Media Mentions

Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment... Professor Rebecca Tushnet of Harvard Law School and Professor Jessica Litman of University of Michigan Law School strongly cautioned the Subcommittee against conflating all internet service providers with Google and Facebook.  “Only a few services receive millions of [takedown] notices,” Tushnet said. “Most don’t need and couldn’t survive a requirement to use technological mechanisms to filter out rare infringements. If Congress changes 512 to target Google and Facebook, it will ensure that only they are left, making the problem of market concentration even worse.”

They need it, but they resent that they need it. They've acquired it, but are almost embarrassed by it. They rail against it, but end virtually every speech or debate closing remarks asking people to please give it to them. The Democratic presidential contenders have a love-hate relationship with money, which is essential to running a presidential campaign but which – among Democrats at least – carries a sort of dirty quality that has contenders competing not just for dollars but for dollars they claim are cleaner than everyone else's...Modern politicking has gotten very complicated for the Democratic field, which is seeking to appear the most sympathetic to poor and middle-class Americans while simultaneously struggling to amass war chests that will force the others out of the race. "On the one hand, I think it's good Democrats are concerned about money. I do think money is a corrupting influence in our government," says Harvard Law School professor Lawrence Lessig, author of the book "They Don't Represent Us: Reclaiming Our Democracy" and a one-time Democratic presidential candidate who ran on a platform of reforming money in politics. But "I also think the way it's playing out in the presidential election is a little bit crazy," he adds.

The first of 2020’s big copyright hearings started with a nod to Chumbawamba. Senator Thom Tillis (R-NC) had looked up which band topped the charts in 1998, the year Congress passed the Digital Millennium Copyright Act — one of the most influential and controversial laws governing the internet. Then, Tillis paused soberly. “I don’t know if we’re talking a lot about Chumbawamba” these days, he said. And the DMCA itself? “Almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.”...The 1998 DMCA attempted to outline how copyright should work on the then-nascent internet, where you could almost freely and infinitely copy a piece of media. But it’s been widely criticized by people with very different stances on intellectual property. Supporters of tougher anti-piracy rules, for instance, argue that its “safe harbor” rules don’t motivate websites to keep pirated content offline. Conversely, internet freedom advocates say its takedown system provides a de facto censorship system for the web. And the DMCA’s reach touches far-flung issues like farm equipment repair, which makes it unavoidable even for industries with no piracy problems. This week’s hearing focused on two pieces of the law: Section 512, which spells out platforms’ liability for pirated content, and Section 1201, which limits cracking digital copy protection. “Most service providers don’t need and can’t get expensive filtering technology” that they’d need to implement a “stay-down” system, said Harvard Law School professor Rebecca Tushnet. “If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive.”

Some of Justice Scalia’s papers are now publicly available. The legal and academic papers of the late U.S. Supreme Court Justice Antonin Scalia are now available for public viewing, at the Harvard Law School Library. The collection includes photos, postcards and notes, too. The library plans to release the collection in stages, and most of what’s available now was created before 1986, when Scalia was appointed to the Supreme Court. He also was a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and documents from specific cases will not be shared until after other judges or justices involved are dead.

There has been a lot of reaction to Attorney General William Barr's intervention in the Roger Stone case — when he called for a shorter sentence than the seven to nine years prosecutors recommended. Here & Now's Robin Young speaks with Charles Fried, who served as solicitor general under former President Reagan. Now he's a professor of law at Harvard Law School.

Perhaps you remember the scene from the 2013 thriller “Escape Plan,” when an inmate played by Arnold Schwarzenegger slugs a fellow prisoner played by Sylvester Stallone, knocking him flat on his back. Stallone gets up, dusts himself off, and delivers one of his famous haymakers to Schwarzenegger’s jaw. Yet the behemoth is unfazed, even laughing. “You hit like a vegetarian,” he says, in his trademark Austrian-accented English. And while the line may lack the gravitas of “I’ll be back” or even “Hasta la vista, baby,” it resonates enough to get Stallone to try to hit him harder. Because no real man wants to be accused of being an herbivore, right? This old-fashioned notion that tough guys — and tough women — must eat meat was challenged on Tuesday night at Harvard Law School (HLS), during a screening of the popular documentary “The Game Changers,” which includes the aforementioned clip as a call to vegetarian arms. Hosted by the Animal Law & Policy Program and the Office for Sustainability, the screening was followed by a panel conversation including some of the athletes profiled in the film, as well as doctors and scientists, all advocating a plant-based diet. The main message? Those who eat a vegetarian, vegan, or plant-based diet pop a wallop, too.

