Last week, the Cyberlaw Clinic filed an amicus brief (.pdf) in the United States Court of Appeals for the First Circuit in Alasaad v. Wolf, Case Nos. 20-1077, 20-1081. The case addresses the constitutional implications of electronic device searches at the border. The American Civil Liberties Union, the Electronic Frontier Foundation, and the American Civil Liberties Union of Massachusetts brought the case against the Department of Homeland Security, asserting claims by travelers whose phones and laptops were searched without warrants. The Clinic submitted the brief on behalf of the Harvard Immigration and Refugee Clinical Program, which directly represents individuals applying for U.S. asylum and related protections and advocates on immigration policy issues at the local, national, and international levels. The brief emphasized the chilling effects on speech of warrantless, suspicionless device searches and highlighted the ways in which such government conduct deters the free exercise of expression and association. Spring 2020 Cyberlaw Clinic students Andrew Mettry and Jubilee Cheung and summer 2020 Cyberlaw Clinic interns Priyanka Krishnamurthy and William Walker worked with Clinical Instructor Mason Kortz and with HIRC to draft the brief.
The Cyberlaw Clinic is excited to have collaborated with the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) to release a report today on the impact of the new United States-Mexico-Canada Agreement (USMCA) on intermediary liability laws in North America. The full report is available for download on SSRN. Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content.
Last week, a court in Indonesia ruled that internet shutdowns which the government had imposed in Papua and West Papua in 2019 were illegal. The shutdowns were a part of the government’s strategy — which also included the use of excessive force — to suppress protests in August and September 2019 after an incident in which state security forces were filmed using racist language and attacking Papuan students. The shutdowns and accompanying mobile network disruptions prevented residents of the regions from exercising their freedom to assemble, keeping in touch with loved ones, and accessing important information relevant to their safety.
The Cyberlaw Clinic filed an amicus brief (pdf) this week in the United States Court of Appeals for the Second Circuit on behalf of a group of data journalists and media organizations, advocating for a greater access to government records stored in databases under the Freedom of Information Act (FOIA). The brief supports the plaintiff-appellee Everytown for Gun Safety Support Fund (Everytown) in an appeal arising out of a FOIA request submitted by Everytown to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This is the second brief the Clinic has filed on this topic, the first being filed in Spring 2019 in the case CIR v. DOJ.
Each day, the news brings to light more examples of profound injustice suffered by Black people in the United States and confirms that our nation has never adequately confronted, let alone addressed, systemic racism. Moreover, those few high-profile stories that attract scrutiny only begin to hint at the lived experience of racially marginalized communities in the U.S.
When the Cyberlaw Clinic was founded at Harvard Law School during the 1999-2000 academic year, the law was evolving to accommodate rapidly-developing technologies that facilitated communication and interaction with content online. While large commercial entities could afford to pay for high-quality legal services in the emerging area of cyberlaw, the same wasn’t true for many individuals, scholars, non-profits, mission-driven start-ups, and advocacy organizations.
We’re pleased to report that the United States Supreme Court has sided with Public.Resource.org and held that the Official Code of Georgia Annotated is ineligible for copyright protection. The Cyberlaw Clinic worked with the Caselaw Access Project team at the Harvard Library Innovation Lab on an amicus curiae brief (.pdf) advocating this very result. The brief highlighted the significant burden that would be placed on those creating tools to facilitate access to law if legal materials generated by or at the direction of state government officials were subject to copyright protection and the importance of a bright line holding that official government works are not copyrightable.
On Friday, March 13th, the Cyberlaw Clinic and a team of researchers based at the Berkman Klein Center for Internet & Society filed an administrative comment addressing the United States Office of Management and Budget’s “Draft Memorandum to the Heads of Executive Departments and Agencies, ‘Guidance for Regulation of Artificial Intelligence Applications.'” The Draft Memorandum aims to provide guidance to inform federal agencies’ “development of regulatory and non-regulatory approaches regarding technologies and industrial sectors that are empowered or enabled by artificial intelligence (AI)” and encourage agencies to “consider ways to reduce barriers to the development and adoption of AI technologies.” Researchers who joined the comment include Amar Ashar, Ryan Budish, and Adam Nagy of the Berkman Klein Center for Internet & Society and the Clinic’s own Chris Bavitz, Jessica Fjeld, and Mason Kortz.
On Friday, February 28, 2020, the Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Court of Appeals for the Second Circuit on behalf of a group of prominent intellectual property law scholars. The Clinic filed the brief in the case, The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith. The case arises out of a particularly interesting set of facts. In 2018, Ms. Goldsmith alleged that Mr. Warhol infringed her copyright when he used one of her photographs of the musician Prince as the basis for his iconic “Prince Series.” Andy Warhol created the Prince Series for use in the November 1984 issue of Vanity Fair magazine. Ms. Goldsmith brought suit in 2018 based on the use of the Prince Series in a special commemorative issue that Condé Nast published after Prince’s death in 2016. The United States District Court for the Southern District of New York ruled that Mr. Warhol’s use was permissible under the fair use doctrine, because of the way he transformed the photograph when creating his images. Ms. Goldsmith appealed to the Second Circuit.
Artificial intelligence is making real waves. With machine-learning programs teaching themselves to walk, beating humans at their own games, and even generating convincing Rembrandt lookalikes, law and policymakers are looking to the horizon to figure out what the present-day renaissance of AI spells for the future of intellectual property. To that end, Jessica Fjeld and Mason Kortz of the Cyberlaw Clinic just responded (pdf) to a call for comments by the World Intellectual Property Organization (WIPO) on an issues paper regarding AI and its implications for IP. The comment focuses primarily on patent, copyright, and the policy implications of AI.