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Sklyarov Case Opens Today
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."
Copyright test in San Jose
Russian expected to take stand in Adobe E-book code case
Carrie Kirby, Chronicle Staff Writer Monday, December 2, 2002
After a year of delays, the government is finally set to try in San Jose this week the first criminal case stemming from a law designed to bring copyright into the 21st century.
The United States of America vs. ElcomSoft Ltd. pits the need to protect intellectual property in the age of Internet file-trading and CD burning against the public's traditional right to use media they buy any way they want to.
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.
When the case was first brought in July 2001, it garnered international attention because it was the first criminal test of the Digital Millennium Copyright Act, a 1998 law eagerly sought by entertainment and software companies and bitterly opposed by cryptography researchers and free-speech advocates.
The case also grabbed headlines because the U.S. attorney for the Northern District of California actually jailed a Russian graduate student, Dmitry Sklyarov, for allegedly writing a computer program that violates the law.
To many, locking up a skinny, pale-faced student for writing a computer program was as ridiculous as incarcerating people who tear the "Do not remove" tags off mattresses. But to protesters who surrounded the San Jose jail, Sklyarov's incarceration was no laughing matter. His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment.
Now, Sklyarov, 27, is expected to serve as the government's star witness.
In December 2001, Sklyarov agreed to testify in the case in exchange for having the charges against him dropped. Actually, he is expected to testify for both the plaintiff and the defendant, said Judy Trummer, spokeswoman for both Sklyarov and ElcomSoft.
"He has a single story to tell, and it doesn't differ with who calls him to the stand," Trummer said.
Jury selection for the trial is scheduled to begin this morning. However, Sklyarov and ElcomSoft's president, Alex Katalov, were not expected to arrive in the United States until Sunday night or this morning, Trummer said. ElcomSoft attorney Joe Burton planned to ask for a delay if his client is not present, she said.
Katalov and Sklyarov both had difficulties getting visas to return to the United States, but have finally received "parole visas" that allow them to be in the country only for the duration of the trial, Trummer said.
Northern District of California Assistant U.S. Attorney Scott Frewing may also call to the stand a number of people who bought ElcomSoft's E-Book cracking program, and two investigators employed by Adobe, whose complaint against ElcomSoft started the case.
The case, to be tried by U.S. District Judge Ronald M. Whyte, is expected to draw much attention, because the issue of copyright in the digital age is as hotly contested now as it was when Sklyarov was first arrested 16 months ago.
But Peter Toren, a former Justice Department attorney who prosecuted technology copyright cases, said that some of the case's drama may have worn off since Sklyarov was first arrested.
Then, supporters of consumer rights and free speech warned that criminal prosecutions based on the Digital Millennium Copyright Act would stop encryption research and other legitimate activities.
But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law.
"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," Toren said.
E-mail Carrie Kirby at ckirby@sfchronicle.com.
Free Kevin!
Wait, sorry---wrong trial...
Karma: Marginal (mostly due to the border around the website)
"But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law." ... The reason he hasn't heard about it is the same reason that many projects don't exist right now.
these things obviously don't go hand in hand, or the trial would have already been over. Then again it may be a bit harder to try when the plantiff drops the charges, and the ill informed government picks them up... Or they could have been just trying to keep him behind bars until technology changes enough he's no longer a threat (mitnick) in anycase, the DMCA is the spawn of satan...
--fetch daddy's blue fright wig, i must be handsome when i release my rage
The reason there haven't been any cases is because none of the small-time developers who have run afoul of the DMCA so far have had deep enough pockets to hire lawyers with enough intestinal fortitude to take it on and get it shot down. One good failure of the DMCA in case law would be all it takes, but (IMO) unless you've got the financial resources of Microsoft, Sun, Oracle et al you ain't gonna get the job done. So rather than fight the good (but expensive) fight, developers get that nasty letter which threatens to invoke DMCA and they knuckle under.
