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ACLU Files New DMCA Challenge

Posted by michael on Thu Jul 25, 2002 10:52 AM
from the breakin-the-law-breakin-the-law dept.
Government The Courts News
joeblowme writes "Finally, someone is stepping up to the plate to challenge the DMCA. The ACLU is filing a lawsuit on behalf of a 22-year-old programmer claiming that the law hinders the ability to effectively test internet filtering software. The story can be found here at CNet. Hopefully this will lead to one victory in reducing the scope of the DMCA." The ACLU's press release is available, as is their complaint.
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  • I'd like to see this succeed (Score:5, Informative)

    by krog (25663) on Thursday July 25 2002, @10:55AM (#3951648) Homepage
    i'm glad the ACLU is stepping up to the plate on this one. good that they're on Bruce Perens' side too. renew your membership today! [aclu.org]
  • god bless the ACLU. Become a card carrying member here [virtualsprockets.com].

    • Even sent them the recommended $270 for a year. Almost immediately I got tons of letters practically demanding that I be more generous. I decided they were wasting my money and ignored them from then on. I also was a bit ticked when they supported sending that 17 (?) year old kid back to Russia with his parents after he'd lived here for some time and didn't want to go back, and would be an adult in just a year. But it was the obnoxious dunning letters that got my goat.
      • I give money to ACLU, Planned Parenthood, EFF and NRA. Of those, the only one *not* to hound me for more and more money was EFF. I get bombarded by appeals for money, not just from these guys, but from other groups that think I might be interested in their causes.

        You know what I do with all that crap? I recycle it.

        Side note: sometimes the appeals for money get interesting, and I can only assume that the people who send me such solicitations haven't done their homework. Once I got a solicitation from Handgun Control Inc. I was tempted to send them a photograph of my NRA member card and an extended middle finger, but my maturity got the better of me.

      • . . . Almost immediately I got tons of letters practically demanding that I be more generous.

        This seems to be the MO for all charitable organizations these days. I've given money to many in the past, including Greenpeace, Amnesty International, Doctors w/o Borders, (Men Without Hats?), hell, even the fucking Planetary Society! (to be fair, the L5 society was kind and low-key when I was a member back in the 1980's.) National Wildlife Federation, They ALL started sending me a crapload of unwanted junk mail. I'm almost afraid to start giving to the EFF.
      • > One word, "NAMBLA". Reason enough to be disgusted with the ACLU.

        And if that isn't enough, how 'bout another word:

        Spammer [cpsr.org].

        The ACLU has a a long track record of defending spam as somehow Frea Speach that's worthy of First Amendment protection.

        1997 [cpsr.org]: "commercial speech restrictions on telemarketing calls and unsolicited fax advertisements have passed First Amendment challenges but direct mail and door-to-door solicitations enjoy much greater protection. Given the Supreme Court decision in ACLU v. Reno, on-line messages should receive the same First Amendment protection given traditional print media, which includes commercial mailings."

        2000: [pcworld.com] "...and groups like the American Civil Liberties Union that oppose any restrictions on commercial e-mail"

        2001: [tnr.com]The argument raised by the ACLU and other memters of the First Amendment lobby is that spam, like junk mail in our offline mailboxes, is a nuisance that still must be protected."

        In fact, ACLU has always supported spammers, going back to 1995.

        Source: CuD (Computer underground Digest) 7.50 [niu.edu]

        This issue of CuD quotes from Canter and Siegel's (the original "Green Card Lawyers" spammers) as follows:

        "In May of 1994, believing that the EFF really did support freedom of speech in the same broad and democratic manner as did the ACLU, we initiated a discussion with Mike Godwin, an EFF lawyer. We wanted his views on the censorship issues raised by the behavior of electronic vandals and access providers who had pulled our account for performing the perfectly legal act of Internet advertising. We were amazed when Godwin stated to us that he was so busy sympathizing with those who opposed us, that he had no sympathy left for the other side. So much for freedom of speech (p. 194)."

