Re: DO WE REALLY WANT A SECRET CENSORSHIP SYSTEM

["Stefaan Verhulst" <sverhulst@hotmail.com>]

Dear Peng Hwa -

> On the issue of secrecy of censored sites, I don't see how the ACLU can
> force anyone to reveal a proprietary list. Not only is there an economic
> interest, but the right not to speak is the obverse of the right to
> speak--they are opposite sides of the coin.
>
See article below -
wishes
Stefaan
November 3, 2000
CYBERLAW JOURNAL
Copyright Office Issues Unusual Rule
By CARL S. KAPLAN

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      Related Sites
      These sites are not part of The New York Times on the Web, and The
Times has no control over their content or availability.
      . Recommendation of the Register of Copyrights and Determination of
the Librarian of Congress
      . U.S. Copyright Office's information page on DMCA exemption
rulemaking
      . Title 17 U.S. Code, Section 1201: Circumvention of Copyright
Protections
      . SurfControl
      . Solid Oak Software, Inc.
      . Peacefire
      . Censorware Project


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t's not every day that the federal government gives its blessing to hacking.
But that's what happened last week when the U.S. Copyright Office issued a
special rule clarifying a new federal law that governs copyright in the
digital age.

In a nutshell, the Copyright Office said that the new law, the Digital
Millennium Copyright Act of 1998, permits people in certain circumstances to
break through the technological barriers that safeguard lists of blocked Web
sites maintained by many types of filtering software.

This means that critics of filtering software are free under the new law to
hack their way past encryption schemes to get their hands on the so-called
blacklist of banned sites. The loophole for censorware hackers is designed
to further the public debate about the use and value of blocking software,
according to the Copyright Office.

"We are pleased by the decision," said Chris Hansen, a lawyer specializing
in Internet issues with the American Civil Liberties Union. "We've always
believed that one of the principal flaws [of filtering software] is the
secrecy of the list of banned sites."

Hansen added that Congress is poised to pass laws requiring the use of
filtering programs in public schools and libraries. "It is hard to see how
we can have a congressionally-mandated secret system of censorship," he
said. Now, he predicted, the Copyright Office's ruling will help peel away
the secrecy surrounding filtering software.

Jamie McCarthy, a computer programmer and filtering software critic who has
been involved in several projects designed to analyze the value of blocking
products, said that he also welcomed the new rule. He said the decision ends
the legal limbo that he and his cohorts had been in for the past few years.

"The rule means it's finally legal to really start decrypting the banned
lists and looking at them," McCarthy said. He said that since 1996, he had
done at least six reports examining the value of filtering products. For
some of those studies, he relied on anonymous informants who would decrypt a
blacklist of banned sites and send them to him. Recently, he added, the
advent of new copyright laws had made him and his fellow researchers
"disinclined" to do more reports. "We didn't want to get into a protracted
legal battle," he said.

Some software products, such as filtering or blocking software, restrict
users from visiting certain Web sites. These software programs often include
lists of sites to which the software will deny access. These lists of sites,
which are jealously guarded by the filtering companies, are often encrypted
to thwart commercial competitors. In September, for example, a federal
appeals panel affirmed an injunction against two authors of a program
capable of decrypting the list of blocked Web sites for CyberPatrol, a
popular filtering program.

Anti-filtering organizations such as the Censorware Project and Peacefire
have long charged that some filtering products block excessively by denying
access to non-objectionable material. Representatives of filtering companies
deny those claims.

The narrow permission-to-hack rule, issued by the Librarian of Congress and
published in the Federal Register on October 27, is one of two
newly-recognized exemptions to a key section of the Digital Millennium
Copyright Act, which generally prohibits anyone from acting to pierce the
high-tech safeguards put in place by copyright holders to control access to
their works, including computer software, DVDs, books and music in digital
form.

That provision of the law had been had been inactive for the past two years,
pending a congressionally mandated study by the Registrar of Copyrights. As
of Oct. 28, the law banning the act of circumvention became effective, in
conjunction with the filtering software exception. A second exception
recognized by the Copyright Office concerns the right to penetrate
electronic barriers protecting copyrighted material when the barriers are
erected as a result of a malfunction. The Copyright Office declined to issue
other exemptions that might have otherwise allowed programmers to decrypt
movies or music for the purpose of making fair use copies.

A second key portion of the Digital Millennium Copyright Act prohibits
creating and making available certain computer codes that defeat
technological safeguards of copyrighted works. That separate provision,
which became effective in 1998, was the focus of a recent federal case in
New York brought by major Hollywood studios against Eric Corley, the
publisher of an online magazine. In August, a federal judge ruled that
Corley had violated the so-called "anti-trafficking" prong of the law by
distributing a program capable of cracking the security code on DVDs.

Irwin Schwartz, a lawyer who represents SurfControl, a California-based
company that distributes CyberPatrol, said that he believed the Copyright
Office rule would make little practical difference. He said that under the
ruling, a person who circumvents the encryption code protecting a filtering
software's so-called blacklist may not be sued under the Digital Millennium
Copyright Act. But, he said, the possibility exists that if a hacker
published parts of the banned list, he could be sued by a filtering company
under a host of other legal theories, such as violation of copyright or
trade secret law. The act of circumvention itself could be subject to laws
regarding trespass or breach of contract, he said. Whether such theories
would prove successful remain to be seen, he acknowledged.

"The Digital Millennium Copyright Act provides additional weaponry for the
copyright holder to protect its rights," said Schwartz. Speaking of the
exception, he said: "I'd say it remains to be seen whether it is effective.
It's so early and the way the cases play out is hard to foresee."

In its report, the Copyright Office did not conclude whether the
reproduction or display of a list of banned sites for the purpose of
criticism would be a copyright violation. But it did say that such a display
"could constitute fair use" and thus might be permissible.

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