Cyberlaw Clinic

The Cyberlaw Clinic is pleased to report that the Massachusetts Supreme Judicial Court issued its decision this week in Commonwealth v. Rousseau, a case about whether an individual may challenge a warrant for GPS tracking of a car in which he is a passenger.  We filed an amicus brief (pdf) in the case on behalf of the Electronic Frontier Foundation, arguing that a defendant does have such standing.  The decision mirrors the reasoning advocated in the Clinic’s brief, as the SJC held that a defendant “has standing because he had a reasonable expectation that his movements would not be subjected to extended electronic surveillance by the government through use of GPS monitoring.”  Crucially, this holding means that law enforcement officers in Massachusetts must obtain a warrant prior to prolonged location tracking. Continue reading ‘Massachusetts SJC Holds Warrant Required for Prolonged Government Location Tracking’

Our friends at Zeega are involved in an exciting project called “The Making Of…,” a collaboration among award-winning NPR producers the Kitchen Sisters, KQED, AIR’s Localore, and the Zeega community.  The project will culminate in a showcase on May 30th and 31st at the San Francisco Museum of Modern Art, during which selected Zeegas will be exihbited at the Museum. Continue reading ‘Join Zeega for an Experiment — Zeegas to be Exhibited at SFMOMA!’

Eric Johnson over at the Blog Law Blog has some nice things to say about the “Newsgathering in Massachusetts” legal guide that the Cyberlaw Clinic and Digital Media Law Project recently released.  Eric calls the guide “an information-packed reference tailor-made for citizen journalists, and it includes coverage of open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.”  Eric goes on to address one of the issues covered in the legal guide — the First Circuit’s decision in Glik v. Cunniffe, which recognized a First Amendment right to record police officers in public places.  Thanks, Eric, for the kind words

Our project with the Electronic Frontier Foundation to make use of the preissuance submission process to limit the issuance of bad patents has met with widespread support from the 3D printing community and those who know how overly broad patents stifle innovation. After all, it’s hard to object to giving patent examiners relevant information as they decide whether or not to issue a patent that could change the shape of an industry!

As we expand our efforts to include mesh networking technologies, we hope that others will be inspired to make use of the preissuance submission process to improve patent quality in the technology areas they know best. You don’t need to be a lawyer, and you don’t need to pay any fee if you submit three or fewer references. In a future post, Cyberlaw Clinic attorney Kit Walsh will describe the lessons learned in the course of this effort, to help non-lawyers successfully navigate the preissuance submission process. Stay tuned!

Cambridge Community Television will present a half-day forum entitled “Filling the News Gap in Cambridge and Beyond:  Citizen Journalism and Grassroots Media” at the Cambridge Public Library on May 4th. The Cyberlaw Clinic and the Berkman Center’s Digital Media Law Project are pleased to be co-organizers, along with MIT’s Center for Civic Media. The event will explore the quickly expanding world of citizen journalism: how technology is fueling its growth; how that growth is changing the way we see our world, enact change, and disseminate the news; and how people in communities around the world are taking the initiative to share stories that are left untold by the mainstream media. It is free and open to the public.

The DMLP and the Clinic will participate in a workshop addressing legal issues facing those who gather news. State and federal laws provide tools and protections on which reporters can rely in collecting the facts on which their reporting is based — enhancing access to government records, shielding from disclosure certain communications between journalists and their sources, and ensuring that journalists can record the acts of public officials in public places. But, these tools and protections are subject to limitations that can frustrate newsgatherers and impede their ability to practice their craft. The session will explore some of the important protections available to citizen journalists and others in the Commonwealth of Massachusetts and the hurdles that reporters face as they engage in newsgathering activities.

Other workshops will address the ways in which Cambridge residents are filling the void in local news in Cambridge and highlight tools being used by citizen journalists. Exhibitors will be on hand to present the latest technologies available for community reporters, and attendees will learn how to tap into local news outlets as well as how to get started reporting on local news.

Content will be geared toward consumers and creators of local news content; journalists and media professionals; independent and collaborative website owners; legal professionals; and everyone who values local information, civic participation, and social justice.

“Filling the News Gap” commemorates the 25th anniversary of Cambridge Community Television. The event is presented in memory of Karen Klinger, a correspondent with CCTV’s NeighborMedia program and community activist who died in December after a six-month battle with cancer. Karen was in the original group of NeighborMedia journalists chosen in 2007. She focused on her neighborhood, Porter Square, particularly on issues related to development, safety and cleanliness. The community looked to her to cover vital issues in Cambridge. Karen was one of very few professional journalists in NeighborMedia, and brought a fierce commitment to the journalistic principles that guided her career. Her efforts to ensure journalistic integrity have had a profound impact on the structure of the NeighborMedia program.

