Sklyarov Tells U.S. Court, 'I'm no hacker'

DaytonCIM writes "Dmitry Sklyarov, the Russian programmer at the centre of the first Digital Millennium Copyright Act (DMCA) prosecution, yesterday delivered his long-awaited testimony in the trial of his former employer, ElcomSoft." There are also stories at The Register and on CNET.

Comments

Throw it out?

[KeatonMill]

It seems like this case shouldn't even be happening. Adobe just wants to make an example out of someone. The problem is, they picked the wrong guy. As seen earlier on Slashdot, they haven't found a single eBook decrypted with his software, and if it isn't on (I assume they use) KaZaA, then it really doesn't exist freely. He also appears to have said all the right things in court. There is such a thing as catching a drift, and I think Adobe missed it, and is now trying to drown Sklyarov.

Re:Throw it out?

[zapfie]

Adobe's side of the story.

Re:Throw it out?

[tomstdenis]

Basically what Adobe is saying.

- We want elcomsoft to not release software that breaks our unbreakable security software.

Funny.

You'd think Adobe would either just step up and admit they ain't got shit, or fix their software. Mostly realize you can't make bits uncopyable...

Tom

Re:Throw it out?

[Anonymous Coward]

Wow, they just fundamentally don't get it:

Q: Elcomsoft claims that it developed the software in order to let users copy the eBooks they purchased onto multiple computers. Doesn't the Acrobat eBook Reader violate the Fair Use Act?
A: Adobe engineered the Acrobat eBook Reader to exchange eBooks like printed books. The Acrobat eBook Reader does allow customers to move the eBooks they purchase between computers through its lending and giving features. If the publishers enable these features, the buyer of an eBook can loan or transfer to another Acrobat eBook Reader on the network. [Emphasis added]

The whole point of fair use and its ilk is that it does not require permission from the copyright holder. If I have to beg for my fair use rights, then they have been stolen from me. Forget free speech, this case is about the basic rights to own and use one's private property.

In one of Lessig's speeches, he lists the absurd restrictions on an eBook of a work in the public domain. Who do these people think they are?!

Re:Throw it out?

[mentin]

But first it used to be against Sklyarov only.

Re:Throw it out?

[Twirlip of the Mists]

Basically what Adobe is saying.

- We want elcomsoft to not release software that breaks our unbreakable security software.

No. First, Adobe says right there on the page that no technology can be 100% secure. They say that, when used properly, their software protects copyrighted works. That's all they claim.

They say that they encourage users, including "white hats," to give them feedback on their software and the security thereof.

They say that Elcomsoft broke US law by distributing their software. They say that the US Department of Justice took it upon themselves to make the arrest and to prosecute the case.

Whether or not Adobe's software is perfect isn't even remotely relevant to the issue.

Re:Throw it out?

[Twirlip of the Mists]

Forget free speech, this case is about the basic rights to own and use one's private property.

Did you know that copyright holders are not required to do anything at all in order to ensure that users of their works can exercise all-- or even any!-- of the possible fair uses of their works?

Did you know that, under the DMCA, it is not illegal to circumvent copy protection mechanisms for the purpose of making fair use of a work? [17 U.S.C. 1201(a)(1)(B)]

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection? [17 U.S.C. 1201(a)(2)]

Did you know that most people who complain with zeal that the DMCA is a bad law have never actually read it, or indeed any part of Title 17?

Just some legal trivia for y'all to chew on.

Re:Throw it out?

[geekee]

No You are wrong. There is no law that says the copyright holder has to make it easy for you to copy something for your own use. You have no right to demand something in a particular format. That infringes on the rights of the copyright holder. If you don't like the terms, don't buy it.

Re:Throw it out?

[sasha328]

I wish I had moderating rights at the moment, because this and the parent thread should be read by all those who are breating Adobe without knowing what is it they've done wrong.
The point is not that Elcomsoft and Sklyarov developed anti DMCA software, because they did; The point that should concern people (especially those from outside the US) is that they are being tried in the US, under US law for legal actions they committed in another country. This just shows the hypocrisy of the US government. They want others to follow their rules, but they never stop to consider others' rules.

Re:Throw it out?

[Henry V .009]

Did you know that, under the DMCA, it is not illegal to circumvent copy protection mechanisms for the purpose of making fair use of a work? [17 U.S.C. 1201(a)(1)(B)]

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection? [17 U.S.C. 1201(a)(2)]

You really don't see any conflict at all between those two statements do you?

Re:Throw it out?

[dirk]

The point is not that Elcomsoft and Sklyarov developed anti DMCA software, because they did; The point that should concern people (especially those from outside the US) is that they are being tried in the US, under US law for legal actions they committed in another country. This just shows the hypocrisy of the US government. They want others to follow their rules, but they never stop to consider others' rules.

While it is true that the software was developed in another country, it was marketed and sol din the US. Thus, it falls under US law. If the software hadn't been marketed to Americans, and sold to Americans, through a US website, using US dollars, I would wholeheartedly agree that US law shouldn't apply in any way shape or form. But just because it was developed by a company in another country has no effect on the matter if the software is sold within the US to US citizens. Anything sold to US citizens in the US, falls under US laws.

Re:Throw it out?

[zaffir]

I code an e-book decryptor. I decrypt my e-books and read them on my ipod (or something). That isn't illegal. If i go out and sell that decryptor, or even give it away for free, i'm violating the law.

At least that's how i think it's supposed to be. Either way, you have a point, and it shows how vague the DMCA is.

Re:Throw it out?

[lobsterGun]

The DMCA is a bad law because it requires an affirmative defence in order to create tools for excercising fair use rights.

That is to say: If a developer creates a tool to enable a user to excercise his or her fair use rights, a copyright holder can have the state haul him into court and claim that the tool is actually an illegal circumvention device. The court is then forced to 'read the mind' of the developer to attempt to divine his motivations for creating the tool.

Re:Throw it out?

[Anonymous Coward]

copyright holders are not required to do anything at all in order to ensure that users of their works can exercise all-- or even any!-- of the possible fair uses of their works

Straw man. Adobe isn't merely failing to accomodate fair use. They are actively trying to block people from using their own resources to enable fair use. That is what people are rightfully complaining about.

it is not illegal to circumvent copy protection mechanisms for the purpose of making fair use of a work
...
DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection

Put these two together. You're saying you can have your rights as long as you're an expert computer scientist and cryptographer? Nice. What about the other 99% of US citizens? In a free market, shouldn't people be allowed to hire someone else with the necessary skills or purchase a tool that enables them to do what they want? Also in a free market, shouldn't I be allowed to satisfy that demand if I have the expertise?

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection?

Did you know that copyright holders can bundle extra restrictions into their "copy protection" systems that have absolutely nothing to do with the actual rights granted to copyright holders? eBooks you can't read aloud or print, DVD region coding, software that's tied to a single computer and can't be resold, and many more to come if this case is lost.

Re:Throw it out?

[koreth]

Ahh, good, so if as a consumer I want to read a protected document on my Palm instead of my PC, all I have to do is go back to college, get an advanced math degree, bring myself up to speed on the state of the art in encryption, learn how to program on both platforms, figure out the encoding the document uses, write an app to crack it, and I'm all set.

Right, best be getting to it, then.

Good thing the law protects me from buying the end result from someone else instead of going through the process myself -- without doubt, a law that promotes that sort of self-sufficient, can-do spirit is just the sort of thing that made this country great.

Re:Throw it out?

[Safety Cap]

I code an e-book decryptor. I decrypt my e-books ~. That isn't illegal.

Unfortunately, that happens to be quite ILLEGAL.
US Code Title 17, Chapter 12, 1201 says (emphasis mine):

(2)

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -

(A)

is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
*********************
Check out this article for more.

Re:Throw it out?

[Henry V .009]

I always figured that 'manufacture' was somewhat a term of art in that context. If the illegal technology is never trafficed--wow, now there is a word that needs a 'k'--in, I don't see how it you could consider it as manufactured.

Of course, one of the real problems with the DMCA is that it gives copyright holders wide lattitude to interpret it however they want for the purposes of getting content removed, which makes petty legal distinctions like mine somewhat meaningless.

Re:Throw it out?

[Guppy06]

"The point that should concern people (especially those from outside the US) is that they are being tried in the US, under US law for legal actions they committed in another country."

IIRC, he was arrested in the US for something he either just did or was about to do in the US. Something about a demonstration of the flaws in Adobe's encryption system, I believe.

At any rate, the real silliness is in the law itself. You can reverse engineer something, but you can't ever tell anybody how you did it. Which means everybody has to reinvent the wheel for themselves. If that doesn't fly in the face of the original concept of copyrights to begin with (to encourage the dissemination of information), I don't know what does.

Copyright law is supposed to be "promoting the Progress of Science and useful Arts." The DMCA is doing the exact opposite. Where can we find a convenient case to take up to the USSC?

Re:Throw it out?

[Safety Cap]

I believe "manufacture" is typically interpreted to mean producing something with the intent of selling it.

What is the source for your idea?

In our common law system, the "typical definition" is not always the correct one. It depends upon how a previous court interpreted the meaning of that word. If you can find a case that defines the manufacturing process as one requiring intent to sell, then you have "a case," otherwise it is wild speculation and we all know where that ends up. :)

Re:Throw it out?

[HeghmoH]

Does Adobe's software disable the "cp" function? If not, how does it protect copyrighted works even when their crap security isn't compromized?

Re:Throw it out?

[kimgh]

Whether or not Adobe's software is perfect isn't even remotely relevant to the issue.

But I think it IS relevant. If you read the text of the DMCA, one of the issues is whether the copy protection is "effective." And I'm surprised that Elcomsoft's attorney apparently didn't make some hay out of that. But maybe that was dealt with in pretrial motions and stipulations. Dmitri made the point in his original talk that the Adobe copy protection was lame, and therefore might not be considered "effective."

Re:Throw it out?

[Twirlip of the Mists]

If the illegal technology is never trafficed--wow, now there is a word that needs a 'k'

That's why it's spelled with one. Webster's says that the plural of "traffic" is "trafficked," and the participle and gerund forms are both "trafficking."

Re:Throw it out?

[Twirlip of the Mists]

Read the whole statute. 17 U.S.C. 1201 (a)(1)(B) basically says that paragraph (A) doesn't apply to people who are attempting to make noninfringing use of a protected work. That hardly qualifies as a "narrow exception."

Re:Throw it out?

[fatboy]

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection? [17 U.S.C. 1201(a)(2)]

Did you know it makes for bad law to afford Copyright holders patent like protection on devices that display their content?

Re:Throw it out?

[Twirlip of the Mists]

The court is then forced to 'read the mind' of the developer to attempt to divine his motivations for creating the tool.

The court usually has to "read the mind" of the accused. Intent is often a very important factor in deciding whether an act is in violation of the law or nor, or in deciding how severe a violation is. So the fact that the DMCA depends on intent would not, in and of itself, make it a bad law.

But as it turns out, that's not what the DMCA says. The DMCA says that tools that are primarily designed for circumventing the access controls on protected works, that have limited commercially significant purposes other than circumvention, and that are marketed for the purpose of circumvention may not be produced, imported, or distributed in the US. The question of the intent of the maker of the tool is not relevant. What's relevant is what the actual practical use for the tool is, and how the tool is described by its maker.

Re:Throw it out?

[Henry V .009]

I thought that I made that clear...Well, not clear enough for the Spelling Nazi, I suppose.

Re:Throw it out?

[dvdeug]

You have no right to demand something in a particular format.

We aren't demanding that they change their format; we demanding the right to write programs that read their format, if we can figure it out. They can release anything they want, so long as we can also.

Re:Throw it out?

[Twirlip of the Mists]

Adobe isn't merely failing to accomodate fair use. They are actively trying to block people from using their own resources to enable fair use.

My point was that this is entirely legal. If I want to release my (copyrighted, naturally) works encased in lucite and locked with a padlock, I am free to do so. The fact that this frustrates attempts to make noninfringing use of my works is not legally significant.

You're saying you can have your rights as long as you're an expert computer scientist and cryptographer?

Remember that fair use is not technically a right. It is an exception to someone else's rights. If the author of the work does not want you to make use, he has the right to protect it.

Did you know that copyright holders can bundle extra restrictions into their "copy protection" systems that have absolutely nothing to do with the actual rights granted to copyright holders?

Yes, absolutely. The seller of a good has the right to ask whatever terms or conditions of the buyer he likes, as long as those terms and conditions are legal, and are presented up front. If I wanted to sell you a car that you can only drive on Tuesdays, I can do that. If you sign the papers and then drive the car on Wednesday, I can sue you for breach of contract.

If you don't like it, don't buy the product.

Re:Throw it out?

[Twirlip of the Mists]

Then why is Dmitry Sklyarov on trial for violating the DMCA?

Because he didn't circumvent any copy protection mechanisms himself. Instead, he created-- as the copyright holder, he is the legal author-- a tool to circumvent copy protection, and then distributed his tool into the United States. That's illegal.

I don't see anything in there mentioning fair use, do you?

It's hidden under the word "noninfringing." You have the broad class of noninfringing uses; this class includes things like reproduction by libraries and archives. Within noninfringing use, you have fair use, which is a very specific kind of noninfringement.

All I see mentioned is that you can circumvent the protection if you are 'adversely affected' by it.

Read more carefully. It says that the prohibition doesn't apply to people who are "adversely affected... in their ability to make noninfringing uses." In other words, if the copy protection mechanism prevents you from making a noninfringing use, you are not prohibited from circumventing it in order to make that noninfringing use.

if I do any of them I am a criminal and I am placed in the same group as rapists, drug dealers, and murders.

Hardly. For a first offense, the absolute statutory maximum penalty is 5 years in prison. That's a serious sentence, but a far cry from "rapists, drug dealers, and murderers." Don't exaggerate, okay?

Re:Throw it out?

[CyberKnet]

My point was that this is entirely legal. If I want to release my (copyrighted, naturally) works encased in lucite and locked with a padlock, I am free to do so. The fact that this frustrates attempts to make noninfringing use of my works is not legally significant.

The only problem I have with this is that the DMCA specifically outlaws the creation of keyblanks; disabling me from getting a copy of the key I purchased to that padlock in case I lose the original.

Sure, it says if I can make a key. [17 U.S.C. 1201(a)(1)(B)]

But in order to do so, I must know how to mine the ore, refine it, forge it into a keyblank, make a key-cutting machine, and finally, duplicate said key. And that is assuming you don't use one of those keys with a circuit inside them, in which case I need to mine the silica to make the chip too. (along with all the fabbing goodness). [17 U.S.C. 1201(a)(2)(A)]

And that is what is so wrong with this law. It may not be constitutionally wrong (I do not have enough knowledge to make that decision), but it is reserving rights (or exceptions thereof) to a very, very few people. (in the case of the padlock, possibly *none*).

That is not a law that serves the majority; that is not how a democracy is supposed to function. That is a law that was bought by corporations with moneys accepted by corrupt polititians wanting to make the quick buck at the american peoples expense...

Re:Throw it out?

[Twirlip of the Mists]

If you read the text of the DMCA, one of the issues is whether the copy protection is "effective." And I'm surprised that Elcomsoft's attorney apparently didn't make some hay out of that.

"Effective" doesn't mean "really good." It just means that the mechanism does, on its face, restrict access to the work. It's not a question of how easy or hard it is to get around it. It's a question of whether it presents an obstacle at all.

