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[Steve]

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======================

(Carl S. Kaplan, NY Times)---It'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.  

Copyright 2000 The New York Times Company  

 



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