News

The war over digital copyright protection intensified in late July, when the American Civil Liberties Union launched a legal attack against the Digital Millennium Copyright Act. Almost simultaneously, a congressman from Southern California introduced a bill that would give copyright holders the right to hack computers owned by suspected copyright violators.

On Thursday, July 25, the ACLU filed a federal lawsuit in Boston on behalf of a 22-year-old computer programmer and recent Harvard graduate, Ben Edelman, who has done considerable research into the effectiveness of Internet filtering software. A Federal law, the Children's Internet Protection Act, requires the use of filtering software by public schools and libraries to prevent unsuspecting computer users from accidentally accessing possibly objectionable websites–especially, children logging on to porn sites.

Unfortunately, filtering software is often unreliable, preventing computer users from visiting legitimate websites, such as informational sites about breast cancer, as Edelman testified in a case the ACLU brought earlier this year to contest the legality of the CIPA, now on appeal to the US Supreme Court.

"Filtering software is of concern at the moment because it is being forced upon a substantial number of Americans as they attempt to use the Internet in their local public libraries, public schools, businesses, and even in their homes," Edelman told Reuters news service. He would like to publish his research, including a "block list" of banned websites, but in doing so he would run counter to other Federal laws—in particular, the DMCA, enacted in 1998, which specifically outlaws the distribution of any information that aids the circumvention of digital copyrights.

In taking up Edelman's case, the ACLU hopes to win an exemption for its client from copyright-violation litigation by Seattle-based software company N2H2, maker of Internet filtering software. The organization also hopes to win a ruling on the constitutionality of the DMCA, which has survived several challenges already, on both First Amendment and "fair use" grounds. Princeton professor and computer expert Edward Felton, who identified watermarks hidden in audio recordings as part of a challenge by the now-defunct Secure Digital Music Initiative but was prevented from publicly discussing his research, told reporters he hopes the ACLU succeeds. The DMCA is "a stupid law," he said. N2H2 is one of many software concerns that have been hammered hard by investors' disenchantment with technology stocks. From a high of $33 per share in 1999, the company's stock had dropped to 14 cents per share by July 26, 2002.

Also on July 25, US Representative Howard Berman (D-CA) introduced a bill that would allow music labels, movie studios, and other copyright holders to sabotage peer-to-peer computer networks in order to block the unauthorized distribution of music and movies. Under the bill, copyright owners would not have to issue warnings of impending attacks, although they would have to inform the US Justice Department of the methodology they planned to use. In a provision that might have been written by Franz Kafka, affected computer users would have to obtain permission from the US attorney general to sue for damages, and would have to prove that they suffered losses in excess of $250. The monetary value of any private individual's data would be almost impossible to establish. Most computer hard drives—the devices most likely to be damaged in Berman's imagined electronic warfare—cost less than the $250 minimum.

"Enabling copyright creators to take action to prevent an infringing file from being shared via P2P (peer-to-peer) is an important first step," Berman said in introducing his legislation to the House of Representatives. "Theft is theft, whether it is shoplifting a CD in a record store or illegally downloading a song."

If his proposal becomes law—there is no companion legislation in the Senate—copyright holders would be free to attack ordinary citizens without fear of reprisal. Recording Industry Association of America (RIAA) chief executive Hilary Rosen called Berman's bill "an innovative approach to combating the serious problem of Internet piracy."

Berman, the ranking Democrat on the House Judiciary Subcommittee for the Courts, the Internet, and Intellectual Property, has also authored other draconian anti-piracy legislation at the behest of the entertainment industry, much of it in collaboration with his Republican colleague Howard Coble of North Carolina. Both legislators have received large contributions from the entertainment industry. Berman, who represents Southern California's San Fernando Valley, received "at least $186,891 from the entertainment industry during the 2001–02 election cycle, including $31,000 from The Walt Disney Co. and $28,050 from AOL Time Warner, Inc.," according to Associated Press reporter Ted Bridis.