This analogy isn't perfect, but I think it'll serve. Imagine that a policeman comes to your house. You have the severed head of your last victim in your freezer, and you decide (for whatever reason) to leave your freezer door open. The policeman walks in, sees the severed head in plain sight, and arrests you on the spot.

On the other hand, what if you had closed the freezer door? If the policeman had opened your freezer, seen the severed head, and then arrested you, your lawyer would immediately start drafting a motion to suppress evidence. If a policeman looks around and sees a severed head in plain sight, that's not a search and requires no warrant. If, on the other hand, he opens your freezer and finds the head, that's a search, and it requires a warrant in order to be legal.

The question of whether your freezer is a good place to hide things or not never comes into it. The point is that you had the severed head behind closed doors. That's all it takes.

This is the same thing. The important fact is that the content of the work is hidden behind an access control mechanism such that you have to circumvent it in order to get to the content. Even if the process of circumvention is trivial-- like opening a freezer door-- it's still circumvention, and (mostly) prohibited.

Re:Throw it out?

[shking]

Anything sold to US citizens in the US, falls under US laws./

Really? Tell that to the U.S. judge who ruled, last year, that Yahoo didn't have to block auctions of Nazi items to French citizens.

Re:Throw it out?

[Twirlip of the Mists]

The only problem I have with this is that the DMCA specifically outlaws the creation of keyblanks

Well, not necessarily. Section 1201(c)(1) says, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." So in other words, one could argue that the DMCA doesn't apply, in any way, shape or form, to fair or otherwise noninfringing uses.

Since the authors of the law went to the trouble of putting this clause in, it makes the most sense to conclude that they never intended for chapter 12 to in any way prohibit the fair uses of copyrighted works. So the circumvention of copy protection and the manufacture, importation, and sale of devices for the circumvention of copy protection are legal in the context of fair use.

The burden is on the government to show that a given device for circumvention has no significant potential for application for the purpose of fair use.

Given the facts of the case, it seems like the government should be able to show that very easily here. The eBook system doesn't appear to prevent fair uses; it doesn't stop you, or even hinder you, from quoting sections of a work for criticism or comment, or from making backup copies for personal use, or any of those things. So it should not be necessary to circumvent copy protection in order to make fair use of an eBook-protected work. (It should be noted that wanting to read a work on a device for which there is no eBook reader is not, as yet, covered under fair use. The DeCSS case may change that.) If that's the case, then there's no significant noninfringing potential use for the Elcomsoft software, and the importation of it into the US should be illegal.

So what chapter 12 really criminalizes is the circumvention of copy protection for the purpose of copyright infringement, and more importantly the sale or distribution of devices to facilitate same. Which ought to be against the law, I think.

Doesn't sound like a bad law to me at all. Sounds like a perfectly reasonable law, badly misinterpreted.

Re:Throw it out?

[?erosion]

I don't think this is as black and white as that though. Your point is that the quality of the obstacle is not an issue. That sounds reasonable enough. You then go on to present a fairly binary scenario; either the freezer's open, or it isn't.

That's where I see a problem. In my view, the question isn't "Is it a good obstacle?" The question to me is "To what degree does an obstacle exist?" This might seem like a bit of a nit. Consider, however, the difference in perspective between an expert on Adobe file formats and someone who knows nothing about them; perhaps a sea otter. Your expert isn't going to see an obstacle at all; he runs the reverse ROT-13 or whatever and boom, there's the file. The sea otter will just go "phbpbpbpbfft". The damn thing's Fort Knox as far as he's concerned.

Continuing our hypothetical attempt at accessing the file, let's say I want to get involved. Maybe my friend's mom lost her key to a Harry Potter book and can't read it anymore. Her credit is screwed up thanks to a vindictive bellhop in Omaha, so Adobe won't help her. So I spend a week or so researching the file format, playing around with a few different encryption scemes and asking a bunch of people on usenet, and eventually figure it out in my free time. Is this an effective obstacle? Keep in mind, I'm not very intelligent.

What if there is a backdoor password of "Adobe"; is this effective? What if the password is "helmet"? "Dolemite?" Or, God forbid, "administrator".

I suppose I could also ask whether hiding my pr0n under the bed is an effective mechanism. I suppose it is under the hooker...

Re:Throw it out?

[Twirlip of the Mists]

Your expert isn't going to see an obstacle at all; he runs the reverse ROT-13 or whatever and boom, there's the file.

A file that has been run through ROT-13 is not readable. It has to be run through ROT-13 again to be readable. So ROT-13 is an effective access control mechanism. You can't access the content until you get around the control mechanism. The fact that the access control mechanism is trivial doesn't matter at all.

The reason for looking at it this way should be obvious. A file that is well-protected today may be only trivially protected in 10 years, thanks to advances in technology. Does that mean that the file is "effectively" protected today, but not "effectively" protected in 2012? That's not cool, from a legal point of view. So the question is not how easy or hard is it to get past the protection mechanism. The question is whether there's one at all. It has to be that way in order to be fair.

Maybe my friend's mom lost her key to a Harry Potter book and can't read it anymore. Her credit is screwed up thanks to a vindictive bellhop in Omaha, so Adobe won't help her.

That's a reach. Why would Adobe care about your friend's mom's credit rating? All she has to do is call technical support; she doesn't have to buy anything new. Not that this invalidates your example, but I want to illustrate that it's harder to come up with a situation in which eBook gets in the way than you might think at first.

What if there is a backdoor password of "Adobe"; is this effective?

Yes. Because in order to access the data, you have to know the password. As long as the password isn't disclosed, this is an effective protection mechanism.

Please try to remember, the legal definition of "effective" is the most literal one: does the prevention mechanism have any effect at all? If the answer is yes, then it is an effective mechanism.

Re:Throw it out?

[Twirlip of the Mists]

This is obviously an unknown usage of the English term 'effective'.

It is, in fact, the very first definition of "effective" in Webster's: "having the power to produce an effect or effects." Another dictionary says, "producing or capable of producing an intended result." Only further down the list do you find the definition you alluded to: "works well as a means or remedy."

An effective access control mechanism is one that prevents access unless circumvented. So ROT-13 is most definitely an effective access control mechanism; you can't read it until you ROT-13 it again. ROT-26, however, would not be an effective access control mechanism. The text is just as readable before and after the mechanism is applied, so no circumvention is necessary.

Re:Throw it out?

[DarkZero]

Ahh, good, so if as a consumer I want to read a protected document on my Palm instead of my PC, all I have to do is go back to college, get an advanced math degree, bring myself up to speed on the state of the art in encryption, learn how to program on both platforms, figure out the encoding the document uses, write an app to crack it, and I'm all set.

Apparently, according to one of the quoted portions of the DMCA above, that would constitute manufacturing a circumvention device, and thus would be illegal. You could, theoretically, be hauled off to court for it if someone found out about it and the law were vigorously enforced.

(2)

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -

(A)

is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

Re:Throw it out?

[cpt kangarooski]

Did you know that copyright holders are not required to do anything at all in order to ensure that users of their works can exercise all-- or even any!-- of the possible fair uses of their works?

True. But then, they've never been able to prevent it in the past.

I would argue that copyright fundementally requires that fair uses and public domain uses must be made of works. If a work is made that doesn't inherently permit this, then it is undeserving of copyright unless amended in such a way so as to conform to the expectations of the public. After all, it is the public, and their desire and right to make fair uses and public domain uses that copyright is intended to protect. Not authors.

Look at the parallels with wiretapping.

Re:Throw it out?

[Alsee]

So ROT-13 is most definitely an effective access control mechanism; you can't read it

Which brings us to an excellent point. It is pretty easy to learn to read ROT-13. And once you do learn it, it's virtually impossible to not do so any time you see it.

I have made zero effort to learn ROT-13, yet it took me about 2 seconds to recognize the phrase "All your base are belong to us" when I saw it posted in ROT-13. I even spotted that there was a typo in it, though I couldn't tell offhand what the typo changed it to.

I'm sure if I really worked at it I could become semi-fluent in reading ROT-13 within a day or so.

What are the DMCA implications of this? Of learning to decrypt something in your head? Because it *IS* possible to do DeCSS this way, though it would be quite an impressive feat.

-

Re:Throw it out?

[jericho4.0]

I entirely agree that traffic should include the letter 'k', and would like to subscribe to your newsletter.

Re:Throw it out?

[Quila]

In other words, if the copy protection mechanism prevents you from making a noninfringing use, you are not prohibited from circumventing it in order to make that noninfringing use.

But it is illegal to traffic in the tools that allow you to circumvent for legal reasons. Internal inconsistency is one reason laws like this get thrown out by the Supreme Court.

Re:Throw it out?

[jericho4.0]

You set yourself up for that one, though. :-)

Re:Throw it out?

[Alsee]

Remember that fair use is not technically a right. It is an exception to someone else's rights.

No, you have it backwards. Copyright is a limited exemption carved out of everyone else's rights.

It's quite clear if you read the other writings of the authors of the constitution, but it is subtly written into the constitution too. The entire premise and construction of the constitution is that people already have all sorts of basic rights. Then there's Article 1 Section 8 clause 8 where the constitution gives congress the power to secure certain rights for authors and inventors.

The fact that congress needs to get these rights for authors and inventors means they don't already have them. Congress had to take these rights from the public, and the rights that were taken from the public and given to authors and inventors were strictly LIMITED.

Fair use is not granted as an exception to copyright protection, it is copyright protection that is granted as a limited exception to our rights.

-

Re:Throw it out?

[Quila]

Paragraph (B) refers to paragraph (A), which says you can't circumvent a technological measure. This lets you yourself personally exercise fair use, but only if the Library of Congress thinks your use should get an exception.

(a)(1)(E) is very interesting, saying basically you can't use the exception in (a)(1)(B) "...as a defense in any action to enforce any provision of this title..."

And then there's nothing for the common person limiting the power of (a)(2) to prohibit the tools necessary to exercise your rather vague rights under (a)(1)(B).

And even those granted protection appear to have the same revocation of protection as in (a)(1)(E), done in paragraph (d)(4). A library or school may have the exception to crack the encryption, but they are specifically not allowed to have the tools to do so.

So, if I get the DMCA right, we remove fair use rights, then grant an exception for them, but then state that the exception provides no defense under the law, and finally we make the means to exercise rights under the exception illegal in most commercial and all non-commercial use.

Re:Throw it out?

[stud9920]

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection? [17 U.S.C. 1201(a)(2)

Well here is the paragraph in question (emphasis mine)

* (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

I don't read SOLE purpose, I read "primarily designed". The main problem of the above phrase is that most executive and justice decisions are based on "sole purpose". The other main problem is that The infringement should -arguably- be punished, which already was the case before DMCA, and not the tools for infringement.

Re:Throw it out?

[Kintanon]

Because he didn't circumvent any copy protection mechanisms himself. Instead, he created-- as the copyright holder, he is the legal author-- a tool to circumvent copy protection, and then distributed his tool into the United States. That's illegal.

Ok, I just want to be clear on this, are you seriously asserting that each individual holder of a copyrighted work who wishes to excersise their fairuse rights must be capable of creating a device to circumvent the anti-fairuse measures on the work they have purchased on their own? I believe that places an unreasonable burden on the customer attempting to use the work they purchased in manner which is completely legal.

Oh, and FYI the average prison stay for rapists is just barely more than 5 years.
http://www.ojp.usdoj.gov/bjs/pub/pdf/psats fv.pdf

Kintanon

Re:Throw it out?

[Twirlip of the Mists]

If cases are reversed such that uppear and lower case letters switch places, does that protect the file?

Can the file be read without circumventing copy protection? Yes. The protection therefore is not effective.

What if the file is renamed from .txt to .pxt, but otherwise nothing changes?

Can the file be read without circumventing copy protection? Yes. The protection therefore is not effective.

These would, by your definition, be effective protection mechanisms.

No, they wouldn't.

Well, obviously she lost her credit card thanks to that rascal in Omaha. So when she calls tech support, they can't verify her ID easily.

She doesn't need to. All she has to provide is the serial number of her reader.

My point was that there are extenuating circumstances.

And my point is that the system takes these extenuating circumstances into account. You don't seriously think Adobe would release eBook without spending a little time thinking about "what if?" do you?

Now maybe I'm wrong, and we agree, but it seems you feel that the idea of "effective mechanism" is clean and legally sound.

The idea of "effective mechanism" is clear and legally sound. It is not vague at all. If the content of the work cannot be accessed without either going through the copy protection mechanism with permission from the licensor, or circumventing the copy protection mechanism, that mechanism is effective. If the content can be accessed without circumvention, then the mechanism is not effective.

This is a completely clear idea. What's your problem with it?

Re:Throw it out?

[Twirlip of the Mists]

The intendet result would be that it is impossible (or just very hard) to copy the file.

What? No. We're not talking about copy protection. (I think I may have used the phrase copy protection in one or another of my posts in this thread; if I did, that was my mistake.) We're talking about access control. The intended result is to make it impossible to access the content of the work. ROT-13 makes it impossible to access the content of a work-- you can't read it-- until you run it through ROT-13 again. ROT-13 is, therefore, an effective access control device. You have do do something to the content to get around it, even though that something is trivial.

Re:Throw it out?

[Twirlip of the Mists]

But then, they've never been able to prevent it in the past.

Sure they have. In the past 30 years, technological means have been available. Before that, contractual means were available. Copyright holders are absolutely able to prevent fair use of their works. The law merely says that making fair use is noninfringing. It doesn't say anything about it being mandatory.

I would argue that copyright fundementally requires that fair uses and public domain uses must be made of works.

Well, two things. First, you can argue it all you want, but that's not what the law says. Second, copyright is temporary, so all works will pass into the public domain eventually, at which time anybody can do anything they want.

Re:Throw it out?

[Twirlip of the Mists]

What are the DMCA implications of this?

Let's say there are 20 people in the world who can read ROT-13 encoded text without decoding it. To the rest of the world, ROT-13 is an effective access control mechanism.

Because it *IS* possible to do DeCSS this way

I disagree.

Re:Throw it out?

[Twirlip of the Mists]

I don't read SOLE purpose, I read "primarily designed".

Read further. The statute actually says that it prohibits devices that are primarily designed for circumvention and that have no significant application other than circumvention. The "sole purpose" thing is a simplification, but an accurate one.

The other main problem is that The infringement should -arguably- be punished, which already was the case before DMCA, and not the tools for infringement.

First of all, that would have been a relevant argument in the legislature, but it's not in the judiciary. If the law is valid, "should have" doesn't mean anything.

But beyond that, there's plenty of precedent for banning tools that exist solely to commit crimes. Lock-picking tools, for example, cannot be bought without a license. This statute extends the exact same concept to tools whose purpose is to "pick" the "locks" on copyrighted works.

Re:Throw it out?

[Twirlip of the Mists]

Thanks to HR5710, any law enforcement, local, state, or federal, may come into your home and search without first obtaining a warrant.

That's a bald-faced lie, and you should be ashamed of yourself. Read the bill. It says that agents of the department may execute warrants-- just as they always have-- and that agents of the department may make arrests without warrant under exigent circumstances-- just as they always have.

In other words, if an agent of the agency witnesses you planting a bomb, he can arrest you on the spot without a warrant. The same is true of any police officer in the country; hell, the same is true of any citizen in the country. If you are in active commission of a felony, anybody can detain you until the authorities arrive and take you into custody. These things have always been true before, and are nothing new.

Re:Throw it out?

[OwnedByTwoCats]

By your argument, a file that has been encoded in ASCII, EBCDIC, or UniCode is also effectively protected. You need a machine that takes "60" and displays "A".

