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Travesty: Dmitry Sklyarov's Arrest
The arrest highlights the way copyright law and intellectual property issues have been highjacked by software and entertainment companies and their lobbyists, who joined forces to pass the Digital Millenium Copyright Act, a little-noticed or debated 1996 law that turns out to be a serious threat to free speech online or off. Sklyarov, a 26-year-old graduate student from Moscow, is one of the first people to face criminal prosecution -- including jail -- under the DMCA. His alleged crime? He is accused of "trafficking" in software designed to circumvent the security features of an Adobe e-book program used by Amazon, Barnes & Noble and other sellers of electronic books.
The arrest raises questions about the right of individuals -- hackers, reporters, programmers, kids in their rooms -- to raise public policy issues relating to software, encryption or security -- without being arrested and jailed, an act more reminiscent of Stalinist Russia than of a country that once placed considerable premium on free speech. If the Sklyarov case stands, then discussion of security, copyright, intellectual property and other issues online will be severely curtailed. This is serious stuff.
In addition, there is a significant body of Constitutional law that gives special protection to journalists and people acting in that role -- like Sklyarov -- from powerful interests like governments and corporations that allows them to raise public policy issues which, over the years, have ranged from national security to government corruption to music and research to software and issues relating to its security. The Constitution always tilted in favor of protecting individuals who challenge authority, under the theory that concentrated power poses a greater threat to freedom than the behavior of individuals.
To understand how information conglomerates have, along with Congress, corrupted Constitutional law, you have to draw analogies to previous cases in which individuals acted as checks and balances on powerful institutions.
Consider the celebrated Pentagon Papers during the Nixon administration in 1971. Journalists, including some working for The New York Times, CBS News and The Washington Post, obtained and disclosed secret Pentagon documents dealing with the decision-making that led to the Vietnam War, then and now bitterly controversial.
The circumstances were very different. The government invoked national security, not copyright in an effort to keep proprietary information secret. The government and the President reacted furiously when they learned that the media intended to publish these documents, citing law and national security. Reporters couldn't be allowed to decide which classified documents would be published, argued the government. These documents belonged to government agencies and could only be released by them. In a different context, Adobe and the government are making the very same argument against Sklyarov.
The Federal government threatened criminal action against the reporters and their news organizations, claiming it was illegal to disclose documents relating to national security. But the U.S. Supreme Court, in a unanimous ruling, found that it was unconstitutional to exercise that kind of "prior restraint" on a journalist or news organization seeking to fulfill its constitutional duties to monitor government actions. The court ruled that even though national security concerns were legitimate, the greater public interest lay in the ability of citizens to understand the decisions that led to a prolonged military conflict. The court ruled for an open, rather than a closed, debate on Vietnam.
In its ruling, the Court affirmed long-standing legal interpretations which protected people acting as citizens or journalists -- remember, there are no established qualifications; anyone can function as a journalist -- from censorship, restraint or punishment while they were acting in the public interest, defined as scrutinizing and checking power and authority. Today, corporatism is as powerful as most governments, and as urgently in need of monitoring.
Apart from the scale of the bedrock issue -- a war versus encryption -- there is little legal difference between the reporters seeking to disclose what was in the Pentagon Papers and Sklyarov, who was acting as a reporter just as much as New York Times employees. If anything, the Pentagon papers were airing much more sensitive material -- top-secret classified documents from U.S. defense agencies.
If a New York Times or Washington Post reporter challenged the effectiveness of a government official or agency, he or she would be showered with awards. Reporters published "leaked" or confidential material all the time, in regards to the safety practices of companies as well as the workings of government. Does any rational person think a New York Times reporter would ever be arrested or thrown in jail for disclosing that a software company's supposedly securely encrypted software had flaws? Sklyarov is entitled to the same standing, and the same protection. In a sense, hackers are the reporters and commentators of cyberspace, in some contexts entitled to similiar protections.
If there's a bright spot to the arrest, it's the growing discomfort of Adobe, which spent most of yesterday back-pedaling, trying to distance itself from the arrest. The image of this giant corporation, which claims to be the second biggest PC software company in the United States, against a 26-year-old gadfly wasn't pretty, and may deter other companies from calling in the feds. This promises to be a PR debacle for Adobe, and the company richly deserves it. Many software critics compare Sklyarov to corporate critics like Ralph Nader, who gathered private information on the behavior and safety records of corporations and there products, but are rarely, if ever, thrown in jail for it. Yesterday, Adobe panicked, and in an unexpected turnaround, called for Sklyarov's release -- almost one month to the day that the company filed a complaint about him with the F.B.I. That leaves the feds holding the bag, trying to explain this outrageous arrest.
People protesting Sklyarov's arrest are correct when they warn that critics of companies can now go to jail for proving that so-called secure software isn't necessarily secure. Or for obtaining and publishing other "copyrighted" material, now under the DMCA, and owned by wealthy, politically-connected corporations like Adobe or Microsoft.
Companies like Sony, Disney, AOL Time-Warner, Microsoft and Adobe are increasingly powerful, and spend billions lobbying Washington politicians to enact laws like the DMCA, an almost total creation of the music industry.
