FBI Arrests Visiting Russian Programmer

[Ramona_A_Stone]

Arrest of Russian Programmer Highlights Faults in DMCA
(Ramona: "ahem, among faults in a few other things...")
A Catch 22 for Consumers

© 2001-07-25 , Eric de Fontenay

The US often has to contend with governments that do not follow the rules of international law, often without the help of its allies. One of the more serious breaches of international law has been the detention of American residents and citizens by the Chinese government. These Americans, all academics of Chinese descent, have been charged with crimes ranging from spying to trading in 'state secrets', all because their writings were critical in one way or another of the Chinese government. So how shocking must it have been for Russian programmer Dmitry Sklyarov, presenting at a computer security conference in Las Vegas, to have been arrested by our own FBI for writing code in Russia that was offending to the US government?

Dmitry Sklyarov was in Las Vegas to speak at the annual hacker conference, DEF CON, on "security aspects of electronic books and documents, and a demonstration of how weak they are." He was part of a team employed by the Russian software company ElcomSoft that developed the Advanced eBook Processor, an application meant to 'rip' security features from Adobe's eBook format. For those not in the know, Adobe's eBook is PDF on steroids, meant for the distribution of the next generation of digital books complete with digital rights management. By stripping the security measures, Advanced eBook Processor would basically render an eBook file into your standard run-of-the-mill PDF file.

Sklyarov was arrested by the FBI for violating the Digital Millennium Copyright Act by developing and distributing the Advanced eBook Processor. Specifically, Section 1201(a)(2) of DMCA says:

"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 for the purpose of circumventing a technological measure,

(B) has a limited commercially, significant purpose other than circumvention of a technological measure, or

(C) is marketed with personal knowledge of use in circumventing a technological measure."

By stripping eBook files of DRM features and thus allowing readers to copy and distribute, the Advanced eBook Processor certainly falls in the first two clauses of the section. But critics have countered that the eBook format itself is a violation of consumers rights and, therefore, makes circumventing technology necessary. Section 1201(c)(1) of the Act says "Nothing in this section shall affect the rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title." As such, Sklyarov and his company were simply providing consumers with a means to exercise their legitimate right to make a backup copy of an electronic document or transfer it to their laptop. "The arrest of Dmitry Sklyarov under federal copyright law for the creation of software that facilitates the exercise of individual fair use rights is a travesty," noted US Representative Boucher in an Electronic Frontier Foundation (EFF) press release.

Several criticism can be lodged against the arrest. While Sklyarov was the member of the team speaking on the weaknesses of Adobe's eBook format (as well as others), he was but one of a team working on the software. Singling him out of this group smacks of arbitrariness and unfairness. In addition, Sklyarov developed the software in his capacity as an ElcomSoft employee and not as an individual. In addition, the software was distributed for sale (and later removed subsequent to complaints by Adobe) from ElcomSoft's website. One must wonder why the FBI skipped over ElcomSoft President, Aleksandr Katalov, who was also attending DEF CON. Would he not be the logical representative to answer for his company's 'illegal' acts?

The fact, though, is that the real devil in this whole affair is the DMCA law itself. While the Act apparently protects consumers' use of copyrighted material for fair use, it provides no provisions for consumers to access media in order to exercise such use. "Under DMCA, the Advanced eBook Processor is probably a violation of access infringement, which implicates the technical control of a work," explained Michael Einhorn, a principal with LECG and author of The Cost of Anti-Circumvention: The DVD Case. "This legal distinction between copyright infringement, which might be protected under fair use in DMCA, and access infringement, which enjoys no such protection, becomes key in this case."

In other words, while you may be able to make legitimate copies of an ebook as a backup, for example, cracking the encryption to make the copy is an illegitimate infringement. Thus, the Advanced eBook Processor cannot even claim protection due to significant non-infringing uses established under the Sony Corp. v. Universal City Studios Inc., which was later successfully used in the Diamond Rio case, since both dealt with the copying of unsecured media, video tape casettes and mp3 files respectively.

As such, DMCA will leave consumers in a catch 22, giving them fair use rights that corporations will be able to legitimately violate at will. Welcome to the Digital Revolution!

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The Free Dmitry Skylarov Protest Site

Free Dmitry Background @ onethumb

Comment by onethumb from above site:

"...It's important to note, here, that the program was built for legitimate purchases. This is evidenced by the fact that it costs $100, compared to the average eBook cost of $20. In addition, AEBPR requires an already-purchased eBook to function. It will not work on a locked, unpurchased document, thereby preventing casual piracy. Yet, despite these facts, Dmitry has been imprisoned here in the states for doing something completely legal according to Russian law. (And should be legal here.) He's charged with creating a tool by which copyrights can be violated.

However, I don't see any of authors of MP3 software being arrested and held without bail. For some reason, making music copies appears to be legal, but making book copies is not. Another way to look at it -- Perhaps hardware store owners, who sell bolt-cutters, should be put in jail too because those tools *could* be used to remove padlocks?"

(You may also post comments at onethumb.)

[mike4947]

Hmmmm, seems to me that nowhere does it say anyone has to allow their works to be backed up or copied under "Fair Use"