By your definitions, every computer "does something to the content" to "get around" the encoding. By your definition, everyone on the internet has violated the DMCA, and the authorities may pick and choose who to arrest, prosecute, bankrupt, or jail.

Re:Throw it out?

[Twirlip of the Mists]

By your argument, a file that has been encoded in ASCII, EBCDIC, or UniCode is also effectively protected.

No. There's a difference between representing letters as numbers in a straightforward transform for technical reasons-- that is, "encoding" in this sense-- and deliberately obscuring the content in order to prevent access-- that is, "encoding" in the cryptographic sense.

The question becomes, what is the purpose of the encoding? If the purpose is to obscure the content to prevent access, then the encoding is an access control mechanism. If the process of encoding makes the content inaccessible until it is decoded, then the encoding is a effective access control mechanism.

Re:Throw it out?

[iabervon]

It is not illegal to *use* your eBook reader to make fair use of a work. If you do so, however, you must *have* an eBook reader, and making or selling one *is* illegal, even if you don't do anything at all with it.

Similarly, it is illegal (in some places, without a license) to own lockpicks, although it is not illegal to use them to pick your own locks. The fact that they're your own locks, however, doesn't change the fact that you have lockpicks and know how to use them.

Did you know that most people who might be prosecuted under the DMCA do not have the legal education necessary to properly understand it, and therefore either have to go to law school or read interpretations by actual lawyers?

Did you know that 1201(a)(2) doesn't use the word "sole" or any similar one, instead using "primarily" and "limited other"? Did you know that 1201(a)(1)(B) doesn't talk at all about fair use, but essentially lets the LoC exempt classes of works from the protections? (My explanation above is based on 1201(c)(1), which states that making fair use of a work is unaffected by this section)

Re:Throw it out?

[seaan]

Three courts have ruled that 1201(c)(1) did not apply to their respective cases. As a layman, fair-use appeared to be valid defense, but both the judge and expert commentators determined the fair-use protection measure just did not apply to the other subsections. It is possible that somewhere, sometime a court will find a place where 1201(c)(1) actually does apply, but probably not in our lifetime.

There is no doubt the fair-use clause is written in such a way as to provide no real protection to fair-use! The question is how did this come to pass, intentional or accidental? One theory has it being intentional, where the bill authors wrote that section in as an attempt to convince less knowledgeable congressman that fair-use would be protected, when in fact they had no intention of actually protecting it.

I do know that when Lofgren (and Honda) introduced a bill to fix this problem. In the introduction to their bill they claim the DMCA is being interpreted in the courts in a way that eliminates fair-use, and that this was not the intent of congress. The interesting quote from the MPAA went to the effect that "allowing people to overcome copy protection for any reason, including exercising their fair-use, will cause disaster to our industry". Sounds to me like they are quite happy with the bill they bought, and they don't want to it to be changed to reflect the intent of (at least some) congressmen.

Meanwhile, the fluff section continues to benefit the copyright holders (intentionally or not), because people like you can say "see it protects fair-use" by pointing at that worthless section. Seems like a number of judges, and at least some congressman don't agree.

Re:Throw it out?

[DunbarTheInept]

Did you know that, under the DMCA, it is not illegal to circumvent copy protection mechanisms for the purpose of making fair use of a work? [17 U.S.C. 1201(a)(1)(B)]

Only if you are a cryptography whiz who came up with the algorithm all by yourself and then implemented it all by yourself, without any outside help. The DMCA makes it illegal to make a tool that lets someone do exactly what you mention above. It also makes it illegal to TELL SOMEONE HOW to do the above thing. Take your own advice and read the law - The fact that it lets you make a copy for fair use is fucking irrelevant when you aren't allowed to spread the knowlege of HOW, and learning how to do it is a nontrivial activity.

Re:Throw it out?

[cpt kangarooski]

The law merely says that making fair use is noninfringing. It doesn't say anything about it being mandatory.

Actually, I think that it very nearly does.

The framers wrote the copyright clause in the 1780's. An era when there was no technological method of preventing first sale, fair use, or any exploitation of the work once it fell in the public domain. (which most did anyway)

These doctrines that we have developed over time are drawn from the Constitution. We believe that due to the promotion element of the copyright clause, Congress has no power to grant copyrights that prevent fair use. The situation of the author denying fair use for a work that has in fact been published has never arisen before. But I would expect that the outcome would be precisely the same -- if fair use cannot be made of the work, then the author has not earned his copyright, for his work can easily be said to not promote progress.

Thus, unless a promotes progress to at least the same extent as a book or chart did back then, or can be amended to do so, copyright is inappropriate.

Should an author prefer self-help measures over legal protections, then he should have every right to do so, per the first amendment. But Congress should certainly not discourage people from cracking such self-help schemes wide open, since doing so will result in a great treasure trove of free content making its way into the control of the public. Perhaps they should even subsidize it.

As I said before, this is VERY similar to the issue of wiretapping. The fourth amendment doesn't say anything about being secure over the wires, and originally there was a lot of support for taps because of this. But ultimately it was decided that rather than maintain the literal requirement of the amendment, and the reduced freedom from intrusion that would result, we would expand it so as to keep the freedom it guaranteed more closely constant. Had the framers envisioned taps, they would've surely mentioned it and included it, for their intent was clear. We should honor that, and not let our society be ruined by harmful literalism.

Your position is identical: the framers didn't envision something, though we can easily infer what they would've said, so we'll chuck everything right out the window.

What the law says is a matter of reading it, just as much as writing it.

Second, copyright is temporary, so all works will pass into the public domain eventually, at which time anybody can do anything they want.

No. Copyright also can't constitutionally prevent fair use either -- and look at how you already put your foot in your mouth about that.

If there is a technological measure preventing me from making use of a copyrighted work, how does it magically vanish when the work is in the public domain? Has someone shamed the Second Circuit, by using DeCSS to legally decrypt a public domain movie off of a DVD?

Technological measures taken to restrict a work last forever and are thus immensely harmful to not only us now, but literally everyone that will come after us. They destroy the longevity of our culture, and basically make us moot in history. It will be seen as though the Minoans suddenly sprang up out of nowhere and took over the world. That's very bad. I refuse to allow it to happen.

Re:Throw it out?

[MacAndrew]

Re your "severed head" analogy:

(1) In my eveperience, people don't go far from their own lives in concocting gruesome hypotheticals ... so I want you to know I consider you a friend. :)

(2) Whether you invited the officer into your house, or he/she had other reason to be there, the 4th A. still applies;

(3) The 4th A. exception that would most likely apply is "plain view," true, but it is still technically a search because it is in a private space. So, if you had at least had the foresight to put a piece of paper over the damn thing, you wouldn't be on death row now (how nice that they give you Internet access!);

(4) If the officer opened the freezer because you offered a popsicle, even if you really had intended to do the opening yourself, you still lose.

(5) Any good defense lawyer will tell you there are lots of innocent explanations for a severed head.

*
Kidding aside, friend, and to distill what you said, all the gov't has to show is the necessary elements of the crime. Period. How difficult the accomplishment of these elements might have been is irrelevant, except perhaps to calculating punishment. For classic breaking and entering, for example, you don't have to break anything for "breaking." Even the opening of a door left ajar is sufficient, even if that's an internal door. The connotation of physicality or difficulty is spurious.

So, friend, breaking even the most pathetic code is enough, so long as you have the necessary state of mind. (Breaking a code while stinking drunk might be a defense to intent.)

Re:Throw it out?

[Alsee]

Let's say there are 20 people in the world who can read ROT-13 encoded text without decoding it. To the rest of the world, ROT-13 is an effective access control mechanism.

My point is: what are the DMCA implications? Do you arrest the people who can? As I said, I already have a very limited ability to read some some things in ROT-13 on sight and with effort I can read anything in ROT-13 one letter at a time in my head. Do I go to jail for having that ability? Am I and illegal ROT-13 circumvention device?

>Because it *IS* possible to do DeCSS this way
I disagree.

Do you have any justification for disagreeing?
Are you a programmer? I am.

Fact: Any calculation a computer can do a human can do with pencil and paper.

As for doing it in your head, it is merely a memory limitation. DeCSS is pretty small program, I've seen the source code. An idiot savant certainly has the potential to do it, and I think it might just be within the limits of a bright and dedicated "regular" person. A roomfull of people can definitely do it. It would make quite a demonstration in court.

Does that mean a roomfull of trained people is an illegal CSS circumvention device?

-

Re:Throw it out?

[Alsee]

P.S.

About the roomfull of people as a CSS circumvention device - you could even have people who hold up different colored cards, each person acting as a human pixel. You've probably seen this done before at sports events. You could actually get a moving video output, though I admit the frame rate would suck.

-

Re:Throw it out?

[geekee]

Nobody is forcing Adobe now. People who oppose DRM claim it's illegal because they have a right to fair use. This type of arguement is bs since it claims Adobe must release stuff in a form that is copyable, which is not true

Re:Throw it out?

[geekee]

I agree that you can reverse engineer it. That's what's wrong with the DMCA. You can't release the code arbitrarily, however, without opening yourself up to liabilty. If your software has no legitimate purpose, as in this case since Adobe claims to give you the tools to make fair use possible, then it's illegal. It's no different than giving away a box to descramble cable channels, for example.

doesn't matter

[ArchieBunker]

Under the DMCA just creating the tool is illegal. It doesn't matter if everyone or no one uses it.

Re:doesn't matter

[Henry V .009]

I would give anything to be able to killfile posts based on included phrases.

Re:doesn't matter

[geronimo87]

Illegal in the USA. Sklyrov is Russian.

Re:doesn't matter

[Sleepy]

AH. Next we'll have the Saudi's here at the beaches of the United States, monitoring who's wearing a swimsuit.

Such clothing is illegal in Saudi Arabia.

Who knows, they might jail a few tourists for crimes never commited on their soil... hmm?

Where does it end?

Re:doesn't matter

[DarkZero]

It's great to see you're so well versed with the case. In fact, the affidavit alleges that he was selling the software on US soil.

Not he, they. ElcomSoft is on trial, not Dmitry. Otherwise, you're right.

Re:doesn't matter

[AftanGustur]

Under the DMCA just creating the tool is illegal. It doesn't matter if everyone or no one uses it.

Isn't the DMCA a USA law ??? Sklyarov did all his programming in Russia ..

Is copyright protection realy worth living in a world where a foreign national can sue a individual/company in another country for breaking laws in his country ? Like THIS ?

Re:doesn't matter

[axxackall]

Not Saudi, but here is another way around:

Australia's high court has ruled that the financial publishers Dow Jones can be sued in the Australian state of Victoria over an article that appeared on their website. If things will g that way, soon it will be obvious that national or local laws cannot be applied to anything international. Specifically, local laws cannot be applied to Internet business.

You cannot have a little bit of globalization. You either have it all or not all. Otherwise it's ugly.

Re:doesn't matter

[Mac Degger]

Oh, great...I just hope the Americans won't be popping up at the beaches of Scheveningen, the Netherlands, where topless bathing is not only legal, but the standard.

Re:doesn't matter

[Elwood P Dowd]

Isn't the DMCA a USA law ??? Sklyarov did all his programming in Russia ..

Right, but Elcomsoft did all their *selling* in the USA. And Elcomsoft is the one on Trial. Sklyarov isn't accused of a crime anymore. The charge that was dropped was due to his presentation at a convention in the USA.

I wish people could wrap their heads around this concept. It's not complicated.

Re:doesn't matter

[AftanGustur]

Right, but Elcomsoft did all their *selling* in the USA.

You mean This ?

Let me see ... clickedy clickedy click ...
IP address of www.elcomsoft.com is 217.107.213.131. And "whois" locates this IP address as belonging to "ROSTELECOM-NET, ncc@rt.ru" in Russia ... (as does traceroute)

So the point of selling was definately in Russia.

Re:doesn't matter

[Elwood P Dowd]

Right. And if you're sitting in the US of A, and that's where they send your copy, then the sale was in the USA.

This is against US law. Just like if they sent a mailbomb. Or a rocket. The only difference is that it's unlikely that Russia would extradite anyone over the DMCA, so Elcomsoft could tell the US DoJ to go fuck itself: Except that they would like to continue doing business here.

The point of buying was definitely in the US. The sale happened in the US. This is against US law. Every single nation on the planet has laws just like this. It isn't even complicated.

Re:doesn't matter

[AftanGustur]

Right. And if you're sitting in the US of A, and that's where they send your copy, then the sale was in the USA

So if you sit in the US of A and order some stuff from country 'X' (I.e. you send your CC# to country 'X') , and the company in country 'X' sends the ordered stuff to the US of A, then "the sale was in the USA" ????

No, the *buy* was in the US of A, the *sell* was in Russia. The item was sold *from* Russia, i.e. the seller was in Russia, i.e. the point of *sale* was in Russia. The buyer *requested* and *imported* the software from Russia, it was the *buyer* who initiated the transfer from the *seller* in Russia.

What part of this don't you understand ?

Re:doesn't matter

[Elwood P Dowd]

No, he shouldn't have been accused of committing a crime. The DMCA is a horrible perversion of justice. But it's not a question of jurisdiction. It's a question of free speech.

I, like many other /.ers, care a lot about this issue. This is why it upsets me so when I see other people, that have their hearts in the right place, get upset over the wrong thing. The problem is an unjust law. Not jurisdiction. It's simply embarassing that the first person to get this horrible law applied to them was a foreigner in our nation, and such a nice one at that.

Re:doesn't matter

[Elwood P Dowd]

However you would like to define the location is interesting. It's also irrelevant, since that's not how anyone in the legal community, US or otherwise, defines the location. It is illegal to distribute this particular type of contraband to the USA, or from the USA.

If someone shipped drugs to Singapore via postal mail, then flew there, they'd get executed just like anyone else. Even if they were a US citizen, and did their crime (which occured in Singapore) while sitting in the USA. The US government would certainly not intervene.

I totally understand your point. I feel like you're choosing not to see it my way because you don't like the implications in this one case. If you considered the implications in all other cases, you might see how this is a requirement of the proper function of international law.

I'm at work. Feel free to email me if you'd like to discuss this further.

Re:doesn't matter

[AftanGustur]

It is illegal to distribute this particular type of contraband to the USA,

The law is a US of A law, and doesn't cover what people do in foreign countries. The law in question mentions "import" but that is clearly the buyer who is doing the "import". Before the software is *in* the USA, it is outside the legal space of the US of A.

If someone shipped drugs to Singapore via postal mail, then flew there, they'd get executed just like anyone else.

Do you feel that comparing software to drugs (who are illegal almost everywhere) is a balanced comparison ? Let's turn the coin 180, let's say the US of A had death penalty for trafficing in this type of software and the US of A vere pressing for the death penalty for Sklyarov. Do you still think peole would see it "your way" ?? (And there would be no reaction)

I feel like you're choosing not to see it my way because you don't like the implications in this one case.

I don't like the implications if this twisted way of seeing things becomes the accepted norm. And I think that international reaction to Salman Rushdie's case show that a lot of people don't like it either.

Do you seriously want to constantly have to worry about what country's laws you might be braking ??

Re:doesn't matter

[Elwood P Dowd]

Do you feel that comparing software to drugs (who are illegal almost everywhere) is a balanced comparison ? Let's turn the coin 180, let's say the US of A had death penalty for trafficing in this type of software and the US of A vere pressing for the death penalty for Sklyarov. Do you still think peole would see it "your way" ?? (And there would be no reaction)

You are confusing two separate issues. Of course, what you are describing would be incredibly immoral and wrong of the US gov't. NOT BECAUSE OF JURISDICTION. It would be immoral and wrong to kill someone for something that logically should not be illegal at all.

