Jonathan Band

TESTIMONY CONCERNING INTERNET FILTERS

Thank you for the opportunity to testify today on behalf of the five library associations.

The reasons given by the Copyright Office in 2000 for a 1201 exemption with respect to filters applies with equal force today. As N2H2 notes, filters are becoming more prevalent -- and may become much more prevalent if the Supreme Court reverses the lower court in CIPA. Thus, the need to know exactly which websites are filtered and which are not is becoming more compelling.

I’d like to respond to the comments filed by N2H2 and the other filter companies.

The issue today is not whether filters are a good thing. It is whether members of the public should have the ability to find out which websites are blocked by Internet filters. We think they should, particularly so that institutions and individuals can decide whether to use a filter, and which filter to use.

First, as N2H2’s comments emphasize, the use of filters has increased dramatically since the Copyright Office granted an exemption in 2000. Thus, the existing exemption has had no adverse impact on the filtering companies.

Second, N2H2’s comments seem to assume that a 1201 exemption is the equivalent of authorizing the publication of the database of the prohibited websites. This absolutely is not the case. Copyright would still protect the database. Circumvention would simply put someone in the position to make a fair use of the database. But his use would still have to qualify under Section 107. A 1201 exemption would not change that in any way.

Third, from the erroneous assumption that a 1201 exemption would authorize publication of the database, N2H2 suggests that publication would provide children with unprotected computers a roadmap to pornographic materials. With all due respect, I think N2H2 grossly underestimates the resourcefulness of teenage boys. If they have an access to an unprotected computer, they don't need a roadmap.

Fourth, the reference to the Microsystems case is completely beside the point. That case involved the development of a bypass code that disabled the filter. It had nothing to do with accessing the database for fair use purposes.

Finally, the N2H2 comments discuss the alternative of querying. I’m not qualified to speak to the effectiveness of the sampling made possible by such queries. But it is clear to me as a matter of common sense that sampling can never give you the complete set of blocked websites -- by definition, you only get a sample, so you obviously will miss what could be important information. You’ll never know what you don’t know. Also, the filter companies can reconfigure their software to prevent automated querying so this option might disappear in the future.

In sum, the Copyright Office and the Librarian got it right the first time. The filter companies haven't presented any evidence of the harm this exemption has caused them. It continues to enable an important form of fair use. Accordingly, the Copyright Office and the Librarian should renew the exemption relating to Internet filters.