'Nuff said.
All the world's an analog stage, and digital circuits play only bit parts.
This is not deep-linking, they *did* break the copy protection. As wrong as DMCA might be, it is a law at the moment.
Only one criminal case in four years, but how much intimidation? And how many websites, etc, taken down without anything resembling due process?
look here.
It seems that some people have misunderstood how the DMCA is being abused. Companies are not trying to get people jailed for violations, they are just reaming them of all of their money. Though it is possible for criminal prosecution to result from a violation of the DMCA, big companies want money more than imprisonment.
"You think that's air you're breathing now?"
Perhaps one day soon, congress will realize what a mammoth beast this thing is and kill it. Perhaps they will realize that they should make enforcable legislation. Nah, just pipe dreams.
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?
That's the point. We want to lose at trial. That way we can (try to) get the law tossed on appeal.
Best Slashdot Co
only from an AC would we get such a silly response (and not normally do I respond to AC's). Adobe leads in so many departments, that it would be "hard" for them to slip away.
Joe user doesn't have the money for Adobe products, however, Joe Company does. And they do pay for it, and they 'do' use it. Adobe controls the market on both Mac's and PC's --- and before you give me the LInux aspect, remember that it aint used like the other OS's for desktop publishing. Adobe is also a crucial instrument into the Postscript that everyone plus grandma uses.
acrobat and pdf are only a portion of the pie that they eat.
so, before you start the elimination rounds early, get your facts straight.
disclaimer: i dont agree with their decision about Elcomsoft, i am merely looking at this from a desktop publishing environment (from which i am gainfully employed.) so, in essence, adobe will survive long past this silly dmca bs.
We're like rats, in some experiment! -- George Costanza
the program in question was written in Russia. As far as I know, the DMCA has no authority there.
However, Russian law cannot grant authority to sell Russian products to U.S. residents, which Elcomsoft did.
Will I retire or break 10K?
Conceding for now the DMCA's validity, is there much in the way of factual disputes here? If the facts check out, do you accept that ElcomSoft is guilty? I'm pretty sure I do. I'm not saying I want them to be guilty, just guessing at the outcome.
ElcomSoft was doing this for profit, if that makes any moral difference. Selling locksmithing tools to a burglar is not particularly savory or legal, and this aspect will make the jury less sympathetic (notice that ElcomSoft wanted a jury). If the skirmishes over the statute did not extricate them, I don't know what chance they have unless there is a juicy factual dispute about who-did-what-where. Yet they haven't pleaded out, assuming a plea agreement was even offered in the test case... Hmm. Need details. Speculation overload.
It is intriguing that no cases have been brought. Yes the law has been used for intimidation, but the prosecutors have no obligation to let anyone off with a warning -- they can prosecute the first infraction. It would be interesting to know why the law apparently has been given low priority.
BTW, I agree the treatment of Dimitry Sklyarov (sp?) was shameful. I don't think Kevin Mitnick is a good analogy, however. Their actions and alleged crimes were of very different natures. Yes, there were problems in the Mitnick prosecution as well, but Sklyarov's no Mitnick.
Here is the EFF's somewhat dated FAQ on the case, more detailed certainly that the Chronicle.
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.
.doc is bad! sorry, lost the pdf version)
(its an academic paper, you have to find some sort of effect right!)
you can check it out here
(I know
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 !!??
> 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.
Let's call this what it is:
...but in the US, it's against the law...
Intellectual Property Rights vs. Innovation Rights
In this case it can be argued that Dmitry Sklyarov is a hacker who hacked together and conspired to traffic a digital crowbar that disables the lock Adobe's eBook.
- OR -
Dmitry Sklyarov is just a mere employee who wrote software for his employer to enable the user to convert THIER personal eBooks to other formats.
The irony this dichotomy is: THERE IS NO DICHOTOMY. Both Statements are correct.