This is why the distinction is so important. The DMCA is a horrendously bad law. We need to change it. That is why Dmitri/Elcomsoft got fucked. They did business in the United States. There was no jurisdictional question.

You suggest that comparing the DMCA to Singapore's drug laws is unfair for some reason. I am not making the comparison to attempt to shed a negative light on what Dmitri has done. As I keep repeating, Dmitri has done nothing that is morally wrong, in my opinion. I am making the comparison because it shows that if you send contraband to a foreign nation, you have violated that nation's laws. This is independent of the moral value of the law. If you can't see this analogy, I don't really think you'll be able to see my point of view without getting confused.

Do you seriously want to constantly have to worry about what country's laws you might be braking ??

Well, that's the way it works, has worked, and will work. If you want to do business in a nation, travel to that nation, and interact with people in that nation, then there are a number of laws in that nation that you need to follow. This makes perfect sense to me. Doesn't seem too complicated. If you don't travel to, do business in, or interact with a nation, then you don't have to worry about breaking their laws. Salman Rushdie is a great example. If he flew to Iran, he'd be an idiot, and he'd be executed. So he's not going to fly to Iran.

I just want people to focus on the more important issue of defeating the DMCA.

DMCA logic

[unixisnotmultics]

If you can get arrested for providing someone with the tools to commit a crime, how come this does not apply to anything but the software/electronics area. For example gun manufacturors do not face such action for providing people with items that could be used in a crime. even a shoe could be used to kill somebody :-)

Re:DMCA logic

[czarneki]

This is nothing new, you know.

Back when the Sony-Betamax case was pending Supreme Court review, people asked how it could be that VCR manufacturers could be liable for contributory infringement of copyright simply by providing a tool that some people misused when gun manufacturers were immune from suit by murder victims. There were political cartoons to this effect.

Then the Supreme Court thanfully (it was a close one though, 5-4, I believe, and according to some historians the dissent was originally the majority) gave VCRs a fair use out.

Basically, the Mickey Mouse lobby is invincible. Why should they be deterred by a little logic?

Re:DMCA logic

[IndependentVik]

Oh, but don't you get it? A gun, while lethal, is extremely unlikely to deprive big corporations of great sums of money. A couple of dead people is nothing compared to (potentially) lost profits.

Re:DMCA logic

[suwain_2]

I'm not saying your point is entirely invalid, but in the case of serving someone twenty consecutive beers, you are truly being negligent, even if you still (in my mind) shouldn't be liable. A more accurate analogy would be suing Anheuser-Busch for negligence because I consumed too much and wrecked my car -- how could they possibly have known what I would do with their product?

Re:DMCA logic

[Absurd Being]

With that logic, clearly god must be sued, for creating all things that can be used for crimes. I would someday like to walk into a place that says leave all weapons at the door, and stop at the door and refuse to enter. I am the ultimate weapon.

Re:DMCA logic

[macdaddy357]

Guns are old technology that everyone understands. Elcomsoft's software is a new one that people think is somehow magic. Magic new things are scary.

Re:DMCA logic

[Hanji]

Of course!
Forgive me for forgetting the all-holiness of big business.

Re:DMCA logic

[tmark]

More interestingly, I wonder why many of the same people who argue that things like P2P and hacking only point to some other larger problem like outdated RIAA/MPAA policies, and who argue that things like P2P should not be restricted, are often among the first to call for gun control legislation.

Re:DMCA logic

[geekee]

If you give someone a bomb, and he kills someone with it, then you are liable. Manufacturers of stuff that has legal uses, however, can get out of liability. For instance, guns can legally be used for self defence/hunting. Shoes can be worn to aid in walking. The best defense in this case is to stick to the arguement that the software is only intended to facilitet fair use copying. However, since the Adobe software already has such features, their case is weak, and they will lose.

Re:DMCA logic

[Christopher Chang]

The problem is one of enforcement.

If someone uses a gun to commit a crime, there is a fair probability they will be caught. The more effective a society is at catching illegal uses of guns after the fact, the fewer restrictions it needs to impose on guns before the fact. Though it should be mentioned that even if we have perfect after-the-fact enforcement, some restrictions on guns should remain thanks to the irreversibility of murder.

The difficulty of tracking down acts of copyright infringement, combined with the suddenly huge frequency of such acts thanks to the popularization of the Internet, creates a problem. While any individual act of copyright infringement is practically harmless, when they occur in the millions they can unfairly hurt producers of content.

There are two categories of approaches to deal with this, both of which should be employed to some degree.

One is to ask everyone to "think outside the box" and adapt their business models to the new reality of effectively zero cost of data duplication. In the long run, this should be done in as many contexts as possible. However, the transition is not always easy, if possible at all. In the cases where it is difficult or not possible, it needs to be decided whether the old class of business model should still be kept around for the time being. While some zealots would deny it, the truth of the matter is that sometimes the answer to this last question is "yes".

That's where the second type of approach comes in to play. Put restrictions on the tools that change what would be tens or hundreds of copyright infringements into millions of them, in a manner that's otherwise minimally disruptive. This is not a simple thing to do. The DMCA was the first attempt, and frankly I don't think it was that bad of an attempt, but clearly it could be improved. We need to find ways to let it do its job while constantly brainstorming ideas to better achieve "minimal disruption", and help society evolve to the point where few business models still need to be protected. We need to ensure that this law, in the long run, "withers away", rather than let it be like most real life Communist regimes which do not speak highly of Marx's ability to predict history.

What we shouldn't do is retreat into a hole and ignore the problem entirely.

Re:DMCA logic

[suwain_2]

I suppose you're right; I hadn't considered this. I'd like to think that they couldn't meet the burden of proof; they should have to prove that you knew he was drunk, and continued to serve him anyway. (BTW, I have to ask: Is your .sig actually true? Has this been tested?)

Re:DMCA logic

[mindstrm]

Right.But the DMCA specifically makes it illegal to traffic in devices and methos who's primary purpose is to circumvent access controls to copyrighted works.

They don't have to be guilty of contributory infringement.. they already broke the dmca.

Re:DMCA logic

[Alsee]

Has a court ruled decisively as to whether the Congress even had power under the Constitution to pass the DMCA?

I don't think they ever make such rulings. They simply don't rule it unconstitutional. That leaves the possibility open for any law to be ruled unconstitutional on other grounds later.

-

Re:DMCA logic

[Alsee]

Forgive me for forgetting the all-holiness of big business.

Say one hail-mary and insert your credit card into the slot below.

If you do not wish to recite a hail-mary we can play a recorded hail-mary for an aditional $.50 surcharge.

-

Re:DMCA logic

[Alsee]

Guns are old technology that everyone understands. Elcomsoft's software is a new one that people think is somehow magic.

Some people still think gun and eraser technology are magic. They also tend to wonder where the ice in the automatic icemaker comes from.

-

Re:DMCA logic

[squarefish]

For example gun manufacturors do not face such action for providing people with items that could be used in a crime.

This is not true, see: Chicago, New York, Los Angeles County, Newark, NJ, Cincinnati, others.

"I'm No Hacker" ?!?

[tealover]

Then why the hell are we supporting him? If he doesn't want to be associated with us, all he had to do was tell us.

Pffffft !

Re:"I'm No Hacker" ?!?

[unicron]

Exactly! If he has no desire to be 0-day, then what should be care!? I mean, I know for myself at least that the more technology you use to commit a crime, the more justified you are.

Re:"I'm No Hacker" ?!?

[halftrack]

Oh, oh ... haven't you read the jargon file? No true hacker calls himself a hacker, it's a title given to you by the community. Now you've really made a boo-boo.

Re:"I'm No Hacker" ?!?

[Cryptnotic]

If you have any brains, when someone from law enforcement or the media asks you if you're a hacker you say "no"; you don't ask if they mean good hacker or bad hacker.

Re:"I'm No Hacker" ?!?

[Alsee]

No true hacker calls himself a hacker, it's a title given to you by the community.

You can't *take* the title for yourself, but once the title is givenIto you by the community think you have it and you are allowed use it.

-

Re:"I'm No Hacker" ?!?

[Permission Denied]

I'm really tired of people trying to force this definition of "hacker" onto everyone.

When people use the term "hacker" to mean whatever the Jargon File associates with the term, they're using an MIT-ism. Look at all the people associated with the original Jargon file: Steele, etc. All from MIT. Try to find an early example of the term used outside of MIT: you'll find it difficult (although I'm not dismissing the possibility - perhaps I just haven't looked hard enough, but I have looked).

People are very quick to apply the term to things outside of the MIT, Unix and FSF cultures, but this means introducing the term into a new environments. At this point, it's difficult to introduce the term into new environments because another meaning for the term is in common usage.

It doesn't matter which definition came "first." The popular definition is the de-facto definition, by definition of the terms "popular," "definition" and "de-facto." The script kiddie culture has no qualms about calling themselves "hackers," and the word "cracker" already has a pejorative meaning in certain contexts, so nobody's going to convince the general public or the mass media to switch terminology.

Analogy: "Skinhead" can refer to two things: either young Neo-Nazis or the original Skinhead movement, which is this English Punk subculture. If you say "All my best friends are Skinheads," you'll have a lot of explaining to do. This explanation may make for an interesting conversation between your friends at the pub, but it has no place in a journal interview or a trial. Somehow, nobody really cares about the distinction between the two meanings of "Skinhead," since few people have the time or motivation for these semantics arguments. You have to understand that most people don't care for linguistics and wordplay - most people want to get their jobs done, and communicate in order to do so.

When asked "Are you a hacker?" Dmitry responded correctly. If he tried to explain about the Jargon File and how the MIT-centric usage has come into vogue among the "Free Software" community (another term with which I take issue), he would have gotten nowhere. It would have been just as useful if he responded: "What do you mean by 'you?'"

Seems like there's an even bigger issue

[bgfay]

Bigger for those of us who are not yet on trial, probably not as big for the guy on trial. Here's the thing: the legal system, as in copyright law, is so far behind the technology that it can't quite cope with what's going on. It doesn't matter what the law _is_. We have to start thinking about what the law will be. Lessig's idea that the law will be code, or rather that code will supplant law seems appropriate to think of here.

The question I have is this: what's the next frontier? What is the next law which proves to be obsolete in our world? And what will each of us do to bring about the change? This last bit is important because, as the laws need to grow, someone will have to help them along. Those people who help the change, will likely be prosecuted because the law is there to protect someone's interests. Those interests come with a lot of money. So the law is on the old money side. The code, it seems to me, is on the new money side. I don't believe that code will lead to free (beer). There will be free stuff, but there will also be money. My guess is that it won't be the money of the blue chips unless law beats code.

I'm rambling now. Time to shut up.

Re:Seems like there's an even bigger issue

[pVoid]

What is the next law which proves to be obsolete in our world

Free use of your property.

As seen in the trends of CAble modem modification (which, yes it's a service but blah blah), and the ever so imminent push of Mordor that is 'trusted computing', where the code that runs on your computer, Sauron wishes, will not be yours to control, but rather will be under the One Ring to Rule them all.

(can you tell I just can't wait for the TTT ? =)

Irony would have made it

[halftrack]

Sklyarov: I'm not a hacker.
Prosecutor: No of course you're not, you're a cracker.

Re:Irony would have made it

[scotch]

If you ask those 300 million english-speaking people these questions:

• Where is the capital of North Dakata?
• How do you pronounce "nuclear"?
• What is the correct usage of "it's" versus "its"?
• Is there life after death?
• Does Richard Gere like to "gerbil"?
• What causes the common cold?
• Who invented the internet?
• Does kidney thievery happen?

are the wrong answers you get any more right because so many (maybe even the majority, if asked right) get them wrong?

IOW, eat shit, 100,000,000 flies can't be wrong.

Legitimate use?

[Anonymous Coward]

"the company's password retrieval programs have been purchased by the FBI, the IRS, U.S. district attorneys and U.S. police departments, as well as by private companies like Microsoft and Motorola."

It should be interesting to hear what the "legitimate uses" sited by these people are.

Re:Legitimate use?

[b0r1s]

It should be interesting to hear what the "legitimate uses" sited by these people are.


The same as uses that any company would need: when you have an employee who puts a password on something, and is then fired, the data needs to be recovered. It's actually quite common.

Control the access, control the ...

[peripatetic_bum]

Why isnt anyone really stating that this is about a blind person's ability to read the book they bought.

While the seller doesnt have to guarantee that his books can be read by the blind, the seller cant keep the blind from reading the book, ie using the software to 'open' the book and let him read it.

I would like to hear a valid argument against this statement?

thanks for reading.

Re:Control the access, control the ...

[Twirlip of the Mists]

While the seller doesnt have to guarantee that his books can be read by the blind, the seller cant keep the blind from reading the book, ie using the software to 'open' the book and let him read it. I would like to hear a valid argument against this statement?

The Adobe eBook reader software includes text-to-speech already. Any blind person can use the eBook Reader to read-- or, more accurately, listen to-- any book in the eBook format.

So this is most decidedly not about a blind person's ability to read, or have read to them, anything.

Re:Control the access, control the ...

[Error27]

I haven't tried the Adobe text to speech software but I'd imagine it might get tedious after a couple novels worth.

Could be wrong though... Has happenned before.

"Didn't care that he violated US law"

[ryants]

In one dramatic moment in a relatively anticlimactic afternoon of testimony, Frewing forced Sklyarov to acknowledge that he didn't consider the legality of his program.

"Isn't it true that when you wrote this software you didn't care whether it violated laws in the U.S.?" Frewing asked.

"That's true," Sklyarov said.

And why the fuck should he care? A Russian programmer working in Russia shouldn't have to consult the law books of every nation on Earth to see if his work may or may not violate some law somewhere. If we all had to do that, nobody would ever get anything done, and pretty much anything would be illegal in some country or other.

Re:"Didn't care that he violated US law"

[Snoopy77]

Your comment is in violation of the Criminal Law Act under section 141 part B of Tajikistan. Extradiction proceedings are under way.

Re:"Didn't care that he violated US law"

[suwain_2]

IANAL, but... Shouldn't his lawyer have objected to the question, deeming it completely irrelevent? As others have pointed out, the software wasn't written in the United States -- if the question was "Isn't it true that when you brought the software into the US, you didn't care whether it violated laws in the US?" it might make sense.

I don't see this any different as asking an American murder suspect, in US court, "Isn't it true that at the time of murder, you didn't care if what you were doing was illegal in Tajikistan?"

Re:"Didn't care that he violated US law"

[stud9920]

Most countries don't extrade nationals. But next time he goes to Tadjikistan, he's so busted !!!

A Few Questions

[GreatOgre]

Elcomsoft has sold copies of their programs to the FBI and other branches of the US government. So, why are they attacking in court a company that they are willing to support by buying their software. Granted the DOJ buying it may just mean that they just needed the evidence. But the FBI, surely they have a more sinister reason for the purchase. Maybe they are hoping to that Elcomsoft will either win the case or perhaps an appeal and their supplier of toys would still be around.

Now, why would Microsoft own any copies? I wonder if our fiends ... er, excuse me, friends in Redmond are looking for more information on Adobe's file standards. Or perhaps this will crack other copy protection schemes that M$ has been using???

