Dmitry Sklyarov, the first person to be arrested for violating the Digital Millennium Copyright Act of 1998, may be off the hook—but perhaps not. His controversial arrest, and the protests that followed, point up thorny issues about how copyright issues are viewed in the international world of cyberspace.
Sklyarov, a 26-year-old scholar, software security expert and Russian citizen, was arrested by the FBI July 16 in Las Vegas, after speaking at DefCon, a software hacker convention. His talk, entitled "E-book Security: Theory and Practice," described the weaknesses Sklyarov found in various Adobe copyright protection systems.
Sklyarov works for ElcomSoft, a Moscow software company that produced the Advanced eBook Processor (AEBPR), which allows users to bypass Adobe's copyright protection to make copies of Adobe Acrobat eBook Reader e-books. The DMCA prohibits trafficking in products intentionally designed to circumvent copyright protection mechanisms. Even Sklyarov's supporters admit that on this level, someone has broken the law.
However, the question that follows is: Whose law? Russian law, along with that of Germany and several European Union countries, requires software to permit users to make backup copies; Adobe software prevents such backup copies. ElcomSoft publishes a variety of "forensic software tools" and password recovery programs for applications other than Adobe products. The same act that was permissible, even laudable, in Russia, is a criminal act in the U.S. under the DMCA.
The are two other cases involving the DMCA, one involving encryption for DVD movies and another for music encryption. A civil suit, the MPAA vs. Eric Corely and 2600 Enterprises, is currently being tried over 2600's (a magazine for computer hackers) providing access to a program that removes the copyright restrictions on DVDs. Edward Felten, a computer science professor at Princeton, broke the encryption on audio watermarking software but, under the threat of a music industry lawsuit, declined to present a paper on the process at a conference in April. While many observers have called the Felten situation a perfect First Amendment prior-restraint case, there have been no further developments.
And while the DMCA has a special exception for scholarly research, observers have complained that ElcomSoft has not acted in the manner Westerners expect of scholarly researchers. On June 22, an ElcomSoft representative posted a notice in PlanetEBook's discussion forum, offering AEBPR for $99, and claiming the software "makes it easy to remove both password encryption and usage restrictions from Adobe Acrobat PDF files and ebooks."
On June 25, Adobe's Anti-Piracyn Enforcement Team sent ElcomSoft a letter alleging "unauthorized activity relating to copyrighted materials," and asking that the company stop selling AEBPR within five days. Not long afterward, the company approached the U.S. Attorney's office in California and Sklarov was arrested.
A Question of Intent
Brad Templeton, a publisher of e-books since 1992, and now chairman of the Electronic Frontier Foundation, which fights for civil liberties in the digital environment, said that ElcomSoft is essentially offering a "lock-picking tool." Templeton pointed out that while it isn't legal to carry lock picks in many states; proof of criminal intent is required for convictioin; possession or manufacture is not enough, because picks have legitimate uses.
Adobe claims it tried to get ElcomSoft to cease distributing AEBPR, including letters to ElcomSoft, its ISP and its credit card clearinghouse, without any response. As far as can be determined, Elcomsoft has never dealt directly with Adobe to seek resolution of the conflict.
Pat Schroeder, president of the Association of American Publishers, issued a statement July 19 backing the Justice Department, saying, "Distribution of the means to strip e-books of their access and copyright protections is not a public service, any more than it is a public service to distribute the keys that unlock a bookstore or public library. It merely facilitates theft and makes it less likely that e-books will become a popular reading format."
A Storm of Protest
By Friday, July 20, news of Sklyarov's arrest inflamed the Internet, and spurred protest demonstrations in 23 cities around the world, including Adobe headquarters in San Jose, Calif., New York City, Washington, D.C., and Moscow. Adobe officials agreed to meet with the Electronic Frontier Foundation, in hopes of resolving the conflict. The EFF has long claimed that U.S. copyright law is flawed because it outlaws technologies instead of actions. By Monday, July 23 ,Adobe and the EFF issued a joint statement calling for Sklyarov's release, and indicating that Adobe would not follow up on the prosecution because AEBPR was no longer for sale.
Adobe's senior v-p and general counsel, Colleen Pouliot, issued strong support for "the DMCA and the enforcement of copyright protection of digital content." But Pouliot also said that 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."
Sklyarov is considered a flight risk and has been held since the July 16 without bail. If convicted, he faces a five-year prison sentence and a $500,000 fine.
From Adobe's standpoint, things aren't so bad: ElcomSoft reportedly sold fewer than 10 copies of AEBPR, including the one to Adobe, and Adobe made its point with publishers and hackers about copyright enforcement.
