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

law and guilt

[Proud Geek]

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.

Re:law and guilt

[furiousgeorge]

Please explain how is is guilty of doing work in another country where this activity isn't illegal? When did the US's jurisdiction become international.

There's probably fifty things you've done today that are crimes in other countries (read much about Afghanistan lately) - keep things in perspective.

ALSO - if you plead guilty, then this doesn't go through the courts with the potential result of the DMCA being declared unconstitutional. If everybody pleads guilty there is ZERO chance of the law being struck down.

Don't be obtuse.

Re:law and guilt

[technos]

If he'd just given his crack away, I'm not sure he'd have been prosecutable. But he sold it. Profiting from a crime. However we might feel about the constitutional validity of the DMCA, right now it's a law. Breaking it is a crime.

Doesn't matter. This is a criminal action against an employee of ElcomSoft. ElcomSoft paid him to do programming for the eBook processor. He did not place the program on a US server, he did not engage a US company to handle credit card orders, he did not sell the product. He just wrote code.

Think about it this way; I, in the normal course of my employment, am instructed to make a program to aid the mastering of an inhouse DVD/VCD video product. As part of the program, I write a decryption algo to reduce our pre-mastered DVD discs to plain files so they can me shuffled, re-encoded, etc. The company finds this acceptable, and in fact good enough it thinks it can get some of its partners to use the software for a fee.

What I did, as a programmer, was legal. Even if I had knowledge that the company may decide to sell it as a commercial product, the burden is on them to acquire the relevant permission. Licensing for sale the CSS IP, the MPEG encoder, etc. Their problem. Not mine. If they are called up on the carpet for IP violations, contributory infringement, DMCA violation, etc, only the company and its officers are legally responsible. Not me.

Same with ElcomSoft. They are liable if their sale of the product violated law, not DS..

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.

The "law" is not always important

[fcd]

An unjust law does not demand being followed simply because it is the law. Our country has a history of unjust laws. Take for example the Jim Crow laws in the south. You state that you agree with the people who put MLK in jail. The people who turned dogs and hoses on protestors, civil protestors, not violent ones, simply because it is the law?

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.

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.

You've got to admire his boss...

[brulman]

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.

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.

Re:Biased Slashdot Coverage..

[daoine]

despite the fact that he knowingly and willfully comitted an act of copyright infringement. This is a crime.

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.

Professional Repsonsibilies and DMCA Awareness

[guygee]

The sixth principle of the IEEE/ACM Software Engineering Code of Ethics and Professional Practice states:

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.

Re:It's quite simple why he is guilty

[Zwack]

He came here and spoke about his program, hence he trafficked his information here, which is illegal under the DMCA.

I don't believe that talking about weaknesses in software is illegal. It certainly isn't trafficking.

The trafficking in this case is the sale in the US of software that he first wrote. The fact that he was outside the US is allegedly irrelevant as he/Elcomsoft used a US based server/service to sell the software.

Claiming he is guilty is surely against US judicial protocol as he is "Presumed Innocent until Proven Guilty".

Proclaiming him one way or the other merely makes one look uninformed.

Zwack

Re:It's quite simple why he is guilty

[singularity]

Funy you should mention *he* looks uninformed.

Pleading not guilty means that he gets his day in court when he (and his representation) can argue that the DMCA is unconstitutional.

*That* is the way that laws can be struck down.

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...

Re:The Cyber Archipelago

[sdo1]

But, while speeding doesn't leave a record of itself, ebook copying does and so leaves a legacy, a record of the crime

The way things are headed, I can GUARANTEE you that things like speeding WILL INDEED be monitored. It starts slowly, but we're already on that slope. Put a toll transponder in your car. We've already seen these transponders used to track people. Next up, you'll get a ticket if you jump on a toll road and get from Exit A to Exit B in an average time that would exceed the speed limit.

But why stop there? These things are cheap enough. Make them mandatory in all cars. Monitor your car speed through GPS. Violate the speed limit, get a ticket in the mail. Plus tracking devices can help the cops find any car at any time because they're ALL being tracked. That's a GOOD thing, right? Fight crime, right?

This country is going to hell quickly. I fear for the life that my son is going to have.

