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Say Here Why Sklyarov Should Go Free
Skylarov's fate has significance far beyond encryption programs. It goes directly to the very idea of security online, of hacker exploration, the open sharing of software processes, and to the creativity and challenge that is at the heart of the Net. This process of sharing, exploring and challenging is one of the primary reasons for the Net's growth, from gaming to messaging to system software to open source. This case also involves the future of copyright and intellectual property. Sklyarov is in jail because of a poorly-conceived provision of the DMCA written by entertainment company lobbyists that goes far beyond existing copyright law.
Sklyarov violated no aspect of traditional copyright law -- only the outlandish provisions of the DMCA. His behavior is similiar to that of many journalists and critics who, over the years, have obtained secret, classified or copyrighted corporate or governmental information to expose flaws, weaknesses or more serious forms of wrongdoing. Few have been arrested and thrown in jail. The federal courts have always taken the view that the greatest threat to freedom is the unchecked power of large institutions, from governments to auto manufacturers. In a sense, the future of Net security depends on people like Skylarov probing for weaknesses and flaws. Whatever his motives, Sklyarov's behavior was in this protected tradition.
Even if Skylarov is freed tomorrow, his arrest and persecution will chill criticism of corporate products and power, and threatens the survival of individualism online. This is a major escalation for increasingly aggressive and monopolistic tech and media corporations, some of which are aggressively moving to control content and communications. Copyright is their new wedge. This criminal case should be dropped, and Sklyarov freed.
While ours was a small group (I believe there were 33 of us who made it to the embassy), we encountered a lot of Londoners and tourists on the way from Hyde Park corner. Some were perplexed by a parade of geeks attempting to chant things like "Free Speech! Free Dmitry!". There was no hostility; however, it was clear that some American tourists were rather upset by the banner we were carrying that read "Visit America, Go to jail". But despite being a small protest, the organiser was interviewed by Newsnight (the UK equivelant of Larry King Live) and we're going to get the second spot tonight.
I don't know if these protests will actually help Dmitry, but I do think they're raising the awareness of the absurdity of the DCMA. With Europe and Canada about to vote on DMCA-type laws, the protests come at the right time.
The DMCA outlaws two things: "circumventing protections on copyrighted materials" and "manufacturinging/distributing (etc) circumvention devices."
Although Skylarov may be guilty of the latter, he committed these acts outside of US jurisdiction in a country whose laws do not forbid the practice. The former charge, circumventing the protection on a copyrighted work may or may not have been violated. Did he practice his technique in the US or did he just talk about it? And does that restriction (section 1201[a]: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title") apply in all circumstances, or simply in circumstances where copyright is actually violated (should it apply in other circumstances?)
Finally, is Skylarov's talk exempted under section 1201[f], which specifically exempts "encryption research"? Of course this last is complicated by the fact that we must consider Skylarov's motivations for giving the talk, and assume that he made an effort to let Adobe know he was giving the talk (they certainly found out about it.) As far as I understood, in a case where an act is only criminal when committed with certain "motives", law enforcement officials are required to give a defendant the benefit of the doubt before making an arrest.
...and Skylarov were an American in Russia, being held after taking a trip to a conference in Moscow to present scientific research sponsored by his employer, and was arrested for spying because of that research, the American press would go apesh*t (as Slashdot has previously noted). Today on dailynews.yahoo.com:
The individuals in the USAG's office from Ashcroft on down need to be held accountable for every day of the immoral, obscene detention of Dmitri Sklyarov. His release is inevitable, but I fear it won't be soon. For it, I say SHAME!
For those of you with "The Law is the Law" attitude, I believe this law undermines our fundamental laws here which are regarded as inalienable. Thomas Jefferson and others should clear this up.
/ 21/990621opmetcalfe.xml
Intro:
I feel the need with all the horrible rights violations going recently to highlight Thomas Jefferson's views on copyright. In the writing to ensue, there will be much opinion and conjecture surrounded by a more valued and respected sets of opinions by none other than Thomas Jefferson. Without a doubt, Thomas Jefferson has already covered most of what gets rehashed, particularly when it comes to fair use and the DMCA.