Re:A Few Questions

[pVoid]

Your imagination is WAY too active. Microsoft doesn't need to buy this product to reverse engineer anything... the code is already there. If anything they probably reverse engineered it to look at the Elcomsoftware itself.

My guess is that this was bought by *some* guy at Redmond, and just happened to go through the cracks of the system unnoticed.

copying books

[Fuzquat]

Does Adobe give users the ability to print out copies of their e-books? If so, then they need to prosecute every manufacture of OCR software that exists.

In fact, they need to prosecute every manufacture of OCR software anyway because it could be used to read the characters directly off of a screenshot of an open e-book.

They also need to bring lawsuits against anyone with data entry skills because theoretically someone could read text from a screen and input it into a word processor.

Wait, that means word processors are a circumvention device for e-book protection, but that's ok: everyone uses Microsoft Word anyway and Microsoft has more lawyers then Adobe.

The list goes on, but the point is that data will be copied one way or another when people want to copy the data.

Pick your favorite fix to the copyright system we have today, but it had better deal with two parts of reality:\

Encryption can and will be decrypted.

Content must be cheap or people will copy it.

Re:copying books

[bgfay]

This is what I've been thinking. There is no way to stop the advance of the technologies that are making antiques out of the laws we've been living under. I can understand that governments are slow to figure this stuff out--governments aren't good at looking forward--but it seems that there has to be a business that can get beyond what has been and get to what the world looks like now.

Netscape went to the courts to solve their problems. That didn't work out well for them now did it. I wonder if any of these companies will have better luck. The difference, seems to me, is that Netscape was against Microsoft which is kind of a big corporation. These cases are going to be fought by the big businesses against a horde of ones and twos. I wonder how it's all going to work out.

Re:copying books

[b0r1s]

This isn't insightful, regardless of what the moderators would like you to believe. This is childish and wrong.

The DMCA acknowledges that some software may be used to break protection measures, but targets those that have no legitimate uses. OCR and word processing suites have many, many legitimate uses, and this one example of an illegal use. The Elcomsoft program had one use: to break encryption. Indeed, there were other uses AFTER that step, but the first step is always illegal, and thus, has no redeeming qualities.

Regardless of the flaws of the DMCA, this type of software will ALWAYS be illegal (even if the DMCA is repealed and replaced with soemthing else), beacuse it's PRIMARY USE is to circumvent copyright protection measures. This is clearly wrong to anyone with a conscience*.

Realistically, Elcomsoft published code meant to illegally break copyright protection. This is unethical. Period.

*: Yes, I realize that some people will claim you must use this code to enable blind to read the Adobe ebooks, or to transfer certain material from reader to reader, but be realistic: a blind person will not buy material they can't use, and there's already transfer mechanisms built into most ebooks and ebook readers. This code was meant primarily to allow piracy, period.

Re:copying books

[Twirlip of the Mists]

Does Adobe give users the ability to print out copies of their e-books? If so, then they need to prosecute every manufacture of OCR software that exists.

Wrong. The DMCA makes it illegal to circumvent effective methods of protection. Once the work has been printed, it is not protected by any device or technology. So scanning those printed pages and OCR'ing them is not illegal under the DMCA. (Of course, you may or may not be violating the copyright itself once you've scanned it, depending on what you do with it.)

I'll say the same thing to you that I've said many times before: before making these kinds of wild-ass statements, please read the DMCA. It's Title 17, chapter 12, of the U.S. Code, and it's available on lots of web sites, including copyright.gov.

Re:copying books

[roystgnr]

Regardless of the flaws of the DMCA, this type of software will ALWAYS be illegal (even if the DMCA is repealed and replaced with soemthing else), beacuse it's PRIMARY USE is to circumvent copyright protection measures. This is clearly wrong to anyone with a conscience*.

Do you demonize everyone who disagrees with you, or just everyone who disagrees with you on this issue?

You've just said that the solution for blind people is not to buy EBooks. You have no right to accuse anyone else of lacking a conscience.

You've just given Adobe the sole authority for "transferring certain material from reader to reader". Since every ebook in existence should eventually be public domain, and the length of current copyright terms vastly exceeds the halflife of electronic gadgets, this is unacceptable.

Even in the meantime, I can think of a dozen legitimate reasons for wanting unchained access to material I have purchased (and so there are probably a hundred more I haven't thought of). Getting that access may break the DMCA but does not break copyright law, and it is not immoral of me to want it.

Elcomsoft published code whose primary use is to to break encryption. Subverting copy prevention is a secondary use.

Re:copying books

[Skuld-Chan]

no in fact adobe *makes* ocr software - its called Acrobat Capture.

Also ebooks are on a right enabled basis. For instance you can select the option on weather your ebook is printable or not, wether content can be extracted etc etc.

Another point - most ocr software demands a dpi greater then 75 - oddly enough thats what your monitor is so no screen captures won't work to well with ocr software. Thats probably not a coincidence.

Re:Why is he here?

[Sourtimes]

He was picked up at Defcon in Las Vegas, NV, US AFTER a speech he gave about this program, therefore was on US grounds. I believe we held him in a US prison until the last court date, and by that time he made agreements with the US govt.

Hacker ... just what is that?

[Hektor_Troy]

My answer would have been

Please define "hacker".

Some dictionaries define it as follows:

hacker
n. Informal.

1. One who is proficient at using or programming a computer; a computer buff.
   
2. One who uses programming skills to gain illegal access to a computer network or file.
   
3. One who enthusiastically pursues a game or sport: a weekend tennis hacker.
   

So which one is it? Saying "yes" would be a lie either way.

Hell, he might just have lied, when he said "no"; I would certainly label him as a hacker, using definition 1, and he might also be a golf hacker for all we know.

From the CNET article

[Ayanami Rei]

ElcomSoft Managing Director Vladmir Katalov took the stand after Sklyarov. He testified that ElcomSoft, which also makes password-retrieval software, has many major customers for its products, including Adobe and the U.S. Department of Justice.

Now this is an interesting twist. I didn't know anything about ElcomSoft itself. This is like blaming the guys who make the tools used to extract keys from locked cars. Everyone curses the wind wishing they're around when you get locked out.

Who here has not scrambled for a NT Admin password recovery disk, or a ZIP password cracker, or swapped NVRAM chips between Suns?

They don't hide behind pretenses... they expose the poor security and help you when you are hindered by said annoyances! I believe there is insufficient evidence to make Sklyarov appear malicious, and he had little to gain personally. He exposed the information that would only be profitable within the confines of the company and his product to the public. Moreover, he warned potential publishers that the protected PDFs weren't safe. Therefore, the only person that loses out is the lazy programmers at Adobe. And he claims to be ignorant of the legal ramifications. AND WHY SHOULD HE, HE'S A FRIGGIN RUSSIAN CITIZEN (Spare me the IN SOVIET RUSSIA... replies).

I hope to GOD that the DMCA doesn't get used to uphold lazy habits.

Re:From the CNET article

[geekee]

There is no legal use for ElcomSoft's software that can't be done in the adobe software, is the arguement the prosecution is using. They're not after Sklyarov, they're after ElcomSoft.

Re:From the CNET article

[ryanvm]

Who here has not scrambled for a NT Admin password recovery disk, or a ZIP password cracker, or swapped NVRAM chips between Suns?

Aw man, just when I was thinking I was l337 you had to throw the NVRAM one in there.

Welcome!

[JanusFury]

You've got Jail!

~ New AOL 9.0 with DMCA support now available! It's the internet, only better! ~

IN THE UNITED STATES OF AMERICA

[User 956]

The DMCA controls YOU!

Connotation

[nuggz]

The connotation of hacker is bad. You don't want to create a "bad impression" in court.

Re:Connotation

[Hektor_Troy]

Exactly. This is why you need the prosecutor to define what he means by "hacker".

Just like "are you okay?" only has one correct answer: "compared to what?".

Doing this will result in several things:

• You get the prosecutor out of his rythm, as he now has to answer one of your questions
  
• It leaves a nice impression on the jury and judge, as you get a chance to inform them, that the word has several uses, and therefor needs to be clarified
  
• You might even get to do this on several occasions, when he asks, as under different circumstances, describing yourself as a hacker would be faster and easier than describing yourself as being a very competent computer user, programmer and developer. Again, this will get the prosecutor on his heels, as he then needs to either ask you what you mean by hacker this time or simply accept that hacker isn't nescesarily bad.
  

All in all it's a good thing to clarify what people mean, when what they say is ambiguous - which "are you a hacker" certainly is.

Re:Connotation

[zsazsa]

The question "Do you consider yourself to be a hacker" was not asked by the prosecutor, it was asked by Elcomsoft's attorney. I don't think Sklyarov wanted to throw HIS rhythm off.

Still not so sure about the long arm of the law..

[Anonymous Coward]

I'm still not sure why Sklyarov is being prosecuted in the U.S. The alleged "crime" took place in Russia where his actions were perfectly legal. Why is an act, which may be in violation of US law, but which took place completely outside US jurisdiction being tried in a US court?

Suppose that the Kingdom of Tuva passes a law making it a crime for any politician to accept a campaign donation from any corporation or individual who receives any benefit from a vote cast by that politician. Can the Kingdom of Tuva then try the entire US Congress? Is this any different than the US trying Dmitry?

Violate US Law

[nuggz]

He didn't violate US law on US soil.

He violated a US law on Russian soil.

That is the key point people SHOULD be upset about.

You can't argue that you shouldn't have to follow a countries laws while you are in that country. The origional issue was that a Russian citizen in Russia, working for a Russian company, shouldn't have to worry about US law.

Re:Violate US Law

[Wanker]

You can't argue that you shouldn't have to follow a countries laws while you are in that country. The origional issue was that a Russian citizen in Russia, working for a Russian company, shouldn't have to worry about US law.

Unless you make the mistake of stepping onto US soil. Then you get your ass tossed into jail for several months until you agree to come back and testify against yourself.

How many items in the US bill of rights did that cover? Good thing he wasn't a citizen. ;-)

Re:Violate US Law

[morgajel]

fact: quite a few politicians have affairs.
fact: in some countries, adultury is punished by castration...

wonder what the case would be if another country did that to a visiting US diplomat?

do as we say, not as we do.

Re:Violate US Law

[0xA]

He wrote the software in Russia but he also gave a presentation about the software at a con (Defcon I think).

If he din't come to the US to give the presentation this probably wouldn't have happened.

Re:Violate US Law

[ryanvm]

He violated a US law on Russian soil. That is the key point people SHOULD be upset about.

Hmmm, how did they arrest him again? Oh, he was at a US conference giving a talk about his circumvention technology. Whether or not that US law is unfair is irrelevant. He was on US soil, selling a product available to US citizens that violates US law. DMCA aside, how is his arrest unfair?

Re:Violate US Law

[kenthorvath]

wonder what the case would be if another country did that [castration] to a visiting US diplomat?

Ah, you see, but diplomats can have diplomatic immunity for JUST that reason. Even if they commit their crimes while on US soil. They can only be tried in their country of origin. Reminds me of a diplomat who hit and killed a little girl while DWI a few years ago. They didn't do anything to him. He couldn't be arrested...

Re:Violate US Law

[MavEtJu]

Unless you make the mistake of stepping onto US soil. Then you get your ass tossed into jail for several months until you agree to come back and testify against yourself.

Unless you are an US citizen brought for the International Criminal Court, then the US Army invades the country and sets you free! Pathetic, but the bills for it are signed.

Re:Violate US Law

[Quila]

His country's government allowed the U.S. to try him for killing the girl after intense pressure from the U.S. government.

Re:Violate US Law

[nuggz]

It isn't illegal to talk about security (yet). His presentation wasn't illegal.

Someone else (his employer) sold the software in the US, not him.

Re:Violate US Law

[alispguru]

Ah, you see, but diplomats can have diplomatic immunity for JUST that reason.

Then the analogous case would be a US businessman, not a diplomat. What if, say, Jack Welch (former head honcho of GE, currently in the middle of a messy divorce, with adultery being just one of the charges) were to visit Saudi Arabia...

Not the issue

[Codex The Sloth]

Sklarov doesn't have to care -- it's when Elcomsoft decided to start selling it in the US that they were obliged to know about US Copyright laws. US Software companies have to care if they are violating EU privacy restrictions or they will be sued. I don't think anyone finds that unreasonable.

Ignorance of US law is no defense.

[rodentia]

Hey, buddy. The bridgehead of American legal jurisdiction is way more significant to American Global Dominion[TM] than any number of ex-commie hackers, asian tyrants or desert autocrats. The 82nd Airborne is child's play in comparison.

Adobe dropped this case for a reason. And Justice picked it up for a reason.

IN CAPITALIST AMERICA

[Chuck Chunder]

The laws violate YOU!

Re:IN CAPITALIST AMERICA

[Simon Garlick]

If you'd made it "...law violates YOU!" it would have been wittier. But you still got a chuckle outta me.

Re:IN CAPITALIST AMERICA

[DreamingReal]

Fucking funniest thing I've read all week! Thanks!

Re:IN CAPITALIST AMERICA

[Nick Driver]

The funny thing is... when it's the truth it isn't funny anymore.

Re:IN CAPITALIST AMERICA

[Phroggy]

Damn. That was hysterical. Thanks. :-)

Everyone needs to care

[myowntrueself]

"A Russian programmer working in Russia shouldn't have to consult the law books of every nation on Earth to see if his work may or may not violate some law somewhere"

Everyone, in every country on earth needs to be careful that they do not break US law; otherwise they risk ignominious fates such as being abducted to Cuba and 'disappeared' or recieving an unsolicited cruise missile or two.

This is not a troll its genuine concern expressed sarcastically.

Before drifting in the gun debate...

[MacAndrew]

There are examples of controlled dual-use "tools" such as explosives and locksmithing devices. (There's a federal statute specifically for the latter, though it is a bit vague and I doubt often enforced; non-Hollywood burglars usually use less finesse :).

Obviously you can get arrested as a conspirator, accessory, or accomplice to a crime. But liability goes further, it depends on your knowledge and exercise of due care.

You can get in trouble for supplying a gun to someone knowing they intend to use it for a crime; you can be liable for joyriders crashing your car after you left the keys in the ignition; there is even liability for serving one drink too many to someone before they go driving ("dram shop laws"). Said liability may be civil or criminal depending on the jurisdiction and the circumstances.

Before anyone says these sorts of liability are unfair in some abstract sense of causality, I'll add that the rules were developed in an effort to reduce the overall misery by allocating responsibility efficiently and reducing opportunities for mischief. So it has less to do with condemning anyone than with dry economics. Of course the details are open to debate.

As for shoes, well, they've been trying to get stiletto heels over 3" banned outright for years. (I'm kidding -- but I wonder if you can still take them on an airplane?)

I *hope* this is what you were asking about!

Re:Before drifting in the gun debate...

[MacAndrew]

Hey buddy, I know where you can get lockpicking tools online, few questions asked... (true)

I looked at their page -- Southord's attempt to shrug off responsibility would not protect it from liability the way they appear to think. ("What? People lie?") Same idea as you can't sell booze to someone on their say-so they're 21. You have to do more, or the laws restricting transfers mean nothing.

Pecking order

[r_j_prahad]

I just killed an Adobe Pagemaker sale today. No fanfare, no big deal, I just wrote "denied" on the purchase request and sent it back. I told him to find something else, and as long as it's not from Adobe I'll sign off on it.

That one's for you, Jon. And so's the next one. And the one after that. And as many as it takes until Adobe fully appreciates the delicacy of vendor-customer relationships, and acknowledges who's really in charge.

