This spring, the Cyberlaw Clinic is returning to the eighth triennial rulemaking proceeding under 17 U.S.C. 1201, which considers exemptions to the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA). Section 1201 of the DMCA outlaws the circumvention of technological protection measures (TPMs) that prevent the unauthorized copying of digital materials. The blanket ban on TPM circumvention, however, applies regardless of whether the underlying use of materials is infringing or fair. Therefore, every three years the Copyright Office holds hearings to determine appropriate exemptions to 1201 restrictions, and make a recommendation to the Librarian of Congress, who ultimately decides which uses are exempted from 1201. This year, the Cyberlaw Clinic, on behalf of the Software Preservation Network and Library Copyright Alliance, seeks to expand the exempted uses to allow eligible memory institutions to access out-of-commerce software and video games remotely for qualifying preservation, research, and teaching purposes.
On February 15, the Technology and Social Change Team at the Harvard Shorenstein Center (TaSC) submitted a comment drafted by the Cyberlaw Clinic to the UN Special Rapporteur on the promotion and protection of freedom of opinion and expression, Irene Khan. The call for comments was issued in anticipation of the Special Rapporteur’s upcoming report on the relationship between disinformation and freedom of expression that will be presented to the Human Rights Council in June 2021. The Special Rapporteur welcomed contributions that addressed how human rights law applies to disinformation, what impact of measures already taken to address disinformation has had on human rights, and any recommendations on how to protect human rights while addressing disinformation.
A recent decision by the Superior Court of New Jersey, Appellate Division held that the proprietary source code underlying DNA analysis software TrueAllele may be examined by an independent expert in advance of a hearing on admissibility. The opinion aligns with the position advocated by the Clinic in its October amicus brief on behalf of Upturn, Inc., a DC-based nonprofit organization promoting technology equity. The decision is a victory for defendants’ rights and due process in a developing area of criminal law.
Lockdown and Shutdown: New White Paper Exposes the Impacts of Recent Recent Network Disruptions in Myanmar and Bangladesh
The Cyberlaw Clinic and International Human Rights Clinic at Harvard Law School were proud to co-author a new white paper, Lockdown and Shutdown: Exposing the Impacts of Recent Network Disruptions in Myanmar and Bangladesh, in collaboration with Athan, the Kintha Peace and Development Initiative, and Rohingya Youth Association. The report exposes the impacts of internet shutdowns in Myanmar and Bangladesh, highlighting the voices of ethnic minority internally displaced persons (IDPs) in Myanmar and Rohingya refugees in Bangladesh, who describe the shutdowns’ impacts in their own words. The co-authors joined to present a webinar to launch the report on January 19, 2021.
Last week, the United States Court of Appeals for the Ninth Circuit handed down a major victory for government transparency in Center for Investigative Reporting v. DOJ (pdf). An amicus brief authored by Cyberlaw Clinic students and staff on behalf of news media organizations and data journalists was cited throughout the court’s decision and has had a major influence on how the court interpreted the Freedom of Information Act.
Access Denied: New White Paper on How US Copyright Policy Negatively Impacts Free Expression Worldwide
The Cyberlaw Clinic was proud to partner with Article 19 Mexico and Central America to author a new white paper, Access Denied: How Journalists and Civil Society Can Respond to Content Takedown Notices (DMCA-digital-english_FINAL) / Acceso Denegado: ¿Cómo pueden responder los y las periodistas y la sociedad civil a las notificaciones de eliminación de contenidos? (DMCA esp-digital_FINAL). The report highlights a growing phenomenon, in Latin America and around the globe, in which US copyright law–in particular, Section 512 of the Digital Millennium Copyright Act, known as the “notice and takedown” provision–is used to target and censor journalists’ legitimate free expression.
The Cyberlaw Clinic is hiring summer interns for 2021! Current U.S. JD candidates with an interest in the intersection of tech, law, and social justice are invited to join our dynamic team! Summer legal interns work on all aspects of the Cyberlaw Clinic’s caseload and, like Fall and Spring semester students, take the lead on the projects they join, supported by the Clinic staff. Although Clinic projects vary from summer to summer, they often include substantive law related to the First Amendment, computer security, digital privacy, intellectual property, civic innovation, emerging technologies, and media and the arts. The Clinic also has a growing practice relating to AI, including with regard to criminal justice, human rights, and creative practice. Interns will be involved in supporting the Clinic’s ongoing docket and in planning decisions about clients, cases, and topic areas to be addressed in the Clinic’s work during the upcoming academic year. Interns are supervised and mentored by the Cyberlaw Clinic instructors, and are provided with feedback and growth opportunities.
The Cyberlaw Clinic filed an amicus brief [.pdf] last week in the United States Supreme Court on behalf of Engine Advocacy, supporting a petition for certiorari in a case that concerns the patent law doctrine of assignor estoppel. A panel of the United States Court of Appeals for the Federal Circuit decided the case — Minerva v. Hologic (Supreme Court Case No. 20-440) — and adopted an expansive view of the doctrine. Engine is an advocacy organization that represents the interests of startups, and the brief expresses concerns about the ways in which assignor estoppel can stifle innovation and limit employee mobility.
On October 13, the Harvard Immigration and Refugee Clinic (“HIRC”) submitted a public comment drafted by the Cyberlaw Clinic regarding a rule proposed by the Department of Homeland Security (“DHS”) and U.S. Citizenship and Immigration Services (“USCIS”). The proposed rule would greatly expand DHS and USCIS’s authority to collect biometric data from immigrants, foreign nationals, permanent residents, and citizens involved in the immigration process by making biometric collection mandatory rather than discretionary. It would also expand the types of biometrics to include palm prints, iris scans, and voice prints. Finally, it would remove current biometric exemptions for minors under age fourteen and weaken protections for asylum seekers under the Violence Against Women Act.
On October 9, the Cyberlaw Clinic filed litigation under the Freedom of Information Act (“FOIA”) on behalf of client Martin Pfeiffer. Mr. Pfeiffer is a PhD student at the University of New Mexico whose work focuses on nuclear semiotics, information management, secrecy, and history. In January 2020, the Clinic assisted him in filing FOIA requests with the National Nuclear Security Administration (“NNSA”). Relying on Mr. Pfeiffer’s active online presence and long history of publications, talks, and podcast appearances, the Clinic asked that he be classified as an educational or news media requester for fee purposes.