The judge who will sentence Roger Stone is an Obama appointee who’s drawn scorn from the president for her handling of the criminal case against Paul Manafort and a civil lawsuit involving Hillary Clinton. U.S. District Judge Amy Berman Jackson will decide on Feb. 20 how much prison time to give Stone, a longtime Republican political operator and presidential confidant who publicly antagonized her before his trial. The Justice Department complicated her task on Tuesday when it backed off its recommendation of a seven- to nine-year prison sentence for Stone. Later in the day, President Donald Trump took direct aim at Jackson...“She is very smart, works very hard and is very fair,” said Nancy Gertner, a retired federal judge who teaches sentencing at Harvard Law School. “The fact that the president feels free to trash a federal judge is outrageous to the Nth degree, particularly with a judge that’s about to sentence Stone.”

Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist, discusses his column: "Trump Has Hijacked Roger Stone’s Sentencing." Hosted by Lisa Abramowicz and Paul Sweeney.

An op-ed by Martha Minow:  Why have four federal prosecutors withdrawn from the case they successfully pursued against Roger Stone, and why does it matter? The four were “career lawyers” at the U.S. Department of Justice; they pursued criminal charges against Roger Stone, a friend and advisor of President Donald Trump, and their case produced a conviction on seven counts, including witness tampering and lying to investigators following Stone’s work for  Trump's 2016 presidential campaign. Pursuing usual procedures, they requested a sentence of seven to nine years, which ordinarily would then be left to the judge for a decision. But then, President Trump — apparently in response to strong lobbying through the media and perhaps behind closed doors — took to Twitter and called the situation “a miscarriage of justice.” His tweet actually said “cannot allow this miscarriage of justice.” Leaders at the Department of Justice submitted a revised request for a lower sentence — and the White House maintained it had nothing to do with the change...Without public confidence in the integrity of investigations and prosecutions, respect for the criminal process, convictions and the rules themselves can crumble.

The public release this month of the first set of materials from the Antonin Scalia Collection was a pivotal moment for curators and archivists at the Harvard Law School Library...Harvard Law Today recently sat down with Ed Moloy, the library’s curator of modern manuscripts, and Project Archivist Irene Gates to discuss the Antonin Scalia Collection, the work of archiving, preserving, and making it public, and other collections held by the Harvard Law Library.

A federal judge gave his blessing to the $26.5 billion merger between T-Mobile and Sprint on Feb. 11, several months after the deal got final antitrust approval from the U.S. government. A group of attorneys general from 13 states and the District of Columbia had sued to try to block the merger, arguing it would reduce competition in the telecommunications industry and raise customer prices by billions of dollars. Let me add a third reason the judge should have blocked the deal: It will likely increase economic inequality. Research on inequality, including my own, has generally focused on how economic growth, tax policy and the use of technology affects it. Less attention has been paid to another important factor: enforcement of antitrust laws...Finally, anti-competitive behavior frequently arises when there is common ownership of corporations. The airline industry provides a great illustration of this. From 2013 to 2015, the same seven shareholders controlled 60% of United Airlines, 27.5% of Delta, 27.3% of JetBlue and 23.3% of Southwest. Harvard law professor Einer Elhaug argues this kind of common ownership of multiple companies in an industry is very likely to lead to anti-competitive prices.

For decades after Watergate, the White House treated the Justice Department with the softest of gloves, fearful that any appearance of political interference would resurrect the specter of Attorney General John Mitchell helping President Richard M. Nixon carry out a criminal conspiracy for political ends...For the most part, modern presidents have stayed away from cases involving their friends or associates, at least publicly...One notable exception was President Barack Obama, who during the 2016 presidential campaign said that he did not believe that Hillary Clinton had harmed national security by using a private email server but was guilty only of carelessness — remarks that Republicans immediately criticized as interference with an open F.B.I. investigation...But while Mr. Obama was guilty of a single lapse, said Jack L. Goldsmith, a Harvard law professor who headed the Justice Department’s Office of Legal Counsel under President George W. Bush, Mr. Trump has continually injected himself into federal investigations and prosecutions involving his political friends and enemies. “Even assuming that Bill Barr is acting with integrity, it is impossible for people to believe that because the president is making him look like his political lap dog,” Mr. Goldsmith said. “Trump makes it impossible to have confidence in the department’s judgment.”

