In the Classroom

Litigating the new frontier

Practical lawyering in cyberspace

Illustration of balancing act
Adam McCauley

An ambitious new player has appeared on the Internet scene, determined to dominate the flow of information across the Web.

The activities of this behemoth—including mining the personal data of subscribers, acquiring competing companies and facilitating the copying of copyrighted music and videos—plunge it into some of the most heated controversies in Internet law.

This hypothetical company is the focus of the final session of an HLS seminar, Practical Lawyering in Cyberspace, in which students are assigned to represent the affected parties—privacy advocates, Web site operators, a file sharing Web site, copyright holders and the company itself—in simulated lawsuits and takeover scenarios.

“The goal is to teach students how to function as real lawyers on a very high level in a complex intellectual property case,” says Lecturer Phillip Malone, who teaches the seminar with Jeffrey Cunard, managing partner of Debevoise & Plimpton’s Washington, D.C., office, and HLS Clinical Professor John Palfrey ’01, executive director of the Berkman Center for Internet & Society.

3L Robert Kent is assigned to represent FaceSpace, a fictitious company about to be bought by the behemoth. It has just been sued by copyright owners for encouraging users to share protected music, videos and movies.

Kent tells his clients they are likely to prevail on a motion to dismiss, but expresses concern that protracted litigation could jeopardize the company’s imminent sale. A victory in court, he says, would not necessarily be the best way to achieve their long-term goals.

“I suggest that we offer a small cash settlement for past infringement and then focus our negotiations on obtaining a favorable licensing agreement going forward,” he says. “We want an agreement that doesn’t require us to filter out copyrighted works, but monitors the use of these works so that we can pay the owners of popular material more from our advertising revenues.”

And then Kent shows that he understands how to finesse the situation to promote the company’s interests.

“Ultimately, we want the plaintiffs to view FaceSpace as a partner of the copyright owners,” he says. “So we want to emphasize our ability to give them pre-release publicity and publicity interviews.”

This is exactly the type of strategic thinking, solidly grounded in the evolving law in the area, the professors have hammered home.

During the course, students read from the cases that are changing the landscape of cyberspace law, including trial testimony, deposition transcripts, expert reports, complaints, motions and court decisions.

They also learned from professors who played key roles in these cases. Malone, for example, was the lead career prosecutor in the landmark antitrust case against Microsoft, and he shared samples of trial presentations.

Cunard is a key figure in two other cases studied during the semester. He and his firm served as defense counsel when Sony BMG was sued by customers who claimed the anticopying software on its music CDs damaged their computers. He also serves as plaintiffs’ counsel for McGraw-Hill and other publishers in their suit to prevent Google from scanning copyrighted books into a searchable Internet database and displaying snippets of them.

Students also received insiders’ views of Internet lawyering from guest speakers, including Microsoft associate general counsel Thomas Rubin and former Massachusetts Attorney General Scott Harshbarger ’68.

Palfrey notes that some of the law the students studied was developed at HLS, including a flexible online copyright licensing system, a brainchild of the Berkman Center think tank, Creative Commons.

“This class is intended to create a strong bridge between doctrine—which is taught all the time—and the reality of law on a practical level,” says Malone, a director (with Cunard) of Berkman’s Clinical Program. “We focus on the combination of substantive and strategic thinking that goes into a case from start to finish.”


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