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.
Since 2018, the Cyberlaw Clinic has had an internal style guide, to ensure consistency across our publications and assist students’ development of strong legal writing skills. As we drafted it, we made frequent reference to other style guides, including the classics like Strunk & White, but also some that have been shared freely on the internet. Now that we’ve road-tested our style guide for a full academic year, we thought it was time to pay it forward, and we are making the fall 2019 version of the Cyberlaw Clinic Style Guide publicly available under a CC-BY 4.0 license (click the link to download a pdf copy).
Alongside the rapid development of artificial intelligence, we’ve seen a proliferation of AI “principles,” or guidelines for how AI should be built and used. Governments, companies, advocacy groups, and multi-stakeholder initiatives have all advanced perspectives. This project emerged from our curiosity about these principles. Were they wildly divergent, or was there enough commonality to suggest the emergence of sectoral norms? Some were framed as ethical in nature; others drew from human rights law. How did that impact their content? We wanted a way to look at the principles documents side by side, to assess them individually and identify important trends, so we built one.
Section 411(a) of the Copyright Act states that “no civil action for [copyright] infringement…shall be instituted until preregistration or registration of the copyright claim has been made.” In other words, copyright owners must “register” their copyrights before suing for copyright infringement. In Fourth Estate v. Wall-Street.com, decided in March 2019, the Supreme Court clarified that “registration” for the purposes of Section 411(a) occurs only when the Copyright Office registers a copyright and provides a certificate of registration and not when an applicant files for copyright registration. Under this decision, copyright owners must wait for the Copyright Office to decide on their registrations before they are allowed to sue others for infringement. This decision could potentially create a substantial time lag during which copyright owners, especially those with limited budgets, are able to enforce their copyrights. This blog post summarizes the Fourth Estate case and its reasoning, the implications of the new rule, and some ways for copyright owners to respond, including how to register for copyright.
The Cyberlaw Clinic filed an amicus brief (pdf) this week in the United States Court of Appeals for the Ninth Circuit on behalf of a group of data journalists and media organizations, advocating for a different approach to Freedom of Information Act (FOIA) requests relating to databases. The brief supports the Center for Investigative Reporting in an appeal arising out of a FOIA request submitted by CIR to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
The Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Supreme Court in Oracle v. Google, No. 18-956, on behalf of a group of intellectual property law scholars. The brief supported Google’s petition for certiorari, asking the Supreme Court to review decisions of the United States Court of Appeals for the Federal Circuit. Google’s petition is the latest stage in a nearly decade-long litigation battle between Oracle and Google concerning Google’s use of Oracle’s application programming interface (“API”) in Google’s Android smartphone platform. The case raises two major sets of copyright issues. The first concerns the scope of copyright protection for APIs and the line between protectable expression and purely functional elements of computer code. The second concerns whether, if an API is protected by copyright, use of that API may fall under fair use. The Clinic’s brief supports Google on the second of those points, urging the Court to take the case and resolve the fair use issue.
As the Cyberlaw Clinic has continued to deepen its practice in AI-generated art (and as AI art has increasingly cropped up in the news), it’s become clear that developers and artists are looking for guidance on how to handle rights in these new works. Clinical Instructors Jessica Fjeld and Mason Kortz have previously written about how to conceptualize the anatomy of AI art for rights purposes; translating that theory into practice was an obvious next step, and today marks the release of a new set of templates created with input from Sarah Schwettmann and SJ Klein of MIT.
The Cyberlaw Clinic filed an amicus brief (pdf) last week in the United States Court of Appeals for the D.C. Circuit on behalf of a group of former United States Magistrate Judges, supporting the unsealing of government surveillance orders and applications. The brief supports Jason Leopold, a BuzzFeed News journalist, and the Reporters Committee for Freedom of the Press (“RCFP”). The appeal arises out of a petition that Leopold filed in the D.C. District Court to unseal applications and orders for pen registers, trap and trace devices, tracking devices, stored email, and other types of surveillance, many of which remain sealed indefinitely in practice. He argued that, once the seal is no longer necessary, public access to these judicial records is required under the First Amendment and common law right of access to court records. Leopold was later joined by RCFP.