        -- Canter and Siegel, "How to make a FORTUNE on the Information Superhighway: Everyone's Guerilla Guide to Marketing on the Internet and other On-line Services", 1995

        To which I can only add:

        "Fuck the ACLU and the pigload of potted meat product it rode in under."

        -- Me, 2002.

  • You mean that guy is paid to download porn all day?

    • Re:Test internet filtering software? (Score:5, Funny)

      by SquadBoy (167263) on Thursday July 25 2002, @11:05AM (#3951731) Homepage Journal
      Funny story from my old ISP days. I was a night tech support supervisor. (My first techie job) One of the services we sold was a porn filter. Well we would get cranks who would "test" the filters and send in list after list of sites they got to. Well we in tech support knew the whole thing was bunk and it is impossible to block everything but management wanted us to verify the filters anyway. So long story short we would get list after list of porn sites and asked to make sure that we could get to them through the filter. I would use the porn lists as a reward for doing things the techs did not like to do, for example doing callbacks. So yea we where paid to surf for porn at least part of the night. :)

    • Hilarious but true... (Score:4, Funny)

      by catseye (96076) on Thursday July 25 2002, @11:06AM (#3951735)
      Several years ago (pre dot-bomb), I had a friend who worked in Cupertino at Spyglass Software, makers of SurfWatch. While she had a variety of duties, her primary job was to review site-block requests sent in from SurfWatch users, and as time permitted, web surf looking for sites not accounted for in the SurfWatch "blocked" database. She'd sometimes spend four or five hours a day looking primarily for new XXX sites.

      I remember she said it was bizarre to walk into an office where everyone was hard at work with hardcore pr0n on their screens.

      err, I suppose that was an unforgivable pun. ;-)

      -A.

  • for further info... (Score:4, Informative)

    by Anonymous Coward on Thursday July 25 2002, @10:58AM (#3951676)
    an interview, and more information on Edelman (the programmer/researcher) can be found here here. [corante.com]

  • Not just DMCA. (Score:5, Interesting)

    by www.sorehands.com (142825) on Thursday July 25 2002, @11:08AM (#3951753) Homepage
    This is not just involving the DMCA, but also involves click-wrap the validity license agreements (see paragraphs 62, 70-73 of the complaint).

    But, lets extend this a little. There is also issues of consumer protection, where you purchase a product, but then talk about how bad it is, that could violate a term in a license agreement. Or, it could do damage to your hardware and data, but you can get that fixed for a fee. Both these situations could violate a state's consumer protection act.

  • It only took them a decade or so to realize that there were free speech issues online.

    • Re:About time they noticed (Score:4, Informative)

      by Anonymous Coward on Thursday July 25 2002, @11:17AM (#3951829)
      You're clearly ignorant of the facts. The ACLU has challenged at least three of Congress' attempts to regulate speech on the Internet, IIRC--the Communications Decency Act (way back in 96), the Child Online Protection Act, and the Children's Internet Protection Act (see a pattern here? "Won't someone PLEASE think of the children?!"). Two of those cases went all the way to the Supreme Court, and the third is on its way.

      So how does that constitute ignoring Internet speech issues? Moron.
  • "I don't want to go to jail," said Edelman, who graduated from Harvard in June, and who plans to study law there this fall. "I want to go to law school."
    So, what's the difference???

  • But if they win... (Score:5, Funny)

    by rbgaynor (537968) on Thursday July 25 2002, @11:10AM (#3951767) Homepage
    ...couldn't the lawsuit be considered a circumvention device?

  • card carrying member of the ACLU, (I stopped donating because of their defense of MAMBLA)It's good to see them fight a worthy cause.