-S

Re:The Cyber Archipelago

[Noer]

You make some good points. Another way to look at this (esp. the whole Napster thing, or your speeding example) is that when a LARGE percentage of a population (need not be an actual majority) are breaking the same law, the law needs to be examined closely.

Perhaps there's something quite wrong with society; if 30% of the population were murderers, this would definitely be the case. But perhaps it's an indication that the law should be changed. Should SO many people get speeding tickets all the time, especially when they're only a fraction ("selective enforcement" police units really scare me) of the total number of people speeding? Should everyone who used Napster be punished? Any society that has as large a percentage of its population in prison as ours does definitely has a problem (note: most of these people are in for drug-related offenses, which I think probably shouldn't be illegal).

A friend of mine often rants against unenforced laws; he thinks the speeding laws should be STRICTLY enforced, so that people would get pissed and demand that the law be changed. Perhaps this is true; it's a variation on the idea that a society that criminalizes (whether or not it punishes) a large % of the population has a major problem.

Re:The Cyber Archipelago

[ErikTheRed]

Speed monitoring has already been tried by car rental agencies, albeit without legal success.

One of my biggest beefs with law in general is that there is far, far too much of it. Many laws are routinely disregarded by the population - underage drinking, speed limits on freeways, and especially taxes - because they are far too restrictive, to the point where they defy common sense. Because we (Americans, and I'm sure plenty of others) live in a land rife with dictu absurda, we have developed a sense that we only have to follow laws that makes sense to us.

We also have a population largely willing to throw away its rights in order to combat the trendy social concern of the day. Of course, this is largely abetted by those with a political agenda that doesn't trust the common citizen to go about their day-to-day business without infinite hand-holding from big brother.

In order to develop respect for the law, we need to have a set of laws worth respecting.

Re:The Cyber Archipelago

[locust]

It won't be the police that demand it. It will be the insurance companies. They have a profit incentive to know if: you are driving regularly through a bad nieghborhood, driving too fast, driving farther than you tell them you drive to work. All of these things impinge upon the chances they will have to have to pay you if your car is stolen, crashed, etc. Further as large scale computing power becomes cheaper it will be come more practical to generate much more detailed actuarial tables that reflect these changes. These will translate into higher profits in the reinsurance market (insurers get insured against having to pay claims).

Finally, when it comes down to having an extra 20 bucks a month to feed your kids, or having that extra bit of privacy, I'm pretty sure where most people will come down.

--locust

Some implications of this & the Oz news

[jd]

It seems clear that any action carried out in ANY other country may be grounds for prosecution in ANY OTHER country. (Australia now permits overseas defamation lawsuits, for example.)

It follows that:

• Anyone in the US can be tried and convicted of posession of a firearm, should they go to the United Kingdom, whether or not they bring any firearms with them.
• Anyone in the US who publishes more than 1/3 of their news material in English can be convicted in France for inadequate use of French.
• Anyone practicing medicine in the US is in -serious- trouble, unless licenced in all 50 States. Practicing -anywhere- in the US could be grounds for deportation and conviction in a State for which the doctor has no licence.

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!

This is exceedingly humiliating.

[JeremyYoung]

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.

Re:This is exceedingly humiliating.

[Xerithane]

For what it counts, this sentiment is sadly shared by myself. I do not understand how so easily consumers have lost their voice to corporations, and the masses. It's sadly growing into a nebulous entity no longer controlled by the government, a government established by the people for the people.

I have paid my taxes, and my dues. I'm strongly considering re-rooting myself into a true free economy and country. I know nothing is perfect, but there are many countries that are much better than what we're finding here. I try to relate this to the automobile industry, and the rail road industry. It takes a while for thought transition to change. For individuals to accept the new innovation into daily life and then a balance will occur. Unfortunately, through all those "revolutions" we have kept our speech. Here, we have lost our voice. Our freedom of speech has been abolished and placed into the hands of other individuals, not appointed by state, to determine what is ok to say.

I feel useless to change this, but I will never stop protesting. I'll never stop sending emails to everyone I know. I believe in freedom, sadly enough I don't believe in America anymore.

Don't blow off jury duty!!!!

[bridgette]

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.

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_nullification /j ury_nullification.shtml
http://www.fija.org/
http://civilliberty.about.com/cs/jurynullificati on /

(please disreagard the previous psudo post, I accidentally hit return when the focus was on the "Submit" button)