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ACLU CHALLENGES CENSORWARE, DMCA
Posted 27 Jul 2002 07:14:59 UTC

The ACLU filed a lawsuit in Federal Court in Boston Thursday that aims to challenge "censorware" companies and a law familiar to many 2600 readers: the DMCA.

In this lawsuit, Harvard researcher Benjamin Edelman (represented by the ACLU) is suing software publisher N2H2, publishers of the 'censorware' program Bess. Bess is an Internet "filtering" program which serves to prevent allegedly offensive websites from being viewed on computers on which it has been installed. According to the N2H2 website, Bess is currently "protecting" more than 16 million students in US schools from visiting websites deemed offensive, including 2600.com.

However, the complete list of the web sites from which Bess is "protecting" us is a closely guarded secret. Past version of Bess have blocked websites such as the Asian Community AIDS Services, Shamanic Path, and the UCSD Lesbian, Gay, Bisexual, Transgender Association. Edelman, in his work with Harvard Law School's Berkman Center for Internet & Society, has been attempting to access the complete list of blocked sites. However, he is worried that, should he succeed in doing so, he could be sued by N2H2 under the terms of the DMCA. Thus he has preemptively sued N2H2, seeking a "declaratory judgment" from the Court stating that he has the right to examine Bess in order to retrieve this list.

Edelman's lawsuit is similar in some ways to Felten v. RIAA, in which Princeton University Professor Edward Felten sued the RIAA seeking to defend his right to reverse-engineer some of the "digital rights management" technologies developed in the hope of protecting consumers from exercising their fair-use rights to make copies of music that they have bought. That lawsuit was dismissed on largely procedural grounds that left the more fundamental DMCA issues unexamined.

The ACLU actions will hopefully lead to a judicial decree that at least some parts of the DMCA are unconstitutional. Hopefully, such a decree will enable us to fight censorware more effectively even as we regain some of the other freedoms that the DMCA has taken from us.

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