A federal judge gave his blessing to the US $26.5 billion merger between T-Mobile and Sprint on Feb. 11, several months after the deal got final antitrust approval from the U.S. government. A group of attorneys general from 13 states and the District of Columbia had sued to try to block the merger, arguing it would reduce competition in the telecommunications industry and raise customer prices by billions of dollars. Let me add a third reason the judge should have blocked the deal: It will likely increase economic inequality....Anti-competitive behavior frequently arises when there is common ownership of corporations. The airline industry provides a great illustration of this. From 2013 to 2015, the same seven shareholders controlled 60% of United Airlines, 27.5% of Delta, 27.3% of JetBlue and 23.3% of Southwest. Harvard law professor Einer Elhauge argues this kind of common ownership of multiple companies in an industry is very likely to lead to anti-competitive prices. And that’s exactly what researchers have found. A 2018 paper showed that ticket prices are 3% to 11% higher due to common ownership, and studies of the banking and other industries have found similar effects.

Sen. Thom Tillis, R-N.C., said Tuesday that landmark legislation passed in 1998 to protect innovation and free speech on the internet while still fighting copyright infringement needs to be updated and that he wants to craft a reform bill by the end of the year. Tillis, who chairs the Senate Judiciary Committee’s intellectual property panel, kick-started the process of updating the Digital Millennium Copyright Act by convening a hearing with experts who talked about the pros and cons of the law as it operates today...There has been an exploding number of take-down notices under the law’s safe harbors, known as Section 512, he said....But Rebecca Tushnet, a First Amendment professor at Harvard Law School, opposed making the kinds of changes sought by those two witnesses, saying that even though “the system is by no means perfect ... like democracy, it's better than most of the alternatives that have been tried.” “Changes to 512 would be likely to make things much worse,” she said. Tushnet recommended, among other things, focusing on antitrust in copyright and telecom in any reform of the 1998 law.

Puppy toys should have nothing to do with car engines. But a recent court complaint says Amazon.com Inc. halted sales of a “puppy sleep aid” after being told a storefront selling on its marketplace infringed two patents—one registered in 1895, and another directed to a Japanese “combustion device.” “Neither patent is enforceable. Neither patent is owned by any Defendant,” the complaint says. As Amazon expands its reign over e-commerce and gets more aggressive about rooting out counterfeiting, it’s taking a more active role in judging intellectual property disputes between merchants on its platform... “Amazon, with its size, now substitutes for government in a lot of what it does,” said Rebecca Tushnet, a First Amendment and copyright law professor at Harvard University. “It is being asked to run a judicial system, without the commitments to transparency and precedent of a real judicial system.” ...But “many of its initial attempts to deal with bad actors on its site, while clearly done in good faith, assumed that the initial set of bad actors (counterfeiters) was the problem to be dealt with, and its response then created a new set of opportunities for new kinds of bad behavior,” Tushnet said.

An article by Noah Feldman: Following a presidential tweet, Donald Trump’s Department of Justice is poised to betray Robert Mueller’s independence — after the fact. Reportedly, Justice will retract the sentencing recommendation that was made yesterday to sentence Roger Stone for seven to nine years for lying to Congress and witness tampering. All four prosecutors quickly resigned from the case. The whole point of Mueller’s status as special prosecutor was to protect his investigation from improper White House influence. Now, Stone’s sentencing is being hijacked by direct presidential influence. None of this is normal. It’s not normal for the Justice Department to reverse a sentencing recommendation already submitted to court. It’s especially not normal when the decision follows the president tweeting that the sentence sought was too high. And it’s the trifecta of non-normalness when the person being sentenced was convicted of lying to protect the president in an investigation of whether the president colluded with a foreign power to get elected.