Re:Pecking order

[rjstanford]

I just killed an Adobe Pagemaker sale today. No fanfare, no big deal, I just wrote "denied" on the purchase request and sent it back. I told him to find something else, and as long as it's not from Adobe I'll sign off on it.

That one's for you, Jon. And so's the next one. And the one after that. And as many as it takes until Adobe fully appreciates the delicacy of vendor-customer relationships, and acknowledges who's really in charge.

That's too bad, really, considering that Adobe:
a) isn't charging him with anything, and
b) can't drop charges brought by the state

From the well worded Adobe FAQ (you did check both sides of this story before posting, right?

Let's be clear that the U.S. Government is pursuing this case as a crime, acting independently of Adobe to enforce U.S. copyright law (the Digital Millennium Copyright Act). Adobe fully supports the U.S. Government's decision to investigate the potential violation of U.S. copyright laws by Elcomsoft and has cooperated with their investigations with their investigation.

So, in other words, you're annoyed because Adobe is cooperating with the US Government in full accordance of both the spirit and the letter of existing legislation? Shame on them.

Re:Pecking order

[base3]

Please. Adobe knew exactly what they were doing, and exactly what the result of their "backing off" after the PR got hot would be. No sympathy.

They got what they wanted, and decided to sit back and let the feds be the bad guys.

I personally make a point of showing everyone I encounter who's interested in making PDFs the beauty of Ghostscript and Ghostview. Every sale I can cost Adobe makes me feel that much warmer inside.

I look forward to the day when the DMCA wielding jackbooted thugs cease to be relevant, and their stock becomes worthless.

Re:Pecking order

[ryanvm]

Ahh, nothing like a zealot PHB to fuck up one's work life. I'm sure the poor schmuck just trying to do his job appreciated your insipid political antics.

You should keep your personal battles out of the workplace. You wouldn't like it if your employer involved itself in your personal life.

Re:Pecking order

[poot_rootbeer]

Sounds to me like you should be fired. Your job is not to organize politically motivated boycotts against specific companies, it is to get people the tools they need to work efficiently.

Now, instead of being doing what he's being paid to do, some poor guy is surfing the web trying to find out what other products out there can do the same things he needed Pagemaker to do. That can't possibly be the best use of his time.

I hope for your sake that the executive officers at your company doesn't read Slashdot.

Re:Pecking order

[ek_adam]

Or Mac OS X, with the Save to PDF option right in the print dialog.

Re:Pecking order

[ek_adam]

Originally they were going to license Display Postscript, then Adobe killed Display Postscript. Finally, Apple developed Aqua. They probably license a few Adobe Postscript related patents.

Transcript?

[c0dedude]

Can anyone find a transcript of this? I'd like to read one, if one can be found.

Re:Transcript?

[Alsee]

Transcript

c0dedude: Can anyone find a transcript of this? I'd like to read one, if one can be found.

End of transcript.

Ok, I'm sorry. I get silly when I stay up too late reading /.

-

It's a good thing the ancient Greeks and Egyptians

[sdo1]

... didn't have the DMCA. Otherwise a lot of our shared history may have been lost forever. What are our decendants 100 or 500 or 1000 years from now going to know about us?

Our creative output is going to be slowly locked away in copyright protected files never to be seen again... except to the person who originally bought the rights to view it. But they (we) will be long since dead... and the content, which will be as helpful to them in understanding their history as hiroglyphics are to us, will be lost.

Bottom line... the DMCA, and everything it stands for, sucks. It is the epitomy of government "of the people, for the people, and by the people" gone terribly wrong.

-S

What is going on here?

[Mattwolf7]

Go to http://www.adobe.com/aboutadobe/pressroom/pressrel eases/200107/dmca.html (Sorry not sure how to link here)

Go all the way down to the bottom of the page and click on the U.S. Attorney's office link....

Is it porn for you too? Did they get hacked?

Not just a work in the public domain

[kfg]

*Editions* of works in the public domain can still be copyrighted. Many publishers introduce intentional mistakes into their editions to make them "protected." This is done to prevent other publihers from simply copying their edition and printing it.

It's kinda doofey really, but that's the way it's done.

This costs the Gutenberg Project most of the money they spend. Even though they're dealing with public domain works they still need to pay lawyers to clear rights to the *particular* edition the work is being transcribed from.

In this particular case though, the edition in question *is* the Gutenberg Project's edition they are claiming rights to. They downloaded it, put it in their ebook, and claim it as their propriatary work.

That's beyond doofey. That's slimey as all hell.

KFG

Re:Not just a work in the public domain

[dvdeug]

*Editions* of works in the public domain can still be copyrighted. Many publishers introduce intentional mistakes into their editions to make them "protected."

I don't believe it. They use overbroad copyright statements - putting Copyright 1999 on a copy of 1912 book where they only thing they added was the introduction - but minor changes in the US don't matter - from the copyright office's FAQ:

For instance, simply making spelling corrections throughout a work does not warrant a new registration -- adding an additional chapter would.

Re:Still not so sure about the long arm of the law

[MrWa]

I'm still not sure why Sklyarov is being prosecuted in the U.S. The alleged "crime" took place in Russia where his actions were perfectly legal. Why is an act, which may be in violation of US law, but which took place completely outside US jurisdiction being tried in a US court?

Because he came to the U.S. and distributed the software.

Suppose that the Kingdom of Tuva passes a law making it a crime for any politician to accept a campaign donation from any corporation or individual who receives any benefit from a vote cast by that politician. Can the Kingdom of Tuva then try the entire US Congress? Is this any different than the US trying Dmitry?

If the entire Congress goes to Tuva, accepts a donation and then votes in Tuva: Yes.

This isn't like the U.S. made some crappy law (though they did) and then raided Sklyarov's house in Mother Russia because he wrote this software...He wrote the software, came here, and distrubuted - thus violating the law.

If I go to Singapore and spray paint on cars, you can bet your ass that mine will be quite red if I get caught - even if spray painting cars is legal in the country I came from.

BEST COMMENT IN WEEKS

[sulli]

rotfl. thank you!

is that so?

[Ender Ryan]

Did you know that copyright holders are not required to do anything at all in order to ensure that users of their works can exercise all-- or even any!-- of the possible fair uses of their works?

No kidding, but completely orhogonal to the point. I have plenty of copyrighted works still in my head, unpublished, of course I don't have to provide anyone the means of accessing it. However, If I publish it, I sure as hell shouldn't be able to tell people who legally purchased it how they can view it.

Copyright is another issue entirely, even though that's supposedly what the DMCA is supposed to protect.

Did you know that, under the DMCA, it is not illegal to circumvent copy protection mechanisms for the purpose of making fair use of a work? [17 U.S.C. 1201(a)(1)(B)]

Yes, what's your point?

Did you know that this case rests on the DMCA's prohibition of the importation or sale of devices whose sole purpose is to circumvent copy protection? [17 U.S.C. 1201(a)(2)]

Exactly, this is entirely contradictary to the previous statement, unless exceptions are allowed for devices that circumvent copy controls for the purpose of making fair use of a copyrighted work, eg. the software in question. This is a large part of what makes the DMCA such a bad law. Another reason is that it puts the burden of proof on the accused.

Did you know that most people who complain with zeal that the DMCA is a bad law have never actually read it, or indeed any part of Title 17?

Is that so? Does everyone here also know that you speak from your asshole, it's just as valid a statement. I myself have read most of the DMCA, further, the basics of the DMCA are easily compressed into a few sentences. So, really, it matters little if everyone has read the whole damn thing, pages upon pages of legalese.

Just some legal trivia for y'all to chew on

Trivia? Taste more like shit...

Re:is that so?

[Twirlip of the Mists]

However, If I publish it, I sure as hell shouldn't be able to tell people who legally purchased it how they can view it.

Of course you can. It's a free country. You can tell people that they are only allowed to view your works while wearing a fez. If you make them sign a piece of paper stipulating such, that becomes a contract, and you're both bound to it. If somebody reads your work while wearing a bowler instead-- or, god forbid, no hat at all-- you can sue for breach of contract.

On the other side of the table, a potential buyer is free to reject your terms. In other words, if you don't like the deal, don't accept it.

Another reason is that it puts the burden of proof on the accused.

In what way? I'm not sure I know what you mean.

(I'll just ignore your personal remarks. If you don't want to talk with me, that's fine; you don't have to get all huffy.)

Re:is that so?

[poot_rootbeer]

I have plenty of copyrighted works still in
my head, unpublished

No. If they're not published, they're not copyrighted.

How can anyone take your opinions on copyright issues seriously when you don't know the first thing about copyright?

Another reason is that it puts the burden of proof on the accused.

Wrong again. Skylarov and Elcomsoft are considered innocent until proven guilty. That's the whole point of having a trial.

How can anyone take your opinions on the legal system seriously when you don't know the first thing about it?

the basics of the DMCA are easily compressed into a few sentences

Yes, but it's lossy compression. There's a reason WHY the actual act is "pages upon pages of legalese" -- because it HAS to be.

Trivia? Taste more like shit...

Why I am I not surprised that you know what shit taste [sic] like.

Re:is that so?

[seaan]

You can tell people that they are only allowed to view your works while wearing a fez. ...

There are two areas at work here - copyright law and contract law. In most cases copyright law "trumps" contract law when dealing with items that are protected by copyright. Copyright law does not provide copyright owners with absolute rights, but instead grants them a limited set of rights (time limits are the most obvious, but the right to resell is also clearly established). So when it comes to copyright law the statement that copyright holders can ask/require consumers for anything they want is dead wrong!

The problem with the DMCA (from my perspective) is that the anti-circumvention/dissemination portions of the DMCA does not put adequate restrictions on what the copyright holders can "protect"; or conversely does not allow people to circumvent protections that eliminate legal activities. The effect of this is the DMCA (and only the DMCA) allows the copyright holders to bypass all the copyright limitations (including term limits) built-in to copyright law.

Of course, since Twrilip thinks the copyright holders should not be limited in what they can demand (statement based on previous discussions as well), he does not see anything wrong with the DMCA giving them legal backing for these demands. I think it is ironic that he quotes from Section 17, but has no problem with allowing copyright holders to override any "protection or balance" that Section 17 provides to people on the other end of the copyright transaction.

I should mention that even in contract law, the notion that anything goes is quite incorrect. Many industries have uniform-commercial-codes that set the "defaults" of a transaction in that industry. Contracts that exceed the norm can often be ruled invalid (INAL, so I'm not sure of the correct legal term here). The mechanics of getting a contract to override other areas of the law is very complicated, but there are quite a few interesting, and somewhat contradictory court cases in this area.

Re:Still not so sure about the long arm of the law

[ryanvm]

If you violate a law in the Kingdom of Tuva, I wouldn't recommend visiting it anytime soon. That was Sklyrov's mistake.

To foreign programmers: don't step foot in the US

[Maul]

"I cared about not violating the law of the country I am operating in," Sklyarov said.

Sklyarov should not have had a responsibility to know or obey the laws of the United States, as a Russian doing work in Russia. What his employer does with the product he makes is none of his concern.

Putting the fact that I don't agree with the DMCA (I believe it is Unconstitutional) aside, the company sold the product in the USA, and should be the one held responsible.

Holding Sklyarov accountable is just plain wrong. US citizens wonder why foreigners hate our guts. One of the reasons is that our government feels that its laws should forced upon everyone worldwide.

If you are a foreign programmer who deals with security issues, I'd be cautious about stepping foot in the US, at least while Bush and his administration hold power. As you can see, our government is out of control right now, and it'll take a lot of US citizens to wake up to that fact before things can really change.

so Adobe stuffed up twice!

[martin-boundary]

Your objection doesn't apply at all. Dmitry didn't go to the US to sell his company's software, he went there to give a talk. So not only did Adobe attack a Russian student for completely legal work he did in his home country, but they also purposefully accused the wrong person. If they had been serious, they would have gone after the *servers* in whatever US colo they happened to reside.

Re:so Adobe stuffed up twice!

[dirk]

Your objection doesn't apply at all. Dmitry didn't go to the US to sell his company's software, he went there to give a talk. So not only did Adobe attack a Russian student for completely legal work he did in his home country, but they also purposefully accused the wrong person. If they had been serious, they would have gone after the *servers* in whatever US colo they happened to reside.

But this case isn't about Dmitry, it's about Elcomsoft. When they arrested Dmitry, I was completely against it, because he was just a programmer working for a company. He didn't do anything but create the program, which was legal where he was. But Elcomsoft is who is on trial now, and they are responsible for marketing/selling the software in the US, which means they are responsible for following American laws.

DMCA logic in Russia

[markov_chain]

Scene: fade in to camera shot from behind the judge's shoulder, with a view of the courtroom.

Justice: Tell me again about the e-book cracking software.

Sklyarov: It breaks down like this, okay? It's legal to buy it; it's legal to own it; and if you're the proprietor of an Internet cafe, it's legal to sell it; but, but, that doesn't matter, because get a load of this: if you get stopped by a cop in Moscow, it's illegal for them to search you. I mean, that's a right the cops in Moscow don't have.

Justice: I'm there man, that's all there is to it, I'm fsckin' going.

Sklyarov: Yeah, baby, you'd dig it the most.

Follows a short silent moment.

Sklyarov: But you know what the funniest thing about Russia is?

Justice: What?

Sklyarov: The little differences.

Justice: Example?

Sklyarov: Well you can walk around the streets in Moscow, and get a pirated copy of MS Office for a dollar. And in St. Petersburg, you can buy pirated software in a computer store; and I don't mean no under-the-counter deal, I'm talking about a box on the shelf. And you know what font they use to type Unix commands in Russia?

Justice: What?

Sklyarov: The Cyrillic!

Justice: Eek!

Sklyarov: I've seen them do it, man, they fsckin' type like it's latin.

Justice: Ack!

Scene fades out...

Gah. Just another sad story...

[DaRiachu]

Where US corporations change CIVIL cases into CRIMINAL cases. What the FUCK is wrong with building a tool to decrypt something?! Now I guess they'll have to take the decoder rings out of cereal boxes now, huh. Or like, stop hammer makers from making hammers, 'cause like, they could be used to pound someone's head in.

*smirk* I hate the DOJ. I can't wait until we (the generation/group of people that has two braincells to rub together) get into seniority. I'm sure that once people get the message that this is fucking STUPID (and people with a bit more integrity [if that ever happens]), these kinds of actions and these kinds of laws will be outlawed.

Or maybe I'm just being idealistic. I just can't apathy get the best of me, 'cause I know if it's just that easy for Skylarov to say something and go to jail, then I might be next for something stupid. Oh well. :-/

Re:Gah. Just another sad story...

[mark_lybarger]

I can't wait until we (the generation/group of people that has two braincells to rub together) get into seniority

sounds like something each generation says over and over, yet when they get into a position to really do anything they always manage to fsck it up beyond any belief of the previous generation.

I might be next for something stupid

here between the atlantic and the pacific you don't even need that much.

CHECK OUT THE LINK ADOBE POSTED!

[ssstraub]

I don't know what's more unbelievable. That Adobe posted this link or that no one on /. has caught it yet!

-Go to Adobe's press release.
-Scroll down to the last question.
-Click on the US Attorney's office link.

Something tells me that Sophy's going to be getting a lot of revenge real soon... LMAO!

Re:MORE TYPICAL LIBERAL BS

[Trolling4Dollars]

Homer sez: Mmmmmmm... tripe.

