The American Civil Liberties Union (ACLU) filed a lawsuit challenging portions of a 1998 law—the Digital Millennium Copyright Act (DMCA)—which makes it illegal to write and publish programs that decode the lists of web sites blocked by some types of internet filtering software.

The lawsuit has relevance for researchers, parents, and thousands of educators and librarians who want to know what the software actually is blocking, according to the plaintiffs.

The ALCU asked a federal court in Massachusetts July 25 to rule that a computer researcher has First Amendment and “fair use” rights to examine the full list of sites contained in an internet blocking program and to share his research tools and results with others.

Ben Edelman, fresh out of Harvard, has spent much of his young programming career pressing software companies that make internet filters for schools and public libraries to reveal how their products work.

He worries some programs harm the free speech rights of users by blocking too many sites that aren’t really violent or pornographic. But some software companies say revealing such information would amount to giving up a trade secret.

“When you look at the details of what the programs actually block, there’s a troubling systematic trend in the systems blocking more than just porn,” said Edelman, who will attend Harvard Law School this fall. Edelman is now at the center of a suit which is seeking permission for him to conduct such research, and challenging DMCA provisions that forbid the dissemination of information that could be used to bypass copy-protection schemes.

The suit is a new way of attacking a law that has been upheld by courts in other contexts.

“The real debate going on here is less about filtering programs and more about an act that wants to regulate the production of circumvention tools that one day could be used against an eBook or music,” said Jonathan Zittrain, a Harvard Law School copyright law expert who has worked with Edelman but is not involved in the case.

Edelman had asked the Seattle-based filtering company N2H2 for a list of sites that would be blocked by its software, but was rebuffed.

“Mr. Edelman’s proposed research, which should be fully protected by the First Amendment, puts him at risk of liability under the DMCA,” as well as a previous federal copyright act, state law, and a nonnegotiable license with N2H2, the suit alleges.

Under the “fair use” principle of copyright law, the ACLU says, researchers should be able to analyze, discuss, and criticize copyrighted work without fear or prosecution, especially when it concerns a product used at public schools and libraries.

David Burt, a spokesman for N2H2, said the company had not yet reviewed the suit but he did confirm that his company plans to defend its intellectual property rights. He said keeping the list private gives N2H2 a competitive edge.

“We don’t publish the entire list, but we do make our URL checker available if people want to check if a site is blocked,” Burt said. The web site also provides the criteria for the 42 categories under which 4 million web sites are blocked.

The software industry says the copyright protections are essential to protect trade secrets.

“We support the DMCA,” said Jeri Clausing, a spokeswoman for the Business Software Alliance. “It’s been through a lot of court tests. We’ll be following the newest case closely.”

The DMCA has been at the center of suits involving software to “decode” DVDs and download music from the Internet.

Earlier this month in New York, magazine and web site publisher Eric Corley agreed to drop a case over decrypting and copying DVDs that was tied to the law after losing a U.S. Supreme Court ruling.

The DMCA has been used to prosecute a Russian programmer who released a program that disabled protections in Adobe Systems Inc.’s eBook software. Dmitry Sklyarov reached a deal under which he must give a deposition and possibly testify for the government in another case.

Edward Felten, a Princeton University professor who has examined anti-piracy technology, has made a request similar to Edelman’s for court permission to talk about his research in the field.

But now the ACLU is trying a new angle, arguing parents and the governments who purchase such software are entitled to know about the products they buy (some filtering software companies do make such information available).

“Current copyright law and blocking software licenses prevent consumers from looking under the hood of the blocking products they buy,” said Ann Beeson of the ACLU. “These products do not work as advertised, and consumers have a right to know they’re really buying.”


American Civil Liberties Union


Business Software Alliance

The Harvard Law School