    • Re:As a former (Score:5, Insightful)

      by Ralph Wiggam (22354) on Thursday July 25 2002, @12:52PM (#3952464) Homepage
      The whole point of the ACLU is to provide legal defense for unpopular speech. The fact that you felt strongly enough about that to donate money, and then stopped donating when they defended NAMBLA doesn't make sense to me. I completely agree with the ACLU's defense of the Nazis in Skokie, and my family is Jewish. To consider yourself a real civil libertarian, I think you have to support ALL free speech ("Fire" not withstanding). As soon as you draw a line for yourself saying "I support free speech, but those guys at NAMBLA are too repulsive" then you're making a distinction of speech based on taste. And if you're willing to make that distinction for yourself, then by extension you are supporting that distinction by the government. And once the government gets to make free speech decisions based on popularity or taste, we're all screwed.

      I know this is sort of off-topic and I don't mean to call you out personaly, but I'm a very big supporter of the ACLU and you're post sort of struck me.

      -B
  • In my opinion, this doesn't seem like it'll get too far. They need to apply their energies somewhere with a far greater chance of success (video/audio copyprotection that prevents consumers from viewing/listening to products they purchase). It may just be that I don't read the right news sites, but it seems to me that this area has largely been ignored. People complain about the dmca, but they don't seem to want to challenge it in court on valid points. For example, I bought a dvd, i happen to like freebsd, and I don't own a dvd player up at school except for the one on my computer. What happens when I want to view it? I'm not allowed to? Didn't I purchase the right to view that dvd? I didn't purchase the right to copy it and give it to all my friends, that is illegal, and is made illegal under existing laws. The DMCA is redundant and excessive. They make it illegal not just to copy something but to have the means to copy something. Should photocopiers and printers be made illegal? I can scan in and print out a copyrighted book and distribute it to my friends using these tools.
    The problem is that our nation has become a nation of corporations and organizations.
    We are a nation of individuals with individual rights.
    The government has no business making it illegal to do things that have been legal since the beginning of our nation. We have always been allowed to read books, and until recently we have been allowed to view and listen to movies and music which we purchase.

    Hmm, this turned into a bit of a rambling rant, sorry.
  • I really don't understand the ACLU's strategy here. Aren't people already allowed to do this kind of research thanks to the librian of congress's decision on exemptions to the DMCA's anti-circumvention scheme? [loc.gov]

    If he's already allowed to do this type of research, what harm is the ACLU basing their decision on? Won't they just get thrown out of court for bringing an issue that isn't ripe for decision? (i.e. that has no consequences, because the librarian of congress has already crafted an exemption for this research)

    • Re:But isn't this exact case already exempted? (Score:5, Interesting)

      by zoombat (513570) on Thursday July 25 2002, @11:32AM (#3951935)
      I'm no legal expert by any means, but from the ACLU press release [aclu.org]:
      • Although the DMCA provides a limited exception for accessing lists of blocked Web sites, Beeson said that it is meaningless because another provision blocks users from writing the software tools necessary to access the lists.

        "The copyright law says you can look under the hood under certain circumstances but you can't build a tool needed to open the hood," Beeson said. "This irrational rule is chilling important scientific research in violation of the First Amendment."

      Assuming that's really true, it is a pretty stupid and contradictory law that should be changed, in my oh-so-humble opinion.

    • Re:But isn't this exact case already exempted? (Score:4, Informative)

      by quantaman (517394) on Thursday July 25 2002, @11:39AM (#3951977)
      From the article,

      But that exemption explicitly does not permit a researcher to write and distribute software that decodes the encrypted blacklists. Because Edelman wants to do just that, the ACLU argues, the Library of Congress' decision is insufficient.
    • I really don't understand the ACLU's strategy here. Aren't people already allowed to do this kind of research thanks to the librian of congress's decision on exemptions to the DMCA's anti-circumvention scheme? [loc.gov]
      Again, the problem with slashdot is that you guys never read the articles before commenting. The article specifically addresses this:

      The DMCA's limited exemption for some forms of reverse-engineering also does not apply, the lawsuit claims. According to the DMCA, reverse-engineering must be done for "the sole purpose of identifying and analyzing those elements of the program" necessary to create similar software.

