Judge dismisses ACLU's DMCA challenge

A Boston federal judge has dismissed a lawsuit filed by the American Civil Liberties Union (ACLU) that attempted to challenge the anticircumvention provisions of the Digital Millennium Copyright Act.

The suit was filed by the ACLU in July of last year on behalf of Benjamin Edelman, a computer researcher who wanted to reverse engineer Internet filtering software made by N2H2 Inc. for the purpose of researching the effectiveness of the filtering tool.

Edelman sought a declaratory judgment preventing N2H2 from suing him under the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) for violating N2H2's software license. He also asked to be shielded from suits alleging that he misappropriated trade secrets.

However, U.S. District Court Judge Richard Stearns wrote in a decision released this week that "there is no plausibly protected constitutional interests that Edelman can assert that outweighs N2H2's right to protect its copyrighted property from invasive and destructive trespass."

The decision strikes a blow to civil rights advocates' attempts to prove that DMCA provisions that make it illegal to circumvent copyright protections impede citizen's fair use rights. In this case, that meant Edelman's right to perform research. Additionally, the decision thwarts the ACLU and Edelman's efforts to prove the ineffectiveness of Internet filtering software used by libraries and schools to block pornography and other objectionable material. The groups argue that the software also blocks benign and legitimate content, hampering Net users' free speech.

The suit was filed as a preemptive measure because Edelman, a student fellow at Harvard Law School's Berkman Center for Internet & Society, wanted to access the list of sites that the software blocked and publish them.

However, in his decision Stearns said that Edelman's assertion that the Seattle software maker would sue him was "conjecture," and added that there is no evidence of an imminent injury.

Furthermore, the judge said that he had "no inkling of the exact dimensions of the research Edelman proposes to undertake and doubts that Edelman does either."

Stearns declined to give an advisory opinion under the circumstances and dismissed the case.

N2H2 spokesman David Burt said Thursday that the company "is very pleased with the ruling."

"We think the judge vindicated our position that you don't need to decrypt our software to analyze it," Burt said. He added that researchers can find out about the company's filtering database by going to the URL (Uniform Resource Locator) checker at http://database.n2h2.com.

The ACLU and Edelman were not immediately available to comment on the decision Thursday.

IDG News Service

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