FC: Why Dmitry Sklyarov belongs in jail, by inside.com's R. Parloff (resend)

[Declan McCullagh <declan () well com>]

[The inside.com link I sent out last week has since moved behind the 
subscription firewall. Roger and inside.com have graciously allowed me to 
redistribute his article in full. --Declan]

---

Free Dmitry? Spare Me.: Why the FBI Was Right to Arrest the Internet's
Latest Martyr
Civil liberties advocates, programmers and cryptographers are up in arms
about the arrest of a Russian programmer for distributing software that
strips Adobe eBook Reader of its copy-protection. They shouldn't be,
Inside's legal editor argues.
by Roger Parloff

Wednesday, August 01, 2001
A hacker has allegedly violated the Digital Millennium Copyright Act -- so
you know the drill. It's time for extremely smart people to espouse
extremely unpersuasive arguments for why the hacker must swiftly be
exonerated and the law struck down as unconstitutional.

This time around the hacker (and I'm trying to use that term in the positive
sense) is Dmitry Sklyarov, a 27-year-old Russian computer programmer who was
arrested in Las Vegas on July 16. If you get your news from any of the
numerous news sources that cater to computer programmers and software
enthusiasts -- the online wire services or listserv e-mails from digital
civil liberties advocates or cryptographers -- you are doubtless familiar
with the outlines of the case, or at least think you are. You have read how
Sklyarov was arrested the day after he delivered a lecture at the Def Con 9
convention in Las Vegas -- the ninth annual gathering of what is described
on the group's official Web site as "computer underground party for hackers"
-- about the flaws in the copy-protection system for the Adobe eBook Reader.

Maybe you have been alerted to the message posted on the Web by Bruce
Schneier, the chief technology officer of Counterpane Internet Security and
one of the nation's foremost experts on cryptography and computer systems
security, who has expressed his outrage that "the FBI arrested (Sklyarov)
because he presented a paper on the strengths and weaknesses of software
used to protect electronic books." You have probably been told how Alan Cox,
an eminent British open-source programmer, resigned his membership in an
American-based society of computer engineers as a result of Sklyarov's
arrest, explaining: "With the arrest of Dmitry Sklyarov, it has become
apparent that it is not safe for non-U.S. software engineers to visit the
United States." You may also agree with Sklyarov's defenders that it is
deeply ironic that federal prosecutors are trying to punish Sklyarov at
Adobe's behest, when Adobe should really be thanking Sklyarov for having --
in the long and fine tradition of hackers (again in the positive sense of
that term) -- pointed out flaws in its copy-control system, which might have
done far greater damage had they first been discovered by someone
malevolent.

Then again, if you've learned about the case from more mainstream news
sources, you probably already realize that Sklyarov's arrest doesn't really
have anything to do with the presentation he gave in Las Vegas. (The
conference, which listed Sklyarov as a scheduled speaker, was just the event
that alerted authorities to the fact that he would be in the United States,
enabling them to seize him.) It relates to some software that Sklyarov wrote
and that his employer distributed.

But even so, you may still be outraged by his arrest. As Stanford Law School
professor Lawrence Lessig recently pointed out in his New York Times op-ed
piece urging Sklyarov's release, Sklyarov's software was perfectly lawful in
Russia, where he wrote it. Adobe just downloaded it off the Internet, and
then asked our government to punish Sklyarov for violating U.S. law. That
poses all sorts of very troubling, international jurisdictional issues,
doesn't it?

In addition, Professor Lessig stresses, neither Sklyarov nor his employer
have even been charged with infringing anyone's copyrights! Sklyarov simply
made software that removes certain security protections from the Adobe eBook
Reader, enabling people to engage in numberless, marvelous, invaluable,
noninfringing uses. "A blind person," for instance, could use it to activate
Adobe's "read-aloud function" in order "to listen to a book," even if Adobe
had, at a publisher's instructions, disabled that function for a particular
title. Alas, has helping the blind to read become a crime in our country?
Sklyarov's wonderful creation also enables people to make back-up copies of
e-books, explains the Electronic Frontier Foundation's Web site. It also
enables them to transfer an e-book from an old computer to a new one. Best
of all, Sklyarov's software only works on lawfully purchased e-books. So
what in the world could the prosecutors and Adobe and the Association of
American Publishers -- which has applauded the prosecution -- possibly be so
upset about?


ON THE WEB, IT ONLY TAKES A SINGLE UNPROTECTED COPY ...

