William Coats, a partner at Orrick, Herrington and Sutcliffe LLP who represents N2H2, said the current lawsuit is “not very exciting.”

“There’s nothing to rule on,” he said. “We don’t punish people for what they may be thinking of doing.”

The distinction between Edelman’s current research and his previous research on filtering is his method of choice. He previously uncovered blocked websites by filtering a sample of approximately 500,000 websites and determining which ones were blocked.

He said that due to the sheer size of the Internet, this method would not work to uncover a full list of blocked websites. As a result, he plans to try to decrypt N2H2’s list by cracking their programming code.

If N2H2 successfully held that its list was a “work,” then Edelman’s discovery and distribution of the list would constitute copyright violation. Edelman pointed out that certain kinds of collections, like the phone book, cannot be copyrighted, and he believes N2H2’s list falls into this category.

Edelman said that when a company treats something like a secret, and it cannot be discovered, then it may be considered a trade secret and is protected under federal law—but if he can decrypt the list, it clearly can be discovered and thus would not hold up as a trade secret.

Under the terms of the EULA, when a user installs N2H2 Internet Filtering, he agrees not to crack the code, as Edelman intends to do. But Edelman said the courts have declined to enforce many contracts in analogous situations involving non-negotiable one-sided contracts.

But the DMCA’s restriction against cracking security systems would seem to apply here, Edelman acknowledges, as N2H2’s use of encryption probably constitutes a security system. Nevertheless, Edelman said he believes that his First Amendment rights to research trump this provision.

N2H2 opposes making their list public because they want to maintain an advantage over their competitors and they don’t want to make “the largest directory of pornography in the world” available to children, according to Burt.

Burt said he sees no need for the whole list to be released, because Edelman’s existing method and studies are an adequate tool for assessing the filter.

“I do not think that Edelman’s claims that there is no way for them to evaluate the program at all without decrypting is accurate,” he said. “His own research shows that you can do meaningful statistics with large samples, and he found our database 99 percent accurate.”