In the wake of Trump’s election and the resurgence of political art inspired by movements like the Women’s March, the Cyberlaw Clinic was approached by artists seeking clarification of their rights and responsibilities as creators and activists online. In response, a team of Berkman Klein staff, Clinic students, and allied creative folks created this Guide. It’s in plain language, meant to be accessible and helpful for folks across the political spectrum who are using art to engage in civic dialogue, to minimize their risks and maximize their impact.
The United States Supreme Court heard oral arguments last Tuesday, January 9th, in Byrd v. United States, Case No. No. 16-1371. The case concerns the question of whether a person can assert Fourth Amendment protections in connection with a search of a rental car in which that person was not an authorized driver. The case raises important questions about privacy in response to law enforcement, including about standing to assert defenses under the Fourth Amendment and about the interplay between private contracts (such as the contract between one renting a car and the rental car company) and Fourth Amendment rights.
The Clinic was pleased to have had the opportunity to work with Professor Bernard Chao of the University of Denver Sturm College of Law on an amicus brief that Professor Chao filed in the United States Supreme Court this week. The brief, submitted on behalf of eighteen intellectual property law professors, supports petitioners’ request that the Supreme Court review a decision of the United States Court of Appeals for the Federal Circuit. That decision – Mentor Graphics v. Eve-USA, (Fed. Cir. March 16, 2017) – awarded patent damages against petitioners. But, as amici argue in the brief, the Federal Circuit failed to properly apportion those damages when assessing respondent’s lost profits.
On December 13, 2017, the Cyberlaw Clinic filed an amicus brief in the United States Supreme Court on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the case United States v. Microsoft, Case No. 17-2. The case – commonly known as the “Microsoft Ireland case”– presents the question of whether a search warrant issued in the United States pursuant to a U.S. statute (the Stored Communications Act, 18 U.S.C. § 2703) can compel Microsoft to produce to the U.S. government the contents of an email account stored on Microsoft servers in Ireland. The Supreme Court is hearing the case this term on appeal from a decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which held that the U.S. could not enforce a warrant seeking digital information stored on overseas servers.
Back in December, the Cyberlaw Clinic filed an opening comment in the seventh triennial proceeding for exemptions to the anti-circumvention clause. The comment, on behalf of the Software Preservation Network and the Library Copyright Alliance, asks the Library of Congress to grant an exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technology protection measures in order to preserve software and software-dependent materials (digital files that require on software access to be readable).
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.