Now let's visit Planet Earth. Dmitry Sklyarov works for ElcomSoft Co. Ltd.,
a Moscow-based company that sells, among other things, the Advanced eBook
Processor. That product converts e-books formatted for viewing through the
Adobe eBook Reader into ordinary, unsecured PDF files. Once in that form,
the file is in the free and clear, and can be distributed by anyone to
anyone throughout the globe via numerous file-sharing programs like
Gnutella, KaZaA, iMesh or Freenet, not to mention by e-mail attachment, or
by Aimster-style instant-messaging attachment, or by posting on evanescent
pirate Web sites, and probably via several other mechanisms that were
invented so recently that you and I haven't heard of them yet.

The point is: it only takes a single unprotected copy to have the material
spread. The cat is then out of the bag and any attempt to bring a copyright
infringement charge against the individual who originally uploaded it
becomes laughably futile, even assuming it were possible to identify that
individual, which it usually isn't. Accordingly, Congress has tried to
protect copyrights in the digital world by prohibiting the distribution of
"devices" -- like Elcomsoft's Advanced eBook Processor -- that are
"primarily designed" to circumvent copy-control technologies that copyright
holders have implemented in an effort to protect their intellectual
property. (The DMCA is designed to effectuate two World Intellectual
Property Organization copyright treaties that were signed in Geneva in
December 1996.)

Most of the people coming to Sklyarov's defense fully appreciate that some
sort of anti-circumvention legislation like the DMCA is crucial to
maintaining meaningful copyright protection in the digital world. But they
simply don't want such protection maintained. They believe that the digital
world is fundamentally hostile to copyright law as we have known it and that
the copyright laws have grown too protective in any event (which might be
true), and they are therefore eager to enter a brave new world in which
creators of intellectual property will be effectively forced to turn to
unspecified "new business models" in an effort to get paid for their
creations. Most of the new business models that have been proposed so far,
however -- like having consumers voluntarily donate fees to creators whose
works they have downloaded for free -- very closely resemble begging.

In any event, there is little question that ElcomSoft has been knowingly and
intentionally violating U.S. law and that the FBI has ample jurisdiction
over Sklyarov. Until Sklyarov's arrest -- when ElcomSoft finally
discontinued distributing these circumvention products -- ElcomSoft made a
demonstration model of its Adobe-targeted circumvention software available
on its (English-language) Web site for free. But that demo tantalizingly
unlocked only the first 10 percent of an Adobe e-book, according to the
ElcomSoft site (which was quoted in the July 10 affidavit of an FBI agent
filed in support of the criminal complaint against Sklyarov). If a customer
wanted to unlock the whole Adobe e-book, ElcomSoft directed that person to
send $99 -- that's U.S. dollars -- to ElcomSoft's U.S.-based billing agent,
Register Now, which is based in Issaquah, Wash. Upon verifying that payment
had been made, ElcomSoft would then e-mail the customer -- including U.S.
customers -- a key that would fully activate the software, enabling the
customer to unlock and copy entire Adobe-formatted e-books. (By the way, if
Sklyarov's or ElcomSoft's goal had been to alert Adobe to potential flaws in
its software, the demo version would have fully accomplished that purpose.
Evidently, that wasn't the goal.)

Nor should Sklyarov's July 16 arrest have come as a surprise to either
ElcomSoft or Sklyarov, unless ElcomSoft was cruelly keeping Sklyarov in the
dark about Adobe's dissatisfaction with ElcomSoft's business operations. On
June 25, Adobe's anti-piracy unit warned ElcomSoft that its product was
illegal and demanded that the product be removed from its Web site.
ElcomSoft refused. On June 25, Adobe also demanded that ElcomSoft's Internet
Service Provider, Verio Inc., terminate ElcomSoft's service if ElcomSoft did
not take down the Adobe circumvention software. After Verio told ElcomSoft
of the demand, ElcomSoft switched ISPs, managing to keep its site afloat,
though Verio cut off service by June 27. On June 28, Adobe demanded that
Register Now stop serving as ElcomSoft's billing agent, prompting ElcomSoft
to advise Register Now that it had better protect itself by honoring Adobe's
demand. It is unclear whether ElcomSoft planned to arrange a substitute
method of payment.


WHY CHARGE DMITRY, AND NOT THE COMPANY?

In sum, then, the FBI alleges that ElcomSoft had been marketing software to
Americans from an English-language Web site, soliciting payment in American
money through an American billing agent, and then sending Americans a key
that would enable Americans to defeat the security protections built into an
American-made product. So while some may be outraged that the U.S.
government would attempt to impose its laws upon a Russian company under
these circumstances, I am unmoved.

