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Sklyarov Case Exposes DMCA Contradictions
Posted by
timothy
on Mon Aug 13, 2001 08:23 AM
from the doublethink-tripletalk- dept.
from the doublethink-tripletalk- dept.
aePrime writes: "This article on the New York Times describes how the case against Dmitri Sklyarov is bringing up some contridictions within the Digital Millennium Copyright Act. One is allowed to bypass security measures to backup data, but one is not allowed to write the software to bypass the security. It mentions how this first case to be prosecuted under the law may indeed cause changes to the law." A lot of bad laws have stuck around for longer than the DMCA has yet, but the more this kind of analysis is seen, the sooner sanity can be restored.
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One thing I liked about this article... (Score:5, Insightful)
Once similar cases start growing in number in which the non-computer-geek common man finds their rights limited by copy protection, the case against DMCA will grow as well.
A short walk off a long pier (Score:4, Interesting)
At least they finally let him out on bail. My lord he looks tired in that picture.
Ultimate ThinkGeek item... (Score:4, Funny)
The DMCA (Score:4, Informative)
well, good (Score:4, Funny)
Okay, bring it on. I can take it. More DMCA.
Shouldn't we have a Code Red IV, The Voyage Home, where Skylarov travels back in time before the DMCA and can go home? A whale of a good tail.
Legal assumptions. (Score:4, Interesting)
Why don't we chuck out the sense of entitlement, and the laws trying to enforce it, and just tell businesses that if they want to be profitable in the cyberage, they need to come up with a business plan that actually works in the cyberage.
Alienation.. (Score:4, Interesting)
Muddying the law (Score:5, Insightful)
The Library of Congress is now considering whether to recommend other exceptions to the law. Many libraries and other educational institutions want an exception that would let individuals circumvent a copy- control technology in order to copy portions of a work for use in parody, scholarship or criticism -- purposes protected under the "fair use" doctrine of traditional copyright law.
This is the sticking point of the DMCA with me; it strips away whatever bit of fair-use doctrine we once enjoyed. No wonder most people don't like it, no one wants to lose rights they once had.
This is all fine and good, but people still have to prove they cracked whatever encryption in order to make a parody, etc. It makes for more complications in the long run.
It seems to be a poor substitute for examining its constitutionality to see if the law should still even exist.
No reg link (Score:5, Informative)
Can't article submitters please take the easy step of replacing www with archives? It works every time.
Re:No reg link (Score:4, Funny)
Parent
Re:No reg link (Score:3, Interesting)
What I'm wondering is... (Score:5, Interesting)
I mean, he broke *US LAW* whilst IN RUSSIA... and now they're prosecuting him in the US.
After taking that into account... what do they hope to achieve? Its unlikely that he has much money that anyone can sue him for... so they just want to keep a prisoner, basically?
What if Russia arrested and held an American for breaking a Russian law whilst in America?!? I bet there'd be a helluva lot of demands going on by the US.
The US seems to have a lot of double standards in terms of what it expects from other countries contrasted with what it allows other countries.
The DMCA is only part of the deal.
Re:What I'm wondering is... (Score:3, Informative)
Indeed. I don't know all of the details in the case, but there are some Americans in jail in China right now for violating Chinese law on China's turf... and the US Gov. is protesting it. It had a few headlines while protests were going on in the US over Sklyarov's arrest. I didn't bother reading the articles, mostly because I found the irony - and hipocrisy - so sickening.
Re:What I'm wondering is... (Score:3, Insightful)
- He's a foreigner -- no built-in sympathy and likely a lot of built-in antipathy among American citizens
- He's Russian
... and we've had nearly fifty years of programming that Russian == Evil
- He's unlikely to be articulate in English in his own defense -- and even if he is, he'll have an accent (see first point).
- Many Americans feel that the rights under the Constitution do not apply to non-citizens (although the Supreme Court has repeatedly -- and correctly -- ruled they do).
- His company is in Russia and does not have the legal infrastructure to mount a defense for him.
- It can be cast as a fight to defend "the American way of life" from the ruthless Cossack hackers.
- They can get a ridiculously high bail set, because -- as a foreign national -- he's automatically a major flight risk.
