Harvard Law School Berkman Center for Internet & Society The Berkman Center for Internet & Society at Harvard Law School

Cyberlaw Clinic

Spring 2008 clinical students, please note that the clinical drop/add period is January 14 through January 18, 2007. If you are interested in enrolling but not yet pre-registered, please check with us to see if there is space on the wait list.

The Cyberlaw Clinic provides high-quality, pro-bono legal services to appropriate individuals, small start-ups, non-profit groups and government entities regarding cutting-edge issues of the Internet, new technology and intellectual property. Harvard Law School students enhance their preparation for high-tech practice and earn course credit for working on a variety of real-world litigation, client counseling, advocacy, legislation, and transactional/licensing projects and cases.

The Cyberlaw Clinic is currently directed by three experienced practitioners. Director Phillip Malone is a former federal antitrust prosecutor whose extensive high-tech investigation and litigation experience includes the DOJ’s lawsuits against Microsoft and Oracle. Clinical Fellow and Assistant Director Dena Sacco brings eight years of experience with the DOJ, first as counsel in the Office of Policy Development and then as an Assistant U.S. Attorney focusing on online child exploitation cases, as well as two years teaching as a Climenko Fellow at HLS. Clinical Fellow and Assistant Director Renee Lloyd has a rich background in licensing, transactional and technology law in two major law firms, in-house as senior corporate counsel at RSA Security, and as associate director of technology transactions at Harvard's Office of Technology Development.

The broad range of doctrinal and practice areas covered by the Cyberlaw Clinic is illustrated by some examples of its recent cases.  During the last several semesters, Berkman clinical students, among other projects:

  • Served as in-house counsel on a variety of legal issues for Stopbadware.org, the online consumer protection initiative to combat "badware" that is led by the Berkman Center and the Oxford Internet Institute, including assisting in preparing a formal complaint filed in collaboration with the Center for Democracy and Technology with the Federal Trade Commission (FTC) against FastMP3Search.com.ar for distributing badware to unsuspecting Internet users through a downloadable software plugin;

  • Conducted initial research for and helped co-found the Citizen Media Law Project, a joint initiative with the Center for Citizen Media that seeks to provide legal training and resources for individuals and organizations involved in citizen media, including research and advocacy on free speech, newsgathering, intellectual property, and other legal issues related to citizen media. The Project is building a state-by-state guide to citizen media legal issues and a database of lawsuits and legal threats against citizen journalists, as well as developing a community of lawyers, academics, journalists, and others who are interested in facilitating citizen participation in online media and in protecting the legal rights of those engaged in speech on the Internet.

  • Researched and drafted portions of the Podcasting Legal Guide: Rules for the Revolution in conjunction with Creative Commons and the Stanford Center for Internet and Society;

  • Prepared and submitted to the Massachusetts Supreme Judicial Court an amicus brief on behalf of the National Center for Missing & Exploited Children in Commonwealth v. Bryant, a criminal appeal relating to statutory and constitutional limits on seizing and searching computers. The SJC affirmed the trial court, the result sought in the amicus brief, but did not reach the computer search issue. [View the webcast of the oral argument];

  • Helped secure an important victory for free speech on the Internet by assisting in defending agiainst RICO and defamation claims brought by a “spiritual-healing” group against two former members of the group who had started a web site devoted to revealing its true nature. Students drafted legal arguments in a summary judgment motion and reply memorandum that helped persuade a federal court to throw out the case, Gentle Wind Project v. Garvey (D.Maine). When the case was re-filed in state court, Berkman students continued our representation by preparing draft jury instructions and assisting with other facets of trial preparation; the plaintiffs finally abandoned their claims and settled the case on our clients' terms shortly before the scheduled trial date.

  • Helped protect critical online speech by submitting amicus briefs to the Fourth Circuit in Lamparello v. Falwell, and the Ninth Circuit in Bosley Medical Institute v. Kremer, on behalf of two groups of intellectual property law faculty, urging the important principle that, consistent with First Amendment values, use of a trademark as a domain name to identify a “gripe” or critical commentary website must occur in a commercial context before it can violate federal trademark laws;

  • Assisted the Isabella Stewart Gardner Museum in Boston with copyright and other legal issues in its innovative free classical music podcast series, "The Concert," which allows listeners to download and freely share previously unreleased performances from the Museum's live concert programs. In particular, we helped the Gardner release all the podcasts under a "Share Music” license from Creative Commons;