      Because Edelman's purpose is instead to critique filtering software, the ACLU says, he could be liable under the DMCA unless the court intervenes.

      Can you guys please read the bloody article before posting.

    • Aren't people already allowed to do this kind of research thanks to the librian of congress's decision on exemptions to the DMCA's anti-circumvention scheme?

      Wow, excellent question...
      Oh wait, no it isn't. RTFA!!!!

      From the article:

      Filter-hacking protections

      There is some legal immunization for blocking-software researchers. When enacting the DMCA in 1998, Congress ordered the Library of Congress to weigh exemptions to the law's broad prohibition against circumventing copy-protection techniques.

      In October 2000, the Library of Congress ruled that "the case has been made for an exemption for compilations consisting of lists of websites blocked by filtering software applications."

      But that exemption explicitly does not permit a researcher to write and distribute software that decodes the encrypted blacklists. Because Edelman wants to do just that, the ACLU argues, the Library of Congress' decision is insufficient.

      The DMCA's limited exemption for some forms of reverse-engineering also does not apply, the lawsuit claims. According to the DMCA, reverse-engineering must be done for "the sole purpose of identifying and analyzing those elements of the program" necessary to create similar software.

      Because Edelman's purpose is instead to critique filtering software, the ACLU says, he could be liable under the DMCA unless the court intervenes.

  • Support for this case... how can we support it?

    Where do I send an e-mail?
    &
    Where do I send a hand written letter?

    Let me (us) know and I'm lickin' stamps. It's the LEAST I (we) can do, and I'd rather do something than just reading about it. I know, I know, hope and pray for the universe to hit a state of harmony in order for the courts to see the evil-doing(TM) in the DMCA, that'll help too!
  • I mean honestly who do you cheer for here? The ACLU is notorious for picking extremely foolish topics and going after them like its some pressing political issue.

    You know the stories I am talking about. "The ACLU has filed suit on the State of Florida for being called the Sunshine State. Mark Walbourne is allergic to the sun and feels inadiquate that he lives in Florida and people refer to it as the Sunshine State in his presence."

    Its probably not popular to the slashdot crowd, but the ACLU is just as weak-minded and lame as the DMCA
    • the ACLU sued my high school the year after i left because our district policy was to cancel school if 20% of the students weren't going to be there. it just so happened that the high school was 20% jewish that year, so they closed school on rash hashana and yom kippur. The ACLU thought that was unfair to the goyim who wanted to go to class.

      if we give our support to the ACLU when they pick a good fight, and ignore them when they pick a stupid one, they might eventually figure it all out.

  • Ah, the DMCA (Score:5, Insightful)

    by smit (164117) on Thursday July 25 2002, @11:35AM (#3951956) Homepage
    Corporations already have a remedy if someone misuses protected material--a civil suit.

    Of course, that is cost-prohibitive to the corporations. Why sue someone over a $10 CD's worth of music.

    But:

    A criminal remedy is just a civil remedy that the government pays for.

    Ta da.

    -- Paul
  • Okay, so we know that writing an app to peek inside the database of restricted domains is verboten under current DMCA rules. What I'm curious about is whether brute-forcing that same list would also run afoul of the laws. (e.g., a distributed effort to hit each domain in turn and note whether or not it's blocked.) Yes, it's reverse engineering, but doesn't involve the creation of "copyright circumvention tools" as such.

    I'm sure this has been tried at some point or another. Anyone know what the legal results were?

  • Does anyone else croggle at the irony in this? A test-case against an overly-restrictive law, for the benefit of testing software used to restrict access.

    Ah, well... we'll take 'em where we can get 'em. ANY ruling that goes against the DMCA is a good start, and even a case that loses can serve to publicise the DMCA's faults.

