Columbia Needs a Digital Rights Clinic

“There’s a good clinic at Berkeley now; there’s a good clinic at UCLA; there will be another one somewhere else very soon. We could begin to provide legal services not from university counsel, but from people who really want to do the work for students who are charged with or who are extorted from for reasons that arise out of their use of university networks. And if we did that, once again, we would push back against power in a way that would cost us no solidarity at home and would put the war abroad where it really belongs.”

- Eben speaking at the University of California, Santa Cruz on October 23, 2008 at 1 hour and 17 minutes (emphasis added)

Ray Beckerman visited Columbia on November 10th. In a speech simple enough for a middle school auditorium, he expressed outrage at RIAA “bullies” and called for students to start “fighting back” by hitting the meanest and toughest one in the bunch first. He made a call for universities to stop responding to pre-litigation letters. He asked students to forego settling. He looked out onto the crowd, and admonished us for being so privileged, but not devoting any resources to fight the RIAA: “this is a law school, isn’t it?”

Many times you have advised us to find our niches within the legal world. Do not leave law school without clients. Get experience. Do not be afraid of setting out on your own. “Do not pawn your license,” you have drilled. Some of us have heard you. We hear you in class, we hear you when your words escape our own lips, and most ringingly we hear you when we ponder the wisdom of our choices. At lunch a year ago, I asked you about a clinic to defend the victims of the RIAA. You answered that it was demoralizing work, and that our resources could be better expended elsewhere. Perhaps both are still true, but the incongruity between last year’s advice and your speech at Santa Cruz still stands.

There are students at Columbia, myself included, who “really want to do the work” – maybe in this way, maybe in a better way – for now, no option is available at all. This could be our chance to gather the experience, confidence, and social network we need in order to become independent lawyers. This could be our chance to fight the RIAA and to offer a modicum of amelioration to students left in the cold by the university. However, this is not a project we can embark upon on our own. Even if we were an incredibly gifted and organized group of students, we would still need oversight from a practicing attorney who could sign off on our work. Maybe running this clinic is not the best use of your time, but certainly ensuring that someone is running it should be.

Ray suggested that the most efficient way to make universities think twice about responding to RIAA subpoenas is to create liability on both sides: why not represent a student suing the university for a violation of due process rights? I do not know how legally persuasive this theory may be, but if it has any validity whatsoever, I cannot see a more appropriate set of litigators than Columbia’s own students to protect the fundamental principles on which the university as an institution rests.

Berkeley, George Washington School of Law, Harvard, Santa Clara University School of Law, Stanford, University of Maine, and University of San Francisco legal clinics all participate in a joint project with the Electronic Frontier Foundation, the Chilling Effects Clearinghouse, which collects, publishes, and analyzes DMCA cease-and-desist letters. In addition, the Clearinghouse offers an easy to understand (non-legalese) FAQ related to online rights concerning topics such as linking, trademark, and fan fiction. At least four law schools already have clinics which go even further, defending students from the RIAA: the University of San Francisco, the University of Maine, Franklin Pierce, and Harvard. With all due respect to these institutions, if they have the organizational capacity to run such a program, Columbia has no excuse for not doing the same. Surely, Columbia is neither lacking in students in need of legal aid nor the resources necessary to attract a faculty member to run such a clinic. The benefit of a clinic and permanent leadership rather than a student-led organization is its ability to provide continuity within a multi-year litigation and to effectively find new student leadership.

Faculty initiative is part of what is missing. No doubt the lack of a critical mass of interested students is also a problem, but one that could abate if Columbia had more to offer to students interested in law and technology. Harvard, which has made it clear to the RIAA that it will not turn over student information, enjoys the support (and protest) of the Berkman Center and its faculty on a large scale. Not only have professors openly pressed Harvard into this course of action, but they have made themselves prey as attractive as a porcupine: Professor Nesson asked his evidence class to frame a motion to quash a subpoena from a copyright holder to the university for the identity of a student downloader on grounds of undue burden. What plaintiff wants to face an army of soon-to-be Harvard lawyers? If just one faculty member alone would not be enough to stir the administration to action, there is no reason not to call on students for action and support. But, there can be no disappointment when there is no call to action. “Around the country there are people waiting, expectantly, so that they can follow along.”

-- KateVershov - 04 Dec 2008

If our resources could better be expended elsewhere other than the RIAA, is there an alternative topic that could form the core of a Digital Rights Clinic, with RIAA disputes being available as secondary work? Does Eben think that there is another issue that would make a good clinic along these lines?

-- JohnPowerHely - 09 Dec 2008

As I mentioned, if there are other ways or more effective ways of protecting rights online, I'm open to them. I don't think the RIAA work is necessarily the only thing such a clinic ought to focus on.

-- KateVershov - 11 Dec 2008

• The RIAA's recent announcement of a decision to forego future lawsuits against music users responds, I think, to their appreciation that they were pushing matters to this tipping point. David Carsons's speech at Columbia on February 3rd, at which there should certainly be protests, is an attempt by an outward-bound Copyright Office functionary to earn himself a spot on the trade associations' high-earner hit parade, but all the bluster in the world about "making the making available right available" won't change the fact that their tactics have busted. Now the industry will go back to work trying to influence the network providers into doing their work for them, and whether a Columbia Law School clinic would be effective in interfering in the relationship between Sony and Verizon is a somewhat different question.

• Your essay gives the impression that the reason Columbia doesn't have a clinic doing this work is that I and others have been too lazy to establish one. This impression is false. During the last deanship, David Leebron turned down the money Pamela Samuelson offered to establish a Samuelson clinic at CLS. The official reason was that he didn't believe the money was "really there." The actual reason was that I would have been the one empowered by it. During this present deanship, David Schizer has explicitly preferred to remain at "arms' length" from my activities, even when those activities would have given resources to the law school rather than consumed them. Under those circumstances, I have simply preferred to do what needed to be done without troubling the law school for the resources, or the courage, necessary to do them. I have, as you well know, employed many Columbia students and alums in that work, paying real wages as well as affording educational opportunities. I have defended those whose defenses could assist the public interest, and I have done other work to sabotage the "owners'" campaigns for injustice in ways that aren't written about now, and--for all I know--may remain obscure forever.

• This isn't about me, or even us. This is about you. If you and your colleagues actively demand that you be given the chance to work on the destruction of the "owners'" oppressive system, there are at least two and possibly more members of the faculty who would be willing to change what they do enough to accommodate your needs. A digital rights clinic at Columbia doesn't exist now because students haven't indicated a forcible determination to see one exist.