Slashdot Mirror
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.
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.
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?"
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.
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
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.