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.