Of course they picked a non-citizen for the first test case.Re:What I'm wondering is... (Score:3, Informative)
None of that training is particularly unusual. If the military trains you as a linguist, there are really only three jobs you'll end up in as an enlisted schmoe: 98G-Voice Intercept Operator, 98C-Intelligence Analyst, and 97E-Interrogator. I myself was trained as a Russian linguist by the US Army. I initially was going to be an "interrogator", but that job title is quite misleading. A military "interrogator" is actually little more than a translator with some extra training in interviewing people. Interrogation only happens if POWs are captured in wartime. I chose to become an "analyst", which is far more spy-like but still not really noteworthy. Most people in Military Intelligence don't go on to become CIA agents. Most of us decided that the military is a crock and left after our enlistments were up. I don't find it at all surprising that this guy decided to pursue the one interesting/useful thing the military taught him (the Russian language) and earned a scholarship to go to a country where he could expand that knowledge.
In short, don't assume that just because someone was once in the military that they are forever a slavish toady of the US intelligence machine bent on spying for their country to thwart the "red menace".
COPYright vs ACCESSright (Score:5, Insightful)
It is supposedly about preventing unauthorized copying. But in reality does little to prevent it and puts the publishing industries in the driver's seat in a new way.
The REAL fear here is if we get to the point where all 'media player devices' (not necessarily related to Microsoft media player) play only DMCA-encumbered media - where you can't even play non-access-controlled media if you wanted to. Then free speech and discourse necessary for democracy are in deep trouble.
./configure (Score:4, Funny)
tar -xvzf dmca.tar.gz
./configure ./config.cache /usr/bin/install -c
cd dmca
creating cache
checking for extra includes... no
checking for extra libs... no
checking for a BSD compatible install...
checking whether legal environment is sane... no
*Exit with error code 1
Tonights SJRally Latest on Dmitry (Score:3, Informative)
Do we dare combat the DMCA? (Score:3, Insightful)
I frequently read about the DMCA on Slashdot. I've yet to see a Slashdot poll that musters support against it. When all the complaining is done, we all go home to our games, movies and music. The editors here make grandiose statements about "evil corporation X" and then post a review about "X's cool new gizmo". We condemn Sony's role in the SDMI initiative and then go on to say "Oh I can't wait till PS/2 hits the US markets".
Here's a link to a letter I wrote to Malda and Rusty. Nothing came out of it.
http://www.kuro5hin.org/comments/2001/7/31/20314/
Why isn't there a collective, organized protest against DMCA and its lobbyists? Don't we think that its possible to live without the offerings of corporations? Its time to consider this thing seriously, and chip away at it, each day, relentlessly. Keep journals. My journal entry would read, "Today, I would have done X, but for the DMCA. I can't wait until the day that we'll be rid of it".
If we're so weak that we can't resist cool toys, then perhaps we deserve the DMCA.
-rao
Good to be arrested? (Score:5, Informative)
Let my people go (Score:3, Troll)
Re:Let my people go (Score:5, Interesting)
But he is a hero either way, because the definition of "hero" does not always require the subject to have high-minded, lofty goals at the outset. He is quite possibly going to be central in overturning this law, or he will be one of the most obvious victims of it-- in a way that Eric Corley can never be. I fully expect "Free Dmitry" to replace Mitnick references... at least the new rallying cry will have a more ethical foundation.
Parent
If we don't fight (Score:3, Insightful)
The battle for mindshare as begun. We are being made out to be the bad guys. We react to laws and are always on the "law-breaking" side. Not from our perspective (freedom), but from THEIR perspective (they have the courts/police/gov't/guns on their side).
We need to act, not just react. We need to use the political process and get publicity where WE are taking an initiative, and aren't just fighting the ystem.
Re:Let my people go (Score:3, Insightful)
Yeah, I mean, who really abides by international law, or their own constitution these days?...
Re:Adobe and other corporations wat him let go. (Score:4, Insightful)
This is more than a bit naive, I am afraid. Adobe is trying for the best of both worlds here: intimidating anyone who seeks to reverse-engineer their code, AND endear themselves to the anti-DMCA crowd as being "reasonable" and "open to negotiation". An iron bar wrapped in a happy-face marshmallow.
Same with RIAA: if charges are dropped now, intimidation is successful without taking the risk of the law they purchased being overthrown.
sPh
Parent
What Happens to Libraries with the DMCA (Score:3, Interesting)
The DMCA seems to criminalize the library that might someday exist.
Re:What Happens to Libraries with the DMCA (Score:3, Insightful)
It doesn't seem to have occurred to these people that they might not have a business plan doing that. I have attempted to make this point before to the "but copying is piracy and piracy is stealing from me!" type guys -- it may be that digital information simply does not have monetary value. One of the long-standing rules of the marketplace is that the value of a thing is what that thing will bring. If no one will pay for it, you can't make money selling it. It's like the dorks who want to privatize the water supply -- this shit falls out of the air, people.