I feel it is important to this case, especially from the American prospective, to point out that one of the most ingenious, prolific and outspoken forefathers of the USA, where the DMCA and other vile laws live, believe firmly that the bill of rights should have included and explicit reference to freedom from burdensome and unfair copyrights and legislation thereof.
Thomas Jefferson was concerned about you and me. The people that read periodicals. He was concerned with everyone as a singular entity. You yourself may not know what's best for you if you belong to something bigger. Our [United States] laws are supposed to protect the little people.
While I'm not suggesting an armed standoff against federal agents necessary in this case, something must be done. We are railroading an expatriate to whom our laws do not bind. Furthermore, our own forefathers, particularly Jefferson, BELIEVE me he is YOUR friend (not the big monopolies like Energy/Petroleum Companies, Microsoft, etc.)
I'm going to excerpt his beliefs below. Realize that even 200 years ago, the pitfalls of burdensome copyright and the legislation that ensues would erode our freedoms.
...
Thomas Jefferson (1743-1826), in his correspondence with James Madison (1751-1836) was initially hostile to the provision for copyright and patent law in the United States Constitution. On Dec. 20, 1787, Jefferson wrote to Madison from France concerning the recently-drafted Constitution:
"I do not like... the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land..."
Note, here IMHO, Thomas Jefferson wants to, along with our other inalienable rights, establish a freedom from Monopoly. These rights, not excluding freedom from monopoly, were to him as core as the rest of our bill of rights. He repeated this view in his letter to Madison dated July 31, 1788:
"I sincerely rejoice at the acceptance of our new constitution by nine states. It is a good canvas, on which some strokes only want re-touching. What these are, I think are sufficiently manifested by the general voice from North to South, which calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modification of these suited to the habits of all the states. But if such cannot be found then it is better to establish trials by jury, the right of Habeas corpus, freedom of the press and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, than not to do it in any... The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."
Madison, in a letter dated October 17, 1788, responded,
"With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.
I hold the recent copyright extension as an example of what Madison thought there was little danger of. There it was said, even by Madison, the proponent of the said directives, that there would likely be no "a sacrifice of the many to the "partialities and corruptions" of a powerful few."
I firmly believe the DMCA is both a corruption and a partiality. Anyone with Macrovision stock will try and convince you otherwise.
Jefferson probably saw that there is some purpose in having intellectual property be protected in some fashion or more likely, IMHO, probably decided that he would rather be a part of creating the ground rules for this countries operations and decided to cut bait at this point. He subsequently said to Madison in a letter on August 28, 1789:
"I like the declaration of rights as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me... Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and for no other purpose."
The blank was to be filled in at some future date, obviously. The law is written with the sense that this right would be the right of the people to protect themselves against intellectual fraudulence by companies, e.g., the theft of the 'little man's' ideas. In addition to which, there is always the stance that the people of the fledgling USA would be safeguarded in the Bill of Rights against unduly long copyrights.
Jefferson's preference for the term of copyright was submitted to Madison a few days afterward, in a letter of September 6, 1789. The proposed term was that of 19 years, based on actuarial calculations:
"The question Whether one generation of men has a right to bind another seems never to have been started on this [i.e., the European side -- Jefferson was writing from France] or our [American] side of the water... that no such obligation can be so transmitted I think very capable of proof. -- I set out on this ground, which I suppose to be self evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it... A generation coming in and going out entire... would have a right on the first year of their self-dominion to contract a debt for 33 years, in the 10th for 24, in the 20th for 14, in the 30th for 4, whereas generations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead. The length of that term may be estimated from the tables of mortality. Take, for instance, the tables of M. de Buffon... [according to which] half of those of 21 years [of age] and upwards living at any one instant of time will be dead in 18 years 8 months, or say 19 years as the nearest integral number. Then 19 years is the term beyond which neither the representatives of a nation, nor even the whole nation itself assembled, can validly extend a debt... This principle that the earth belongs to the living, and not to the dead, is of very extensive application... Turn this subject in your mind, my dear Sir... Your station in the councils of our country gives you an opportunity for producing it to public consideration... Establish the principle... in the new law to be passed for protecting copyrights and new inventions, by securing the exclusive right for 19 instead of 14 years."