But people like Sklyarov are clearly acting in the public interest when they monitor the ethics, performance and conduct of companies like Adobe, just as the Pentagon Paper reporters were disclosing documents that launched the Vietnam War. If Adobe's encryption software works, what does the company have to fear from a 26-year-old Russian hacker?
Sklyarov was guilty of offering a public presentation about software designed to prevent the piracy of e-books, meanwhile, publishing corporations have been lining up behind the record and movie companies to try to control intellectual property online -- at any cost.
Sklyarov wasn't stealing money, or behaving in any overtly criminal way. The government and Adobe both have civil legal remedies they could have pursued. And whatever Sklyarov's motives or intentions, he was acting in the most traditional and highest standards of the press and free speech in questioning the widely-used products of a powerful corporation. Encryption and e-publishing is a bona fide public policy issue with significant implications for business and the public.
Who else but a hacker is in a position to monitor companies like Adobe and the products they create, products that are at the center of a number of crucial public policy issues? To embroil this person in criminal prosecution is an unthinking and chilling assault on the notion -- and long-held practice -- that people in the United States can speak out, however obnoxiously, against powerful institutions.
On July 17, 2001, the Government of Canada released a series of papers detailing a framework and roadmap for new Copyright law. They are asking for comments, and we have until September to respond.
Details can be found here or
http://strategis.ic.gc.ca/SSG/rp01100e.html
for the anchor paranoid.
Lets stop the DMCA from undermining our rights north of the border.
Its not that he found the problem, people always do that. He was selling software that cracks it for $99. Did everyone forget that?
No. His employer was selling the software for $99 in a country where the software was not only legal, but in which, in order for Adobe's software to be at all legal, the existence of the program was required.
Dmitry doesn't "own" the company that employs him, he works there. Would any of us want to be held accountable for our employer's behavior, however benign. While throwing Bill Gates in jail for Microsoft's behavior might seem reasonable, clearly throwing some low-level Microsoft programmer in jail for incompetent programming, or writing a piece of software used to illegally leverage Microsoft's monopoly, wouldn't be at all acceptable.
Yet that is very analogous to what happened here. The guy gave a speech on how software he helped develop (and was being sold by his employer in Russia, which last I checked isn't subject to US law). He gave no specifics, merely made it clear that Adobe's copy protection is virtually nonexistent. For that constitutionally protected speech he was carted off by the FBI, held without bail, and denied access to his Consulate while who-knows-what psychological games were played with his mind (not to mention outright interrogation techniques).
It never ceases to amaze me what levels pro-copyright zealots will stoop to in order to defend the indefensible.
The Future of Human Evolution: Autonomy
Dmitry wrote the software in Russia, where it is legal, and for Adobe to restrict copying is illegal. Elcomsoft was going to sell the software in the US, but stopped at Adobe's request.
All he did in the US was give an academic presentation on the flaws in Adobe's software. How that would be illegal is beyond me.
Sometimes, civic disobedience is the proper course of action. I don't think the Jim Crow laws in the south would've been overturned for many more years if Rosa Parks hadn't broken the law. That and the bus boycotts that followed brought national attention to the situation.
No, it wasn't a crime.
Dmitry wrote the software in Russia, where it is legal, and for Adobe to restrict copying is illegal. Elcomsoft was going to sell the software in the US, but stopped at Adobe's request.
All he did in the US is give an academic presentation on the flaws in Adobe's software.
What Adobe did could arguably be a crime. In Russia, it is illegal to limit making backup copies of computer software. Adobe's e-book software limits that, which means it violates Russian law. Where the software was written, it would be Adobe being charged with a violation of the law and not Skylarov.
There's also the US law part of it. Making personal-use copies of copyrighted works is specifically protected as fair use. Making backup copies of computer media is as well. Selling your copy to someone else is as well. The DMCA specifically says that nothing in it shall be construed as limiting fair use rights. Adobe's software limits those fair use rights, and they cite the DMCA in direct contradiction of the DMCA itself. Maybe it's time to stop hacking around these things and start filing suit against these companies for violations of USC Title 17 Chapter 1 sections 107, 109 and 117. Basically, don't argue that breaking copy protection shouldn't be illegal, argue that putting the copy protection in in that manner is itself illegal.
Try telling that to Rosa Parks - the law said black people must move to the back of the bus. The result of her civil disobedience was that she was arrested. Then, the outcry over that incident brought an end to Jim Crow laws.
It is not only OK to break laws that are blatently unfair, it is your duty to do so.
Speaking of duty... This version is probably HTML mangled, see the DeCSS gallery for the unmangled version.
Meldroc, Waster of Electrons
He is interested in receiving and publishing the following kinds of information:
Technical descriptions of the access control and encryption mechanisms associated with PDF files and/or eBooks.
Technical descriptions of remedies for these mechanisms, e.g., patches, key recovery algorithms, modified plug-ins, etc.
Source code for implementing these remedies.
