Cyberlaw Clinic Year in Review: 2017

We in the Cyberlaw Clinic believe that the statute of limitations on year-in-review blog posts expires at the end of the first quarter of the following year. (If you require evidence for this claim, we’ll kindly point you to Orin Kerr’s “Theory of Law.”) With that in mind — as we dig into our newest batch of projects during the Harvard Law School spring term — it seems like a good time to look back and reflect on the past year.  It was — to say the least — an eventful one here in the Cyberlaw Clinic, for students and staff alike.

Students

We had two students enrolled in the Clinic during winter 2017, thirty-four in the spring, and 31 in the fall. Three summer interns ably helped to keep our docket of projects afloat during the summer months. We continued in the mode in which we’ve operated in recent years, with a Cyberlaw Clinic Seminar in the spring and fall complementing the day-to-day work of the Clinic and offering students an opportunity for discussions about substantive and procedural aspects of technology law, including through case rounds focused on our own ongoing projects. We are thrilled that we have been able to scale the program, actively engaging our students and zealously representing our clients as the program has continued to expand.

Staff

We started the year by adding Mason Kortz to the Clinic team and finished by adding Kendra Albert just in time for the fall semester, both coming on board as Clinical Fellows. Hannah Hilligoss joined us in December to round out our staff cohort, alongside Maria Smith and Kira Hessekiel. With Susan Crawford and Chris Bavitz, Jessica Fjeld in the Acting Assistant Director role, and Vivek Krishnamurthy on board as a Clinical Attorney, we could not be prouder of the amazing teaching and practice team we’ve assembled at the Clinic.

Amicus and Policy Advocacy

Policy advocacy — primarily through writing and filing of amicus briefs — has long been a cornerstone of the Clinic’s practice, and we regularly collaborate with academics, NGOs, and others on efforts to ensure courts understand the ramifications of their decisions vis-à-vis technology and the public interest.  2017 marked perhaps our most active year on this front, with six amicus briefs filed over the course of the year in various state and federal appellate courts:

• In December, the Clinic assisted Restore the Fourth with an amicus effort in the Byrd v. U.S. case before the United States Supreme Court.
• The Clinic supported an amicus effort — spearheaded by Professor Bernard Chao — on the topic of patent damages, in the Eve-USA, Inc. v. Mentor Graphics Corp. case before the United States Supreme Court.
• In December, the Clinic filed a brief on behalf of United Nations Special Rapporteur on the Right to Privacy Joseph Cannataci in the Microsoft Ireland case before the United States Supreme Court.
• In September, the Clinic filed an amicus brief in the United States Court of Appeals for the District of Columbia Circuit on behalf of Representatives Zoe Lofgren (D-CA 19th District) and Darrell Issa (R-CA 49th District), in support or Public.Resource, in a case about copying of standards incorporated into law.
• The Clinic filed an amicus brief in the Massachusetts Supreme Judicial Court on behalf of trusts-and-estates experts, supporting a family’s right to access a deceased relative’s emails.
• The Clinic worked with the Reporters Committee for Freedom of the Press on an amicus brief in the Steinmetz case, pending before the First Circuit, which concerned the scope of the Massachusetts Anti-SLAPP law.

Copyright Act Section 1201

Every three years, the Library of Congress considers requests for exemptions to Copyright Act Section 1201’s imposition of liability for circumvention of technological protection measures. 2017 marked the start of the latest of these triennial rulemaking proceedings, and — as we have in some of the past proceedings — the the Clinic filed comments in support of an exemption. This time, the Clinic worked closely with our good friends at the Software Preservation Network, along with the the Library Copyright Alliance, in an effort to ensure that those who need to circumvent digital rights management technologies on software in support of archival or preservation activities maintain the right to do so. We posted a general update on the proceeding back in October and then filed comments in December. We expect the proceedings will continue throughout this spring, with the Copyright Office deciding on exemptions later this year.

Public-Facing Education and Advocacy Materials

A lot of people took to the streets in 2017 to protest, and along with protest comes an array of signage, merchandise, and other materials that bear messages associated with advocacy. We fielded some interesting questions about rights and ownership in the context of protest art throughout the year last year and ended up releasing a legal guide on the subject early this year.

We were also honored to have had the opportunity to release a working paper on online content takedown orders, which used a case study approach to address some thorny policy questions about Internet jurisdiction. The paper was the subject of a presentation at last year’s RightsCon conference in Brussels.  Former Clinic student and 2017 alumnus Alicia Solow-Niederman wrote about her experience working on this project for the HLS Office of Clinical and Pro Bono Programs blog.

Finally, members of the Clinic team crafted a useful guide for organizations that face a set of questions that regularly come up for our clients in the Clinic — i.e., questions about how to manage and govern open source software development initiatives. The guide addresses both a range of issues relevant to those spearheading open-source efforts and attempting to strike a balance that preserves the ethos of open-source development initiatives and the value of their dispersed structures (on the one hand) while addressing both compliance and management considerations (on the other hand).

Representative Clients

We had an active year on the client advising front, with discrete projects that touched on issues ranging from privacy to speech to intellectual property (and beyond).  The Clinic worked with old friends, like Scratch, PRX, and WGBH. And, we connected with new collaborators like Meedan, Thurst, and Feel Train.  (Thanks to Morgen Bromell of Thurst and Courtney Stanton of Feel Train for saying ridiculously nice things about the Clinic!)

Events

Members of the Clinic team participated in numerous teaching activities and other events throughout 2017, including:

• a January 2017 conversation with outgoing FCC Chairman Tom Wheeler, hosted by Susan Crawford;
• an April 2017 HLS Human Rights Journal panel on technology and law enforcement, which included Mason Kortz;
• an April 2017 panel on access to government information and FOIA, hosted and moderated by Mason Kortz; and
• an October 2017 “HubWeek” panel on Artificial Intelligence Ethics and Governance, moderated by Christopher Bavitz.

Looking Ahead

Once again, issues relating to the ethics and governance of artificial intelligence remain high on our agenda for 2018, as we continue to both support the Berkman Klein Center’s research efforts in this space and provide discrete advice to startups, scholars, activists, and others encountering legal issues in connection with the study, development, and deployment of autonomous systems. This includes issues about the interplay between algorithms, machine learning technologies, and artificial intelligence and the delivery of government services, as well as issues relating to the copyright consequences of using autonomous systems to generate creative works.

Research projects that involve web-scraping and related activities also remain front-and-center for us. As more and more people seek to examine the online content ecosystem, more and more people bump up against purported limitations established by website terms of use and federal law (including the Computer Fraud and Abuse Act).

“New Year’s Eve Disco Neon Light” image courtesy Pixbay user, bartekhdd, CC0.