A computer researcher named Benjamin Edelman, represented by the ACLU, has filed this suit to establish his First Amendment and "fair use" right to examine the full list of sites contained in an Internet blocking program and to share his research tools and results with others.
Internet blocking programs (also known as "filtering programs" or "censor-ware") are computer programs designed to prevent access to certain Web sites. N2H2, Inc., the defendant in this case, develops, markets and licenses a blocking program that prevents computer users from accessing content that has been categorized by N2H2 as objectionable. Part of the program is a list of sites to block - its "block list" - that contains hundreds of thousands of Web sites representing millions of pages of Web content.
Blocking programs such as N2H2's are notoriously inaccurate, often preventing access to sites that should not be blocked while failing to block many that should. And blocking programs are increasingly used in public schools and libraries and by various government agencies. Because of this growing public role, it is especially important that the public be able to check and evaluate how these programs work, and what Web sites are being blocked. However, most blocking program companies, like N2H2, consider their block lists to be proprietary trade secrets, and will only distribute them in an encrypted form that the program itself can understand but people can't. As a result, current and potential customers, including schools and libraries, cannot effectively evaluate the program's accuracy, and students, library patrons and other citizens forced to use blocking software are kept in the dark about the extent of Web site censorship.
Ben Edelman is a student at Harvard and a researcher at its Berkman Center for Internet & Society, where he studies and writes about the Internet, its design, and its uses. He served as an expert witness on blocking programs in the ACLU's challenge to the Children's Internet Protection Act, a federal statute requiring the use of such programs in public libraries. He would like to continue his research on N2H2, but cannot proceed further without being able to access and examine its full list of blocked sites. To do this he will have to "reverse engineer" N2H2's program to figure out what security measures are preventing him from reviewing the list. With that information he can create a software tool to "circumvent" those measures and create a readable version of the list for review. He then wants to publish the block list, the circumvention tool that he used to get the list, and the results of his analysis of the list. Given the increasing role of blocking programs as an official means of censoring use of the Internet, the kind of research Ben does is an important means for citizens to monitor the software and its potential for abuse.
Represented by the ACLU, Ben is asking the court to declare that his proposed research does not violate the law. Otherwise, N2H2 could sue him on four grounds, claiming that his research:
Until the court confirms his constitutional right to engage in these activities - a right that the DMCA and other legal developments have cast into doubt - experts like Ben cannot safely conduct this kind of research, clear as it is that such a project is in the public interest.
The DMCA is a federal law, enacted in 1998, that expanded federal copyright liability in a variety of ways. The portion of the DMCA at issue in this case prohibits people from "circumventing" any "technological measures," that prevent unauthorized access to or copying of copyrighted works. And another provision of the law bans the distribution of any technology that can be used to circumvent copy-protection technologies.
Under a longstanding principle of copyright law, consumers are allowed to make "fair use" of a copyrighted work. This exception protected legitimate uses of copyrighted works such as parody, criticism, commentary, news reporting, teaching and research. The DMCA, however, limited the fair use exception by prohibiting the circumvention of content-control technologies even when that circumvention is done for legitimate purposes, such as criticism or research.
The ACLU believes that since Ben's purpose is legitimate research and criticism rather than piracy, his planned research project (copying N2H2's copyrighted program to reverse engineer it and obtain and publish the copyrighted block list) is fair use and protected by the Constitution.
The fair use exception does not clearly apply to the DMCA's anti-circumvention and tools provisions. Even if you have a fair use purpose for doing so, circumventing a technological measure or distributing tools for circumvention may be prohibited under the law. Although the ACLU believes the First Amendment requires a fair use exception to the DMCA, the only federal appellate court to consider the issue so far has ruled the other way.
The Librarian of Congress is authorized under the law to create exceptions to the anti-circumvention provision every three years, and one current exception specifically allows circumvention for the purpose of accessing block lists. It is possible that this exception applies to Ben's planned act of circumvention (defeating the encryption that conceals the block list). Illogically, however, this exception does NOT apply to the tools provisions. In other words, even though Ben and everyone else has a right to perform that act of circumvention, creating and distributing the tool necessary for actually exercising that right is prohibited.
Once Ben is able to obtain the full block list, its publication will allow other researchers to analyze and verify his work, and to conduct their own analyses of the data. For example, some might want to analyze the list for bias toward a specific type of content or viewpoint, such as lesbian and gay speech, or political speech. And N2H2 customers, including thousands of public schools, public libraries, and government agencies, could use the block list to evaluate the accuracy of N2H2's blocking program, and to report new mistakes to N2H2.
In addition, because N2H2's block list changes over time, distribution of Ben's circumvention tool would allow the public - including libraries, schools, and other researchers - not only to verify his research, but also to conduct their own ongoing analyses of the software's accuracy. Other researchers could build on his work to develop tools for testing other blocking programs, while programmers who design encryption software and other security measures could use it to improve upon the weaknesses in N2H2's encryption The accuracy of the block list itself would gradually improve as newly discovered mistakes were reported to N2H2, decreasing the number of sites that are improperly censored. Yet none of these beneficial uses of the tool are considered under the DMCA.
The issues brought forth in this case have an even broader significance as well. More and more of the functions of Americans' daily lives are being run by computer programs, from our cell phones to our televisions to our cars and beyond. At issue is whether those software programs will be able to run as impenetrable copyrighted "black boxes," their operation and design invisible to the public that is governed by them, or whether they will be subject to the checks and balances that come from a public right to open, inspect, and analyze how they operate.
The fair use doctrine is not a technicality in copyright law. It is a central pillar of protection for free speech and crucial to the balance this nation has always struck between copyright law and the First Amendment. Under copyright law, the government bans citizens from publishing certain content (material copyrighted by others), while under the First Amendment, citizens are guaranteed the right to publish whatever they want. The fair use doctrine ensures that copyright law can never be used to limit the right to discuss, analyze, criticize, mock, or teach someone else's work, even though it is copyrighted. Because it is impossible to do any of those things fully without the right to fair use, the ACLU believes that fair use is protected under the First Amendment. That is why the ACLU is asking the courts to confirm that even in the absence of statutory protections, the First Amendment requires a fair use exception to the DMCA.
N2H2's software license unfairly prevents customers from conducting legitimate research on the blocking program. After customers have already paid for, downloaded, and begun to install the N2H2 program, a contract appears on their screens defining the terms under which the N2H2 is licensing its software. In order for installation to proceed, customers must click a button indicating that they accept those terms. There is no possibility of negotiation, and no allowance for returning the program if a customer doesn't accept the license terms. The license is extremely restrictive, prohibiting any unauthorized copying or reverse engineering of the program, or use or disclosure of the block list, even for legitimate purposes. Ben's proposed research, which requires all those things, is therefore prohibited, along with any other serious evaluation of the program's accuracy.
While current law protects the secret methods and technologies ("trade secrets") used by businesses, reverse engineering has long been considered a legal and proper way to discover those secrets. Reverse engineering software has also been recognized as a fair use in the copyright infringement context. The reason both trade secret and copyright law allow reverse engineering is because it prevents secrecy from impeding scientific progress, and allows new competitors to enter an established market without having to re-invent the necessary technology.
In short, N2H2's license is illegitimate because it attempts to force consumers into a contract that prevents them from criticizing the product by banning them from reverse engineering it, despite a solid and longstanding public policy that such reverse engineering is legitimate.