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ACLU loses digital copyright battle

A judge rules against the American Civil Liberties Union, which attempts to challenge a controversial copyright law through a lawsuit against filtering-software company N2H2.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
WASHINGTON--The American Civil Liberties Union on Wednesday lost its first attempt to challenge a controversial 1998 copyright law.

In a strongly worded decision, a federal judge in Boston dismissed a lawsuit aimed at defanging part of the Digital Millennium Copyright Act. The ACLU's suit, filed against filtering-software company N2H2 last July, claims the law unconstitutionally interferes with researchers' ability to investigate and evaluate the effectiveness of Internet filtering software.

"There is no plausibly protected constitutional interest that...outweighs N2H2's right to protect its copyrighted property from an invasive and destructive trespass," U.S. District Judge Richard Sterns wrote.

Sterns' ruling dealt a sore blow to opponents of the DMCA, who claim it violates free speech rights protected by the First Amendment, but who have faced a stinging series of defeats in court. So far, every judge who has considered section 1201 of the DMCA has upheld its broad restrictions on the "circumvention of copyright protection systems."

N2H2, based in Seattle, applauded Wednesday's decision. "We are pleased that the court agreed that intellectual property applies with full force to the Internet filtering industry," a spokesman said. "We believe that researchers can already find out about our database through our URLChecker at database.n2h2.com, where anyone, anywhere in the world can see how a site is categorized in our database."

The ACLU said it has not decided whether to appeal the ruling. "We're considering our options," a representative said. "We haven't decided yet what to do."

The lawsuit encompassed more than just section 1201 of the DMCA; it also asked for programmer Ben Edelman to be immunized from theoretical lawsuits brought by N2H2 based on copyright, trade secret and breach-of-contract grounds. Edelman proposed to reverse-engineer N2H2's software, circumvent its encryption mechanism, view the list of verboten sites and distribute a circumvention utility.

Because Edelman can only speculate about the possibility of legal action from N2H2, the lawsuit was premature, Judge Sterns said. "The court has no inkling of the exact dimensions of research that Edelman proposes to undertake and doubts that Edelman does either," Sterns wrote. "Nor does the court have any idea of the full content of what Edelman proposes to publish and thus, the extent to which any such publication might fall within or without the protections of the various laws Edelman cites."

N2H2 and many other blocking-software companies have a long history of aggressively using legal means to defend the secrecy of their encrypted lists.

Filter-hacking protections
There is some legal immunization for blocking-software researchers. When enacting the DMCA in 1998, Congress ordered the Library of Congress to weigh exemptions to the law's broad prohibition against circumventing copy-protection techniques.

In October 2000, the Library of Congress ruled that "the case has been made for an exemption for compilations consisting of lists of Web sites blocked by filtering software applications."

But that exemption explicitly does not permit a researcher to write and distribute software that decodes the encrypted blacklists. Because Edelman wants to do just that, the ACLU argued, the Library of Congress' decision is insufficient.

The DMCA's limited exemption for some forms of reverse-engineering also does not apply, the lawsuit claims. According to the DMCA, reverse engineering must be done for "the sole purpose of identifying and analyzing those elements of the program" necessary to create similar software.

Because Edelman's purpose is instead to critique filtering software, the ACLU claimed, he could be liable under the DMCA.

The Library of Congress is considering a second round of exemptions, and has scheduled public hearings in Washington and California in April and May.