A Jeffersonian computation using life tables from 1992 gives a Jeffersonian copyright term of 30-35 years. (Vital Statistics of the United States 1992, Volume II--Mortality, Part A, Public Health Service, Hyattsville, 1996, Section 6, Table 6-1.) Note, however, that at least one edition of Jefferson's works has a much abridged version of this letter, in which the 19-year computation and the proposal for the term of copyright do not occur.
One of Jefferson's most famous statements on patent law was in his often-quoted letter of August 13, 1813 to Isaac McPherson, in which he wrote that, since there is no natural right to property in land, how much less is there a natural right to a property in ideas. I think Jefferson's words apply equally well to copyrights as to patents; to "expression" as well as to "ideas": "he who lights his taper at mine, receives light without darkening me."
A random set of impressions of these laws with which I agree:
"The scary thing about the DMCA is that it affects everyone, but only a subset of the country realizes it exists, of which a subset understands what it means, of which a subset understands why its so wrong. " quote, kstumpf (ken@stumpf.com).
"Is there a "voice" amongst this subset that has any power to inflict any change here? Kind of spooky. It makes you wonder where things are headed." quote, kstumpf (ken@stumpf.com).
As someone pointed out in a discussion, be sure to realize that copyright is referred to at this point as monopoly in Jefferson's letters.
Its fairly clear that Jefferson uses Monopoly in reference to copyright, which is what it is, you can monopolize on your intellectual property for a set period of time. He was willing to give IP of the day 19 years, but he was very much verbal about fair use, and that public fair use was of the utmost importance.
Even cursory inspection of Jefferson's views shows his distrust of allowing monopolies run rampant.
Even Madison has said:
"With regard to monopolies they are justly classed among the greatest nuisances in government."
They both realized that in order for Monopolies of any sort to be protected by the government, that undue amounts of arbitration would be necessary.
Jefferson also affords a Monopoly to the Individual, not a corporate entity:
"Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding ___ years, but for no longer term, and for no other purpose."
Surely he isn't suggesting that one person could create a monopoly on, lets say, corn. He was referring to copyright. He certainly isn't suggesting that corn could only be sold by one person for 19 years.
Another thing, imagine if the copyrights were in fact awarded to the people who invented them, not the companies who subsidized them. It would be interesting to see a world where companies like DuPont and Merck (and every other chemical and drug exploitation companies, because that's what they are, the money is in the treatments, not the cure) are made to treat their patent holding scientists with the utmost respect and regard, even more so than the greedy shareholders, because if they left for another company, so leaves their patents!
The most important of all the Jefferson arguments is this: If IP is so unique, so wonderful and so great, why does it need protection? I don't believe I had quoted this particular argument above, I will work to find it, but the statement is true. If something is obvious, then it really isn't IP. Would you like Bob Metcalfe, the Linux is a piece of crap Windows 2000 rules moron who founded 3COM to hold the patent on 'ethernet'?
Link: http://iwsun4.infoworld.com/articles/op/xml/99/06
Don't you think its nice that other companies compete with 3COM for the ethernet space, such as Intel, CISCO, et al? Doesn't the standard referred to as "ethernet" get better and better because these companies compete for your business in the same segment?
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation."
