Cryptographer’s arrest sparks fresh debate about copyright laws

Thursday, August 2, 2001
Programmers and Internet-freedom activists march on July 30 to Phillip Burton Federal Building in San Francisco to protest arrest of Russian computer programmer Dmitry Sklyarov.

(Dmitry Sklyarov was released Aug. 6 on $50,000 bond and ordered to stay in Northern California while he awaits trial.)

When Russian cryptographer Dmitry Sklyarov spoke at a hacker’s conference in Las Vegas last month, he offered details on decrypting electronic books to enable blind readers to “hear” the works, minutiae of little interest to anyone outside the hall.

But the 27-year-old programmer suddenly found himself to be a cause celebre for online activists and computer programmers after the Federal Bureau of Investigation arrested him on charges of criminal copyright violations.

Federal prosecutors charged Sklyarov under a provision of the 1998 Digital Millennium Copyright Act that forbids the distribution of programming designed to bypass encryption used to protect copyrighted works. In Sklyarov’s case, the Advanced eBook Processor he developed for ElcomSoft breaks coding for Adobe System’s eBook Reader.

The U.S. Justice Department trumpeted the criminal charges, noting that they were among the first filed under provisions of the DMCA.

But over the past two weeks, hundreds of programmers and scientists have protested the July 16 arrest of Sklyarov, saying the Russian man’s code-breaking software doesn’t violate the 3-year-old law. They say that creating code is akin to creating art or writing a book, and, thus, is expression protected by the First Amendment.

The Electronic Frontier Foundation and other groups say the DMCA skirts the public’s First Amendment rights to fair use.

“It gives copyright holders complete control of their works regardless of the public’s rights,” said Robin Gross, a staff attorney at EFF. “It allows publishers to wrap up their works in encryption and technological restrictions and impose whatever restrictions they can dream up. Anyone who tries to bypass those is a criminal.”

That means, Gross said, that traditional fair-use practices, such as making personal copies, creating backup versions or altering the material for alternative platforms, are now forbidden.

“These are all examples of lawful and legitimate uses that society has enjoyed since the creation of copyright laws,” she said. “But now with the Digital Millennium Copyright Act, they’re illegal.”

Congress passed the DMCA in October 1998 to update federal copyright laws to address burgeoning technologies including the Internet, encryption and electronic publishing. The act also forbids efforts to break coding designed to protect copyrighted works.

The entertainment industry has praised the implementation of the DMCA, saying it has bolstered copyright protection for the new technologies.

“We think it’s an advancement for protecting the rights of what you own on the Internet and a boon for consumers,” said Rich Taylor of the Motion Picture Association of America. “It does allow you to protect your valuable work online. Without those protections, those materials would not be readily available.”

Taylor added that the entertainment industry doesn’t want to curtail legitimate access to movies, books or music because “our business is to get people to see your material.” He added that the MPAA only pursues cases in which people have directly hacked into encrypted programming, enabling users who haven’t paid for the work to view or use it for free.

Such, the MPAA contends, is the potential with the DeCSS code, a software program that allows computer users to copy feature-length films from digital versatile discs or DVDs onto hard drives.

Last year, a federal judge barred the Web site from linking to the software, determining that while computer codes were “a matter of First Amendment concern,” they are not purely expressive and can be regulated by the government. The case is currently before the 2nd U.S. Circuit Court of Appeals.

“People would never tolerate this in a terra firma world,” Taylor said in a telephone interview. “They wouldn’t think it was OK to crack the lock of a video store. Just because it’s online and can be accessed easily, doesn’t mean it can be stolen.”

He said the DMCA “provides incentives and comfort to those who wish to put their hard work, thoughts, music and visions online so it won’t be taken from them or wrested from them.”

Gross said traditional copyright law merely enabled authors and musicians to enjoy some economic incentive in creating works but only for a limited time and purpose. The law wasn’t designed to enrich corporations and publishers indefinitely, as she said the DMCA is designed to do.

And portions of the DMCA, some say, ignore established case law concerning fair use, including court rulings permitting the copying of a CD onto a tape or recording a TV show on a VCR for personal use.

“Copyright law has been turned on its head and used as an excuse to keep information away from people and to squelch criticism and smash competitors,” Gross said. “Copyright is about creating this vibrant and accessible public domain. The DMCA allows publishers to encrypt work for perpetuity.”

Scientists and computer programmers, in particular, fear that the law goes beyond legitimate copyright concerns and punishes anyone for creating code.

David Merrill of the Linux Documentation Project noted that a number of key scientists have already cancelled plans to attend upcoming technology conferences. Merrill, who helped organize protests in support of Sklyarov, said some fear that a program they developed in the past might be considered a violation of the DMCA because it could possibly be used to break encryption of copyrighted works.

“That’s no more a violation than owning a crowbar makes you a thief,” Merrill said in a telephone interview.

He points to Princeton professor Edward Felten, who led a team of researchers trying to break security technologies designed by the Secure Digital Music Initiative, a coalition of music and consumer electronic companies. Felten planned to unveil his research at a conference in April until the Recording Industry Association of America said it might consider legal action.

Officials with the RIAA later said they never intended to sue.

But Felten, with the help of EFF, filed a lawsuit against the RIAA to make sure the group wouldn’t attempt to bar him from presenting his research in the future. In part, the lawsuit asks the court to overturn portions of the DMCA.

Lawrence Lessig, an EFF board member, said the Sklyarov and Felten cases both show how the DMCA not only interferes with the legitimate use of copyrighted material, “it undermines security.”

“Research into security and encryption depends upon the right to crack and report,” Lessig wrote in a column for the EFF titled “Jail Time in the Digital Age.” “Only if weaknesses can be discovered and described openly will they be fixed.”

As for Sklyarov, he remains in jail without bond, waiting for a hearing in his case even though Adobe Systems, which initially asked for the FBI’s assistance in halting the distribution of the Advanced eBook Processor, rescinded its support for the Russian’s prosecution.

And Merrill noted that while the government claims the case concerns copyright, one point has been ignored in Sklyarov’s case: The Advanced eBook Processor only works for those who legally procure electronic books from Adobe.

“This software is completely useless to anyone who hasn’t paid for the book,” he said.

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