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Sklyarov Case Opens Today

Posted by ryuzaki0 on from the please-use-the-pirate's-entrance dept.

weakethics writes "The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."

22 of 314 comments (clear)

  1. Using the DCMA against itself by pubjames · · Score: 5, Interesting


    As I understand it the DCMA is supported by the film and music industry because it allows them to create technologies which they can wrap their content in, which are illegal to try to break.

    What happens if we create a file compression/security method that incorporates an original encryption technology, with some mechanism by which you only give out the key to people you trust? We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support. Wouldn't that be a good way of demonstrating the stupidity of this law?

    1. Re: Using the DCMA against itself by Rhubarb+Crumble · · Score: 3, Interesting
      What happens if we create a file compression/security method that incorporates an original encryption technology, with some mechanism by which you only give out the key to people you trust?

      And this is where it falls down. The **AA don't actually mind (much) if you give out a key to your friends and give them copies of your stuff. It's just like taping a CD for a friend - it doesn't achieve the kind of critical mass that actually cuts into their profit margins. Only anonymous access does that.

      What you're proposing is not really any different from putting your MP3s etc onto an SCP server and emailing the password to your friends (but only them). Technically illegal, but small fry.

    2. Re:Using the DCMA against itself by Qrlx · · Score: 3, Interesting

      We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support

      That sounds cool but I don't think it will work.

      In order to qualify for protection under the DMCA, aren't you required to use encryption methods to protect copyrighted works?

      I don't think you'll be covered if you use encryption to protect SOMEBODY ELSE'S copyrights. You have to have the copyright yourself.

      It's not like I could encrypt my bootleg of When Animals Attack or whatever, and then distribute it, and hope to get off because The Man decrpyted it in violation of the DMCA. What I did was illegal in the first place, so the fact that The Man broke his own laws to get me is probably trivial.

      I say probably, but it is conceivable that there's a judge out there who would throw out the evidence (i.e. the decrypted file) because The Man didn't have a court order or subpoena or whatever allowing the decryption. Don't bet on it.

      While your plan would certainly demonstrate the stupidity of the law, most judges would overlook that transgression to get to the "root" which is the fact that all p2p users and open source advocates are, in their minds, a bunch of thieves or something. Which is funny, because I'm sure their kids or grandkids have hard drives full of mp3s, and they don't even know it. They think p2p is some freakish seamy underworld, and in fact it's as common as AOL. Heck, maybe they even trade shows on their TiVo or ReplayTV or whatever, and don't even realize what they're doing. Because TiVO has brought corporate legitimacy to p2p, and more than that they've mainstreamed themselves -- witness the "My TiVo thinks I'm gay" sitcom episodes. Without corporate backing and media buy-in, you will be viewed as an outcast. (Look at the people who live off-grid, for example.) In this case, it's obvious that ElcomSoft, a foreign company whose every product cracks files, is fighting an uphill battle. They will probably lose, and the wording will be in such a way that an appeal won't serve the purpose of challenging the DMCA.

      This whole controversy smacks of the clash of generations, of "kids" threatening the power base of an older generation who has never played a FPS game or knows what a LAN party is. I don't think we'll see any victories anytime soon, but in twenty years, when copyrights are set to expire again, your Congressional Representatives might have actually grown up in a house with a computer or two in it. They will have a different outlook.

    3. Re:Using the DCMA against itself by pubjames · · Score: 3, Interesting

      I don't think you'll be covered if you use encryption to protect SOMEBODY ELSE'S copyrights. You have to have the copyright yourself.

      But the point is that stuff could be encrypted so that you couldn't tell what it was unless you circumvented the copy protection, which is what the DMCA is all about. So if on the P2P network some people were trading materials to which they owned the copyright, and other people were not, how do you go about proving anything without breaking the law? The people sharing legitimate files could rightly sue them under the DMCA.

  2. I don't understand... by jaredcoleman · · Score: 5, Interesting
    "His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment."
    Can someone explain this argument to me? I honestly do not get it. My understanding is that free speech means that the government can't throw me in jail for saying "DMCA sucks!" But just because I have freedom of speech doesn't mean that I can do malicious things with my speech and expect no consequences. I can be prosecuted for yelling "fire" in a crowded movie theatre, so why can't I be prosecuted if my speech is malicious in some other way? Also, how can you justify interpreting 'speech' in this broad way? I can't imagine the framers would agree. Just honestly curious, no flame please.

  3. Re:Right thinking people? by Anonymous Coward · · Score: 1, Interesting

    Or does this have to do with Conservative vs. liberal views?

    Since the DMCA passed the Senate with a 97-0 vote, "liberal" vs. "conservative" has nothing to do with it.

    BTW, there are no such things as "liberals" or "conservatives" anymore.