Thomas Jefferson, in Writings of Thomas Jefferson, vol. 6, H.A. Washington, Ed.,1854, pp. 180-181. Link: http://www.lib.virginia.edu/copyright/
The message in this passage is clear: an idea is not matter but energy; it cannot be owned, and it isn't diminished by being shared. In any discussion of copyright, it is useful to begin by reminding ourselves that ideas can't be copyrighted and can't be owned--only expression can. Furthermore, even when expression is copyrighted, academics ought to bear in mind their right to Fair Use, a crucial exception to copyright that exists in order to enable teaching, research, and news reporting.
A few more quotes to muse upon:
"It will be of little avail to the people that the laws are made by men of their choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they... undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow "
-- James Madison
And finally:
"The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, & to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers & be capable of reading them. I am convinced that those societies (as the Indians) which live without government enjoy in their general mass an infinitely greater degree of happiness than those who live under the European governments. Among the former, public opinion is in the place of law, & restrains morals as powerfully as laws ever did anywhere. Among the latter, under pretence of governing they have divided their nations into two classes, wolves & sheep. I do not exaggerate. This is a true picture of Europe. Cherish therefore the spirit of our people, and keep alive their attention. Do not be too severe upon their errors, but reclaim them by enlightening them. If once they become inattentive to the public affairs, you & I, & Congress & Assemblies, judges & governors shall all become wolves. "
Thomas Jefferson To Edward Carrington
Paris, Jan. 16, 1787
- B. Howes, 2001, California "Amerika"
Legalize the constitution. Think for yourself question authority.
Gandhi taught it before King.
There is some debate on that point. I personally believe that the DMCA *does* make it illegal to give a talk about encyrption techniques (because the information imparted in such a talk would be useful in defeating security measures). In fact, this is one reason why I believe the the DMCA is bad law.
But the FBI does *NOT* agree with me on this point... they apparently do NOT feel that giving a talk is sufficient grounds to prosecute Dmitry. That is why the criminal complaint they filed does NOT complain at all about his having given the talk, but only about his having worked for Elcomsoft software, and being "listed on the Elcomsoft software products as the copyright holder of the program".
So the only actions he is being prosecuted for took place on Russian soil.
We have a situation in this country where the Klan, neo-Nazis and hate groups of every stripe routinely and regularly exercise their freedom of speech and assembly, often on courthouse steps, with police protection. They are able to do this thanks to our society's long-held belief, codified in the First Amendment, that despite the offensive nature of someone's beliefs, we need to uphold their right of expression so that the rest of us can enjoy the same rights when we choose to exercise them. The courts have upheld this principle time and again. At the least, a federal judge needs to determine that Sklyarov's talk about the Adobe protection scheme, in and of itself, should be afforded constitutional protection. Simply TALKING about a means of circumvention should not rise to the level of a felony, particularly when the interests represented by the DMCA are corporate, and not civil. Certainly his talk doesn't equate to shouting "Fire!" in a crowded theatre. The Constitution was written to protect the People last time I checked. Unless I am mistaken, he did not get up in Las Vegas and perform a literal demonstration of the software (Even if he had, we then get into the issue of fair use, which is another ball of wax altogether). His arrest IMHO should be judged to be a form of prior restraint, and the FBI should be ordered to find another avenue to pursue Sklyarov's company, pending a challenge to the DMCA.
8 bit computing - It may be 2007 out there, but it's 1983 in here!!
An ebook publisher on why Dmitry should go free
I've added a recent list of points about what turns out to be the main technical point even if you believe in the DMCA. The DMCA crime alleged here is trafficking in the software in the USA. He didn't do this, his employer/publisher did. There is a big difference. If there are to be info-crimes, should employees be put in jail if their employers use their (legal where they did it) work in illegal ways in other lands?
Of course, as chairman of the EFF I may have some bias here.
Has it been over a year since you last donated to the Electronic Frontier Foundation
Yeah, the Bill of Rights is a real bitch that way. It means defending the rights of people you don't necessarily like. Life would be so much simpler if Amendments 1-10 just added "...except for people who really get on our nerves."
And it allows us to see clearly that they ARE devils.