Intellectual Property

Overview

Intellectual property issues are at the heart of the Cyberlaw Clinic’s work, and many of the Clinic’s clients raise questions about the ways in which their activities are affected by laws governing copyrights, trademarks, patents, and other legal regimes that confer IP or IP-like rights on creators and developers of content.  The Clinic maintains an active practice in intellectual property advising, including risk assessment, and has drafted a wide range of transactional documents that relate to IP rights (including license agreements and other documents concerning transfers of intellectual property).

Copyright

In the area of copyright, the Clinic has advised clients about intermediary liability and protections under the Digital Milennium Copyright Act; originality and scope of protection; statutory damages; and reversion of rights in works that have been transferred.  The Clinic routinely drafts copyright licenses and counsels clients on appropriate use of “open” licenses, including Creative Commons licenses and a wide range of open source software licenses.

Trademark

The Cyberlaw Clinic offers services in the areas of trademark infringement, fair use, and parody; the scope of trademark protection, trademark validity, and “genericide”; website domain name disputes, including the Uniform Domain-Name Dispute-Resolution Policy (UDRP), and cybersquatting.  The Clinic also has expertise with respect to trademark licensing.

Patent

The Clinic has addressed issues in the realm of patent, including liability and freedom to operate (infringement, validity, and enforceability); patent-busting and reexamination of overbroad patents, and patent licensing.

Other

The Clinic has expertise in issues relating to data protection and rights in databases, moral rights, and the interplay between copyright and website terms of use.  The Clinic has also advised clients on issues relating to rights of privacy and publicity.

Representative Projects

Isabella Stewart Gardner Museum

The Clinic assisted the Isabella Stewart Gardner Museum in Boston to address copyright and other legal issues in connection with the Museum’s innovative free classical music podcast series, “The Concert,” which allows listeners to download and freely share previously unreleased performances from the Museum’s live concert programs.  The Clinic helped the Gardner to release all such podcasts under a “Music Sharing License” from Creative Commons.

Music Distribution, Fair Use, & Termination Rights

The Clinic reviewed and advised a client on a complex digital distribution / podcasting sublicensing agreement, advised arts publishing organizations on novel fair use and public domain issues in traditional and electronic publishing, and advised recording artists on how the Copyright Act’s termination of grants provision might affect their ability to exploit or authorize others to use their works.

Content Digitization and Licensing

The Clinic drafted an international license for use by a non-profit organization that digitizes and distributes materials to visually handicapped users.  The license furthered the organization’s efforts to secure permission from publishers to make content available to such users.

CC & International Commons

The Clinic advised Creative Commons regarding an update to its generic “CC” license as a US jurisdiction-specific license, as part of its International Commons effort.

The Citizen Lab / Psiphon

The Clinic assisted The Citizen Lab at The Munk Centre for International Studies at The University of Toronto in assessing licensing issues, including issues relating to the distribution of source code under a General Public License, for its Psiphon software application.  Psiphon is a censorship circumvention tool that will allow internet users in countries that censor Internet content to bypass censorship filters and restrictions with the cooperation of Psiphon network participants.

EFF / Patent Busting

The Clinic prepared claim charts, researched prior art, and began preparing requests to seek reexamination of two of the “Ten Most Wanted” patents in the Electronic Frontier Foundation’s Patent Busting Project.

Internet Radio

The Clinic advised a small Internet radio service and music provider regarding the copyright implications of contemplated changes in its methods for offering music for listening and sale over the web.

Derivative Works & Software

Clinical students acted as “moot” judicial law clerks to two Federal Circuit judges and one Ninth Circuit judge, drafting an extensive bench memorandum and assisting the judges in preparing for and hearing oral arguments in a moot court program, “The Scope of ‘Derivative Works’ as Applied to Software,” at the University of Washington.

MGM v. Grokster

The Clinic assisted Harvard Law School professors in preparing an amicus brief to the U.S. Supreme Court in MGM Studios, Inc. v. Grokster Ltd.  The brief was cited approvingly in Justice Breyer’s concurring opinion in the case.