Featured Fellow: Phil Malone

This is the fourth of a series of posts on Berkman's fellows (Derek Bambauer, Mike Best, Diane Cabell). The Berkman Center is home to approximately thirty fellows, all of whom focus their time and energy on issues concerning the Internet, including Internet governance, privacy concerns, intellectual property rights, competition policy and antitrust issues, electronic commerce, the role of new media and journalism proper, and digital media, among many others.

Phil Malone is a Lecturer on Law and a Co-Director of Berkman's Clinical Program in Cyberlaw. Phil co-teaches the Practical Lawyering in Cyberspace seminar at Harvard Law School and next spring will teach a new seminar, Antitrust, Technology and Innovation. Phil came to the Berkman Center in 2004, after a little over 20 years as a federal prosecutor with the Antitrust Division of the U.S. Department of Justice, where he focused primarily on technology and Internet-related investigations and cases. Phil headed the post-1995 DOJ investigations of Microsoft and was the primary career counsel, along with outside litigator David Boies, in the U.S. v. Microsoft trial. Before leaving the Justice Department he was one of the lead lawyers in the government's antitrust trial against Oracle.

Below is a Q&A between Phil and Berkman staffer Erica George:

Question: Can you describe the Clinical Program in Cyberlaw at the Berkman Center?
Phil: Like most law school clinical programs, it's a terrific opportunity for students to earn course credit while gaining the experience and insights of working on real-life legal issues for real-world clients. The difference between our program and most other clinics is that all of our cases and projects focus on some cutting-edge aspect of the Internet, new technology or intellectual property. We try to operate much like a small high-tech and IP law firm with a broad range of clients and types of practice, so we often deal with issues that present novel legal and social challenges, like protecting online speech, helping combat child pornography or assisting clients in understanding complex copyright issues.

Q: What do you like most about your work with the Clinical Program?
Phil: Everything about the job is exciting, but my favorite part is helping students learn to integrate the analytical, writing and other skills they develop in law school with the practical and strategic lessons they gain from working with actual clients in fascinating, brand-new areas of the law. It is a different kind of learning for most students, one they typically find refreshing and different from the rest of their law school experience and one that, in turn, can help enrich the remainder of their studies.

Q: What are the challenges?
Phil: The biggest challenge probably is just keeping up with the students. Most of the students who enroll in the clinical have a keen interest in and great enthusiasm for both technology and the development of law related to it, and many of them also have exceptional industry or tech backgrounds before coming to law school. I consistently feel that I learn as much from the students as they do from the clinical. We also are striving to broaden still further the kinds of cases we offer our students and to develop collaborative, interdisciplinary projects with other Harvard Law clinics in areas like human rights and consumer protection.

Question: What was it like working with the DOJ on cases like the Microsoft antitrust case?
Phil: Large, complex investigations and litigation are extremely rewarding -- exhausting, sometimes frustrating, but always rewarding. I love the process of preparing for and then being in trial, weaving sophisticated legal theories into a tight, logical and persuasive presentation that has to explain complex technical and legal concepts simply enough for courts to understand and analyze correctly. The pressure is relentless, and every day presents new and unexpected challenges, opportunities and thrills. A case like Microsoft is particularly satisfying because it is a chance to help really shape the evolution of the law as it is applied for the first time to a dynamic and fast-moving industry. And -- I know this sounds trite but it's true -- I always found representing the public interest, rather than just another private party or business, in a significant case to be especially rewarding.

Q: What drew you to working at Berkman?
Phil: I took a brief break from the DOJ in between the Microsoft litigation and the Oracle trial to pursue a fellowship at Harvard Law School, looking at issues like how the law can better encourage and preserve innovation in high-tech industries and how to understand the evolvution of competition policy in the computer industry. I quickly began spending a lot of time around Berkman and was truly amazed by the talent and the breadth of experience and interests of the people here. The opportunity to help run the Clinical Program and to broaden the role of students in some of the work of the Center was something I didn't feel I could pass up. And I now have the pleasure of sharing ideas and working with many of the other Fellows here. For example, Derek Bambauer and I are currently working together on a paper that analyzes how the law affects, and too often limits, research into software security vulnerabilities.

Q: If you weren't here at Berkman, where would you like to be?
Phil: At home, playing with my three- and five-year old daughters. Or, better yet, with them and my wife Luci somewhere in the far backcountry of New Mexico, climbing red-rock mesas, chasing faint whispers in a long-deserted indian ruin or staring for hours at the brilliant, star-studded night sky.

Q: What is your favorite Berkman moment?
Phil: Probably -- and these happen periodically -- observing (and sharing) the sense of pride and accomplishment our students show when their hard work results in significant, tangible benefits for real clients, whether they be the couple we helped defend against federal RICO claims brought against them for postings on their public-service website, the non-profit organizations we help to solve thorny contract or copyright-licensing problems, or the website operators we supported with amicus briefs to protect their "gripe sites" against trademark challenges. The students' recognition that they made a real difference for someone, at the same time that they gained valuable insight into substantive areas of cyber or IP law and developed their practice and strategic skills, is always a pleasure to see.