arrest raises stakes in battle over copyright

http://www.nytimes.com/2001/07/23/te...rchpv=nytToday

JUL 23, 2001
Arrest Raises Stakes in Battle Over Copyright
By AMY HARMON and JENNIFER 8. LEE

The arrest last week of a Russian programmer accused of violating an American digital copyright law has stirred an opposition, both against the law itself and Adobe Systems (news/quote), the software company that initiated the case against the programmer.

The Russian, Dmitri Sklyarov, was arrested last Monday at a computer hacker convention in Las Vegas, where he made a presentation about the security flaws in the encryption software, like Adobe's, used to prevent the piracy of electronic books.

Mr. Sklyarov, who is being held in a Las Vegas jail, was detained under the Digital Millennium Copyright Act of 1998, which makes it a crime to traffic in devices, like software, that circumvent digital encryption. Violations are punishable by as much as five years in prison and a $500,000 fine.

Civil liberties advocates have challenged the law as a restriction of free speech in two civil cases. But Mr. Sklyarov, a 26- year-old Moscow graduate student, is one of the first to face criminal prosecution.

"It's distressing that if someone writes software they say is secure and you prove them wrong you, can go to jail," said Sam Phillips, 23, a network administrator at a Web design company in Reno, who planned to organize a protest at the federal building there.

Eager to head off a protest rally planned for today in front of Adobe's corporate headquarters in San Jose, Calif., executives agreed to meet with civil liberties advocates.

Calls for boycotts of Adobe products have sprung up across the Web. A "Free- Sklyarov" e-mail list, started by an unemployed computer consultant in San Francisco, has several hundred members and has generated more than 1,000 messages. And the Electronic Frontier Foundation, a civil liberties group that is underwriting the civil cases challenging the copyright law, said it had accepted more than 200 new members last week, compared with an average of six a day.

The foundation helped schedule protests in nearly a dozen cities, including Moscow, for today. But on Friday afternoon, the group said that Adobe had agreed to discuss the issue if the foundation withdrew its support for the San Jose protest.

"Out on the Internet, there is a lot of mudslinging going on," Holly Campbell, a spokeswoman for Adobe, said. "We want to have a frank discussion with the E.F.F. about what is our common ground, and how we can move forward."

But it is unclear whether either side could stop the momentum of the protests. In addition, the Justice Department, and not Adobe, has discretion over whether to press the charges against Mr. Sklyarov.

"This is out of our hands," Ms. Campbell said. "It's in the government's hands now."

Adobe officials said the company had pushed the government to arrest Mr. Sklyarov because it felt that it was unlikely to succeed in a civil lawsuit against the Moscow company he worked for, ElcomSoft. ElcomSoft began selling a program that cracked Adobe's e-book encryption software in late June.

ElcomSoft said the program, which was sold for $99, lets legitimate consumers of e-books stretch the limits imposed by Adobe's software, which often prohibits them from making a copy of a book to read on an additional computer or to use as a backup in case it is erased.

In any case, both the arrest of Mr. Sklyarov and the rising criticism signify an escalation of stakes in the battle over how copyright will be defined in the digital age. Mr. Sklyarov's case demonstrates that criminal digital copyright charges may soon have less to do with actual copying than with circumventing security measures.

Consumers, companies and copyright holders are already squaring off over the control of digital music and movies: books are the logical next step.

Indeed, the publishing industry says e-book security is critical precisely because it has taken heed of the explosive interaction between unencrypted music CD's and the rise of peer-to-peer distribution technologies like Napster that let people swap files from PC to PC over the Internet.

"The music industry's experience scared us to death because we watched them all get really harmed by people Napsterizing them," said Patricia Schroeder, president of the Association of American Publishers. "We're pleased to see the federal government weigh in and enforce this seriously. That's what we had dreamed of."

She added, "The federal government is saying how important intellectual property is in our economy."

Still, many legal experts and civil liberties advocates argue that the Digital Millennium Copyright Act goes too far in the direction of protecting the rights of copyright holders at the expense of consumers, and individual free speech rights. Unlike traditional copyright law, the 1998 statute does not govern copying, but rather the ability to make or provide a way to gain access to encrypted material, which it would then be possible to copy.