1201(a)(1)(B) depends on (a)(1)(C)

[yerricde]

17 U.S.C. 1201 (a)(1)(B) basically says that paragraph (A) doesn't apply to people who are attempting to make noninfringing use of a protected work. That hardly qualifies as a "narrow exception."

But section 1201 (a)(1)(C) states that only the Librarian of Congress can grant such exceptions.

Not cracked. Re:What is going on here?

[Anonymous Coward]

According to the FBI press release:

"A copy of this press release and key court documents filed in the case may also be found on the U.S. Attorney's Office's website at www.usaondca.com."

Adboe did not misquote the URL. The domain appears to have changed hands as of Nov 25, 2002.

New work?

[yerricde]

I mean, if it's okay to break an e-book for fair use (I'll trust Henry V .009 here), is that work still considered "protected" by the DMCA?

Yes. The publisher's argument: The translation of the original text into a restrictions-managed eBook constitutes a new derivative work that deserves a new copyright term. Whether this will fly in court is anyone's guess.

If it doesn't, then there exists a legal attack on DVD CSS: try decrypting Charlie Chaplin films, or if Eldred wins, try decrypting "Steamboat Willie". Then try selling a distribution of free software that checks the DVD against a list of titles known to contain public domain works and, if so, decrypts those public domain works. You still haven't violated DMCA because your product as shipped isn't capable of breaking access control on works under a subsisting copyright. (The implication here is that the check against the list...)

Tell it to the judge

[kfg]

And you'll probably even win, after you spend a few thousand dollars to defend yourself.

That's the way it works in practice.

In my Bantam Edition of Walden they only claim actual copyright for the original introduction, but if they've used the intentional mistakes trick they'll certainly sick their lawyers on you if directly copy their pages.

The argument is it isn't the *work* that's been violated. That's in the public domain. It's the *image* of the work that's been violated. You copied the *page,* not just the words. The intentional mistakes are put there as fingerprints to show it was *their* page you imaged.

Below the copyright notice in my Walden you'll find:

"No part of this book may be reproduced in any form. . ." Etc., etc., etc..

Look, they aren't concerned with other people printing copies of Walden. What they're concerned about is that someone might print copies of Walden by simply photocopying the pages of "their" book.

Most works "transcribed" for Project Gutenberg are done by *scanning* a book. i.e. making an image of the page, and then running it against an OCR program. It's the scanning part that gives publishers the willies.

Like I said, it's doofey. That's what you get when you go into the public domain. It's not like they paid anything for it. They may have spent some money on legitimate scholarship, making corrected editions and so on, but that's peanuts compared to actual author's rights.

But that's the way things are done in real life.

Ever actually read a Project Gutenberg title? They all start with pages of "small print", legal disclaimers and even a simple EULA. They at least state explicitly that you have the absolute right to use the public domain part of the text however you wish, even printing it in book form and selling it, with no permission needed or royalties due to them * so long as you remove all of their original content and make no claims that it's a Project Gutenberg(tm) text.*

Which is exactly what Adobe did, but then claim rights to.

KFG

Re:Tell it to the judge

[dvdeug]

And you'll probably even win, after you spend a few thousand dollars to defend yourself.

Anybody can sue over anything, and force you to spend a few thousand dollars to defend yourself. Because,

That's the way it works in practice.

The intentional mistakes are put there as fingerprints to show it was *their* page you imaged.

The problem is, the intentional mistakes are there as fingerprints, like fingerprints on a Van Gogh. They may not be easy to notice, but if they are, they will look bad, and people will get annoyed.

What they're concerned about is that someone might print copies of Walden by simply photocopying the pages of "their" book.

Why would they be concerned about that? It would look like crap; if you had a brain, you'd take the text and dump it into a word processor, and get a half decent copy.

Ever actually read a Project Gutenberg title?

Yes - I've actually created a few, like The Lamp and the Bell.

so long as you remove all of their original content and make no claims that it's a Project Gutenberg(tm) text

It's basically a trademake license, with a copyright on the license text. So? No need to fingerprint for that.

Re:It's a good thing the ancient Greeks and Egypti

[clickety6]

As the DMCA is only applicable in the USA, it seems the only culture that will be lost to history is that of the USA.

GO DMCA!!!!!! :-)

The biggest threat to the DMCA is conviction

[Mafiew]

"This is the first time a case involving a violation of the law has gone to trial, and if ElcomSoft is found guilty, the constitutionality of the DMCA will be tested on appeal" It seems that the biggest threat to the DMCA is if Sklyarov is actually found guilty. I really doubt that the constitution can really support prohibiting the writing of software to allow paying users to USE the books they buy! That is like saying it's constitutional to arrest the inventor of the copy machine for creating a means to copy print a feature that happens to not be included in books.

Re:To foreign programmers: don't step foot in the

[bockman]

Holding the copyright and selling the product are different things. Unless Sklykarov was actually selling the program personally and on the US soil (i.e. when he was at the conference ), he should be not accountable, if not according to the law at least according to common sense.

Even if he did it, it should depend on the terms on which he was granted entrance in the US. We European can shortcut the visa procedure by signing a visa waiver, that allows US administration and justice to handle us as they see fit. For instance, if a citizen of the Netherlands is found in possess of marjuana, it can be arrested in the US even though this is legal in the Netherlands.

If Sklyarov signed something like that and then violated the american law (even not knowing it), bad luck to him. But if he came in the US with a real visa, I believe that the only legal act for the US authorities was expulsion. Anything else, in a country less powerful than US, would have raised one hell of an international case.

You forgot an import word

[Quila]

The DMCA acknowledges that some software may be used to break protection measures, but targets those that have no legitimate uses

No legitimate commercial uses. It can have all the legitimate personal use in the world, such as using DeCSS to play your DVDs, but the DMCA only makes that exception for legitimate commercial uses. It becomes even more obvious that corporations wrote the DMCA.

and there's already transfer mechanisms built into most ebooks and ebook readers.

The mechanism is there, but publishers are under no obligation to enable it, giving them the ability to eliminate all of your fair use rights. This re-enables them.

This code was meant primarily to allow piracy, period.

Yet one big customer was U.S. law enforcement.

Nope

[Quila]

Remember that fair use is not technically a right. It is an exception to someone else's rights. If the author of the work does not want you to make use, he has the right to protect it.

Universal didn't want Sony to manufacture a product that allowed people to use their fair use rights in relation to Universal's copyrighted material. The Supreme Court sided with Sony, the people and fair use. Cool quotes:

• Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use.
  
• ...District Court's findings reveal that even the unauthorized home time-shifting [space and format shifting are in the same category] of respondents' programs is legitimate fair use

And don't forget what U.S. copyright is entirely based on: Granting the limited monopoly to producers is an exception of the right of the people to have access to all created works. The exception is granted solely to encourage people to produce works in the advancement of the arts and sciences.

So, no this isn't an exception to the copyright holders' rights, it's rights retained by the people.

Re:Nope

[Twirlip of the Mists]

Universal didn't want Sony...

Sony v. Universal is a completely different issue. Sony made devices. Universal said the only purpose of those devices was the illegal reproduction of copyrighted material, so those devices should not be reproduced. The appellate court said that the devices could be used for noninfringing purposes, so they in and of themselves are not illegal.

Consider instead a hypothetical that is closer to the real issue, and not too far from the truth. Say Universal started broadcasting shows that could not be recorded on Sony decks. Could Sony sue Universal? Of course not. It has been upheld that certain noncommercial, in-home uses of a work are noninfringing. That doesn't mean that content producers are legally required to submit to those uses. They are free to use whatever means they like to prevent that sort of use.

So, no this isn't an exception to the copyright holders' rights, it's rights retained by the people.

Don't be so quick to throw around the word "right." Fair use is not now, and has never been, a right. The law grants a monopoly limited in time but unlimited in scope to copyright holders, and then delineates very specific exceptions to that monopoly.

Re:Nope

[Quila]

Say Universal started broadcasting shows that could not be recorded on Sony decks. Could Sony sue Universal? Of course not. It has been upheld that certain noncommercial, in-home uses of a work are noninfringing.

The actual parallel is, could Universal then go after Sony for altering their machines so they could record programs as before? I'd say not, since the right to record is established. Here, Adobe had PDF, which was always readable and a medium for distribution of copyrighted works, encrypted the format, and went after those who wanted to be able to use it as they did before the encryption.

The law grants a monopoly limited in time but unlimited in scope to copyright holders, and then delineates very specific exceptions to that monopoly.

It's all about a balance of rights between the people and the copyright holder (yes, it has been framed in this manner). DMCA tips it too far to the copyright holder.

Re:Nope

[Twirlip of the Mists]

The actual parallel is, could Universal then go after Sony for altering their machines so they could record programs as before? I'd say not, since the right to record is established.

I don't like repeating myself, but you really need to understand this: there is no right to record. If you record, it is noninfringing. But you are not legally entitled to record. If Universal releases content that you cannot record, that's just tough luck for you.

It gets fuzzy

[Quila]

A file that has been run through ROT-13 is not readable.

Some people can read ROT-13 text, making that not even an access control mechanism. It's only for your example, the rest of the comment is correct.

rights and privileges

[dpletche]

Yes, the eBook reader has numerous optional features like text-to-speech, printing and copying, but those features only work if they haven't been turned off by the publisher. Would you care to defend the legitimacy of the flag that disables text-to-speech feature, and explain why it should trump the fair use rights of the blind consumer?

When the publisher can disable a feature at whim, the feature is better described as a privilege, not a right. Fair use is a right, not a privilege.

Re:rights and privileges

[Twirlip of the Mists]

Would you care to defend the legitimacy of the flag that disables text-to-speech feature, and explain why it should trump the fair use rights of the blind consumer?

Fair use is not a right; there is no legal mandate on the part of publishers to ensure that their works can be used in every possible noninfringing way. A publisher can publish a work that cannot, for technical or contractual reasons, be used in a way that would technically be noninfringing.

All the law says is that fair use does not infringe. It doesn't say, or even imply, that preventing fair use is against the law.

Making a personal copy of a videotape for backup purposes would probably be considered fair use. But the Macrovision scheme prevents you from doing it. Does that mean Macrovision is illegal? Absolutely not.

different body of law

[Ender Ryan]

Of course you can. It's a free country. You can tell people that they are only allowed to view your works while wearing a fez. If you make them sign a piece of paper stipulating such, that becomes a contract, and you're both bound to it. If somebody reads your work while wearing a bowler instead-- or, god forbid, no hat at all-- you can sue for breach of contract.

That's a completely different subject and has nothing to do with copyright law. That would fall under contract law, and would require the buyer and seller to actually agree upon a contract. The country being free also has nothing to do with it, as you can agree to anything you wish, but if the law considers it unenforceable, then it won't be enforced.

"Another reason is that it puts the burden of proof on the accused."

In what way? I'm not sure I know what you mean.

In that a copyright holder can go around accusing people of DMCA violations and the accused is required to pull the supposedly offending material until they prove themselves innocent of violations, or they face further charges.

Another problem is that persons can be charged criminally and face jail time for simple violations of things that have always been legal and considered fair before, eg. this very case.

(I'll just ignore your personal remarks. If you don't want to talk with me, that's fine; you don't have to get all huffy.)

It also seems you'll ignore most of my posting, as you only responded to the smaller bits you thought you could defend!

Furthermore, my "asshole" statement was just as valid as your blanket statement of people who have spent a great deal of time and money working to defeat this horribly stupid law, which was a much more personal remark which you directed at a large group of people!

Re:different body of law

[Twirlip of the Mists]

The country being free also has nothing to do with it

Of course it does. You and I are free to enter into any legally valid contract. Whether a contract is enforceable or not has no legal bearing, nor is the question of whether the contract is reasonable, or fair, or just. All that matters is whether the contract is valid.

In that a copyright holder can go around accusing people of DMCA violations

Anybody can accuse anybody else of anything. Anybody can sue anybody else for anything. I can sue you for breach of contract right now, if I see fit. My case will have no merit and I'll probably end up paying your court costs and fees, but I can sue you. This condition is not unique to copyright law.

Another problem is that persons can be charged criminally and face jail time for simple violations of things that have always been legal and considered fair before, eg. this very case.

Woop-de-do. Every new law makes things that were previously legal illegal. That's not unique to copyright law, either.

ROT13 is readable.

[mmol_6453]

It's just a rearranged alphabet. I have a shell set up so I can accomplish certain tasks(chores involving poorly named directories) at work without my network access being suspended.

All you need to do is print out half the alphabet on one line, then, on the next line, print out the other half, directly underneath the first half. Bingo: You have a conversion table.

First you learn certain key phrases, like "terc" for "grep"...After a while, you only need the conversion table occasionally. (I'm still not quite off it.)

Re:ROT13 is readable.

[Twirlip of the Mists]

All you need to do is print out half the alphabet on one line, then, on the next line, print out the other half, directly underneath the first half. Bingo: You have a conversion table.

Yes. And that conversion table is then used to decode ROT-13-encoded content. The act of decoding, and the fact that reading is not possible without first decoding, means that the access to the content is effectively controlled with ROT-13.

As I've said time and again, the question of whether ROT-13 is a good access control mechanism is not relevant. The only relevant question is whether ROT-13 controls access at all, and it clearly does.

Re:ROT13 is readable.

[OwnedByTwoCats]

How is the ROT-13 decode table any different from the ASCII decode table?

If you cannot show a material difference, then your case that the meaning of "effictive" is clear falls apart.

Re:ROT13 is readable.

[Twirlip of the Mists]

How is the ROT-13 decode table any different from the ASCII decode table?

The purpose of ROT-13 encoding is to obscure content; it is commonly used for such. The purpose of ASCII encoding is not to obscure content; it has never been used for such. The different is as clear as day.

Corporate droid

[horza]

Ahh, nothing like a zealot PHB to fuck up one's work life. I'm sure the poor schmuck just trying to do his job appreciated your insipid political antics.

You should keep your personal battles out of the workplace. You wouldn't like it if your employer involved itself in your personal life.

It's called a company having ethics.

At my company before last the management landed a large tobacco account. They had to cancel the contract because the team refused to work on the account on ethical grounds. It happens. Some of us care. We don't submit to the cowardly excuse "if we don't do it someone else will".

Final point. It's not our "personal life", this guy is a fellow software engineer and the outcome will affect what we can and can't do professionally.

Phillip.

And therefore...A witch !!!

[stud9920]

Elcomsoft's software is a new one that people think is somehow magic

Burn !!! Burn !!!

Hacker/cracker?

[Zog The Undeniable]

I can see this bringing up the old debate about the meaning of the word "hacker", i.e. is it someone who is good at programming, or someone who breaks into computer systems (aka cracker).

By the first definition of the word, Dmitri *is* a hacker, and a good one at that.

Wrong question, just like DMCA

[Gerry Gleason]

The reason for looking at it this way should be obvious. A file that is well-protected today may be only trivially protected in 10 years, thanks to advances in technology.

The real point is that it is illegal to copy a copyrighted work without proper permission (beyond fair use, that is). Just like the stupid example of the head in the freezer, the issue is that just looking at what is in plain site is not a search, but opening things up, or even just moving other objects legally constitutes a search, and requires a warrent in most cases.

Putting up a legal framework to make it illegal to circumvent even trivial copy protection is just plain wrong-headed. Will it prevent pirating for profit? No! Can circumvention techniques be used to make legal copies? Yes!

