On Friday, November 22, 2019, the Cyberlaw Clinic and local counsel Marcia Hofmann filed amicus briefs in the United States District Court for the District of Columbia in two related cases, ASTM v. Public.Resource.Org (.pdf), and AERA v. Public.Resource.Org (.pdf). The cases involve copyright infringement claims brought by standards development organizations (SDOs) against Public.Resource.org. The cases are back before the United States District Court for the District of Columbia on remand from the United States Court of Appeals for the District of Columbia Circuit. The core issue in front of the Court is whether PRO’s provision of free online access to codes that were developed by the plaintiffs — but incorporated by reference into binding law — constitutes fair use.
The Cyberlaw Clinic recently submitted a comment in response to a request from the United States Patent and Trademark Office about the patentability of artificial intelligence (“AI”) inventions. The comment was submitted on behalf of the R Street Institute, a nonprofit, nonpartisan, public policy research organization. The USPTO sought guidance on handling patent applications for inventions created by generative AI technology. Addressing some of the many questions posed by the USPTO, the comment discusses whether entities other than natural persons should be able to own a patent, the impact that AI technology has on the level of a person of ordinary skill in the art, and whether patent laws need to be revised to account for AI inventions.
The Harvard Law School Cyberlaw Clinic at the Berkman Klein Center for Internet & Society is seeking a Clinical Instructor to join our team.
We’re particularly excited, given the ever-expanding reach of technology, to diversify the skillset and expertise of our team with this hire. We are especially interested in attorneys with social justice practices — including practices that touch on race, gender, and economic issues — who have an interest in technology, even if they wouldn’t identify as tech lawyers.
The Cyberlaw Clinic contributed to an amicus brief recently filed in the United States Supreme Court, in the case of Medtronic, Inc. v. Mark A. Barry, M.D., No. 19-414. The case is on petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit; the brief urges the Supreme Court to grant cert and hear the case. The Clinic collaborated with the R Street Institute, a nonprofit, nonpartisan, public policy research organization, on the brief. The case presents two questions relating to patent validity that will have a significant impact on pharmaceutical prices and disclosure of medical devices, and the brief argues that the Federal Circuit’s ruling — which is the subject of Medtronic’s cert petition — will exacerbate the existing problem of high medical treatment costs.
We’re big fans of Cathy O’Neil’s work here in the Cyberlaw Clinic, and it was a real pleasure and honor to get to collaborate with her on a comment (pdf) submitted last week in response to a request from the United States Department of Housing and Urban Development. The comment concerns proposed revisions to the so-called “disparate impact” rule, which would make it more difficult for claimants to succeed in pursuing housing discrimination claims. Of particular note, the proposed rule sets an especially high bar for claimants in cases where housing determinations are made algorithmically. The rule seems to proceed on the assumption that algorithmic determinations are inherently more fair or less suspect than human determinations — a proposition that flies in the face of significant evidence to the contrary. Cathy has done extensive work on these issues (including as set out in her seminal book, Weapons of Math Destruction), and she brought her expertise to bear in the comment by showing how the rule would cause and reinforce harm. We were thrilled to be able to help her share her perspective with HUD.
This week, the Cyberlaw Clinic filed an amicus brief (pdf) in the United States Supreme Court in the case, Georgia, et. al v. Public.Resource.Org Inc, No. 18-1150. The Clinic filed the brief on behalf of the Caselaw Access Project (CAP), a team of legal researchers, software developers, and law librarians based in the Harvard Law Library. The Clinic’s brief advocates for upholding the Eleventh Circuit’s holding in favor of the respondent, Public.Resource.Org (PRO), arguing for an easy, universal, and unrestricted access to the law. The case raises one major copyright concern: does the “government edicts doctrine” extend to—and therefore render uncopyrightable—materials that lack the force of, but are published alongside, and sometimes even inextricably mixed with, the law?
The Cyberlaw Clinic filed an amicus curiae brief (.pdf) last week in the United States Court of Appeals for the Ninth Circuit in Dr. Seuss Enterprises v. ComicMix, on behalf of several individuals and non-profit organizations (including groups that advocate for freedom of expression and individual science fiction authors). The brief supports the creators of Oh, the Places You’ll Boldly Go! (“Boldly”), a Star Trek-inspired mash-up of several Dr. Seuss works, including Oh, the Places You’ll Go!, Horton Hears a Who!, and How the Grinch Stole Christmas! The case has implications for the scope of fair use protection for mash-ups and other works that incorporate original works.
Attorneys at the HLS Cyberlaw Clinic joined representatives from the ACLU of Massachusetts, MIT researchers, and a number of technology experts and policy advocates in calling for the creation of a a Massachusetts state commission to study the use of algorithms, AI, and machine learning in government decision-making. On October 1, 2019, Cyberlaw Clinic Managing Director Christopher Bavitz was among those who testified before the Joint Committee on State Administration and Regulatory Oversight in support of proposed bills H.2701 and S.1876, which would create a commission designed to survey the use of algorithmic and machine learning tools in government decision-making. According to the House version of the bill, presented by Representative Sean Garballey of Arlington, the proposed commission would be tasked with studying and making recommendations related to Massachusetts’ use of “automated decision systems that may affect human welfare, including but not limited to the legal rights and privileges of individuals.” Bavitz’s written submission was joined by a number of researchers and others from the Berkman Klein Center community (all of whom signed on in their individual capacities).
The Cyberlaw Clinic, in partnership with the Berkman Klein Center for Internet & Society at Harvard Law School, is proud to announce the launch of the Initiative for a Representative First Amendment (IfRFA) in the fall of 2019. Directed by Kendra Albert, a Clinical Instructor with the Cyberlaw Clinic and Lecturer on Law at Harvard Law School, IfRFA aims to expand the study of First Amendment, free speech, and freedom of expression issues to include the active participation of legal practitioners and practitioners-in-training who exist at the intersection of multiple marginalized identities. The Initiative seeks to cultivate a broader and more diverse community of freedom of expression practitioners, allowing for heightened engagement on a wide range of free expression issues.
Next week, Cambridge’s own Brattle Theatre will be screening Jack & Yaya, an extraordinary documentary for which the Cyberlaw Clinic was delighted to provide legal guidance. Produced and directed by Mary Hewey and Jen Bagley, the film follows Jack and Yaya, two childhood friends as they support each other as out transgender people Jack & Yaya has earned widespread praise from critics, and has been featured as an official selection at the Toronto Film Festival, Philidelphia qFlix festival, and the Seattle Transgender Film Festival, among others.