  • I met Ben at the Internet Law Program at the Berkman Center earlier this summer. I was hoping something like this would happen; he'll make an ideal defendant.

    In a test case like this, what we're looking for is an unimpeachable plaintiff -- someone whose motives can't really be questioned, who actually has a good reason to want to do what he's doing, who has great credentials, and who's really bright. They've got that in Ben; he basically has the clout of Harvard University behind him. Not to mention the near-total respect of everyone at the Berkman Center; they refer to him as their "boy genius".

    There is one potential problem: he's already written software that does nearly what he wants to do without violating the DMCA. For the ACLU's last test case on filtering, he wrote a script that tried to access everything in non-porn categories of Yahoo's directory, keeping track of what it wasn't able to access. This is a reasonably good (though not perfect) method of determining the contents of the blocked-sites list. We have to hope that the court doesn't decide that scripts like the one Ben already wrote are "good enough," and that there is no legitimate research need to create and disseminate a program that decrypts the list itself.
    • From a technical perspective, what if part of the list isn't in Yahoo and what if part of it isn't even in DNS form but rather IP address only? There's no rule that says blocked sites *have* to be by dns label, that's only a convenience. What if a porn site IP is taken over by a legitimate site but remains on the list? How could you tell without access to the list and checking?

    • Re:ACLU is up to no good? (Score:5, Insightful)

      by mberman (93546) <mberman@NOSPAM.earthling.net> on Thursday July 25 2002, @11:07AM (#3951736) Homepage
      Are you sure they don't just get involved in a lot of issues, and the only ones you hear about are the ones that involve publicity?

    • Re:ACLU is up to no good? - what? (Score:5, Insightful)

      by sugrshack (519761) on Thursday July 25 2002, @11:15AM (#3951806) Homepage
      First of all, I think it's good that the ACLU is involved

      Second of all, I'm wondering why the ACLU gets such a bad rap here on ./, a place that seems to stand by some of the same basic principles that the organization swears by.

      It's interesting how people tend to not like an organiztion which is interested primarily in defending some of the basic tenets of the US constitution.

      The ACLU gets involved in many many issues which you do not hear about. Many of these are not "sexy" issues, which make news. For instance, they were recently involved with protecting the rights of Haitian refugess, basically preventing people from being deported into deplorable situations. Sure, many of you don't like the idea of immigrants, even though 99.9% of you (in the US) are descended from immigrants, but it is the basic principles of protection from tyranny of the majority that the ACLU defends.

      This particular issue is of direct relevance to /. as they are going after legislation which most here (rightly) hate. However, they exist largely to protect the public from the "mob mentality" that often ignores the rights of many groups whose opinions are in the minority.

      Witness their actions regarding the USA PATRIOT act; a ridiculous bill which basically removes many basic freedoms guaranteed in the constitution under the rubrick of protecting us from enemies. Sure there may be a point to trying to be better protected, but I'm of the view that if you remove freedom, there's very little left to protect.

      Sure the ACLU ends up getting involved with issues that may end up pissing off some their own constituencies (e.g. Skokie) but it's the principles of freedom that they stand for, not just the rhetoric.

      If you're going to bash the ACLU, then provide an alternative.

      • Second of all, I'm wondering why the ACLU gets such a bad rap here on./, a place that seems to stand by some of the same basic principles that the organization swears by.

        Slashdot does not have a consensus on the value of the ACLU, "basic principles", the quality of various operating systems or programming languages, the best drugs to take while coding, or just about anything else.

    • I usually cannot stand the ACLU. IMHO I feel like they usually get involved in issues that they really don't belong in because of the publicity they recieve. I hope this isn't the case here. I see their power and finances being a great benefit to the fight against the DMCA. I hope they can help fight for rights that I feel like we should have here in the US.