He notes that "A large amount of useful content is now encoded as PDF (Portable Document Format) files, including files marketed for the eBook document reader. Unfortunately, some of this content is not usable in all the LAWFUL WAYS [emphasis mine] a purchaser desires, due to access control mechanisms created by Adobe and adopted by content publishers to the detriment of their [LAWFUL] customers."
He further notes that "Computer professionals who have examined [Adobe's access control mechanisms] have found them easy to defeat."
He notes that his website is for discussion of purely technical information of interest to computer scientists and lawful content users. He is not interested in receiving rants about Adobe or the DMCA, suggesting that individuals go to the Boycott Adobe [and/or slashdot - grin] site for that.
It is suggested that individuals wishing to submit TECHNICAL CONTENT first visit the site to see what others have already submitted to avoid unnecessary duplication (e.g. ElcomSoft, Xpdf, Ghostscript, etc).
It is noted that there is yet no "Haiku" regarding Adobe's "easy to defeat" access control mechanism.
... "Why don't people get as bent out of shape when the other Twenty-Six (?) Amendments are violated (e.g. Second Amendment???)"
Tangential Editorial Comment by RM3 Frisker FTN
I believe Juanita
The underlying issue here is why should the government be protecting copyrighted material from not-for-profit pirating in the first place. Copyright is only for for-profit piracy protection, so what does that make our current laws, Copywrong?
The problem is that IP corporations will almost always be hostile toward the public domain and public liberty. They cannot even EXIST without government might being behind them. I am not opposed to copyright law at all, but this is one area where I have to say that the principles, while not the law itself, of copyright law laid down by our founders in the first copyright law for the US hold true more than ever. The original law gave only limited protection and a maximum of 28 years (14 first then you could apply for an extension).
Neither major party will ever properly address this issue. Taco et al. can deride the Republicans all they want, but the DMCA was a joint effort to screw us all over orchestrated equally by both parties and signed by a liberal democratic president. The naderite approach is equally insane: abolish the corporations. The corporations aren't at fault here, the government is. With sane copyright laws there would be no United States vs. Dmitry Sklyarov. Adobe only has so much power as the government gives it; take away that power and Adobe is no more powerful than you or I. Big government is at fault here. That is why we libertarians oppose big government. With a minimalistic government Adobe wouldn't have any recourse against Sklyarov.
Bryguy
microsoftword.mp3 - it doesn't care that they're not words...
Why not go to trial? Because we're not talking about "some Russian guy". He's a guy, with a family, in jail, away from home.
It not up to you or anyone else to use him to test the DMCA. If he wants to, fine. But the sense I get from reading things is that he'd just like to go home and have this whole thing behind him.
-S
--- What parts of "shall make no law", "shall not be infringed", and "shall not be violated" don't you understand?
Sklyarov was guilty of offering a public presentation about software designed to prevent the piracy of e-books, meanwhile, publishing corporations have been lining up behind the record and movie companies to try to control intellectual property online -- at any cost.
According to reports by TechTV, who was present at Defcon 9, Sklyarov was not only speaking but actually selling the Elcomsoft product. While I agree that what is at issue is the DMCA, and it's ability to silence anyone (or at least give companies the motive to try), lets get the facts straight here. If I design a bomb in Russia, where, for the sake of example we'll pretend it's perfectly legal, and I somehow get it past customs in the US, I can't very well sell it. While the plans might simply be "information" and somehow applicable to present under some journalistic and/or scientific auspice, I don't think you can argue that it's ok for me to sell the premade bomb as well.
Note, this isn't how I view the whole Sklyarov situation, but one of the important things to remember when debating is put yourself in the other person's shoes and try to see things how they see it, no matter how corrupt and greedy that vision may be.
Information is the catalyst for revolution
"Actually, according to Russian law, it's sooner adobe's program that is illegal, in that it prevents one from using a bought and paid for product as the purchaser wishes. That's a violation of fair use. Also, at the time a user buys a book in Adobe's format a buyer isn't notified of these restrictions.
I think Sklyarov's arrest was actually a good thing overall: people who normally could care less about this kind of thing are starting to ask questions about the DMCA.
*This page intentionally left pointless*
As a recent Kuro5hin article suggest, Dmitry's U.S. Adventure is far from over. With Adobe's apparent opposition to the criminal charges brought against Dmitry, we need to see the response of the U.S. Department of Justice.
I would think if the U.S. continues to pursue this case, contrary to the wishes of Adobe and many Americans, then there should be opposition to the nomination of Robert Mueller for the head FBI job. His confirmation hearings begin July 30, and he is currently the U.S. Attorney in charge of the jurisdiction prosecuting Dmitry.
While Dmitry remains in custody, I have not read the EFF (or any other organization/individual) will provide him counsel. Given the nature of the U.S. judicial system, it would be vital for Sklyarov to have extremely credible criminal defense attorneys.
It will be curious to see if the same community which brought pressure upon Adobe, will bring the same pressure upon Robert Mueller during his hearings, if Dmitry remains in custody. So far, I have no seen no similar organizing or campaigning for Dmitry. Dmitry remains in charged with a criminal act and in custody.
"There ought to be limits to freedom"