Computer scientist, ACLU challenge digital-copyright law

By The Associated Press

07.26.02

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BOSTON — The American Civil Liberties Union filed suit yesterday challenging a controversial 1998 federal law that forbids the dissemination of information that could be used to bypass copy-protection schemes.

The suit, filed in Boston federal court on behalf of computer scientist Benjamin Edelman, argues that programmers and researchers should have free-speech protections to explore weaknesses in programs and share their research with others.

It challenges both the Digital Millennium Copyright Act and the license of N2H2 Inc., a Seattle company that makes a program used to block Web sites for public libraries and state governments.

Edelman, a researcher at Harvard University, had hoped to research alleged flaws in N2H2's software, but was denied a list of the sites the software blocks.

Edelman 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.

"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 states.

The suit seeks a declaratory judgment and an injunction that would allow Edelman to proceed with his research.

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

The DMCA has been used to prosecute a Russian programmer who released a program that disabled protections in Adobe Systems Inc.'s e-book 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 similar request for court permission to talk about his research.

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).

"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 e-book or music," said Jonathan Zittrain, a Harvard Law School copyright law expert who has worked with Edelman but is not involved in the case.

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.

"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."

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

David Burt, a spokesman for N2H2, said the company had not reviewed the suit and had no immediate comment.

"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."

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