Interview with DMCA-challenger

BrianWCarver writes "The Chronicle of Higher Education has an interview with Ben Edelman, the Harvard law student and internet researcher who is bringing suit against the DMCA with the ACLU. Slashdot covered the announcement of this legal challenge. To refresh your memory, Edelman wants to be able to research the lists of sites blocked by internet filtering software, and to be able to publish his research. He's no lawyer yet, but he responds quite well to several objections to the case."

Comments

He's no lawyer...

[Amarok.Org]

He's no lawyer yet, but he responds quite well to several objections to the case.

This implies that one must be a lawyer to understand legality, and to be able to convincingly argue one's position. Sorry, I don't buy it.

Re:He's no lawyer...

[kiwimate]

This implies that one must be a lawyer to understand legality, and to be able to convincingly argue one's position.

I think it may imply the former, but not the latter. People are paid high salaries for the benefit of their expertise.

To put it into a perspective which may carry more weight on Slashdot, many people can understand the principles behind routers and firewalls, but rather fewer are able to competently configure same when complex scenarios are involved. Consider, for example, how many people fail their first run of the CCIE lab portion.

One may argue the semantics behind the formalization and/or certification of the knowledge required for a specialized task, but why be so demeaning? How many Slashdotters would leap to the defense were the above statement to be modified to read:

This implies that one must be a { systems engineer / network engineer / pick your label } to understand { WAN configurations / how to configure a firewall / pick your prized specialized skill }.

There's a difference between understanding something and knowing how to apply knowledge in an expert fashion. Don't demean skills that you don't understand or appreciate.

Re:He's no lawyer...

[PastorOfMuppets]

"You either need to be a lawyer, or invest so much time that you could be, to have read everything relevant."

IANAL, and I have never taken any law classes, but I *can* understand the law (and I know this because I frequently have legal disscussions with my dad, who is a lawyer). Hell, most of the people who *write* the laws don't have a law degree (that's one of the reasons we have the Supreme Court). Think of it this way, you don't need an English degree to understand poetry, but it would make it easier to understand. The biggest problem is that most people, myself included, don't know how to search the law libraries.

"I've often proposed that the entire legal code an individual be subjected to be readable and roughly memorizable by "the average non-college educated person"."

The problem with that is that it leads to ambiguous laws. Take "Thou shalt not kill" for example. It's short, simple, and fairly easy to understand, but it is ambigous. Does it mean that I can't kill *anything*? If so, I'd better stop using anti-bacterial soap. Maybe it's just other humans that I'm not supposed to kill, but what about self defense, or killing one person to save millions (like killing Hitler to stop the Holocaust)? And then there's the question of liability. What if I order someone's death, is that the same thing as killing? Or what if I just refuse to stop a murder from taking place, am I liable for that person's death?

"...include legal classes as standard curiculum."

That is a very good idea, and thats exactly why it will never happen. If the government passed a law that actually made sense, it would set a dangerous precedent ;)

PS, sorry about the Biblical reference, but it was the first thing that came to mind.

I have asked it before and do it again.

[Anonymous Coward]

WHY isn't the current laws enforced instead of creating new ones?

Maybe I'm missing something but why the hell isn't the police busy searching all the napster clones and gnutella? No matter how much it's encrypted in the end you still connect to another machine and download the material so it IS traceable.

We are talking about several houndred thousands of people commiting crimes every day, why not trace them down and drag them to court? Why are new laws needed?

The real users of filtering?

[teamhasnoi]

Q. What about the counterargument that if people were really upset about their inability to see the list of blocked sites, then they just wouldn't buy the filtering software?

A. There are a few different problems with that argument. First is that the people who are buying the filtering are not, by and large, the people who are subject to the filtering. The person in a particular library who is buying the filter, for example, is likely the network administrator of the filter, probably a pretty savvy computer user who can figure out a way around the filter. If anyone can do it, it's the person who's in charge of putting it in. He's the expert in computers, after all. ... So the person who's making the decision is, oddly, not all that affected by the filter, as I think about it.

I thought the biggest users of filters were clueless parents who heard some horror story of the internet, bought a filter and installed it just so they could be 'hands-off' parents. Parents don't want the responsibilly of monitoring the net usage of their kid.

