ACLU Takes up DMCA Fight

The American Civil Liberties Union has filed suit against a Seattle-based software company in a free speech case that also seeks to roll back parts of the 1998 Digital Millennium Copyright Act.

The ACLU filed the complaint on behalf of computer researcher Benjamin Edelman, who wants to examine the content blocking software owned by N2H2. The company makes content blocking software that many libraries and schools use to restrict access to porn Web sites on public Internet terminals.

The lawsuit is challenging provisions of the DMCA as well as N2H2’s license provision that forces buyers to agree that they won’t try to access the list of sites the software program blocks.

The case presents novel issues of constitutional significance, the complaint said. Foremost among them “is the application of certain provisions of the DMCA to restrict constitutionally protected computer research and innovation.”

Specifically, the complaint takes aim at the DMCA’s restrictions regarding technology or tools that circumvent digital copyright protection systems. It is these provisions of the DMCA that are at the heart of current arguments about balancing the need to protect intellectual property in the digital age with “fair use” of copyrighted materials and the free flow of speech and ideas.

The complaint challenges “the enforcement of a software license that severely restricts constitutionally protected computer research and innovation, in conflict with federal intellectual property law.” It also asserts “the public’s right to know what World Wide Web sites are blocked by Internet content blocking programs that are increasingly mandated by governments.”

The complaint, filed in federal district court in Boston, seeks to let Edelman examine the software program (without being sued by the company) and to share his research tools and results with others. The ACLU said the case has relevance not only for researchers but for parents and other consumers — including thousands of schools and libraries — who want to know what the software is actually blocking.

Ann Beeson, an ACLU attorney heading up the case, said current copyright law and blocking software licenses prevent consumers from looking under the hood of the blocking products they buy. “These products do not work as advertised, and consumers have a right to know what they’re really buying.”

Dave Burt, a spokesman for the Seattle-based N2H2, said he couldn’t comment until the company was served with the complaint. “We’re waiting to speak to our attorneys before commenting. But we do believe in our right to protect our intellectual property and we plan to defend it.”

The ACLU contends that N2H2 is among blocking program vendors in competition for a contract to supply Saudi Arabia with blocking technology to prevent citizens’ from accessing sites about religion, health, education, humor, and entertainment.

Although the DMCA provides a limited exception for accessing lists of blocked Web sites, Beeson said that it is meaningless because another provision blocks users from writing the software tools necessary to access the lists.

The action comes about three months after the Supreme Court tossed out a law aimed at restricting Internet access to porn in public libraries. The ACLU and the American Library Association had challenged the Children’s Internet Protection Act on free speech grounds. Edelman, a computer expert and consultant on staff with the Berkman Center for Internet & Society at Harvard Law School, provided expert testimony for the ACLU in its challenge of the CIPA.

He said his suit against N2H2 is is not on behalf of the Berkman Center or Harvard Law School. When governments in the U.S. and abroad mandate the use of blocking programs, the public has a right to know what is being blocked, Edelman said. “I believe I have a right to uncover this information without being subject to a corporate lawsuit.”

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