The real question is: Should ElcomSoft be criminally convicted for writing a very legitimate software? It's legitmate in Russia. It was a legitimate and common type of software in the US not too long ago. It only allows the user to convert THIER personal eBooks to other formats. It has many valid uses.
Nope... Doesn't seem like a Conservative vs. Liberal Issue to me...
"Communism is like having one [local] phone company " - Lenny Bruce
The USA Federal Government fought for tens of years the Soviet Regime. One of its reasons was that the soviet power was more intimidation than jurisprudence.
11 years after the Fall of the Soviet Union, Russian citizens fight a federal law that is more intimidation than jurisprudence... in the USA.
The argument is essentially that programs are a form of expression (including machine code), and thus are protected speech. This has been upheld by courts, for instance (I believe) in the Bernstein crypto software case. (Personally, while source code as speech makes perfect sense to me, I'm a little bit reluctant to call compiler-generated machine code 'speech', though there is some remnants of speech in there.) In the 2600 case the judge rejected this argument because, though he held source is protected speech, the source code in this case was also simultaneously a "device" (ie, a circumvention device) under the DMCA. This is similar to considering a libelous poem to be simultaneously a creative work (ie, copyrightable) but also illegal because of its libelous content.
That may seem like no big deal, but one effect is that it adds to the many laws that a lot of people break daily.
This adds up to that everyone is a criminal and can be put in jail at will by The Authorities, should they ever feel that need. And that is not a free society.
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-
In today's legal world, litigation em about intimidation. Let's say you have a private plane that fails because a spark plug breaks (fairly unlikely I know, spark plugs don't actually break that often), and you crash-land it in a mall.
Now, everyone sues everyone. The mall sues you, your insurance company, the spark plug company, the airport in which you store your plane, and the maker of the plane. The maker of the plane sues the spark plug company. The spark plug company sues the company that sold them the clays for the ceramic.
This is also why most insurance policies contain a clause which you must agree to in order to get insured which says that if anyone sues you and the insurance covers the suit, you have to basically agree that you are in the wrong, and they will settle. So suing people has actually become the science of settlements; How much are they likely to settle with me for? How much can we settle for and have it still be cheaper than going to court? Etc.
Obviously the DMCA and related are solely intended to intimidate the masses via persecution of the few, but don't try to play it up like it's unusual. The courts are used for intimidation and extortion every day. It's just a matter of course.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Actually, a challenge to the law's validity is brought at the outset. Elcomsoft did so and lost.
I just didn't want people going off on what a terrible law it is, or that it violated free speech.
O'Reilly's site has a very detailed and interesting article called "And Justice for Adobe". It has lots of details, a chronology of events and several links related to the case.
a single criminal case because ... why?
Maybe because the beneficiaries of this remarkably stupid legislation are afraid to death that litigation will turn on the DMCA's unconstitionality, rendering it null and void.
--Lawrence Lessig for Congress!
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.
Disclaimers don't work.
STOP MISUSING APOSTROPHES, YOU MORONS!!!
A big one would be the Felton vs SDMI fiasco. They threatened his legitimate work with a DMCA lawsuit, then, after that fucked up any chance of him presenting his work at a security conference, denied that they had any intention of suing.
I'm probably not being accurate by saying the DoJ. In the Felton case, it was the SDMI consortium and RIAA that threatened him. My reply was just a bit hasty.
That isn't the point though. These cases never come to light because those who are challenged can't even begin to mount a legal defense, and therefore, fold like Superman on laundry day. The mere threat of invoking the DMCA has most definitely had a chilling effect. I'm sure you're aware of this though, and that was the point I was trying to make.
I don't usually bite on the obvious trolls, but...
In the Macintosh graphic design field, where Adobe has their most rabid supporters, there is a severe issue because QuarkXpress isn't supported on OS X. The problem is, Quark is the premiere desktop publishing tool and even Adobe hasn't been able to take that away.
