December 13, 2018

Edelman, ACLU File Anti-DMCA Suit

Ben Edelman, a soon-to-be law student at Harvard, has filed, with help from the ACLU, a lawsuit challenging restrictions on his right to disassemble and study a Web censorware product from a company called N2H2. The suit challenges the validity of an anti-tinkering clause in N2H2’s license agreement, and of the DMCA provisions that apply to Edelman’s proposed research. The complaint filed by Edelman and the ACLU is light on technical details about N2H2’s product.

Edelman says he wants to tinker with N2H2’s product, in order to determine the list of Web sites that it blocks, and to create and distribute a software tool that lets others extract the list (in case the list changes).

It looks like the main event will be the challenge to the license agreement, with the DMCA issues more remote and hence less likely to be ruled upon by the court. It seems to me that if the Court upholds the validity of the license provisions, then the DMCA issue is moot. And the DMCA’s prohibition on acts of circumvention doesn’t apply, because there is an exception that protects efforts to extract the blocking lists of censorware products. That exception doesn’t apply to the dissemination of technologies for extracting blocked-site lists, so Edelman’s distribution of his proposed list-extraction tool would appear to be prohibited by the DMCA.