I think putting the computers where everyone can see them, and actually discussing! what's out there is a far better answer than filtering, which is trivial to get around for even the dumbest of kids/adults. Go to a friends house or other computer (unfiltered), download the QNX internet browser floppy disk for instance.

Actually, unless OSS is filtered (Goddless heathens! Communists! Child Molesters!) you could do that right there.

Re:The real users of filtering?

[PainKilleR-CE]

I thought the biggest users of filters were clueless parents who heard some horror story of the internet, bought a filter and installed it just so they could be 'hands-off' parents. Parents don't want the responsibilly of monitoring the net usage of their kid.


Even then, they're not really affected by the filter, because they can just enter a password to bypass it. Still, with state (and attempted federal) laws sometimes requiring the filters in certain places (such as libraries as he stated), and those places certainly seeing more users than the average home computer, it's likely that the libraries and similar places are among the biggest sources of income for the people creating and selling this software (not to mention that one good-sized library will buy more licenses than they're likely to sell to the home users of the neighborhood that library is in).

The big parts of the problem as specifically related to libraries are that:
1) the people using the library computers to access the internet may not have another way to gain access (though this also means they may not be very adept at determining whether or not the information they find is correct and/or useful)

2) public expectations of a library vary from one neighborhood to the next (in some areas it's quite possible that a certain level of censorship is not only practiced in a library, but also expected by the people that utilize that library)

3) many libraries do not have a really good computer staff, and therefore do not know how to manage the software well (to reduce overblocking and extend the filter to block unwanted sites), and even if they wanted more information, there's really not much information available until/unless you log complaints about overblocking / underblocking (and this goes for the parents trying to take the hands-off approach as well as libraries, schools, and other institutions)

Obviously, when it comes to parents and their kids, I believe that discussion is always the best answer for dealing with ethical and moral issues, as well as just dealing with any questions the kids may have (rather than dodging the issue), and that parents should be more aware of what their children are doing. Still, parents should be able to make informed decisions about this kind of software, and with laws preventing recovering the lists of blocked sites from these types of software (because of defeating encryption), and the software publishers/developers themselves unwilling to publish the information, they're being prevented from getting the information needed to really make an informed decision. This tends to leave them with either the option of overblocking (and underblocking) and possibly limiting their children (especially teen-agers) from important information that they may simply be uncomfortable discussing with their parents (and therefore may not discuss with their parents, especially if a piece of software their parents installed blocks them from the information), using other means to block them out entirely (which probably wouldn't be very effective since the kids usually know more about the computer than the parents eventually), or leaving it open and unmonitored.

Best Defense is a Good Offense

[Red Rocket]

I'm glad this case is going forward but it's another one of those fringe cases that is defending against the rough edges of the DMCA instead of striking it at its unconstitutional heart.
We need something that throws a spotlight on the huge potential of this law to do harm to fundamental freedoms that most people take for granted.
Suppose we could enlist the cooperation of one of the major book publishing houses to bring an offensive and egregious suit against a library (for example) that accuses the library of theft of so-called "intellectual property" by allowing people to consume their product without compensation to them as the copyright holder.
When the headlines start blaring about how the DMCA is being used to make libraries illegal then non-technical people might understand what's really wrong with this law.

IANAL (but lawyers are good, despite the corporate "tort reform" rhetoric intended to smear lawyers and limit our access to the only branch of government left that hasn't been closed to the citizens.)

Hollywood, government, and academia

[telekon]

Perhaps the best that could come of this is if people start asking, "why does he need to file a preemptive suit to continue his research?" Academic research has always occupied a privileged sphere, and the DMCA poses a greater threat to these intellectual freedoms than possibly any previous legislation.

It kinda reminds me of the situation when the NSA tried to stop academic cryptographers from continuing or publishing their results, slapping them with secrecy orders and citing national security concerns--however, they were beaten pretty soundly in court. Somehow, though, intellectual property seems more important to this government than national security. Say what you will, but the NSA had a much more legitimate interest in maintaining the breakability of codes than in protecting the rights of companies to obtain security through the combination of weak codes and obscurity.

In the end, the NSA's arguments were found to be less than compelling when it came to restricting academic freedom. It's shocking that Hollywood's interests are not patently irrelevent in the same arena.

