Researcher studying Internet filtering software challenges federal copyright law

MASSACHUSETTS — A lawsuit filed last week involvingcomputer researchers’ rights and the dissemination of informationis the latest attempt to curb the scope of the far-reaching DigitalMillennium Copyright Act of 1998.

Recent Harvard University graduate Ben Edelman wants to furtherhis research on the effectiveness of Internet filtering softwareby examining the products sold by the company N2H2, which holdsthe largest market-share of blocking technology.

"When an administrator configures N2H2 to block ‘sex,’what in fact is being blocked? I seek to answer that questionrigorously — with a full and complete answer," Edelmansaid.

Edelman has been halted in his research, however, by fearsof legal action from N2H2.

In order to test N2H2’s product, Edelman plans to break theapplication’s encryption code to discover what sites are beingblocked. Under the Digital Millennium Copyright Act, N2H2 couldsue Edelman if he publishes his methods and findings.

"It’s a very competitive market we’re in," said DavidBurt, the public relations manager for N2H2. "If our listwere to become public, our list would no longer be better thanthe competitors’, we would no longer have that competitive advantage."

The suit, Edelman v. N2H2 Inc., seeks an injunctionthat would keep N2H2 from suing Edelman. The American Civil LibertiesUnion is representing Edelman and has asked a federal court torule that researchers have First Amendment and "fair use"rights to thoroughly examine software.

"The case concerns speech; Edelman wants to engage incertain types of research and he wants to publish the resultsof his research and part of that publication may involve publishingsome things that N2H2 doesn’t want him to publish," saidChris Hansen, an attorney with the ACLU.

Courts have upheld the Digital Millennium Copyright Act inevery case that has evaluated it. The magazine 2600 wasprosecuted for publishing a DVD decryption utility; Adobe Systemssuccessfully sued Russian programmer Dmitry Sklyarov for disablingprotection devices of e-books; and Princeton University professorEdward Felton was prevented from publishing his research on anti-piracytechnology.

Internet radio stations are challenging the new royalty ratesfor webcasting music that have been released as a part of theDigital Millennium Copyright Act. Many stations have shut downin anticipation of the annual fees and are asking the courts to reviewthe rates’ fairness.

Edelman’s case is unique, however, in its relevance to currentlegislative issues. "This has got to be the most sympatheticof all possible plaintiffs. He is a legitimate expert in thisfield and he is doing legitimate nonprofit-making research toadvance people’s understanding of these products," Hansensaid.

Edelman’s results would be valuable for public schools andlibraries that are required by the Children’s Internet ProtectionAct to install blocking software on all computers with an Internetconnection. The accuracy of filters to allow access to legitimatesites while preventing harmful content from surfacing has beena source of controversy between librarians and lawmakers.

"With this work, governments, libraries, schools andemployers will be able to assess whether N2H2 is in fact doingwhat they want and expect it to do; without it, the block listremains secret, and users of the software can only wonder,"Edelman said.

Even though N2H2 has not provided an extensive list of allblocked sites, it does have a page on its Web site that allowsusers to check a site’s filtering categorization and suggest correctionsto the administrator. "We tend to be quite responsive tofeedback because we do make mistakes," Burt said.

Such a resource, where users enter Web addresses one at a time, isnot sufficient in understanding what sites N2H2 is blocking, Edelmansaid. It would be nearly impossible because of time and softwarelimitations for users to enter all of the billions of Web sitesinto N2H2’s database to discover what sites are unnecessarilyblocked. In order to be thorough, a comprehensive list is necessary,he said.

The suit against N2H2 also claims that the company’s licenseagreement "severely restricts constitutionally protectedcomputer research and innovation, in conflict with federal intellectualproperty law."

According to the license, "You shall not copy or makeany changes or modifications to the software, and you shall notdecrypt, decode, translate, decompile, disassemble, or otherwisereverse engineer the software."

"We feel that our licensing agreement is valid; it isa standard type of agreement for software licensing," Burtsaid.

A federal district court in Boston is expected to hear thecase before the end of the year.

An overview of the Edelman v. N2H2 Inc. case, along with links to legal documents, is available courtesy of the Berkman Center for Internet & Society at Harvard Law School.Read our related coverage: