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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.
"Even where the law is wrong it must be obeyed"
Is the criminal justice system not part of our democracy? You seem to imply laws can only be changed if the Congress passes a law to repeal it. That's not true at all. If the law is unconsititutional, the judicial system has more than enough power to declare it so.
Sounds like you're fighting for the wrong side.
10 minutes working on a sig. What a waste.
Sklyarov is clearly guilty of violating the DMCA. The not guilty plea is stupid nonsense.
I'm not saying he should be charged or jailed or such. God forbid I support the government's actions here. Thing is, the issue isn't his guilt (as he is clearly guilty) but why the DMCA exists in the first place.
Don't proclaim Sklyarov's innocence, because he isn't. Instead, proclaim the injustice of a law that imposes draconian punishments for things that should not be illegal in the first place.
Even Slashdot wants to hide some things
Maybe they got confused and meant "The only way to beat bullies is bullets." Remember, ranged weapons are here for the scrawny guys like us.
The Russian Foreign Ministry is warning programmers not to go to the US or they could be arrested. Check out the story here.
It is our duty as Americans to protest and commit acts of civil disobiedience when we believe a law is unjust. We must, of course, expect to be punished for our actions, but we must never fall blindly into the belief that we should obey and accept people punsihed under unjust laws, to do so is to sign away our freedoms one by one, because as many of you know waiting and writing to Congress to get something done, is not the most effective thing you can do.
Someone who is being punished under an unjust law is being unjustly punished, and you should not support punishing him, if you do not believe the law is just, to do so is hipocrasy.
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.
"The Gods made us all, but Armour-Piercing Discarding Sabot rounds made us all equal."
Vintage computer games and RPG books available. Email me if you're interested.
for showing up in court yesterday to stand by his employee. He certainly didn't have to come all the way from Russia, and risked getting arrested himself to do so. It impressed me a great deal, and hopefully it will have a similar effect on the court.
"the best safety of the frontier...will be secured by total annihilation of the few remaining indians" L Frank Baum 1890
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.
Electronic Frontier Foundation for online civil rights information
>>despite the fact that he knowingly and >>willfully comitted an act of copyright
>>infringement.
Don't be obtuse.
First - the 'crime' occured in another country.
Second - he didn't commit copyright infringement. He developed a tool. If i go down to the library, take a book and photocopy it, does that mean Xerox (and it's engineers) are guilty of 'copyright' infringement. No it doesn't. For the same reason a gun manufacturer isn't guilty of murder if i shoot somebody in the head. For the same reason if i take a hammer and break into your house, Sears isn't guilty of break and enter. If i burn a copy of a friends CD, HP (the manufacturer of my burner) isn't guilty of copyright infringent.
Don't confuse a tool and the use of a tool. Why should this case be treated differently because it deals with bits instead of physical objects. It's EXACTLY the same as the Xerox example.
And i won't even go into the agument about how the DMCA tramples other established rights.
He came here and spoke about his program, hence he trafficked his information here, which is illegal under the DMCA.
Dmitry violated our law on our soil and has been locked up for it. I hate the DMCA as much as any of us, but he is guilty, and proclaiming him as innocent merely makes one look uninformed.
Not necessarily the case. If it is the case that
-in Russia, it is legal to copy software and its content for backup purposes
-in Russia, it is legal to sell software to create said backups
-Elcomsoft made no sales of circumventing software to US companies
then in fact, it's pretty hard to enforce a US law, because it doesn't take place in the US. If this had happened to a US programmer in a US company, the case would be much cleaner...because it WOULD be illegal. In fact, it's surprising that they aren't choosing a local to hold up as an example. It would be much easier to convict an American who broke the law in the US.
Granted, Slashdot creates cult heros, but I think this is the wrong example to pick on them for. In this case, it's not a matter of someone not getting their free-as-in-beer stuff. It's a much more complicated scheme of making an example of someone who didn't necessarily break the law.
6 PROFESSION - Software engineers shall advance the integrity and reputation of the profession consistent with the public interest.
One implication of this principle is that we all need to stay informed on events related to the intergrity and reputation of our profession in order to defend ourselves against unjustified external attacks. Clearly, the Sklyarov case represents an attack of unprecedented ferocity on the profession of software engineering. Iam currently teaching 2 sections of a graduate-level software engineering course, and in an informal poll last week Iwas shocked to learn that less than five out of sixty students had heard of the DMCA or Dmitri Sklyarov. I emphasized that it is our professional duty to keep informed and to speak out against the persecution of software engineers. Besides linking to information on this and related cases on my course webpages, Iam considering some type of assignment that will encourage students to respond in some way to the threat represented by the DMCA. Letter writing campaign? Protest actions? I am writing slashdot to solicit recommendations.
Not quite. Two simple points prove this statement wrong:
There is no longer anything that can be done with computers that is nontrivial and clearly legal. -- Paul Phillips
As cmorriss points out, laws in the U.S. are not only amended through the legislature, they are also declared null and void if they are found unconstitutional by The Court. This does NOT require any sort of "democratic action". In fact, if the Supreme Court rules that a law is unconstitutional then it doesn't matter how popular it is with the public, it is gone. Personally I rather like it that way; it prevents a "tyranny of the majority" and protects even unpopular rights and the rights of unpopular groups (to a point).
I suspect DMCA is very unconstitutional, and hopefully if EFF can make a good enough case The Court can be convinced to overturn it; so supporting them in this effort is important.
Your "democratic action" does have its place. Even if it doesn't reverse this law, making your displeasure over DMCA known (in an thoughtful, clear fashion) to your representatives in Congress gives them feedback on the quality of their legislation and may prevent future similar "bad laws" from being enacted in the 1st place. This feedback is very important, but often times legislatures get insulated from the results of their work, and then some poor person (like Dimitri) has to be the "test case" victim to get it corrected in The Courts.
"Democratic action" has its place, but democracy (or in our case a republic) without constitutional restrictions and a judiciary system is tyranny waiting to happen.
While in theory I also disagree that all "wrong laws" must be obeyed, in this context the difference is only academic. The injustices and tragedies of war are so great that I think the laws must be very, very wrong and very, very uncorrectable before that step can be justified. But having your gov't know in the back of their mind that they could never rule out such a response is a useful deterrence to extremist bureaucrats.
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...
SDMI: Finally! Music that won't rip or burn! Brought to you by the fine folks at RIAA.
I've seen a number of posts suggesting that there is no doubt about Dmitri's guilt. Here is a list of conceivable ways that Dmitri could be found not guilty.
1) The DMCA is unconstitutional. No valid law to break means not guilty.
2) No jurisdiction over whatever activities Dmitri did commit. I don't think Dmitri can be prosecuted for writing or using the program in Russia. He must be implicated in the sales activity.
3) Although Dmitri is the copyright holder, the government does not establish that he colluded with Elcomsoft to sell the product in the US. Most countries don't have the same kind of "work for hire" copyright laws as the US, so it is perfectly plausible for a Russian employee to be a credited with the copyright and yet not be the motivating factor in his employer's sales strategy.
I haven't read the latest charges so I don't know what evidence the government has other than what was alleged in the original affidavit.
For those people who want to see the whole thing played out to the end, there is this encouraging news from Dmitri's lawyer:
Mr. Burton said Mr. Sklyarov would not plea-bargain. "That is out of the question," he said.
Seems to me if Skylarov was only interested in promoting better security he wouldn't have tried to sell his product. This looks to me like someone trying to make a buck off an insecure product.
Look at it another way. I come up with a key that can open and start any Ford vehicle. I have a couple of options. I could contact Ford and show them the tech that allows anyone to break into their vehicles. Or, if I don't want to deal with Ford directly I could publish the findings in an academic journal without trying to sell the key.
Instead of doing that, however, I decide to market and sell keys that can break into every Ford. Now, don't you see what's wrong with that? I could have taken the high road, but instead I tried to make a buck. This is pretty much what Dmitry did.
I can assure you, that if anyone tries to market a key that will unlock any Ford, that person will get thrown in jail if caught. Why should software be different?
No, Thursday's out. How about never - is never good for you?
The "FREE DIMITRY with every purchase" was great.
Funniest thing I've read today.
C-X C-S
It follows that:
These sound crazy, don't they? But, really, what's the difference between a South Carolina doctor being convicted of practicing in South Carolina, without a California licence, and some Russian geek being convicted of DMCA "violations" arising from work in Russia?
Well, other than Russia is a lot further away, isn't even part of the US, and other such details. The doctor example I gave would actually be far more reasonable. At least the alleged events would have happened on the same Continent!
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
My country has humiliated me. My country, the United States, has deeply embarassed me. How is it that the country that stood for freedom of speech has now gone so low as to begin warping laws that it's citizens granted artists to restrict civil rights? Worse yet, we're not restricting the civil rights of our own citizens, WE'RE RESTRICTING THE CIVIL RIGHTS OF CITIZENS FROM COUNTRIES WHOM WE ENCOURAGED TO EMBRACE FREE SPEECH. In fact, we're doing such a good job of it, that now Russia is warning it's citizens not to travel to our country, just like our country constantly warns us not to travel to China.
This is exceedingly humiliating and depressing. It was less than 15 years ago that we encouraged Gobachev to tear down the wall, to enact change in a totalitarian regime that completely restricted freedom of speech.Now that same country is warning it's citizens against our lack of freedoms.
Words fail.
Go Lakers!
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Newsweek
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This is my SIG. There are many like it, but this one is mine.
From CNN:
The U.S. Attorney's office brought charges against ElcomSoft after purchasing a copy of the software over the Internet from ElcomSoft's Web site, which is hosted in the U.S. and uses a U.S.-based payment services provider, the indictment said.
So, the way that they knew about the crime was to commit the crime of purchasing, and thus owning "illegal" software? I guess they probably think that this is like the cop who poses as a buyer for crack on the street?
I'd rather have someone respond than be modded up.
...When Russia has to tell it's citizens not to vist the United States because they might be thrown in jail for something they did in their own country. It's just too ironic.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
Many of the issues here are discussed in a recent report:
M. Skala. "New Media Copyright Extensions Would Harm Canada", Aug 2001
It is a long read for the weak, but it clear and to the point as to why "laws" such as the DMCA is a bad idea, giving a short history of copyright and a summary of recent events in the world of IP/DRM. I believe it can help people focus their arguments.
Belief is the currency of delusion.
Unfortunately, a plea of not guilty will not lead to a legal examination of the DMCA either, at least not directly. 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." His only duty is to determine whether or not Skylarov violated the DMCA, and issue an appropriate sentence.
n /j ury_nullification.shtml
i on /
Perhaps the judge can't just proclaim the law as unfair and set Skylarov free, but the jury can refuse to convict him for any reason - even if they just don't like the law in question. If the trial is in Frisco, then there's a good chance that there will be some geeks on the jury (especially since there are so many out of work geeks there these days)
http://www.erowid.org/freedom/jury_nullificatio
http://www.fija.org/
http://civilliberty.about.com/cs/jurynullificat
(please disreagard the previous psudo post, I accidentally hit return when the focus was on the "Submit" button)
- bridgette
"Even where the law is wrong it must be obeyed"
Hogwash. When the law is wrong, it is the DUTY of decent people to disobey it.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
-- Martin Luther King
In more detail - the Supreme Court does not render advisory opinions. That is, you cannot simply ask the court to judge whether a law is constitutional or not. To have a law declared unconstitutional, one must actually violate the law and pursue one's defense to the highest court in the land.
The benefit of having unjust laws struck down by the Supreme Court comes at the cost of risking one's freedom if one's attempt proves unsuccessful - or even one's life, in the event the law in question provides for capital punishment.
-- Could you use my software consulting serv
The *smart* thing to do, is pardon Sklyarov.
That way, your corporate masters get to keep this blatantly unconstitutional bludgeon around to threaten anyone else who seeks to expose their incompetence. The longer you keep the DMCA out of court, the more damage it can do to the constitution your sock-puppet took an oath to uphold.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
how bizarre.
democracy dates back a long time before capitalism. we could go back to ancient athens. you might not think of that as democratic though. we could go to tenth-century iceland. (iceland, where they still haven't bothered with capitalism. they did get democracy, back, though. capitalism. what a crazy idea. :)
capitalism also dates back before democracy. that is, unless you think of early nineteenth-century Britain, the birthplace of capitalism, as democratic. I'm unsure as to whether I'd call it democratic now. never mind before 1832.
fascism is also not rule by corporations. that's what we call feudalism. (our modern feudal lords use intellectual property rights instead of land rights. both are fictions of the law.) fascism is rule by gangs: it was named after the fascisti, and a key component of Nazism as well as the Mussolini and Franco regimes was the gangs of thugs who kept people in line.
my old sig used to be funny, but then slashcode ate it and now it's not funny anymore