Please visit the event’s Eventbrite page for additional information and to register for the event.

Clinical enrollment for the Fall 2013 and Winter and Spring 2014 terms opens Wednesday, April 3, 2013 at 9:00 am and closes Friday, April 5, 2013 at 12:00 pm.  More details about clinical registration from the Office of Clinical and Pro Bono Programs is available here.  Students wishing to enroll in the Cyberlaw Clinic must take any one of several HLS courses prior to or concurrently with their enrollment. The list of courses for 2013-2014 is still being finalized, but the following are confirmed:

• Communications and Internet Law and Policy;
• Controlling Cyberspace;
• Copyright;
• Cybercrime;
• Cyberlaw and Intellectual Property: Advanced Problem Solving Workshop;
• Ideas for a Better Internet;
• Intellectual Property in the Digital Environment;
• Music and Digital Media;
• Practical Lawyering in Cyberspace; and
• Trademark.

Students should also feel free to contact the Cyberlaw Clinic staff with any questions:

• Phil Malone, Director – pmalone@cyber.law.harvard.edu
• Chris Bavitz, Ass’t Director – cbavitz@cyber.law.harvard.edu
• Dalia Topelson, Clinical Instructor – dtopelson@cyber.law.harvard.edu
• Kit Walsh, Clinical Instructional Fellow – cwalsh@cyber.law.harvard.edu

The Cyberlaw Clinic, based at Harvard’s Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues.  The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice.  Among many other areas, the scope of the Clinic’s work includes counseling and legal guidance regarding complex open access, digital copyright, and fair use issues; litigation, amicus filings, and other advocacy to protect online speech and anonymity; legal resources and advice for citizen journalists; licensing and contract advice, especially regarding Creative Commons and other “open” licenses; patent reexamination requests for overly broad technology patents; and guidance and amicus advocacy for effective but balanced protection of children in the areas of social networking, child pornography, and online exploitation.

The Cyberlaw Clinic, along with the Harvard Journal of Law & Technology and Cooley LLP, will present a talk by Cooley partner Heidi Keefe on Tuesday April 2, 2013, from 12:00pm – 1:00 pm in WCC 2004 at Harvard Law School.  The talk concerns patent litigation and the challenges of teaching complex technological concepts to judges and juries at trial.

Heidi Keefe tried Facebook’s first patent dispute in July 2011 in Delaware and has continued to represent Facebook, including in its recent dispute with Yahoo. In addition to teaching Facebook’s technology in the court- room, Heidi has tried patent cases on behalf of medical device companies, audio chip manufacturers and other software companies (including Microsoft and eBay).

Lunch will be served.

Ars Technica and The Chicago Sun Times report on developments in ACLU v. Alvarez, a case out of the Northern District of Illinois that concerns applicability of the Illinois Eavesdropping Act to audio recordings of police officers carrying out their official duties in public places.  The American Civil Liberties Union of Illinois filed the case against Cook County State’s Attorney Anita Alvarez, requesting injunctive relief to prohibit enforcement of the Act in connection with a planned ACLU program to promote police accountability.  The Seventh Circuit ruled in favor of the ACLU in May 2012, and the district court has now approved an award of costs and fees totaling  $645,549.

As described by the Seventh Circuit in its decision last year, the Act generally prohibited the use of eavesdropping devices to hear or record oral conversations without consent.  It was amended in 1994 to provide that it applied to “any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.” ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (citing Ill. Pub. Act 88-677 (1994) (codified at 720 ILL. COMP. STAT. 5/14-1(d))) (emphasis added).  The ACLU challenged the constitutionality of the Act under the First Amendment, and the Seventh Circuit agreed that the Act caused cognizable First Amendment harm:

Unlike the federal wiretapping statute and the eavesdropping laws of most other states, the gravamen of the Illinois eavesdropping offense is not the secret interception or surreptitious recording of a private communication. Instead, the statute sweeps much more broadly, banning all audio recording of any oral communication absent consent of the parties regardless of whether the communication is or was intended to be private. The expansive reach of this statute is hard to reconcile with basic speech and press freedoms.

Alvarez, 679 F.3d at 595 (citations omitted).