  • Advised Creative Commons regarding updating its generic CC license as a US jurisdiction-specific license, as part of its International Commons effort;

  • Assisted The Citizen Lab at The Munk Centre for International Studies at The University of Toronto in assessing licensing issues, including distribution of source code under a GPL (General Public License), for its Psiphon software, a censorship circumvention tool that will allow internet users in countries that censor internet content to bypass censorship filters and restrictions with the cooperation of psiphon network participants;

  • Prepared claim charts, researched prior art and began preparing requests to seek reexamination of two of the “Ten Most Wanted” patents in the Electronic Frontier Foundation's Patent Busting Project;

  • Acted as “moot” judicial law clerks to two Federal Circuit judges and one Ninth Circuit judge, drafting an extensive bench memorandum and assisting the judges in preparing for and hearing oral arguments in a moot court program, “The Scope of ‘Derivative Works’ as Applied to Software,” at the University of Washington;

  • Collaborated with the Open Net Initiative and the Harvard Law School Human Rights Program and Clinic to explore various legal issues as parts of the ONI’s ongoing investigation, analysis and reporting on Internet filtering, surveillance, and censorship by governments around the world. Students made winter-term trips to Russia, Singapore and Thailand for first-hand fact-gathering and research on these issues;

  • Assisted several prosecutors' offices with research and briefing regarding a variety of computer search & seizure and electronic evidence issues;

  • Reviewed and advised a client on a complex digital distribution/podcasting sublicensing agreement;

  • Helped prepare comments for submission to the Copyright Office regarding issues raised by so-called “orphan works,” – copyrighted works whose owners are difficult to locate – including whether legislative, regulatory or other solutions to the uncertainty surrounding ownership of such works might be warranted;

  • Helped prepare a letter to a U.S. Magistrate seeking to participate, on behalf of the Electronic Frontier Foundation as amicus curiae, in a lawsuit to object to plaintiffs’ attempts to compel discovery of the identities of anonymous posters to a website run by the defendant;

  • Assisted several Harvard Law School professors in preparing an amicus brief to the Supreme Court of the United States in MGM Studios, Inc. v. Grokster Ltd. which was cited approvingly in Justice Breyer’s concurring opinion;

  • Drafted an international license for use by a nonprofit organization that digitizes and distributes materials to visually handicapped users to assist its efforts to secure permission from publishers to make content available to such users;

  • Advised recording artists on how the Copyright Act’s termination of grants provision might affect their ability to exploit or authorize others to use their works;

  • Worked with the Information Technology Division of the Commonwealth of Massachusetts to develop legal guidance for software contracting matters, to craft new software contracting legislation and to evaluate legal issues regarding other ITD software initiatives;

  • Drafted model copyright statutes for a developing country;

  • Advised arts publishing organizations on novel fair use and public domain issues in traditional and electronic publishing;

  • Advised a small Internet radio service and music provider regarding the copyright implications of contemplated changes in its methods for offering music for listening and sale over the web; and

  • Prepared and submitted an amicus brief in a federal copyright case involving P2P networks, Capitol Records v. Alaujan, (D. Mass. 2003), that assisted the district court in balancing the competing claims of the plaintiffs and defendants in such cases.

During the 2007-08 academic year the Cyberlaw Clinic will operate in conjunction with:

This program is for Harvard Law School students only. 2L and 3L students receive 1 hour of clinical credit for 5 hours per week of training and may opt for either 2, 3 or 4 hours of credit. The clinical component may be taken in the fall, winter or spring terms.

Although the credit option is not available for 1Ls, the Berkman Center offers non-credit opportunities for students interested in meeting their pro bono obligations while learning about Internet issues. Contact the Pro Bono Program or the Berkman Center Cyberlaw Clinic staff for more information.

Joining the Cyberlaw Clinic

Interested in joining us? If you are a rising HLS 2L or 3L who is interested in the Berkman Clinical program for the coming year but did not pre-enroll during the April online lottery, the Add/Drop period for Fall 2007 placements is September 4-6. For more information on trying to add a clinical enrollment, visit the Office of Clinical Programs website.

For more information on the Cyberlaw Clinic, please contact:

Phillip R. Malone, Director (pmalone@cyber.law.harvard.edu)
Cyberlaw Clinic
Harvard Law School
23 Everett Street, Second Floor
Cambridge, MA 02138
(tel) + 617.384.9134 - (fax) + 617.495.4184