Sklyarov, Elcomsoft Plead Not Guilty

squared99 writes: "I'm sure it has already flooded slashdot, but Dmitri has entered his plea, not guilty. This NYTimes article talks about it. Not sure I like the mention of bumper stickers, as opposed to the real people who have been protesting, but at least it talks about the support he has been getting. It even appeared as one the main newsworthy item on my daily NYTimes newsletter, Yay! Let's keep up the support and protests. As my brother said to me the other day, "The only way to beat bullies is to stand up to them."" See also Elcomsoft's statement about the case, a story in the Boston Globe, and this cute fable about a DMCA future. Update: 08/31 19:37 PM GMT by M : one more link - the Russian Foreign Ministry has warned its programmers not to travel to the United States.

Comments

A Response from Russia

[kjj]

The Russian Foreign Ministry is warning programmers not to go to the US or they could be arrested. Check out the story here.

DMCA coming to Europe

[Anonymous Coward]

It may (and should) outrage all Europeans, but within a year, Dmitry's actions are going to be made illegal in Europe too. Yes, that's right - they've put together a DMCA in Europe called the European Union Copyright Directive. It bans circumventing encryption in the same way. In a year's time, all governments in Europe are obliged to enact it as law.

We can still stop this! Check out here and if you're in Britain, write a letter to your MP. You can and should make a difference.

Not guilty plea *was* the right thing to do

[M_Talon]

To those who were criticizing the not-guilty plea and saying he is guilty, this needs to be said. Had he went ahead and pleaded guilty, there would be no legal examination of the DMCA. He would have been fined and sentenced to prison, end of story. The United States NEEDS this examination of the DMCA, if for no other reason than to bring the flaws in the law to light in an official manner. It will be up to the courts to make the decision, and in the mean time, the issues surrounding the DMCA will hopefully become more public knowledge.

I'm really saddened that Russia had to issue its advisory, but again maybe that will be a wake up call to everyone that there is something very very wrong with the way the DMCA is being enforced. One would hope that we can settle the issue internally before it becomes more of an international issue than it already is. The US preaches so much about "human rights" and begs for other countries to "do the right thing" even though their laws are written differently. It's time we practice what we preach.

Re:Not guilty plea *was* the right thing to do

[rjh]

The court's duty is to enforce the existing law, not to ratify or amend it. As I understand American law, the judge is not at liberty to simply say, "Well, this law is clearly unfair. Therefore we'll just have to release Mr. Skylarov."

Are you high?!

That was, honestly, my first gut response to your message. You're operating under a critical, severe misunderstanding of how American jurisprudence works.

1. The Constitution is the supreme law of the land.
   No ifs, ands or buts here. The Constitution is this nation's highest law; so high, in fact, that it automatically trumps any other law which comes into conflict with it.
2. No unconstitutional laws exist.
3. 
   This is actually a little judicial fiction that lawyers tell themselves, because unconstitutional laws are passed on a regular basis. However, the instant that a judge finds a law to be in conflict with the Constitution--i.e., there's a formal finding by a court that a law is inconsistent with the nation's highest law--then the law in question is not merely voided. If it were voided, that would mean at one point it was enforceable. Laws which are held to be unconstitutional are retroactively erased; they are invalid ab initio, from the very beginning. Is the law unconstitutional? If so, then that law doesn't exist and, more to the point, never existed in the eyes of the court.
4. The judge must uphold the law.
   A judge is responsible for seeing to it that the laws are properly applied--including the Constitution, the nation's highest law. A judge who will not judge laws for Constitutional correctness is a judge who is utterly incompetent for the bench, and who needs to be impeached.

... If the DMCA violates any of Dmitry's rights under the Constitution--and note that he has a hell of a lot of rights, even though he's a foreigner--then that's it; game over; prosecution loses.

The Cyber Archipelago

[Bluesee]

That story about Derek was funny, and it reminded me of the book I am currently reading, The Gulag Archipelago, by Solzhynetsin (sp!). That non-fictional story is an account of how power can corrupt, basically. The problem in Stalinist Russia was that the Reds were, if I have this right, basically trying to create a new society the ideology of which was vulnerable to the thoughts of objective people who could see the shortcomings of it. In their effort to control thought, the officials found it necessary to root out all possible instances of anti-communist behavior; unfortunately this included such things as not reaching the party farm production objectives (ten years in prison for not growing enough grain!) and not surrendering to German armies in WWII (when the POWs were returned to the SU in '45 - by Churchill, incidentally, against the soldiers' wills - rather than being welcomed back as heroes, they were arrested, tortured, and given 10-yr sentences, since they must have been spies to have survived the German camps!). Basically, Stalin, in his paranoia, and by extension the entire nation, found it necessary to control behavior by draconian means.

My point (and I do have one) is that the enforcement of infinitesimally minute behaviors requires the rooting out and punishing of the majority of the citizens of a nation: the mother country goes to war on its citizens. The way to do this is to put each and every citizen at risk of loss of liberty; i.e., each citizen is breaking some law or another. In this manner, the State gains control over the behavior of its population, and in a greater degree than just copying ebooks. Once you have copied an ebook, or, taken to the logical extreme, say, exceeded 55 mph (or snuck a beer into a college football game), you are a criminal.

But, while speeding doesn't leave a record of itself, ebook copying does and so leaves a legacy, a record of the crime. It can be likened to arresting you for a failed drug test; you are not doing a crime now, but there is proof that you once did.

For these reasons, the framers of the Constitution would wisely refrain from endorsing the bastardization of their concept of protection of Science and Arts through copyright. The prosecution of the law requires that we become Stalinist in the degree to which we must root out the crime. Napster points this out effectively, in my opinion: the only way to catch all those crimes is to monitor each and every terminal 24/7. And that gives away too much power to the government for freedom to be guaranteed, even in a Democracy.

If you didn't follow that, feel free to email me with any questions you might have...