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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?
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
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.
And US law cannot grant authority to arrest a Russian citizen who performed the illegal act in his own country. If this was a US citizen, our government's attitude would be completely different. He didn't sell anything. His company did. He is not an officer, owner, or anything else of consequence. He is simply an employee.
Where's my lobbyist? Right here.
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
> 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.
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.
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.'"
But he was an employee. Ok lets take this in reverse. Remember when yahoo was charged with selling nazi stuff in france. If a american employee of Yahoo went to france on a visit and got arrested? What would we all be saying? now descision making executives of a coperation can be criminally arrested for thieir discisions. But this guy didn't make the discision to sell his program in American he simply produced an legal program in his country, and his employer made a discision to skirt the law and try selling it in the US.
You also seemed to have missed the point that Sklyarov was initially charged with this crime and spent a few weeks in jail for it, I hope he gets some sort of compensation.
But Adobe wrote and has patented the technology that encrypts the contents of the eBook. The DMCA specifically prohibits the circumvention of such security devices and Adobe, who uses this particular device, feels that they may face a substantial loss of revenue if their technology is cracked.
Analogously, if a lock manufacturer has their technology circumvented (i.e. someone creates a universal key) is it the responsibility of the users of the locks (whose stuff might get stolen) to pursue the keymaker, or is it the responsibility of the lock manufacturer? Arguably, in a case such as this, both the responsibility and the financial incentive reside with the lock manufacturer to pursue the keymaker.
OTOH, Skylarov's tool essentially restores fair-use rights that Adobe has stolen from eBook consumers.
I create copyrighted material. I prefer that my material is protected from plagiarizing. But if some kid likes my music well enough to download MP3's of it (not that that's an even remotely plausible scenario), I'm not going to lose any sleep thinking that I've lost that $0.03 royalty. Far better IMO to view it as free advertising. And if the kid's parents hear it enough, maybe they'll buy him the CD and then I'll get the whole $0.38.
As far as I'm concerned, the DMCA is bad law. I hope it gets struck down resoundingly and that Michael Eisner gets so angry about its defeat that his ulcer explodes and drowns him in gastric acid (or the non-violent equivalent, if you prefer--whatever that is).
Karma
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.
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.
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!
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.
The analogy doesn't hold. Firstly, the act of opening a lock without the proper key isn't technically a crime - it's all the other circumstances that typically surround that act that are crimes - tresspassing, theft, damage to another's property, etc. But with the DMCA the act of bypassing the encryption in and of itself is a crime no matter what you may chose to do before and after it. And even worse, under the DMCA it is also a crime to tell anyone else how it can be done. This allows software companies to make up whatever fradulent claims they like as to the security of their encryption. It is illegal to blow the whistle on how bad their encryption is, because you cannot tell anyone any details of such without violating the DMCA.
In the case in question, Skylarov explained at a conference how bad Adobe's e-book encryption is and how incredebly simple it is to break it, and found himself soon arrested.
It's the equivilent of being thrown in jail because you publicised to consumers how bad Mr Smith's Lock Company is, and proved it by showing how you can break into any of Mr Smith's locks with a simple paperclip.
Don't label something "offtopic" unless you know the topic well enough to tell what's on topic.
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.