      Agreed, I usually get suspicious whenever I hear the ACLU has gotten involved in a case. As most of the cases they tend to get involved in are the highly controversial and highly visable cases. And I rarely find myself agreeing with thier point of view.
      However, there is the old axiom, "The enemy of my enemy is my ally". So, in this case, I'm happy to have them onboard.
      Maybe there will finally be enough money to throw at this law to get it killed.

      • Agreed, I usually get suspicious whenever I hear the ACLU has gotten involved in a case. As most of the cases they tend to get involved in are the highly controversial and highly visable cases. And I rarely find myself agreeing with thier point of view.

        Some other things that are true:

        -The only military actions that happen are the ones that you hear about.
        -The only ideas that exist are the ones that you've heard about.

        The ACLU does a great deal of stuff. The only time they make the news is when something newsworthy happens. It doesn't seem like you've accounted for this.
    • have you considered getting your news from other sources besides right-wing biased news channels. of course, i can't remember many of those when i lived in america. network news, fox news, cnn and msnbc are all biased to the right.

      mother jones and salon are about all i can think of actually.
        • Yes. CNN, like the majority of corporate-owned news sources, is center-right in bias. The reason you feel it's left-biased is due to mainly to a twenty-year shift to the right in US political attitudes, and to a fifty-year Republican propoganda campaign. On pure social issues such as abortion and gay rights, a soft liberal bias isn't uncommon. Social issues aren't a threat to the profits of the 6 multinational corporations that control 90% of the media in the US. On economic issues, however, the corporate media has a strong neoliberal bias. Consider CNN reporting that tear gas wasn't being used in Seattle, until internet reports got to enough people to force them to retract their lies. Consider the way issues such as DeCSS are reported. Consider the way the East Timor genocide wasn't reported for twenty years. Consider the complicity of the media in presenting a president such as Bill Clinton, who took positions to the right of those of Richard Nixon on labor, the environment, taxes, workplace safety, and practically every other issue other than abortion and his gay-rights waffling, as solidly left wing. Or portraying Bob Dole and Dubya as moderates. When was the last time CNN reported the way the WTO has been set up as a completely undemocratic supergovernmental authority? The World Bank? The times NAFTA's been used to prevent enforcement of US environmental laws?

          One of the claims I'm absolutely certain you're going to bring up is how the majority of the commentators describe themselves as liberal. While many may be soft liberals, there are practically no solid left-wingers who ever appear on the national media. The right, however, is more than adequately represented. When was the last time Noam Chomsky was invited on TV to balance George Will? How often does Michael Moore balance Pat Buchanan? Instead, it's an airhead soft liberal like Elanor Clift or an incoherent authoritarian like Jesse Jackson who supposedly represents the left.

          The corporate media is not in any way left wing. They range from CNN's neoliberal economic/social soft liberal presentations to Fox News' neoliberal economic/social conservative. But if you want reporting without a neoliberal bias, you have to look beyond ABC, CNN, or Fox.
        • ah, see, if you lived in a country that actually had a left-wing, you'd see your mistake.

      • IIRC, they gave Hillary Rosen (of RIAA fame) an award for protecting free speech rights. Given the ACLU's long history of fighting for free speech rights, I assume they collect quite a bit of money from the media.

        This is true, and it's because the media want the ability to say as much as they possibly can. As soon as it comes to other people saying things that threaten the media's business model, the media becomes a bunch of jackboot thugs ripping out people's vocal chords.

        During the 2002 Cybercrime Conference I had the opportunity to talk to one of the RIAA's lawyers. We got to talking about free speech.

        "You'll probably find that we're on the same side there. We're huge defenders of free speech."

        "I'll believe that when you guys file an amicus brief stating that source code is protected speech."

        He had a genuinely hard time grasping what I was talking about.

      • IIRC, they gave Hillary Rosen (of RIAA fame) an award for protecting free speech rights.

        You're right, they did... in 1997 [aclu.org]. Perhaps you aren't deliberately being trollish, but the water shouldn't be muddied to fool people into thinking the ACLU agrees with Rosen's more recent behavior.

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