November 20, 2003
Earlier, I reported on my C+D from Diebold and my challenge to Harvard’s using it as one strike against me in its 512(i) policy. Today, Harvard’s general counsel officially ruled that the University would not count my posting as an infringement. My record and Internet access are safe.
While I greatly appreciate the University’s appropriate response and the effort it took to discuss this matter with me, I must say that my appeals process is cause for concern. I say my process because there is no official appeals process. Here’s how the system currently works: First, the University sends a letter telling the student that access has been cut off and to respond within five days. The University provides minimal information about potential defenses. Like Brown, the University also suggests that the infringing material must be deleted, regardless of the infringing act. When you assert your intention to submit a defense, the University computer security staff tells you that it will forward on whatever you provide. Before hand, you have no idea who to contact directly; I only knew to contact the general counsel because my boss, John Palfrey, helped me. From here, it’s a black box – no clear standard of review, no official way of getting a hearing, no required or recommended format for defenses.
Without a legal background and the incredible support of the Berkman Center and the EFF, I doubt I would have known the right people to contact and the right way to approach this; in fact, the letter I received from the general counsel cited John’s discussions with him as one reason for the ruling. Most students would be in a severely disadvantaged position.
Again, I thank the University for dealing with me fairly. However, I believe that this process must be altered to treat all students justly while taking into consideration the University’s concerns about liability. Educating students about defenses and providing a clear appeals process are good places to start, and I intend to keep pushing for such reforms.
That’s the story internally. As for moving beyond defending myself before the University – well, I’ll have more to say on that later.