An article by Jonathan Zittrain: Twenty years ago at a Silicon Valley product launch, Sun Microsystems CEO Scott McNealy dismissed concern about digital privacy as a red herring: “You have zero privacy anyway. Get over it.” “Zero privacy” was meant to placate us, suggesting that we have a fixed amount of stuff about ourselves that we’d like to keep private. Once we realized that stuff had already been exposed and, yet, the world still turned, we would see that it was no big deal. But what poses as unsentimental truth telling isn’t cynical enough about the parlous state of our privacy. That’s because the barrel of privacy invasion has no bottom. The rallying cry for privacy should begin with the strangely heartening fact that it can always get worse. Even now there’s something yet to lose, something often worth fiercely defending. For a recent example, consider Clearview AI: a tiny, secretive startup that became the subject of a recent investigation by Kashmir Hill in The New York Times.

An article by Jonathan Zittrain: Last week, Speaker Nancy Pelosi famously ripped up her copy of President Donald Trump's State of the Union address on camera after he finished delivering it. Later, the president retweeted a video based on it. The video the president retweeted (and pinned) had been edited to appear like the speaker had been ripping up pages throughout the speech, as if reacting contemptuously to each American credited by name, like Tuskeegee Airman Charles McGee. An official from the speaker's office has publicly sought to have Facebook and Twitter take down the video, since it's not depicting something real. So should Twitter and Facebook take it down? As a starting point for thinking about this, it helps to know that the video isn't legally actionable. It's political expression that could be said to be rearranging the video sequence in order to make a point that ripping up the speech at the end was, in effect, ripping up every topic that the speech had covered.

Companies that sell your cellphone location data to marketers are also selling that information to Immigration and Customs Enforcement (ICE), the government body known for detaining children in cages. According to a new report by the Wall Street Journal, ICE and its affiliated organizations at the Department of Homeland Security (DHS) have been using location information for “millions” of cellphones bought from marketers to track down and arrest undocumented immigrants at the US-Mexico border...The data they’re using doesn’t include personally identifiable information like a user’s name, but rather an anonymized alphanumeric ID. Still, as a New York Times investigation into this type of data showed late last year, it’s pretty easy to figure out who someone is based solely on their location... “Even though they say it’s anonymous, when compiling different datasets together it gives you a very detailed picture of who you are, better than even you have,” Dragana Kaurin, a research fellow at the Berkman Klein Center for Internet and Society at Harvard University, told Recode. “This data can be used to discriminate against people by race, gender identity, ethnicity, sexual orientation or class,” she added, giving the example of how you could figure out someone is, say, Muslim based on their shopping at Halal markets or visiting mosques.

Facebook and Twitter have rejected a request by Speaker Nancy Pelosi to remove a video posted by President Trump that was edited to make it appear as though she were ripping a copy of his State of the Union address as he honored a Tuskegee airman and other guests. The decision highlighted the tension between critics who want social media platforms to crack down on the spread of misinformation and others who argue that political speech should be given wide latitude, even if it’s deceptive or false...The video isn’t legally actionable and shouldn’t be taken down, said Jonathan L. Zittrain, a Harvard Law School professor and a founder of the Berkman Klein Center for Internet and Society. But, he said, Facebook and Twitter should probably label the video. “It’s important for social media sites that have massive reach to make and enforce policies concerning manipulated content, rather than abdicating all responsibility,” Professor Zittrain said. Labeling is helpful, he added, because “even something that to most people clearly appears to be satire can be taken seriously by others.”

2040. Sure, it sounds like a long way off, but in a quick two decades today's law students and fresh-faced associates will be the ones presiding over a legal industry that could be almost unrecognizable from the one we see today. Just consider the massive amount of change that has happened since the turn of the century. The iPhone has put lawyers on a shorter tether to clients and given associates and judges alike a legal library in the palm of their hands. The recession and globalization have given in-house counsel a higher standing in the legal hierarchy and driven BigLaw firms into a race to get bigger and cover more international ground, all while upending the traditional partnership track. “My own sense is that the change we have seen over the last 20 years is likely to look very small compared to the changes coming over the next 20 years,” said David Wilkins, director of Harvard University’s Center on the Legal Profession.