Pro Bono Publico

Public Interest Legal Work

The CSPD is primarily a research center. However, one of our goals is to translate scholarly research on the information environment into the language of policymakers and courts. In the service of that goal, the Center from time to time works with public interest legal groups in order to bring neglected legal arguments, technical analysis, and historical perspective to pressing legal issues of the day. Some of our more salient current and past projects are below.

Student Projects on Database and Digital Copyright Legislation

The CSPD attempts to connect scholarship to policy debates in a number of different ways. Working with Center faculty, three students produced the following comparative analyses on database and digital copyright legislation in the US and EU. (Papers posted in Spring 2005)

Working with Center Director Jennifer Jenkins, five students produced the following research papers for the Association of Research Libraries. These papers address some of the key legal and policy issues in the contentious area of domestic database protection legislation. (Papers posted in Fall 2004)

Supreme Court amicus brief. Working closely with Duke faculty members David Lange and H. Jefferson Powell, Senior Fellow Daphne Keller assisted in the research and drafting of a Supreme Court amicus curiae brief in Eldred v. Ashcroft, a case challenging the Sonny Bono Copyright Term Extension Act, Congress’ latest extension of the copyright term for both existing and future copyrights. (The copyright term is the length of time for which a copyright lasts). A number of Duke Law students were able to work as research assistants on this project (an experience that several of them described as one of the most exciting of their law school experience.) The brief was filed on behalf of Hal Roach Studios and its Chairman, Michael Agee. Hal Roach Studios is one of the leading restorers and proprietors of silent films, including the pre-1931 Laurel and Hardy archive. Amicus briefs typically address matters on which the amici (or friends of the court) have special expertise or knowledge, and which are not likely to be covered in the main briefs. Film preservation was just such an issue. While extending the terms of dead copyright holders is hardly likely to “promote the progress” of culture by encouraging them to create new works, a serious argument had been made that it would give the holders of copyrights over old films the incentive to move their works onto new media, thus promoting accessibility even if not creativity. The amicus brief’s exhaustive survey of the scholarly archival literature and the actual facts and statistics of preservation showed that the opposite was the case. For the overwhelming majority of films, term extension would actuallyimpede preservation efforts. The amicus brief was accepted by the U.S. Supreme Court in May 2002.

In January of 2003 a seven member majority of the Court upheld the Act. There were two strong dissents - one of which referred explicitly to theamicus brief. In an editorial called “The Coming of Copyright Perpetuity,” the New York Times had this to say about the decision: “Artists naturally deserve to hold a property interest in their work, and so do the corporate owners of copyright. But the public has an equally strong interest in seeing copyright lapse after a time, returning works to the public domain - the great democratic seedbed of artistic creation - where they can be used without paying royalties. In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.” New York Times Editorial, Jan. 16, 2003. These words could also serve as an explanation of the work of the CSPD.
About Eldred
Read the amicus brief

Fellowship Program. One of the precursors to the CSPD was the Fellowship Program in Intellectual Property, the Public Interest and the Public Domain, which was supported by grants from the Ford Foundation and the Center for the Public Domain. The Fellowship Program’s goal was to bring in outstanding scholars and lawyers to Duke for a one year stay to work on a series of projects related to the public interest, the public domain and intellectual property policy.

The Fellows taught a seminar called "Intellectual Property, the Public Domain & Free Speech." The Program formed agreements with a number of public interest groups who work on internet policy, free speech, and intellectual property issues. Students in the seminar worked with the public interest organizations, under the supervision of the Fellows, doing research and writing on selected current topics in the field. The projects were centered around Internet copyright and trademark issues, but also included some work on telecommunications, international intellectual property agreements and pharmaceutical patents.

Comments to the Federal Communications Commission (FCC) on merger. Supervised by Fellow William Friedman, students prepared and filed a formal 50-page comment to the FCC arguing against approval of the proposed Echostar/DirecTV merger, and traveled to Washington to present their conclusions before senior FCC officials.

Memos to the Electronic Privacy Information Center (EPIC) on Microsoft’s Passport System. Research from student memoranda, developed under the supervision of Fellow Daphne Keller, discussed privacy risks associated with Microsoft’s Passport System and were incorporated into submissions by EPIC to the Federal Trade Commission (FTC). These submissions helped to form the basis of the important August 2002 settlement between the FTC and Microsoft, which required that Microsoft establish a comprehensive information security program for Passport, and that it not misrepresent its practices of information collection and usage. According to EPIC, Duke student memoranda on European privacy laws were also “extremely” important in framing the European Union’s privacy conditions for Passport.

Other Student Projects Supervised by Fellows and CSPD faculty

  • Several students drafted memos for the Electronic Frontier Foundation in the case of Dr. Edward Felten, an MIT computer scientist threatened with a lawsuit when he attempted to present his research on holes in proposed digital watermarking technology at a scientific conference.
  • Two students carried out research for the Consumer Project on Technology relating to international patent protection agreements and access to essential medicines in developing nations.
  • Students participated in the Center for Democracy and Technology’s Standards Project­, drafting public policy analyses of technical standards currently under development at the Internet Engineering Task Force.
  • Students drafted a thorough analysis of the constitutional limits on proposed database protection legislation for use by the Electronic Frontier Foundation.
  • One student drafted a memorandum for ibiblio analyzing the economic and policy implications of proposed webcasting royalty regulations.