  4. Measuring the effects of the DMCA by asolipsist · · Score: 5, Interesting

    As other posters have pointed out, the main effects of the DMCA appear through fear of litigation rather than Federal court cases. A group of us, telecom grad students, wrote a paper on quantitative effects (chilling) of the DMCA on security research. We used the bugtraq incidence list as our source of raw data. We concluded there were some measurable effects, though kinda small.

    (its an academic paper, you have to find some sort of effect right!)

    you can check it out here

    (I know .doc is bad! sorry, lost the pdf version)

  5. I don't get it by roemcke · · Score: 3, Interesting
    The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books.

    I don't get it.. How can Adobes intellectual property rights have been violated? It's the pdf content that has been cracked (is now viewable without licensed viewer) NOT the pdf viewer !!??

    1. Re:I don't get it by Anonymous Coward · · Score: 1, Interesting
      Historically, a lock manufacturer with a lock which is too easily circumvented has had to go out and invent a better lock. That's how we've got better and better locks.

      But if the circumvention takes the form of lockpicks, it's the pick user, not the lockmaker who's in trouble with the law.

      Frankly I'm against laws about possession of picks and other burglary tools. Punish behavior, not possession or potential use.

    2. Re:I don't get it by MindStalker · · Score: 3, Interesting

      In most states its perfectly legal to have lockpicks (unless you are a convicted felon) But get caught using those lockpicks to commit a crime and your really busted. My dad used to be a locksmith I remember it was always a huge argument amoung locksmith weither they should presure the state the regulate the industry (require license to have lock tools) The large locksmith shops were all for it, and te small ones were all against it (having to get a license is a barrier to entry obviously) Anyways the state didn't pass any law as their wasn't a concensous. But thats just Florida, your millage may vary.

  6. Re:So what exactly is the point...? by dh003i · · Score: 3, Interesting

    We want this to be a test-case, so that the DMCA can be over-turned.

    But the problematic point is that the US has no jurisdiction. The Elcomsoft and Skylarov are in Russia, so the US has no jurisdiction over them what-so-ever. I'm startled that Skylarov and Elcomsoft are actually appearing before a US court. Had they stayed in Russia, the US court would have no jurisdiction/sovereignty what-so-ever. The court could have ruled against Elcomsoft, but would have no way of enforcing a punishment, as Elcomsoft is in Russia.

    Now that Elcomsoft's president is in the US, they can use that as leverage to enforce their ruling, by imprisoning Elcomsoft's president until Elcomsoft acquiesces.

    I don't see why Skylarov and Elcomsoft are being so stupid. They have no obligation what-so-ever to come to the US. Skylarov could stay in Russia, say fuck the agreement to testify, and suffer no consequence. Likewise with Elcomsoft.

    --
    social sciences can never use experience to verify their statemen
  7. Re:I agree by Tom7 · · Score: 5, Interesting

    > The only real effect of the DMCA is that companies can't openly distribute stuff that violates the DMCA.

    I don't think that's really true. The DMCA is used to intimidate and annoy regular well-intentioned folks like myself on a weekly basis. Check out my dmca troubles over a font program I wrote, for instance.

  8. The point is simply this... by Newer+Guy · · Score: 4, Interesting

    Morons will be morons!

    How much simpler can I say it?

    AND...the USA has morons everywhere, from the president on down!
    Who do you think ELECTS the morons? Other morons.
    Or are they the morons after all?
    Why? Because many smart people like us ACT like morons and don't even bother to vote!
    In the last election, 61% of the registered voters didn't vote. I voted. Did you?
    Probably another 20-30% of the people eligible to vote aren't even registered. Are you?
    The DMCA is probably the most anti-freedom law ever passed. We all bitch about it. Did you vote?

    Maybe you people who didn't vote or register are the morons after all.

    Think about it.

    "Evil flourishes when good people do nothing"
    -Edmund Burke-

  9. Re:Say it with me now... by jmu1 · · Score: 3, Interesting
    I've never, in the four or so years that I've read /. that this was a haven for objective journalism, much less journalism at all. I mean, we can't all be Fox News Network( wink, wink ).

    I am capable of coming to my own conclusions, as are others. Reading of various opinions, facts and observing their validity is how I so such. I don't expect everyone to either be completely stoic, nor do I expect anyone to succum to my way of thinking.

    You've come here, I'm guessing for a pretty long time. By now you should have decided whether or not this little haven of geekdom is worthy of your readership. If you haven't, give it another try. If you have, and you decided it's not to your liking, stop bitching and go somewhere else.

    It'll be interesting to watch the fate of the DMCA unfurl, for sure. I'll be watching from as many sidelines as I can.

