Edelman V. N2h2: At the Crossroads of Copyright and Filtering Technology

43 Pages Posted: 18 Nov 2004  

Brian R. Fitzgerald

Division of Law

Abstract

When Congress authorized the first American highway in 1806, it is unlikely that it envisioned the extent to which highways would one day connect previously remote parts of the country. Likewise, when former Vice President Al Gore first coined the term information superhighway in 1978, it is unlikely that he realized the extent to which the Internet would one day connect formerly unconnected parts of the world. Gore's linguistic flourish likely sounded futuristic at the time, but it has since become today's cliche. Still, the parallels between the speed-limited network of United States highways and the speed-unlimited modern Internet are not entirely obsolete. As these asphalt and virtual highways connected formerly isolated locations, so has the digital crossroads of the Internet connected previously unconnected matters of law. To be sure, the future holds at least as many Internet-related legal controversies as there are cities and towns on the interstate.

One recent area of conflict is the Digital Millennium Copyright Act (DMCA), and the degree to which its anti-circumvention provisions limit the fair use of copyrighted material, such as movies stored on digital versatile disks (DVDs). Another recent controversy was whether, through the Children's Internet Protection Act (CIPA), the United States government could make the distribution of federal funds to public schools and libraries contingent on their use of Internet filtering software. While the courts have struggled with each of these dilemmas individually, no case had envisioned the collision course of circumvention and filtering technology - that is, until the summer of 2002. As this Note discusses, that collision occurred in Benjamin Edelman v. N2H2, Inc., a suit filed in July 2002 in the District of Massachusetts.

Edelman, a law student and computer researcher, filed suit through the American Civil Liberties Union against N2H2, the manufacturer of Internet filtering software used by many public schools and libraries. According to the complaint, Edelman wanted to write computer programs circumventing the encryption that protects the list of Web sites blocked by N2H2's filtering software. Accessing the list would then enable him to analyze the effectiveness of the filtering software. He also desired to publish and distribute the circumvention programs, the decrypted block list, and other information related to his research. However, he feared that in doing so, he would be at risk of liability under the DMCA ... and the non-negotiable N2H2 license.

This Note analyzes the legal and policy issues that intersect in the Edelman case. Part II details the history and philosophy behind the enactment of the DMCA, as well as provides an outline of its anti-circumvention provisions. Part III then gives an overview of Universal Studios, Inc. v. Reimerdes, the major case involving those anti-circumvention provisions. Part IV discusses Internet filtering software and CIPA, the law requiring public schools and libraries to use filtering software in order to receive certain federal funds. Part V outlines Edelman's case and the research Edelman wished to conduct. This Part also describes how his research could violate the DMCA's anti-circumvention provisions, and discusses the constitutional roadblock of standing that Edelman's suit was unable to overcome. Part VI discusses some of the implications of Edelman's case in the area of statutory interpretation, as well as the impact that filtering software can have on the local level when government puts the force of law behind it. In Part VII this Note focuses on the impact Reimerdes and the DMCA have had on the doctrine of fair use. Part VIII further details how copyright and filtering software came to a crossroads in Edelman's case, and discusses the distinctions between Reimerdes and Edelman. This Part also explains how the court in Edelman had the opportunity to bring clarity to the confusion wrought by the DMCA. Finally, Part IX offers grease for the wheels of Edelman's cause by suggesting alternative solutions. However, while this Note provides such alternatives, it ultimately argues that the court should have addressed the merits of Edelman's case and interpreted the anti-circumvention provisions and exceptions of the DMCA in Edelman's favor.

Keywords: Copyright, filtering software, N2H2, Edelman, DMCA, digital millennium copyright act, CIPA, children's internet protection act, statutory interpretation, public libraries, anti-circumvention, fair use, DeCSS, WIPO

JEL Classification: O34, O38, O39, K39

Suggested Citation

Fitzgerald, Brian R., Edelman V. N2h2: At the Crossroads of Copyright and Filtering Technology. Brooklyn Law Review, Vol. 69, Summer 2004. Available at SSRN: https://ssrn.com/abstract=620727

Brian R. Fitzgerald (Contact Author)

Division of Law ( email )

25 Market Street
Box 080
Trenton, NJ 08625-0080
United States

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