You would think, since Adobe has cornered the market on just about every other graphic design aspect, that people would immediately switch to their equivalent page layout product. After all, inter-program functionality should be more fluid. Still, even with compatibility issues, there are a lot of people running multiple OS or multiple machine configurations just to use both Quark and OS X. That's inertia... in a big way.
It took Microsoft years to kill off Netscape (or eclipse, for those who still hold out some hope of their resurrection) and that was long before the Web became what it is today. People still aren't as attached to their web browsers as they are to tools like Photoshop, Illustrator, and Quark. Microsoft has a long way to go before they reverse Adobe's inertia in graphic design, PC or Mac.
The History of Yelling Fire in a Crowded Theatre
As long as we're talking about Justice Oliver Wendell Holmes's classic example of unprotected speech, let's learn a little about the context, especially considering it's been invoked by so many people in so many contexts.
The analogy came from the Schneck v. United States in which Schneck was being prosecuted for causing subordination among soldiers who had been drafted in WWI. He and others had circulated leaflets asking draftees to not "submit to intimidation". The leaflets did not encourage draftees to break the law, rather it encourage them to consider their rights.
Justice Holmes opinion was that the constitution protects these leaflets during peace time, and that wartime deserved special circumstances.
In order to support his special circumstances opinion, he illustrated his opinion with the famous "Fire in a Theatre" analogy.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Justice Holmes upheld his convictions that the leaflets presented "A Clear and Present Danger"
Of course, when the founder father drafted the Bill of Rights, they must of forgot about their own "Clear and Present Danger" that they presented to His Majesty's Empire.
Oh wait, If the founding fathers were hung up on this "Clear and Present Danger" exception, why didn't they write it down, but rather write the Second Amendment and Third Amendments instead?
Source Code - A Precise Mathematical Notation?
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Pornography, Video Games
They're all Intellectual Works protected by copyright law!!!
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Arm Bands, Middle Fingers, Flag Diapers
They're all protected by the First Amendment!!!
What does Copyright Law Consider Expression?
According the US Copyright Office, in order for a work to be copyrighted, it must be a work that is a fixed in a tangible form of expression. Therefore, ALL copyrighted materials are tangible forms of expression!
What does the Law Say?
Title 17, Circular 92, Chapter 1, Section 102
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
Is Software Really a form of Expression?
I like working with extremes myself, so let's start with Video Games. They seem to be the most expressive form of all expression. A great Video Game mixes and blends all sorts of art, music, and literary work and combines it all with an intelligent engine, which is a mathematical art form in itself. If one wanted to be an artist that truly affects and influences people, wouldn't it be logical to blend many art forms into one cohesive form of immersive art?
What about Source Code
If you're going to describe what source code is to someone who's never seen it, it can be best describe as a very precise mathematical notation. A program is almost always a mathematical model representing real object or phenomenon. A Database is a mathematical model of an index filing system, while a Word Processor is a mathematical model of type setting machine. When these models are executed on a computer, they may behave just like the physical device, but it is still only a model of that device, expressed in a mathematical notation.
If it's copyrightable, it's expression. You can't have it both ways...
"Communism is like having one [local] phone company " - Lenny Bruce
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
Sure, but I think I am in a special situation. First, I've had similar legal threats before, so I know not to be scared off over a few emails. Second, my content is hosted by a (relatively) enlightened provider (my university). Third, I'm a grad student with no money and no particular responsibilities to family, job, etc.
If any of these things wasn't true, I think I'd have much more trouble keeping the program up. If my ISP took it down, as the safe harbor provisions of the DMCA make so tempting, what would I do? If I had money to lose or couldn't afford the court time because of job commitments or family, how could I risk going to court over something so silly? If I didn't realize that such mails are often just a bunch of hot air, how would I have reacted? I think that many more projects get taken down voluntarily precisely because hobbyists can't afford to provide defense, even if they are in the right.