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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.

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This fall semester, the Cyberlaw Clinic provided legal support for the initiative to create what has been dubbed the “Housing Navigator” — an online one-stop shop that will allow Massachusetts residents to easily find affordable housing throughout the Commonwealth.  The Housing Navigator will replace the difficult-to-navigate patchwork of online and offline advertisements that Massachusetts residents currently use to identify affordable housing. The initiative, led by the Kuehn Charitable Foundation, is a partnership involving more than a dozen nonprofit and government agencies.

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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 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. →