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Re: [dvd-discuss] New DMCA case: ACLU sues filtering software maker N2H2

At 01:38 PM 7/25/2002 -0500, Tim Neu wrote:
>On Thu, 25 Jul 2002, Bryan Taylor wrote:
> > Wasn't there something about blocking software in the LOC's report. I 
> vaguely
> > remember that web blocking software was specifically named as an exception.
>Yeah, an excemption from the anticircumvention statute but not for the
>distribution of circumvention tools.

D. The Two Exemptions

1. Compilations Consisting of Lists of Websites Blocked by Filtering
Software Applications
     Certain software products, often known as ``filtering software'' or
``blocking software,'' restrict users from visiting certain internet
websites. These software products include compilations consisting of
lists of websites to which the software will deny access. Schools,
libraries, and parents may choose to use such software for the purpose
of preventing juveniles' access to pornography or other explicit or
inappropriate materials on their computers. R56. At least one court
that has addressed the use of such software has concluded that
requiring use of the software in public libraries offends the First
Amendment. See, e.g., Mainstream Loudoun v. Board of Trustees of the
Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998). See also
Tenn. Op. Atty. Gen. No. 00-030 (2000). On the other hand, the Supreme
Court has suggested that availability of such software for use by
parents to prevent their children from gaining access to objectionable
websites is a positive development. Reno v. American Civil Liberties
Union, 521 U.S. 844, 876-77 (1997); United States v. Playboy
Entertainment Group, Inc., 120 S.Ct. 1878, 1887 (2000).
     Critics charge that some filtering programs unfairly block sites
that do not contain undesirable material and therefore should not be
filtered. One commenter alleged that such programs have an error rate
of 76%. R56 at 6. Another commenter described the ``long history of
errors in blocking sites,'' and asserted that the software
manufacturers have not responded appropriately. R26. The names of
blocked websites are compiled into lists which are protected by
copyright as compilations. Several commenters assert that manufacturers
of filtering software encrypt the lists naming the targeted sites and
that they are not made available to others, including the operators of
the targeted sites themselves. R56. These commenters assert that they
have no alternative but to decrypt the encrypted lists in order to
learn what websites are included in those lists. Persons have already
decrypted the lists for the purpose of commenting on or criticizing
them. R56. One commenter cites an injunction against authors of a
program decrypting the list of blocked websites. R26. See Microsystems
Software, Inc. v. Scandinavia Online AB, No. 00-1503 (1st Cir. Sept.
27, 2000). Such acts of decryption would appear to violate 1201(a)(1)
if it took effect without an exemption for these activities.
     This does appear to present a problem for users who want to make
noninfringing uses of such compilations, because reproduction or
display of the lists for the purpose of criticizing them could
constitute fair use. The interest in accessing the lists in order to
critique them is demonstrated by court cases, websites devoted to the
issue, and a fair number of commenters. See generally R73 (Computer
Professionals for Social Responsibility); R38; PH20; and PH5
(California Association of Library Trustees and Commissioners, reverse
filtering); WS Vaidhyanathan. There is uncontroverted evidence in this
record that the lists are not available elsewhere. No evidence has been
presented that there is not a problem with respect to lists of websites
blocked by filtering software, or that permitting circumvention of
technological measures that control access to such lists would have a
negative impact on any of the factors set forth in section
1201(A)(1)(C). The commenters assert that there is no other legitimate
way to obtain access to this information. No one else on the record has
asserted otherwise.
     A review of the factors listed in 1201(a)(1)(C) supports the
creation of this exemption. Although one can speculate that the
availability of technological protection measures that deny access to
the lists of blocked websites might be of benefit to the proprietors of
filtering software, and might even increase the willingness of those
proprietors to make the software available for use by the public, no
commenters or witnesses came forward to make such an assertion. No
information was presented relating to the use of either the filtering
software or the lists of blocked websites for nonprofit archival,
preservation and educational purposes. Nor was any information
presented relating to whether the circumvention of technological
measures preventing access to the lists has had an impact on the market
for or value of filtering software or the compilations of objectionable
websites contained therein. However, a persuasive case was made that
the existence of access control measures has had an adverse effect on
criticism and comment, and most likely news reporting, and that the
prohibition on circumvention of access control measures will have an
adverse effect.
     Thus, it appears that the prohibition on circumvention of
technological measures that control access to these lists of blocked
sites will cause an adverse effect on noninfringing users since persons
who wish to criticize and comment on them cannot ascertain which sites
are contained in the lists unless they circumvent. The case has been
made for an exemption for compilations consisting of lists of websites
blocked by filtering software applications.

James S. Tyre                               mailto:jstyre@jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net