RESEARCHER, ACLU CHALLENGE DMCA'S ANTICIRCUMVENTION RULE

Case pits computer consultant Benjamin Edelman against N2H2 Inc., leading filtering software manufacturer. Edelman, who testified earlier this year on Internet filtering programs on behalf of plaintiffs challenging Children’s Internet Protection Act (CIPA), has been seeking complete list of Web sites blocked by N2H2 software in order to do further research on subject, ACLU said. N2H2 has refused, citing terms of its software licenses and DMCA’s anticircumvention provisions. Spokesman for N2H2 said: “We do think our software license claims are valid, and our intellectual property rights are valid, and we do intend to defend them.”

It’s fair game to ask whether N2H2’s blocking program is effective, ACLU said. Studies have documented how filters overblock protected speech while underblocking inappropriate content, organization said. Edelman’s proposed research consists of 5 steps, the ACLU said: (1) Reverse-engineering licensed copy of N2H2’s blocking program to find out how it prevents access to and copying of block list. (2) Creating and using software tool to decode those measures and access list. (3) Analyzing block list to determine its accuracy. (4) Publishing results of study as well as list. (5) Distributing circumvention tool to “facilitate other fair and noninfringing uses” of list.

Those activities put Edelman at risk of lawsuits for breach of N2H2’s licenses, copyright infringement, DMCA violations and trade secret misappropriations, ACLU said. It said they also raised 3 significant constitutional issues: (1) Application of parts of DMCA to restrict constitutionally protected computer research and innovation. (2) Enforcement of software license that “severely restricts” that research in conflict with copyright law. (3) Public’s right to know what Web sites were blocked by programs increasingly mandated by govts. here and abroad. Among other things, ACLU wants U.S. Dist. Court, Boston, to declare that none of Edelman’s proposed actions subject him to liability under various laws or that, in alternative, DMCA anticircumvention sections are unconstitutional under First Amendment as applied to his research.

Edelman brings to mind last year’s dispute between Princeton U. prof. Edward Felten and RIAA over proposed publication of report outlining how Felten broke Secure Digital Music Initiative’s watermarking technology, said Lee Tien, senior staff attorney at Electronic Frontier Foundation (EFF). EFF, which sued RIAA to try to shield Felten from liability, sought court order declaring language in DMCA preventing report’s publication unconstitutional.

Tien, who said he hadn’t read ACLU’s complaint yet but was familiar with issues, said at first glance there were differences between 2 cases. For one thing, he said, EFF’s case lost steam when RIAA convinced court it wasn’t going to sue Felten. If, as ACLU alleged, N2H2 is likely to take all legal avenues to protect its block list, that will be factor, Tien said. Another difference, he said, is that EFF ultimately cut deal with RIAA for publication of decoding research, something that hasn’t happened in Edelman.

The bottom line, Tien said, is that Congress is concerned that the kinds of technologies at issue in both cases could have both legal and illegal uses. One “great strong point” in the ACLU case, he said, is that whatever technology Edelman proposes to use to extract N2H2’s block list will be tailored narrowly to that purpose. There’s nothing to be gained, he said, from making people liable for publishing technology for activities already permitted under the DMCA (which grants exemptions from anticircumvention rules for decryption to gain access to compilations of lists and Web sites blocked by filtering software for fair use).

But another lawyer was skeptical about Edelman’s claims. In the first place, said Arnold & Porter attorney Steven Englund -- who represents content owners -- there’s not enough of a controversy for the court to take jurisdiction. Even if it does, he said, “I don’t buy” any of the ACLU’s allegations that Edelman shouldn’t be liable for breach of N2H2’s software licenses. The provisions in those licenses are fairly standard, he said, and aren’t likely to be found to be against public policy or overly restrictive.

Edelman may have a “better argument” on copyright infringement and contributory/vicarious infringement grounds, Englund said, but his most relevant claims involve the DMCA: “That’s where the action is.” It’s possible, he said, that the court will accept Edelman’s argument that his proposed circumvention falls within the DMCA’s narrow exemption for access to block lists. However, he said, that exemption doesn’t apply to the distribution of circumvention devices, which Edelman also plans to do. As for Edelman’s constitutional argument, Englund said, courts usually don’t find a First Amendment right to traffic in tools to circumvent the law.

While most players in the debate were digesting the ACLU’s complaint, Peacefire founder Bennett Haselton called the suit “good news.” Peacefire has been “sued or threatened with lawsuits 3 times as a result of writing or hosting software that lets the user unscramble the list of sites blocked by a software program,” he said. The ACLU suit might clarify a “murky” area of the law, Haselton said. But the Business Software Alliance (BSA) said, “we support the DMCA” as a carefully crafted balance between consumers rights and content creators. BSA will be following all DMCA cases very closely, a spokeswoman said.