  10. Re:Appeals by Mr+Guy · · Score: 3, Interesting

    Except they likely won't have to. It seems likely based on the Russian outcry about his arrest that it's likely the company will say, "It isn't against the law here so fuck off." At worst I'd imagine any equiptment they have in Chicago (I think it was) will be siezed, they'll move to servers somewhere else and nothing will change.

    --
    Never confuse volume with power.
  11. Re:That idiot is a lawyer by uncoveror · · Score: 4, Interesting

    Reading adobe e-books aloud violated one version of their licence agreement rading e-books aloud to the blind could itself violate the DMCA.

    --
    The Uncoveror: It's the real news.
  12. Re:I agree by bwt · · Score: 3, Interesting

    First of all, you deserve a lot of credit for standing up to the allegations that were sent your way. Bravo.

    On the other hand, you prove my point. You are still distributing your program. Their attempts to shut you down failed. They probably did "annoy" you, but it is very clear from reading your letters that they did not "intimidate" you. Since they have not brought litigation against you, it appears instead that you have intimidated them.

    The ambiguities in the DMCA cut both ways, and the 2600 case illustrates that you may have to litigate for years and in the end all you will get is an injunction that applies to one of the 30,000 kayakers coming down the Hudson, to paraphrase the judge.

  13. Cognitive Dissonance, anyone? by Anonymous Coward · · Score: 2, Interesting

    I think you'll find that should be left-thinking-people.

    Then explain why:

    a) 40+ Democrat senators voted for the DMCA,
    b) zero Democrat senators voted against it, and
    c) A Democrat president wasted no time in signing it ?

  14. Re:Where CYA is the name of the game... by McChump · · Score: 3, Interesting

    No. Actually, quite a number of reasonable people are hoping for this result.

    Remember that this is a criminal case. If Elcomsoft wins, the Justice Dept. most likely will not appeal. The prosecution's right to appeal in criminal cases is very limited, and I don't see how any of the pretrial rulings by the judge in this case are legally wacky in favor of Elcomsoft (if anything, they've been biased against Elcomsoft). Therefore, legal issues regarding the validity of the criminal provisions of the DCMA will only be heard by an appellate court if Elcomsoft loses the case. An appeal is crucial, since only if the case works its way up the appellate ladder will we ever get a ruling against the law.

    Since Dimtry is no longer a party to the case, the only real penalty than can be levied is a fine anyway. Thus, this is a relatively harmless way for there to be a good result in the end.

    --
    I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners. - Berke Breathed
  15. Intimidation & history by hansroy · · Score: 2, Interesting

    I imagine that when people, particularly lawyers, look back on a law like the DMCA, they'd look to see how many relevant case histories. And finding so few, they might assume it was generally accepted. Case law is much more likely to survive longer than journal & news articles. So how can we preserve true sentiment, popular or not?

  16. Re:So what exactly is the point...? by DunbarTheInept · · Score: 3, Interesting

    If you choose to do business in a country, your business actions in that country are subject to the laws of that country. So the instant Elcomsoft knowingly sold its first copy of the program to a US citizen, the DMCA had jurisdiction over that act. You are right the DMCA has no jurisdiction over Dmitry - he wasn't involved in sales, so he wasn't the one violating the DMCA by choosing to provide the product to US citizens. But the company itself is under the jursdiction.

    The possible punishments are limited, though. At most the US can tell Elcomsoft it is not allowed to do business inside the US.

    --

    Don't label something "offtopic" unless you know the topic well enough to tell what's on topic.

  17. Re:Adobe Is Dead by sakeneko · · Score: 4, Interesting
    adobe will survive long past this silly dmca bs.

    It will indeed. I am a technical writer with well over ten years experience in the field. Among technical writers, FrameMaker is used more than all other tools combined for producing printed documentation. It predominates because it is by far the best tool for that purpose. Microsoft Word was not designed to typeset books, and is not suitable for the purpose. Anyone who has tried to use it for that purpose can testify to that. <wry grin>

    In addition, FrameMaker has some truly wonderful electronic publishing capabilities. I've used it for years to produce fully hyperlinked PDF versions of printed manuals and online help for web-based applications. I have even set up single source documentation systems using it -- systems that allowed me to produce printed documents and online help from the same source files.

    Without FrameMaker or Acrobat, I'd have a much harder time doing my job.

    In my opinion (along with the rest of you), the DCMA is a wonderful example of outright legislative malpractice. The congressmen that wrote it and sponsored it probably deserve to be tossed out on their asses when they come up for re-election. This particular case is an embarrassment and black eye to the United States. Adobe should have known better than to get within a light year of the thing, much less actively work to get anyone prosecuted under it. :/

    But none of that has anything to do with the quality of Adobe's products.

    --

    Catherine