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Two law firms that allegedly surreptitiously accessed the password-protected Web site of an expert witness in order to show a judge that the witness violated a gag order cannot be held liable under the Digital Millennium Copyright Act. A District of Columbia federal judge has dismissed the suit by Boston occupational illness expert Dr. David Egilman, who accused the law firms Jones Day and Keller & Heckman of Washington, and Keller attorney Douglas Behr, of misappropriating his protected work. Egilman accused the Keller firm and Behr of hacking into his Web site by acquiring a password and sharing it with Jones Day lawyers in the midst of a 2001 landmark Colorado state toxics trial. Egilman had testified on behalf of the first four of 50 workers at Rocky Flats nuclear weapons plant who unsuccessfully claimed that the federal government colluded with the world’s largest beryllium maker, Brush Wellman Inc., to hide the health dangers of the metallic element. Despite a broad gag order by a Colorado state court judge, Frank Plaut, in Ballinger v. Brush Wellman Inc., No. 96-CV-2532, Egilman had posted critical material about Jones Day and Brush Wellman on his password-protected Web site in what Plaut ruled was a violation of the gag order. Plaut ordered jurors to disregard Egilman’s testimony as a sanction after learning from Jones Day that the posting included accusations of potential illegal conduct by Jones Day, and allegations that a Brush Wellman medical doctor was educated in Nazi Germany, according to press accounts at the time. Plaut called the information “scurrilous and inflammatory” at the time. Egilman, who has testified in dozens of toxics trials and was the expert in the recent Texas Vioxx trial that resulted in a $253 million verdict, limited Web site access to his staff and his Brown University students. He posted uncensored information on occupational illness and related litigation, including previously confidential corporate internal documents related to many toxic torts. Jurors ultimately sided with Brush Wellman and, without Egilman’s testimony, rejected the workers’ claims that lung damage from exposure to radioactive beryllium could have been avoided. Effectiveness compromised? But Egilman pursued his fight against the law firms. Egilman sued Jones Day and Keller & Heckman, first in Texas and later in the District of Columbia, saying that his reputation was besmirched and his effectiveness compromised. He argued that the law firms and Behr circumvented measures installed to deny access to his copyright-protected work on the Web site, in violation of the 1978 Digital Millennium Copyright Act (DMCA). U.S. District Judge Henry Kennedy Jr. in D.C. ruled that obtaining a username and password from a third party that has authorized access does not violate the DMCA. Kennedy cited the only other court to rule on improper use of a legitimate password, holding that gaining access to a third party’s legitimate password is not the same as hacking. “It is irrelevant who provided the username/password combination to the defendant, or, given that the combination itself was legitimate, how it was obtained,” Kennedy wrote in Egilman v. Keller & Heckman, No. 04-876HHK. Use of a legitimate password does not “circumvent” a technology used to control access, Kennedy concluded. “This is not really about the DMCA,” Egilman said. “It is about how the legal system is designed to benefit people in power. That is why courts said it was legal for blacks to be slaves or ruled it legal to deny women the vote,” he said. Accessing his computer “was illegal conduct. It was breaking and entering. It is simple theft,” he said. As for Egilman’s alternate claim that unauthorized use of the password violated the Computer Fraud and Abuse Act, the court found that he had filed that claim too late. Egilman said he is not sure whether he will appeal. “I spent $150,000 of my money doing this case. At some point I can’t afford to represent the interests of regular people against criminal law firms,” he said. Behr said only, “I don’t want to talk about it,” when asked about the case. Attorneys for Jones Day and Keller & Heckman declined to comment.

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