Digital bits are trivially easy to copy. No encryption scheme can hold when you've got physical access to both the encoder and decoder. People are by and large unwilling to give up their rights of property (to own that which they've purchased, to view it at the time and in the manner of their choosing) in order to ensure digital profitability. Maybe it's simply time to step back from this "glorious revolution" and re-evaluate what we think we're doing, as a society.
I love this part (Score:5, Insightful)
"Many of the people I know can come up with a program to do it themselves, without being in the business of doing it," Ms. Peters said.
She has GOT to be kidding if she thinks the average consumer has the ability to design tools that will allow them to access there fair use rights. This is idiotic. Most
What she is suggesting would be like if wrenches were illegal, but you could make your own to fix your faucet that is leaking. "We believe the average consumer will find a way to make the wrenches they need." Sorry, but most people do not have the knowledge, expertise, or equipment to make wrenches. If you think most people can write code that will crack encryption, you shouldn't buy that new Lexus you have been looking at. Why not build you own car?
Re:I love this part (Score:3, Funny)
Hmmm... Sounds like she just exposed herself as being part of some sort of hacker ring. Better watch out for the Feds, Ms. Peters; it's their job to put away people like you.
Excellent parallel. (Score:3, Insightful)
Furthermore, its illegal for you to look under the hood.
That would be a brilliant defense. Cuts through the technobabble BS in a couple of sentences.
BTW: People who spend real money, like a couple of mil for a package, get all the tools, all the source code. There is no DMCA.
The DMCA is only being pressed on by penny-ante people over penny-ante ephemera. Its basically against the consumer.
The (RI & MP)AAs members pollute the environment and beg you to buy the record or come to the theatre now but six months later, its in the deep discount bin as a last gasp halt on its way to the landfill. Where it belonged in the first place.
a common skill? (Score:4, Insightful)
Marybeth Peters, the chief of the United States Copyright Office, said that the exception was still meaningful, even without a market for anti- circumvention devices, because it allowed individuals to figure out for themselves how to go around a technological control measure. "Many of the people I know can come up with a program to do it themselves, without being in the business of doing it," Ms. Peters said.
So, according to the US copyright office, hacking e-books is a common skill? In fact, a neccessary skill to excersize our rights?I like this one.... (Score:3, Funny)
I beg to differ. I have the perfect device to distinguish fair use. It's called a brain. I have greater faith in its capability than in any access control scheme Big Media may come up with.
DMCA gagging crypto researcher (Score:3, Insightful)
He said that he had done some research on some topic (unfortunately I could not hear what it was about). He said he would go to the US next week for a conference and he feared being arrested if he would publish. Since he had mouths to feed and rent to pay, he said he could not afford to take the risk. So he decided to not publish his research. He urged everyone to protest against the DMCA which affects him as a non-US citizen. He did realise that at the HAL he was preaching to the choir...
Some little known facts about this case (Score:5, Interesting)
Dmitry's company made an extremely smart move in hiring Joe Burton for their lawyer here. He's the same one who represented Kelly Goen and Phil Zimmerman when they were being investigated by the Grand Jury for PGP.
Joe Burton is arguably the best lawyer in the world for this case. Not only is he experienced in this area, he's an ex-Fed prosecutor (IIRC) and knows all the people involved on the Government side of things. He also believed strongly in the rights of people to use strong cryptography, and represented Kelly and Phil for free.
IMHO he's a rare bird; and I wish we had more like him.
Here's another extremely little known fact about the PGP case. Joe wouldn't touch handling suing the Feds involved with a ten-foot pole for violating Phil and Kelly's constitutional rights on Freedom of Speech with PGP. Apparantly he's still a little too close to some of the Feds to do this.
But I still think he's the best person for handling the criminal case. I would personally choose another for handling the civil-rights violation countersuit against Adobe and the Feds though. It will be interesting to see who's the best lawyer for this one.
Jury trial... (Score:5, Insightful)
One of the things his software is capable of doing is to allow blind people to read these e-books. Imagine THAT testimony in front of a jury!
And what would Adobe's representatives say when they take the stand? (and you can be sure that they will) They backed off once. Will they say "No, this hasn't hurt us." Or will they backtrack once again and call for him to be put in jail. Surely their calls to have him released will enter into the testimony?
No jury of "average" Americans will be able to wrap their heads around the technical issues of the DMCA. It's going to be the simple things like "this software allows blind people to read e-books" that will sway them one way or the other.
