November 01, 2003

Censorware companies unhappy about DMCA exemption ruling?

I can't prove it, and shouldn't say too much in specific, but certain indications have been that in the halls of the now-combined censorware company N2H2/Secure Computing, they were not pleased with my censorware DMCA victory

My speculation is that paragraphs such as the following, are anathema to them:

Opponents argued that circumvention is not necessary because other alternative sources for the information sought to be obtained are available, but the proponents of the exemption successfully discredited this assertion. While it is true that limited "querying" of the databases is available on some of the filtering software companies' sites, the circumscribed nature of this querying foreclosed comprehensive or meaningful results. Opponents produced evidence that many reviews of filtering software platforms reached conclusions based on these querying capabilities or by utilizing various sampling techniques, yet this evidence only proved that some parties were willing to settle for the results produced by such superficial tests. In light of the millions (or more) of potential URLs, it is indisputable that actually viewing the entire list of blocked Internet locations will produce data much more comprehensive than querying about one hundred URLs.


The ability to engage in legitimate research, criticism and comment about filtering software is even more compelling as a result of the recent Supreme Court decision upholding the constitutionality of the Children's Internet Protection Act (CIPA). 52 Since CIPA requires libraries to install "filtering software" in order to block access to objectionable material as a condition of receiving federal funds, it becomes all the more important for the public to understand potential problems in particular filtering programs that may be installed in public facilities. Since the Court found that an important safety valve within CIPA was the ability of a library patron to request the disabling of such software, it appears all the more important that the public be able to obtain objective information about the performance or potential limitations of such software in order to make the determination whether to request such disabling.

I wonder if I'll be more successful with my attempts to get press notice in certain circles if I phrase it along the lines of: "Don't promote me because you like me. I know you don't. Rather, promote me because it annoys the Iraqi Information Minister, err, David Burt."

By Seth Finkelstein | posted in censorware , dmca | on November 01, 2003 11:59 PM (Infothought permalink) | Followups
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I suspect that the filtering companies who keep their lists a dark secret are horrified at the exemption. Because they now live in fear that whatever their agendas are and whatever overblocking and error has been allowed to exist in their lists will be exposed.

With luck, and some hard work, those lists will be cracked and put up in the public domain. A move, by the way, which I would applaud. One of the reasons I work with Bob is that the IF2k list is availible - warts and all - to any client. And the client can edit that list.

If the ALA was on its game it would set list disclosure as the base for any library filtering "solution". Without that disclosure, as the Copyright Office points out, it is impossible to evaluate a filtering product. It is also impossible to determine to what degree a product blocks constitutionally protected speech beyond the requirements of CIPA.

Posted by: Jay Currie at November 3, 2003 11:06 PM


Have you read through my DMCA testimony? It's good stuff, I think.

Anyway, one big aspect of it, is that there's several other laws which apply to censorware blacklists - e.g. classic copyright, trade-secret, and shrink-wrap, to name the most critical.

It's not like censorware blacklists are now legally free and clear to be posted - that would be a severe misunderstanding.

I think censorware companies are upset because of more subtle factors. This is a strong finding supporting examination of their blacklists, which feeds into possible future CIPA-based litigation against them.

I wish I had more support. I see such openings here.

Posted by: Seth Finkelstein at November 3, 2003 11:37 PM