The Alvarez decision followed a similar ruling in 2011 by the First Circuit in Glik v. Cuniffe, 655 F.3d 78 (1st Cir. 2011), which concerned application of the Massachusetts wiretap statute to recordings of police officers in public places.  The Glik case concluded in March 2012 with a $170,000 settlement covering plaintiff’s damages and legal fees.

The Cyberlaw Clinic contributed to an amicus brief that the Reporters Committee for Freedom of the Press filed in the Alvarez case on behalf of itself, Berkman’s Citizen Media Law Project (now known as the Digital Media Law Project), and other media and press organizations.

(Image courtesy of Flickr user Isadora Ruyter-Harcourt pursuant to a Creative Commons Attribution 2.0 Generic, CC BY 2.0, license.)

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

The DMLP submitted an amicus curiae brief (pdf) last week to the Sixth Circuit in the case of Seaton v. TripAdvisor, LLC. The case concerns TripAdvisor’s 2011 “Dirtiest Hotels in America” list. The list, which was based on travelers’ ratings for cleanliness on TripAdvisor, named the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee the dirtiest hotel in America. Kenneth Seaton, the hotel’s owner, subsequently filed a claim for defamation and false light. The U.S. District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss the claim, holding that the statements at issue were purely subjective opinion and unverifiable rhetorical hyperbole. Seaton appealed the dismissal of his defamation claim to the Sixth Circuit.

The DMLP submitted its friend of the court brief urging the Sixth Circuit to affirm the district court’s decision. As the DMLP argues, opinions based on disclosed facts are not defamation under Tennessee law, and protecting such opinions is consistent with the goals of the First Amendment. By disclosing the reviews on which it relied, TripAdvisor enabled its readers to independently assess the rankings, subjecting its conclusions to the marketplace of ideas rather than the courts. The DMLP further called to the attention of the court that the use of crowdsourcing to collect data has become common in both data-based journalism and in academic research. Crowdsourcing is now crucial to journalists’ ability to play their traditional watchdog function, as well as their ability to provide up-to-date information in times of crisis. Failure to protect opinions based on such data would jeopardize those crucial functions.

“Crowdsourced information gathered from online media platforms provides uniquely powerful data about breaking issues and large-scale events, which would be difficult if not impossible for journalists and scholars to compile using traditional research techniques.” said the DMLP’s Director, Jeff Hermes.

The DMLP regularly contributes to amicus curiae briefs in cases with important implications for online speech, journalism, and the public good that are of direct interest to all members of the news media and, indeed, the public as a whole. The DMLP was represented on the brief by the Cyberlaw Clinic. The DMLP and the Cyberlaw Clinic are both based at Harvard University’s Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace. Cyberlaw Clinic students Jillian Stonecipher, Andrew Crocker, and Emma Raviv drafted the brief, alongside DMLP Director Jeff Hermes, DMLP Staff Attorney Andy Sellars, and Cyberlaw Clinic Assistant Director Christopher Bavitz.

On Wednesday, January 23, 2013, the Cyberlaw Clinic at the Berkman Center for Internet and Society hand-delivered its first series of Third-Party Preissuance Submissions related to 3D printing technology with the U.S. Patent and Trademark Office. Filing on behalf of our client, the Electronic Frontier Foundation, the Clinic is working to keep 3D printing technology accessible to the open hardware community by challenging patent applications that threaten to inhibit innovation in this rapidly expanding industry. EFF and the Clinic reached out to the 3D printing community to crowdsource prior art references for several pending patent applications.

The effort takes advantage of a new provision in the America Invents Act (35 U.S.C. §122(e)), which permits any third party to submit any printed publication of potential relevance to the USPTO for consideration by a patent examiner. The provision is intended to aid examiners by encouraging subject-matter experts to submit otherwise difficult-to-find prior art in new technological areas.

The Clinic filed preissuance submissions for two pending patent applications, 12/687,996 and 13/043,876, related to support structure generation and curable modeling material, respectively. Both include broad patent claims that, if allowed, may adversely affect the incremental innovation occurring now in the 3D printing community. The Clinic filed the submissions in person at the USPTO campus in Alexandria, VA.

The filing coincided with the USPTO’s first Additive Manufacturing Partnership Meeting. There, several industry participants, including Stratasys, 3D Systems, and Makerbot, met with patent examiners to discuss recent technological developments and industry trends. Supervisor Kit Walsh and student Charlie Stiernberg also attended to speak with Patent Office officials and members of the 3D printing community.