth Circuit, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), held that “minor alterations” did not cost a website operator his immunity when posting another’s email message.

In Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005), for instance, a New Jersey court found Section 230 immunity for a defendant who was alleged to have rewritten some users’ posts. Federal courts in Pennsylvania (Dimeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006)) and Louisiana (Landry-Bell v. Various, Inc., 2005 WL 3640448 (W.D. La. 2005)) have agreed in dicta.

Of course, Section 230’s broad grant of immunity does have its limits. Most critically, it won’t help you if you change a comment in a way that creates defamatory meaning that wasn’t there before.  Cf. Doe v. Friendfinder Network, Inc., 540 F. Supp.2d 288, 297  (D.N.H. 2008) (Section 230 provides “no protection to a service provider for publisher tortious content created by the provider itself”); Anthony v. Yahoo! Inc., 421 F. Supp.2d 1257, 1262-63 (N.D. Cal. 2006) (Yahoo! not immune under CDA for allegedly creating fake profiles on its own dating website).

The CMLP post responded to a recent post on Wired‘s Epicenter blog, which suggested that tech blog Engadget had no choice but to completely disable the comments function on its site in order to avoid liability for materials posted by commenters.