The first known attempt by the American Civil Liberties Union to beat part of the Digital Millenium Copyright Act in court - a First Amendment lawsuit to let a programmer decode and beat a Web filtering program he called flawed - was thrown out by a federal judge April 7.
Saying there was "no plausibly protected constitutional interest" that overrode a filtering software maker's right to protect its creation, even if a computer researcher wanted to analyze it by reverse engineering it, U.S. District Judge Richard Sterns threw out the ACLU's suit on behalf of Harvard Law School computer expert Benjamin Edelman.
"The court has no inkling of the exact dimensions of the research that Edelman proposes to undertake, and doubts that Edelman does, either," wrote U.S. District Judge Richard Sterns, in saying Edelman had sued prematurely. "Nor does the court have any idea of the full content of what Edelman proposes to publish and...the extent to which any such publication might fall within or without the protections of the various laws Edelman cites."
N2H2 moved to have the lawsuit thrown out last September, and the oral arguments on that motion were heard last month. "N2H2 argues persuasively," Sterns ruled in dismissing the suit, "that Edelman cannot satisfy...an 'imminent, not 'conjectural' or 'hypothetical'...injury in fact," which he said was established by a 1992 Supreme Court ruling. "Edelman argues that there is a likelihood that N2H2 will file suit if he accepts (their) licensing agreement and then violates its terms by conducting and publishing his research...at the moment, the prospect...is supported only by Edelman's conjecture."
Edelman had claimed - and the ACLU backed him up - a First Amendment right to analyze N2H2, Inc.'s Internet blocking software and to publish his findings. The software is used by a number of schools and libraries to filter child porn and other "objectionable" Websites, but Edelman had claimed the software also blocked Constitutionally-protected content "indiscriminately".
By filing on behalf of Edelman, the ACLU had hoped to undo at least part of the controversial 1998 Digital Millenium Copyright Act and protect Edelman from other prospective N2H2 lawsuits. The ACLU has not yet decided whether to appeal the Sterns ruling.
"We are pleased that the court agreed that intellectual property applies with full force to the Internet filtering industry," an unnamed N2H2 spokesman told reporters. "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."
According to court papers in the case, Edelman's plan was to perform reverse engineering on an N2H2 blocking program, create and use a circumvention tool to bypass its blocks and read the list of blocked Websites, analyze the blocking list for accuracy, publish his analysis, and distribute the circumvention tool "to facilitate other fair and non-infringing uses of the block list."
The Library of Congress in 2000 had ruled that were exemptions to the DMCA's rule against breaking filter blocks' coding: lists of Websites blocked by the filters, and literary works - "including computer programs and databases" - protected by access mechanisms that malfunction or are damaged or obsolete. But the exemptions said nothing about a programmer like Edelman who might want to create his own circumvention tool as part of his research efforts. Those exemptions expire in late October 2003.
The ACLU sued N2H2 on Edelman's behalf last July. "Current copyright law and blocking software licenses prevent consumers from looking under the hood of the blocking products they buy," said ACLU lead counsel Ann Beeson at the time. "These products do not work as advertised, and consumers have a right to know what they’re really buying."
Edelman said at the time the suit was filed that if governments mandate filtering, the public has a right to know just what's being blocked, especially if it involves Websites other than "objectionable" or child porn Websites. "I believe I have a right to know what is being blocked, and I believe I have a right to uncover this information without being subject to a corporate lawsuit," said Edelman, who works at Harvard Law's Berkman Center for Internet and Society but sued entirely on his own.
Edelman wasn't an unfamiliar name around controversies involving the law and the Internet when he took on N2H2 - he had testified previously in the ACLU's challenge to the Children's Internet Protection Act, the federal law tying federal funding for schools and libraries to their putting filtering software into Internet-connected terminals. The ACLU and other civil libertarians argue the law is too broad and doesn't account for filtering programs blocking mainstream information sites as well as porn or other "objectionable" sites.
The U.S. Supreme Court heard arguments for and against the CIPA in early March.