In fairness, however, the government hasn't charged ElcomSoft with a crime,
it has charged its employee, Sklyarov. Why him? An FBI agent noticed that
when he called up Elcomsoft's circumvention software on a computer, the
software displayed a title page indicating that the software had been
copyrighted in the name of Dmitry Sklyarov. (Yes, ElcomSoft's officials
evidently believe in protections for some intellectual property -- their
own.) That led the agent to conclude that Sklyarov had created the
circumvention software that his employer was distributing in the United
States. Though the Electronic Frontier Foundation and ElcomSoft's president
and owner, Alexander Katalov, are now both suggesting that maybe Sklyarov
played only a bit role in creating the Advanced eBook Processor, Sklyarov in
a post-arrest interview with a local television new reporter acknowledged
having written it. (A video clip of this interview is still available on the
Electronic Frontier Foundation's Web site.) Similarly, an explanatory Web
page about the case provided by ElcomSoft asserts that Sklyarov "wrote" the
program.

On July 2, the same FBI agent who made the Sklyarov connection visited the
Def Con 9 Web site and saw that Sklyarov was scheduled to appear at the
convention in Las Vegas on July 13-15. When Sklyarov in fact appeared, he
was arrested on a criminal complaint from the Northern District of
California, the district that includes San Jose, where Adobe Systems is
headquartered. If ElcomSoft president Katalov is now willing to subject
himself to U.S. jurisdiction, it would certainly seem preferable to arrest
him and release Sklyarov, but in the meantime the FBI seems to have an ample
basis for exercising jurisdiction over Sklyarov, and for accusing him of
helping to distribute illegal circumvention software in the United States.
Whether prosecutors can ultimately prove beyond a reasonable doubt that
Sklyarov -- as opposed to ElcomSoft -- "manufactured, imported, offered to
the public, provided, or otherwise trafficked" in that software is a
question that depends on facts and evidence which neither I nor any other
commentator is currently in a position to evaluate.

But what about the fate of all those blind people who now won't be able to
read e-books because Adobe will have disabled the read-aloud feature at some
publisher's request? Typically, publishers ask Adobe to disable that feature
when they fear it might violate their contracts relating to an existing
audio version of the same book. But when you think about it, in those
circumstances it might actually make more sense for a blind person to pay
$15 to buy the audio book -- a tape of a professional actor or the author of
the work reading the book aloud -- rather than pay $8 for an e-book and $99
for circumvention software, in order to hear voice-simulation software
articulating the words in a robotic monotone.


THE EFFECT OF BOYCOTT THREATS

But what will everyone now do when they need to make backup copies? Well,
again, since most e-books cost somewhere between nothing and $8, it might be
more sensible to buy a new copy of the book than the $99 circumvention
software required to make a backup. If you save some proof of purchase, you
might even be able to talk Amazon.com or the publisher into sending you a
new e-book for free. It's a brand new industry, and if it is not yet
possible to insure yourself against loss from a crashed system, the
exigencies of the market guarantee that it soon will be. It would be
surprising if the only possible solution to this minor inconvenience was to
legalize the distribution of circumvention software, thereby guaranteeing
the demise of copyright protection as we know it.

On July 23, after meeting with representatives of the Electronic Frontier
Foundation -- and faced with imminent protests and commercial boycotts
organized by geek activists -- Adobe issued a carefully worded statement
recommending release of Sklyarov and withdrawing its support for the
government's complaint. "We strongly support the DMCA and the enforcement of
the copyright protection of digital content," said Colleen Pouliot, Adobe's
senior vice president and general counsel, in the statement. "However, the
prosecution of this individual in this particular case is not conducive to
the best interests of any of the parties involved or the industry.
ElcomSoft's Advanced eBook Processor software is no longer available in the
United States, and from that perspective the DMCA worked."

The government has so far declined to drop the case, however. Given that the
government's interest in enforcing the nation's laws are always broader than
any individual complainant's -- and given the circumstances under which this
particular complainant was mau-maued into backing away from a case it had
initiated -- the government is probably doing the right thing.

While we can all applaud the Electronic Frontier Society and its allies for
their dogged and vigilant commitment to free speech, every once in awhile it
would be refreshing to see those advocates show a comparable commitment to
candid speech.




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe, visit http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
-------------------------------------------------------------------------