It took a while for the courts and congress to stop being scared away from 'crypto anarchy' by NSA spooks, and to side with researchers. My hope for the current crisis is that these same bodies will stop being frightened off by the cries of doom and gloom from spookier spooks like Jack Valenti before academic (and even personal) research is further crippled in this country.

telekon

Hollywood's three leading products: Fear Uncertainty, and Doubt.

Re:Website filter lists

[pmz]

Who wants to bet that chronicle.com is going to be added very very soon ..?

This is by far the most frightening aspect of website and SPAM filters. Institutional filters, like N2H2, serve only the political or righteous interests of those who employ them. How can naive rules about what is and isn't pornography, for example, actually accomplish anything good? This is no different than choosing which books to burn, which people to take off the air, or what topics newspapers can publish. Internet filters are censorship; there is no excuse that can change this fact. For this reason, we should question the motives of any organization that uses them.

Re:Umm...

[Kierthos]

So what you're saying is that a list of URL's and the decision making trees to add to that list of URLs is now a trade secret? Bollocks.

Most of these filtering programs use fairly simple (read: stupid) decision-making trees to determine whether a site is banned or not. Sure, it's real easy to see that most pr0n sites are banned, but guess what... they haven't gotten them all.

And quite frankly, with the idea of "government mandated" filtering software, as a tax-paying citizen, I should have the right to know what sites and/or topics will be banned should I decide to use any of the computers that have these filtering programs on them.

Kierthos

It works the other way too

[xant]

He's the expert in computers, after all. ... So the person who's making the decision is, oddly, not all that affected by the filter, as I think about it.

And conversely, the person who's most affected by the filters is the person least likely to recognize the situation as a problem. A non-techie library patron doing a report on Communism (to pick an earlier example) might get a big filter warning message popping up. (This is even assuming the filtering software goes to the trouble to tell you that you've been filtered, which some don't.) As any sysadmin will tell you, end users frequently don't even attempt to read or understand error messages, so the filter error could be interpreted as a down website. Even if it's correctly identified as originating in the filter, the user might believe that this was an acceptable use of the filter, i.e. that the website he attempted to view contained naked Russian chicks or instructions on how to build biological weapons for fighting capitalism. The least likely outcome is for the user to see the error message, realize that the filtered site should have been available for him to view, and then go to the trouble to complain about it in such a way that the installer of the filtering software hears about the problem.

Indeed, the filter is designed that way. If it allowed you to see the content and judge for yourself whether it should have been available, it wouldn't be working, would it?

Would this be a good way to attack the DMCA?

[Anonymous Coward]

It seems that the DMCA could be attacked as unconstitutional because it is for an UNLIMITED time while congress is only allowed to make copyright for a LIMITED time. Since there is no time limit on the DMCA, conceivably from now on stuff will never enter the public domain, even after the 'traditional' copyright protection has expired.

Re:Umm...

[Kierthos]

Whether or not it is a trade secret in the traditional sense of the term is irrelevent. These companies spent signifigant man-hours compiling these lists. Forcing the publication of these lists would be unfair to the companies.

Yeah, it brings me to tears to force a company to be accountable for it's actions. It produces a software that claims to filter web-sites. We cannot judge how accurate that claim is because of the DMCA. Therefore, as far as we, the consumer, knows, we are buying the program blind. And with government mandated filtering software, we're paying for it with our tax money. We deserve to know if that money is being spent effectively and productively.

Are libraries forced to provide lists of all the books they decided against carrying?

Been in a library much? All the ones around here, it's fairly easy to tell what they do and don't have. It's either listed in a card catalog or listed in a computer index (or both). If it's not listed, I go ask a librarian, and they can tell me whether they can get a copy through library-sharing programs. If they can't get a copy, guess what, they also tell me that. Therefore, a list can be generated, by brute force methods, if nothing else. Hell(tm), most libraries would probably be willing to provide lists of materials they never plan on acquiring, just to make things simpler for the people who would routinely ask. Your arguement lacks wang.

Fact of the matter is this. The filtering software promises to filter out "offensive" sites. However, because most filtering software does not easily allow the easy access to the criteria judging whether any given site is filtered, we have no idea whether it's doing a proper job, under-performing, or over-reacting.

While I don't like the idea of Johnny 4th-grader seeing pr0n from his school's computers, I also don't like the idea of those same children being "protected" falsely from sites that should not be filtered out because the designers of the software set the program up to filter out too much.

Kierthos