"Copyright infringement has always been exceedingly sparing with criminal liability," said Jessica Litman, a law professor at Wayne State University and author of "Digital Copyright." (Prometheus, 2001). "That criminal felony liability is being imposed for behavior that isn't even copyright infringement, for making a tool which may have legitimate uses, is the kind of reach that we haven't had before."

Many computer security experts say that the best way to ensure secure software systems is to publish the vulnerabilities of existing ones, and that Mr. Sklyarov's arrest would have a chilling effect on work in that field. Because of that, a group of computer scientists has asked a court to overturn parts of the 1998 law.

And on Friday, a prominent British programmer, Alan Cox, resigned from the board of Usenix, a security conference organizer, saying in a letter, "It has become apparent that it is not safe for non-U.S. software engineers to visit the United States."

In a civil case involving a program that decrypts DVD's, the publisher of an online magazine argued that the Digital Millennium Copyright Act was unconstitutional because it violated the concept of fair use. The publisher argued that if digital movies, music and books are locked up with encryption software and it is illegal to make or use anything that breaks the encryption, consumers lose the rights they have historically had to copy portions of works for purposes like scholarship or parody. The case is on appeal before a federal court in Manhattan.

"You can say I have the right to do something, but if I don't have the ability to do something, it doesn't mean anything," said Siva Vaidhyanathan, an assistant professor at the University of Wisconsin at Madison and author of "Copyrights and Copywrongs," a forthcoming cultural history of American copyright law. "This is part of the absurdity of the D.M.C.A."

But some industry observers say that efforts to police the security of e- books may ultimately work against the nascent e-book market, which unlike digital music and video industries, has yet to take off.

"In order to stop professional thieves, they're putting all kinds of restrictions on me, the reader," said Roger Sperberg, an e-book enthusiast who writes a column for the informational Web site eBookWeb.com.

[relic]

Originally posted by eclectica

"In order to stop professional thieves, they're putting all kinds of restrictions on me, the reader (music listener, etc)[/color]

words appearing in ( ) added.


good comment, and good article.

I think I'm going to go the library and see if it has the 'Copyrights and Copywrongs' book...sounds like it would be interesting and a good read.

thanks for the article eclectica

http://www.nytimes.com/2001/07/24/te...rchpv=nytToday

July 24, 2001



Adobe Opposes Prosecution in Hacking Case

By AMY HARMON

In an unexpected turnaround, Adobe Systems (news/quote) called yesterday for the release of a Russian programmer accused of violating American copyright law after he helped create software that can crack Adobe's security software for electronic books.

Last month, Adobe filed a complaint with the F.B.I. against Elcomsoft, the Moscow-based company where the programmer works. It was selling a $99 software package that disabled Adobe's anti-piracy system for e-books. Then last week, the programmer, Dmitri Sklyarov, was arrested by federal agents at a conference in Las Vegas, where he described how to crack copy-protection system. He remains in jail.

But yesterday, Adobe said it would withdraw its support for the prosecution of Mr. Sklyarov.

The detention of the 26-year-old programmer touched off a public outcry over the first criminal prosecution under a 1998 copyright law. The law makes it illegal to "provide to the public" a device with a main purpose of circumventing a technological security measure for copyrighted works.

About 100 protesters marched at Adobe's headquarters in San Jose today, and protests were held in several other cities. Civil liberties advocates argue that the 1998 law, known as the Digital Millennium Copyright Act, or D.M.C.A., is an unconstitutional restriction on speech.

Adobe announced its decision after an eight-hour meeting with the representatives of the Electronic Frontier Foundation, a nonprofit civil liberties group based in San Francisco.

"We strongly support the D.M.C.A. and the enforcement of copyright protection of digital content," said Colleen Pouliot, Adobe's general counsel. "However, the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry."

Last month, after being contacted by Adobe, Elcomsoft stopped selling the controversial software. Mr. Pouliot said that "from that perspective, the D.M.C.A. worked."

Robin Gross, a lawyer for the foundation, said that the group had been able to convince Adobe that supporting the prosecution would hurt its business. The Justice Department could continue to pursue the case regardless of Adobe's position. But Ms. Gross said the company's statement should be "persuasive."

"It makes very little sense for the U.S. attorney's office to ask taxpayers to foot the bill for a prosecution that Adobe itself doesn't even support," Ms. Gross said.