One thing I'm a little unclear on. Does the DMCA make the tools themselves illegal, or just using them to make illegal copies? I can't really see how the former could be constitutional. Probably we need some good test cases that actually get to the heart of this issue. This one could be good since it has been demonstrated that this software isn't being used widely to pirate, which implies that it is being used legally or not at all.

Don't count on the court getting this right, particularly without an appeal since the lower courts tend to assume Congress has a right to legislate, and the law is considered valid by default.

Re:Wrong question, just like DMCA

[Twirlip of the Mists]

Putting up a legal framework to make it illegal to circumvent even trivial copy protection is just plain wrong-headed.

That's not the question. The question is, is it constitutional? The answer is probably yes, but only the Supreme Court can say for certain.

There are lots of laws, and for every one, there is some group of people, small or large, who thinks they are wrong-headed. This does not make those laws unconstitutional.

Does the DMCA make the tools themselves illegal, or just using them to make illegal copies?

The importation and distribution of the tools is illegal. Possession is, as far as I know, not.

This one could be good since it has been demonstrated that this software isn't being used widely to pirate

No such thing has been demonstrated. What was demonstrated was that no copies of works pirated with this tool were found on Kazaa and similar networks. That's evidence; not proof.

Re:Hmmm...??/

[Sleepy]

>It ends when people get mad enough about their liberties being taken away and vote.

Unfortunately, the opposite is true. There is a *direct* connection between the public's disguist with government, and declining percentages of the public that actually vote.

The kind of people who don't vote are EXACTLY the kind of people some fear to vote. So we're stuck in a downward spiral of corruption, apathy, resignation and deliberate ignorance. I vote to escape criticism that I don't vote.

I certainly believe a "two party" system is crap. There are a lot of barriers preventing third parties from gaining credibility (reasons other than themselves of course :-) For a healthy exchange of ideas, you need MORE than two viable parties.

I don't see much difference these days between Democrats and Republicans, especially post-September 11: I can choose between having my liberties taken away with zeal, or allowed to happen by resigned defeat. Not much of a choice.

Of course, I can vote my consciensce and not vote either. But *without* a "runoff" elections there's about as much chance of a third party major win, as seeing Linux on the desktop in the White House. :-)

The Electoral Collage is was never necessary and is only kept in place for racist reasons (let's dillute the city vote the cities are full of you-know-who). Districting is a cruel joke. We need run-off elections when no one gets a majority.

That would certainly stimulate the two parties into ideas more original (and mainstream) than constant class warfare.

Isn't voting mandatory in Australia? That would certainly inject some needed spice into the American voting system. >:-D

Diplomatic Immunity

[nuggz]

Diplomatic immunity exists to keep the representatives from facing trumped up charges and harrassment from the host country.

Theoretically if a diplomat commits a crime, they are constrained by the laws of their country, and will be tried and charged.

This does happen, but generally only with larger crimes.

you're totally wrong

[Ender Ryan]

Of course it does. You and I are free to enter into any legally valid contract. Whether a contract is enforceable or not has no legal bearing, nor is the question of whether the contract is reasonable, or fair, or just. All that matters is whether the contract is valid.

What the fuck are you talking about? If a contract is unenforceable, there is no legal recourse for a party to take when the other party violates the contract, so if it's legal but unenforceable, it makes little difference. But like I said, this is completely orthogonal to copyright.

Anybody can accuse anybody else of anything. Anybody can sue anybody else for anything. I can sue you for breach of contract right now, if I see fit. My case will have no merit and I'll probably end up paying your court costs and fees, but I can sue you. This condition is not unique to copyright law.

No kidding, but the DMCA has special provisions that make it even worse. You have read it, have you not?

Woop-de-do. Every new law makes things that were previously legal illegal. That's not unique to copyright law, either.

I should have been more clear. The DMCA not only makes things that were previously _protected_ by law(fair use, etc.) illegal in many circumstances, but also does so in total contradiction to other laws. Also, the constitutionality of the DMCA is very shaky, as the constitution is very clear on the ends copyright laws are allowed to promote, and the DMCA does not fit withing those end(ie. furthering creation of art and science for the benefit of the public). You have read the constitution, have you not?

If that's not unique, the DMCA makes it possible to be criminally charged, including possible arrest and jail time, for using your own property in a manner you see fit(eg. playing DVD's on your *nix box, or decrypting an ebook to read with your reading software for the blind, etc).

If that's fine and dandy with you, then we have irreconcilable differences.

Also, I would like to point out that it is the DMCA that is forcefully restricting freedoms of the people who are against it, not the other way around. Are you so quick to restrict freedom? Are you so quick to deal out punishment for those who disagree with yourself and other like-minded persons?

Re:you're totally wrong

[Twirlip of the Mists]

If a contract is unenforceable, there is no legal recourse for a party to take when the other party violates the contract, so if it's legal but unenforceable, it makes little difference.

Okay, we're running up against the word "enforceable" here. First, you said, "if the law considers it unenforceable, then it won't be enforced." That's not right. A contract doesn't have to be enforceable in order to be valid.

Contracts are sometimes referred to as unenforceable, though, but for a different reason. An unenforceable contract is one that, while totally valid, cannot be acted upon by the court. For example, if we signed a contract in 1934 in which you agreed to give me a plate of corn muffins in exchange for painting your fence, and I thought the corn muffins were lousy and refused to paint your fence, and you sued me today for it, the court couldn't award you anything even though you're in the right, because of the statute of limitations. That contract is unenforceable; that is, the court is literally unable to do anything to enforce the contract.

So it's not at all accurate to say that if the court deems a contract unenforceable they won't enforce it. The court will enforce all valid contracts unless they are unable to do so because of some jurisdictional or similar issue.

The DMCA not only makes things that were previously _protected_ by law(fair use, etc.) illegal in many circumstances

Circumvention of access control has never been protected by law. The law had nothing at all to say on the subject until the DMCA came along.

but also does so in total contradiction to other laws.

Which laws? If you're thinking of 107 again, please try to remember that fair use is merely noninfringing. The law does not say that fair use must be allowed technologically and contractually. The DMCA is not in contradiction to any other laws.

If that's not unique, the DMCA makes it possible to be criminally charged, including possible arrest and jail time, for using your own property in a manner you see fit

This is not significant. Most criminal laws make it possible for you to be arrested and jailed for using your property in a manner you see fit. For example, if I throw a brick (my property) at someone else's head (a manner I see fit), I can be arrested, charged, and jailed. The fact that the DMCA makes what was previously not illegal illegal is not a meaningful argument against it.

Also, I would like to point out that it is the DMCA that is forcefully restricting freedoms of the people who are against it, not the other way around.

Uh... huh? Yes, laws exist to restrict freedoms with the threat of force. I really don't understand your point here.

Re:you're totally wrong

[Ender Ryan]

*snip* - you keep misunderstanding my points about contract law, but it's irrelevent to this discussion anyway...

This is not significant. Most criminal laws make it possible for you to be arrested and jailed for using your property in a manner you see fit. For example, if I throw a brick (my property) at someone else's head (a manner I see fit), I can be arrested, charged, and jailed. The fact that the DMCA makes what was previously not illegal illegal is not a meaningful argument against it.

That is a ridiculous attempt at creating an analogy. Of course you can't hit someone with a brick, that's assault. But you CAN use a brick to break open the lock on your own door.

Uh... huh? Yes, laws exist to restrict freedoms with the threat of force. I really don't understand your point here.

Don't be so dense. My point is that people like yourself are restricting MY freedom, and I believe they have done that without considering the consequences of their actions with regard to the people this will affect. And my question to you is, are you sure you are justified in restricting MY freedom?

You do realize that there are so many laws in this country that it is literally impossible for the layperson to know them well enough to avoid breaking them. This is caused by the fact that people like yourself are far too quick to deal out laws as they see fit.

Good day.

Re:you're totally wrong

[Twirlip of the Mists]

But you CAN use a brick to break open the lock on your own door.

But not someone else's. As long as a work is under copyright, the lock and the door belong to someone else, not to you.

If you do not like this, do not buy eBooks.

Look out your window

[MountainLogic]

Topless in de Nederlands? Get real. Dutch summers require an overcoat. Sure, it may be legal to be topless UNDER the top coat.

grrr...

[Ender Ryan]

No. If they're not published, they're not copyrighted.

Yes, I know this, I was just being sarcastic...

Wrong again. Skylarov and Elcomsoft are considered innocent until proven guilty. That's the whole point of having a trial.

How can anyone take your opinions on the legal system seriously when you don't know the first thing about it?

No, you are the one who is wrong. There are provisions in the DMCA that push further burden on those accused of DMCA violations than normally found in other bodies of law. Have you not followed all discussion regarding the DMCA? Have you not read it yourself?

Yes, but it's lossy compression. There's a reason WHY the actual act is "pages upon pages of legalese" -- because it HAS to be.

That is absurd. Legal texts tend to be many many times the length they need to be to made completely clear in proper english.

Why I am I not surprised that you know what shit taste [sic] like.

Wow, you're an asshole...

Re:The real problem...

[Twirlip of the Mists]

How is that reasonable?

How is it not? It is illegal to make, import, or distribute a device the sole purpose of which is to circumvent copy protection in order to facilitate copyright infringement. Set aside for a moment the fact that you may or may not disagree with this law; what part of it is unreasonable?

wrong

[Ender Ryan]

After you pay for it, you are entitled to view that copy.

Re:wrong

[Twirlip of the Mists]

After you pay for it, you are entitled to view that copy.

Within two sets of constraints. First, within the constraints established by the contract, if any, between the you and the licensor. If that contract says you can only view the content on Tuesdays, then viewing it on Wednesday is a breach of contract.

The other constraint is defined by the law.

The idea that you can-- or even should be able to-- do whatever the heck you want with a copy of a copyrighted work is bogus. Until the work goes into the public domain, the copyright holder gets to determine who gets to do what. The only exceptions are those enumerated in Title 17.

Re:Hmmm...??/

[DunbarTheInept]

The Electoral Collage is was never necessary and is only kept in place for racist reasons (let's dillute the city vote the cities are full of you-know-who). Districting is a cruel joke. We need run-off elections when no one gets a majority.

Nice theory. Too bad the tendancy of "you know who" to live in the cities is more recent than the creation of the Electoral College. Nice try.

Re:Hmmm...??/

[Sleepy]

>>The Electoral Collage is was never necessary and is only kept in place for racist reasons (let's dillute the city vote the cities are full of you-know-who). Districting is a cruel joke. We need run-off elections when no one gets a majority.

>>Nice theory. Too bad the tendancy of "you know who" to live in the cities is more recent than the creation of the Electoral College. Nice try.

Nice strawman: I never stated that was the original reason for the Electoral College (I'm pretty sure it had to do with communication and access since there was no television, interstate highways, and internet and the tiny states felt left out). ... I merely stated that's the reason for KEEPING it in place. I'm pretty sure the original reasons have gone away.

I'm pretty sure I was clear, and you're trying to spin what my argument was.

UN Trade Law...

[MS]

Premise: IANAL!

A russian company (eg. Elcomsoft) is allowed to sell its products to any country (even the USA). Which rules apply in such a business relation are regulated by CISG (Convention on the International Sale of Goods) which is one of the rules by UNCITRAL (United Nations Commission on International Trade Law). Most UN-Nations adhered to these rules (Great Britain is a notable exception).

Elcomsoft has simply to state in its contract with the buyer, that "Russian law applies".

:-)
ms

Not to be legally picky... 8-)

[IBitOBear]

I personally make a point of showing everyone I encounter who's interested in making PDFs the beauty of Ghostscript and Ghostview. Every sale I can cost Adobe makes me feel that much warmer inside.

By costing Adobe market share, and negatively impacting their financial ability to manufacture and distribute their e-book software; and by further making your technique known, and encouraging others to use that technique; you are circumventing Adobe's e-book publishing system and by simple induction its encryption technologies.

This is a violation of the DMCA (secret corporate subdy provisions). A copy of your Summons will be delivered to you by our jackbooted government thugs.

Keep in mind that the envelope glue holding the summons closed is a technological measure to ensure security and confidentiality of the copyrighted summons text. The summons itself is issued and owned by the Department of Justice. Any attemtp to read the summons itself, or make its contents known to your firends, family, coworkers, or legal representitives will be usable against you as evidence of wanton disreguard of the DMCA and US legal practices in a court of law.

You are free to confront your accusers. Their identities and afadavids are in this locked bag. You may do anything you see fit with this information provided you do not voilate the integrety of the closed bag or the lock holding the bag closed...

Re:Hmmm...??/

[DunbarTheInept]

I'm pretty sure the original reasons have gone away.

Nope. If slow communication was the only reason for it, it could just as easily have been carried out by having each state collect together physical counts of the popular votes and the "electors" would just have been trustable couriers to carry the totals to a central location for national tallying. The electoral college was proposed as a comprimise to woo the more rural states that would have otherwise refused to join the union. The reason for not having the president voted by popular vote is simply that it would require a constitutional amendment to do so, which would require support of the senate. The Senate is the place where every state gets the same number of representatives. Those states that are less populous outnumber those states that are densely populated. There's a lot of rural land stretching across multiple states. Therefore the Senate is dominated by exactly those states that have the most to gain by keeping the electoral college in place. And that's the simple reason it's still there. The people who would have to shoot it down to change it are exactly the ones who benefit from it.

I think I need to change my wording

[Quila]

Then we agree. "The right to record without fear of legal repercussions." It's not the ability I'm stressing, it's the legality.

If Universal releases content that you cannot record, that's just tough luck for you.

True. And it should be tough luck for Universal if you hack their signal so that you can record again. The same just happened with DVDs. You couldn't record, then it got hacked so that you could, and now the studios are going against that through the courts.

How is it effective if I can read it?

[mmol_6453]

I don't think it serves any purpose in controlling content, if your average human can learn to read it without tools.

(And believe me, learning the ROT13 alphabet is a heck of a lot easier than learning a new spoken language.)

Re:Hmmm...??/

[Sleepy]

>The people who would have to shoot it down to change it are exactly the ones who benefit from it.

The people who would eliminate the Electoral College are the ones who most benefit from it? Really? Hm... and here I was thinking -- regardless of the INTENT of the EC -- nowadays it's really a filter to keep out more liberal, populist candidates and it certainly cements us to a two-party system..

With "benefits" like these, who needs election fraud? Sigh.

I guess in order to comensate for unevenly weighted votes, we just have to convince the inner city folk (1 person= 0.765555552 votes) to pack up and move to the rural states, where their vote will count for greater than one human being.

Re:Hmmm...??/

[DunbarTheInept]

It's got nothing to do with class and everything to do with culture clashes between urban and rural desires - clashes that will still exist even between people with the same racial background and same level of income. Questions like how much should be spent on roads, should there be farm subsidies, how much control should the government have over the school curriclum, does there need to be a federal speed limit? The answers to such questions vary widely depending on how dense the population is, and so there is always conflict between the political views of people based on how crowded their population is. For example, is Jaywalking a big problem that needs to be enforced or can the jaywalking laws be ignored? Well, that depends on how thick the traffic is and how many pedestrians there are. In the downtown of a big city, jaywalking laws make sense. Out in the small suburbs they really don't.

I'm not denying that the situation is unfair. I'm denying that you have the ability to read people's minds and figure out which specific issues it is the rural states are afraid of with regard to the voters in the urban states.
All that mattes is that the rural states currently have more power under the existing system. It doesn't matter specificly in what ways they prefer to wield that power. The mere fact that they have it is more than enough to explain why they don't want to give it up.