-S
It will never get to a jury (Score:3, Informative)
Re:It will never get to a jury (Score:4, Informative)
Apparently you've never heard of jury nullification [2ndlawlib.org]. You most certainly *do* have the right to decide if a law is legal when you are on a jury.
Parent
Jury nullification (Score:3, Informative)
Actually, you don't. If a jury votes "not guilty" in a case, the law is still on the books, and still enforceable. All the jury decides, in a criminal case, is guilty or not guilty. Wether or not the law is constitutional is decided in the appellate courts.
Re:Jury nullification (Score:2)
Just like you have "fair use" rights but that doesn't obligate the copyright holder to make it easy for you to excercise them.
True, but they shouldn't be able to make it illegal either.
You CAN be tossed in jail (for a long time) for perjury if during Voix Dire the judge asked if you would accept him as the final authority on matters of law and you said "yes".
So, basically, the judge can force you to give up your right as a jurist to decide on both the facts and the law of the case as a condition of being allowed to serve on the jury. Doesn't that pretty much destroy the right in the first place? Should it be legal for them to dismiss you from duty for that reason?
Don't worry (Score:5, Funny)
DCMA and Microsoft... (Score:4, Insightful)
What if the whole affair about copyright and fair-use a red herring designed to distract attention from the real game: making it illegal to write software that competes in any way whatsoever with Microsoft's own work.
Re:That's not the DMCA.. (Score:4, Interesting)
Of course most people would not be using the Linux client to crack unauthorized emails but to access ones addressed to them. And of course the Linux client is not really the crucial part here, since Bob could conceivably have used the MS program -- it was the interception that was wrong. But the RIAA, MPAA, and other evil acroynyms have been arguing that a single infringing use -- even one entirely hypothetical -- is enough to open the developer to charges or suit under the DMCA.
The DMCA is a bad law because of its creeping featurism. In the 21st century, copyright law will become one of the major areas of law at all.
Parent
Re:That's not the DMCA.. (Score:3, Informative)
Re:A good thing? (Score:3, Insightful)
This probably is the only way to get the DMCA amended, but it's not really fair that it involves a foreign national.
Cheers,
Tim
Re:A good thing? (Score:3, Insightful)
I sort of agree, but perhaps it would have been better if an American were arrested. I would think it would be pretty awful to be arrested in another country just because the lawmakers there were stupid enough to pass such a lame law. I asked this once before. How would you feel if you went to Russia and were arrested for something as simple as speaking at a convention. I think you might be frightened. (Note, this is not to imply that Russia does or does not have such a stupid law).
Re:A good thing? (Score:3, Informative)
If you're going to argue the case, at least get the facts straight - there was a criminal complaint against him before he came to the US (it's dated July 10th), and he was only arrested once the FBI found out that he was in Las Vegas (on July 17th).
He was arrested specifically because the copyright to the Advanced eBook Processor was assigned to him - leading the FBI to believe that he is the one responsible for it. He was also arrested because the software could be purchased in the United States and was purchased in the United States. This doesn't make the DMCA any more fair, but at least realize that he wasn't arrested for speech, but for trafficking in an illegal copyright-circumvention device.
How to help (Score:3, Informative)
Re:A good thing? (Score:5, Insightful)
Since the Internet started to become widely popular (say around 1994-1995) I have watched a number of on-line political hoo-haa's. The furor over the Communications Decency Act I & II comes to mind.
In all of these cases I have noticed a common thread: lots of people are willing to hit the "R" key in the e-mail program and contribute a fresh rant to the discussion. Very, very few people are willing to actually DO anything that might make a difference.
OK guys, this one's important. This is pretty much a key battleground in the future of on-line rights.
In that vein, here's a suggestion: (a) get out your _manual_ typewriter and write a letter to your three members of Congress explaining your views on this situation (b) contribute $100 each to DS's legal defense fund and a fund for his family's well-being (c) write out 3 checks for $50 each to your congresspeople's re-election fund.
Now, if in 6 weeks or so I see $10 million in DS's defense fund and 150,000 letters received on Capitol Hill, then I will think that on-line activitism means something.
My prediction: $10,000, a couple of hundred letters (remember - typewritten, hand-signed, stamped, and mailed). Net effect: ZERO.
sPh
Parent
Re:Details on the DMCA? (Score:4, Redundant)
http://www.tuxers.net/dmca/ [tuxers.net]
Parent
Re:Details on the DMCA? (Score:3, Informative)