April 12, 2003
A New Challenge to the DMCA is Dismissed

A federal court in Boston rejected on Thursday a new challenge to the anticircumvention provisions of the DMCA when U.S. District Court Judge Richard Stearns dismissed the lawsuit filed by the American Civil Liberties Union on behalf of Benjamin Edelman. Civil Rights Advocates attempted to prove with Eldeman's suit that the DMCA provisions making it illegal to circumvent copyright protections impede citizen's fair use rights, in this case Edelman's right to perform research.

A computer researcher at Harvard Law School's Berkman Center for Internet & Society, Edelman, in July of last year, sought a declaratory judgment preventing N2H2 Inc., a business that produces an internet filtering software, from suing him under the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) for violating N2H2's software license.

Eldeman writes: "I seek to research and document sites categorized and restricted by Internet blocking program N2H2. N2H2's block site list is protected by technical measures including an encryption system, but I seek to write software that will nonetheless allow me to access, analyze, and report its contents. However, I fear that conducting this work may expose me to liability for violation of the N2H2 License, of the Copyright Act of 1976, and of the Digital Millennium Copyright Act, as well as for misappropriation of N2H2's trade secrets. With representation by the ACLU, I therefore seek from federal court a declaratory judgement that I may conduct this research and publication without fear of liability."

As a part of his research, ITworld reports he had planned on reverse engineering Internet filtering software made by N2H2 Inc. for the purpose of researching the effectiveness of the filtering tool. He wanted to access the list of sites that the software blocked and publish them. He also wanted to prove the ineffectiveness of Internet filtering software used by libraries and schools to block pornography.

In the decision released this week Judge Stearns wrote that "there is no plausibly protected constitutional interest that Edelman can assert that outweighs N2H2's right to protect its copyrighted property from invasive and destructive trespass."

Posted by Valentina Pasquali at April 12, 2003 12:00 PM

As others have said, the idea of trespass to intellectual property is ridiculous. That is what makes intellectual property so unique: many can possess a piece of information at the same time without limiting the ability of others to also possess that information. (I can't possess your intellectual property without your consent and upset your ability to possess it.)

Reverse engineering (RE) is something that shouldn't be demonized as "destructive" when the entire process is highly creative. What's more, RE is very important in the free software/ open-source movement. RE allows such software like AbiWord and OpenOffice.org to interact with proprietary technology like Microsoft file formats.

I vote Edelman should go ahead and do it... There's no way to tell exactly what the hell blocking programs are actually blocking unless this circumvention is done or N2H2 gives Edelman the list (with some sort of non-disclosure agreement, of course)... frankly, it seems like N2H2 should be willing to give the list out to show that it is genuinely concerned with accuracy and the free speech of those of us with web pages. In the end, the list of URLs and the binary nature of a site being blocked or not being blocked are parts of a technology that Edelman should be allowed to reverse engineer without violating a license agreement especially considering that his research would consist of running the program as it was intended to be used by N2H2 (granted, over and over again)... it doesn't seem reasonable that software companies can claim that they are special and categorically immune to reverse engineering by forcing anyone who buys their product to license away such a right.

Posted by: Joseph on April 13, 2003 11:40 PM
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