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A federal judge in Boston recently dismissed a lawsuit that sought a declaration that would have taken some of the teeth out of the Digital Millennium Copyright Act (DMCA). The lawsuit, which was supported by the American Civil Liberties Union (ACLU), sought a declaration that the DMCA violates free speech rights protected by the First Amendment. The judge dismissed the case on the ground that it did not present a case or controversy ripe for adjudication. The judge also used language in his dismissal ruling that suggested that the copyright protections of the DMCA were not outweighed by any constitutionally protected rights. THE LAWSUIT: ‘EDELMAN V. N2H2 INC.’ Benjamin Edelman is a computer researcher and the named plaintiff in a case against defendant N2H2 Inc. (N2H2), the maker of a software program used in schools and libraries to filter Web sites containing child pornography and other objectionable material. As part of the lawsuit, Edelman sought a declaratory judgment endorsing his alleged First Amendment right to reverse engineer N2H2′s Internet blocking software and to publish the results. By such reverse engineering, Edelman wanted to prove that the software program indiscriminately blocks sites with protected content. Not surprisingly, Edelman refused to accept N2H2′s licensing agreement, which explicitly prohibits reverse engineering of the software and forbids the unapproved disclosure of proprietary information embedded in the program. THE DEFENSE N2H2 defended itself in the lawsuit by asserting that Edelman was seeking an “advisory opinion” as to whether his research will violate the license agreement and N2H2′s rights under the DMCA and trade secret law. In essence, N2H2 countered that Edelman, as plaintiff, had not yet suffered any type of injury in fact under the law, and thus a true case or controversy had not been presented for adjudication. Accordingly, N2H2 filed a motion to dismiss Edelman’s lawsuit. THE RULING U.S. District Judge Richard Stearns agreed with N2H2 on the motion to dismiss. Judge Stearns first noted that N2H2 argued “persuasively” that Edelman had not alleged an actual injury in fact, as opposed to something “conjectural” or “hypothetical.” While Judge Stearns recognized that Edelman argued that there would be a likelihood that N2H2 would file a lawsuit against him if he accepted the licensing agreement and then violated its terms by conducting and publishing his research, he found that “the prospect of a lawsuit is supported only by Edelman’s conjecture as to N2H2′s intentions” — which is not the stuff of an established case and controversy with an injury in fact. Along those lines, Stearns specifically stated that he had “no inkling of the exact dimensions of the research that Edelman proposes to undertake” and he had his “doubts that Edelman does either.” Furthermore, Stearns expressed that he did not have “any idea of the full content of what Edelman proposes to publish” and thus he could not surmise whether any such publication might fall within or without the protection of various laws relied upon by Edelman in his case. Therefore, Stearns determined that to retain Edelman’s case would force him to make an advisory opinion that “would necessarily be of such a general nature as to be unlikely to provide any of the guidance or protection that Edelman seeks.” He thus granted N2H2′s motion to dismiss. BUT, THERE IS MORE … The motion to dismiss could have been granted by Stearns on the “advisory opinion” basis alone. However, more troubling for Edelman and his supporters, Stearns went further. Indeed, while supposedly grappling with the advisory opinion issue, he disagreed with a legal argument of Edelman and held that “because there is no plausibly protected constitutional interest that Edelman can assert that outweighs N2H2′s right to protect its copyrighted property from an invasive and destructive trespass,” Edelman’s case was not properly presented. It appears that Stearns in his own subtle way took on the merits of the case and found that Edelman’s plan to reverse engineer the N2H2 software program and publish the results would run afoul of the DMCA and would be tantamount to an unlawful trespass. Given this aspect of his ruling, it would not be unfathomable to believe that Edelman and his backers will decide to appeal. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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