ACLU sues to ask and tell what sites N2H2 blocks

The American Civil Liberties Union (ACLU) has 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 filtering companies 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 … trend in the systems blocking more than just porn,” said Edelman, who will attend Harvard Law School this fall. Edelman is at the center of the suit, which seeks permission for him to conduct such research and challenges 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. Edelman had asked the Seattle-based filtering company N2H2 Inc. 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 of 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 company’s web site also provides 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. It also has been used to prosecute a Russian programmer who released a program that disabled protections in Adobe Systems Inc.’s eBook software.

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 what they’re really buying.”

See these related links:

American Civil Liberties Union

Business Software Alliance

Harvard Law School

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