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

["Roy Murphy" <murphy(at)panix.com>]

> http://news.com.com/2100-1023-946266.html?tag=politech
>
>   ACLU lawsuit targets copyright law
>   By Declan McCullagh
>   July 25, 2002, 6:30 AM PT
>
>   WASHINGTON--The American Civil Liberties Union plans to file a 
>   lawsuit on Thursday in an attempt to overturn key portions of a 
>   controversial 1998 copyright law.
>
>   The suit asks a federal judge to rule that the Digital Millennium
>   Copyright Act (DMCA) is so sweeping that it unconstitutionally
>   interferes with researchers' ability to evaluate the effectiveness 
>   of Internet filtering software

Reading the complaint at http://www.aclu.org/court/edelman.pdf , it it primarially
about the EULA for the filtering software which prohibits reverse engineering
and attempts to bind him with a confidentiality agreement regarding trade secrets
contained in the program.  The Plaintiff is asking that certain terms of the
EULA be declared unenforcable because they are unconscionable or violate public
policy.  (A typical tactic when faced with a contract of adhesion.)

There are a few DMCA related pleadings, but they are related to asking for declatory
relief that his proposed actions (decrypting the list of blocked sites, distributing
the list and distributing a tool to allow others to do the same) constitute
fair use or falls into the exceptions in the DCMA.  Only if the court is unable
to declare fair use and exceptions, the plading then asks to find the DMCA sections
1201(1)1, 1201(a)2 and 1201(b) unconstitutional.

The full list of pleadings follows:


    PRAYER FOR RELIEF
    WHEREFORE, plaintiffs respectfully request that the Court:

    A. Declare that Mr. Edelman is not liable for breach of the N2H2
       license, because:

       i) the provisions are preempted by federal copyright law;
       ii) enforcement of the provisions would be unconscionable;
       iii) enforcement of the provisions would be contrary to federal 
            and state public policy; and/or
       iv) enforcement of the provisions would constitute a misuse of 
           copyright.

    B. Declare that Mr. Edelman is not liable for direct infringement 
       under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., for 
       any intermediate copying of the N2H2 program or the N2H2 block 
       list necessary for his proposed research and reverse engineering 
       of the program, because such copying is protected by the First 
       Amendment and/or constitutes a fair use consistent with 17 
       U.S.C. §§ 107 and/or 117.

    C. Declare that Mr. Edelman is not liable for direct infringement 
       under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., for 
       copying or distributing the block list, and/or portions of the 
       blocked list, because such copying and distributing is 
       Constutionally protected by the First Amendment and/or 
       constitutes a fair use consistent with 17 U.S.C. § 107.

    D. Declare that Mr. Edelman is not liable for contributory or 
       vicarious infringement for distributing his proposed software 
       tool because the tool has substantial non- infringing
       uses, i.e., it enables the public to make fair use of the block 
       list, and Mr. Edelman is not supervising or acting in concert 
       with actual infringers.

    E. Declare that Mr. Edelman’s proposed circumvention and 
       distribution of the block list does not violate trade secrets 
       laws because:

       i) the block list is not a trade secret; or
       ii) the block list is a trade secret, but Mr. Edelman’s reverse 
           engineering is a proper means of obtaining tha t secret, and 
           the N2H2 license is unenforceable against Mr. Edelman.

    F. Declare that Mr. Edelman’s proposed circumvention of the access 
       and/or copy control of N2H2’s block list does not violate 17 
       U.S.C. § 1201(a)(1) of the Digital Millennium Copyright Act 
       (“DMCA”), because:

       i) it falls within the Library of Congress (“LOC”) exception at 
          37 CFR § 201.40, allowing circumvention to gain access 
          to “compilations consisting of lists of websites
          blocked by filtering software applications”; and/or
       ii) it is a fair use consistent with 17 U.S.C. §§ 107 and 1201
           (c).

    G. Declare that Mr. Edelman’s proposed creation and distribution of 
       a software tool, for the purposes of achieving the circumvention 
       described above, does not violate 17 U.S.C. §1201(a)(2) or 17
       U.S.C. § 1201(b) of the DMCA, because:

       i) it is a fair use consistent with 17 U.S.C. §§ 107 and 1201
          (c), 37 CFR § 201.40; and/or
       ii) the tool will be capable of substantial, non- infringing 
           uses.

    H. In the alternative to F. and G. above, declare that 17 U.S.C. §§ 
       1201(a)(1), 1201(a)(2) and 1201(b) of the DMCA are 
       unconstitutional as applied to Mr. Edelman’s proposed
       research, because they are content-based restrictions on speech 
       that fail strict or even intermediate scrutiny under the First 
       Amendment.

    I. In accordance with the relief requested in A. – H. above, 
       permanently enjoin defendant N2H2 from initiating litigation 
       against Mr. Edelman.
-- 
Roy Murphy      \ CSpice -- A mailing list for Clergy Spouses
murphy@panix.com \  http://www.panix.com/~murphy/CSpice.html