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Sklyarov, Elcomsoft Plead Not Guilty
Posted by
michael
on Fri Aug 31, 2001 02:15 PM
from the if-the-bits-dont-fit,-you-must-acquit dept.
from the if-the-bits-dont-fit,-you-must-acquit dept.
squared99 writes: "I'm sure it has already flooded slashdot, but Dmitri has entered his plea, not guilty. This NYTimes article talks about it. Not sure I like the mention of bumper stickers, as opposed to the real people who have been protesting, but at least it talks about the support he has been getting. It even appeared as one the main newsworthy item on my daily NYTimes newsletter, Yay! Let's keep up the support and protests. As my brother said to me the other day, "The only way to beat bullies is to stand up to them."" See also Elcomsoft's statement about the case, a story in the Boston Globe, and this cute fable about a DMCA future. Update: 08/31 19:37 PM GMT by M : one more link - the Russian Foreign Ministry has warned its programmers not to travel to the United States.
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Skylarov not guilty in the eyes of Justice (Score:2, Interesting)
This is not to say I won't be campaigning against the DMCA, however.
I think I am in line with the more controversial [adequacy.org] commentators on this issue, but I feel it is the only honest line.
Re:Skylarov not guilty in the eyes of Justice (Score:3, Insightful)
Is the criminal justice system not part of our democracy? You seem to imply laws can only be changed if the Congress passes a law to repeal it. That's not true at all. If the law is unconsititutional, the judicial system has more than enough power to declare it so.
Sounds like you're fighting for the wrong side.
The "law" is not always important (Score:5, Insightful)
It is our duty as Americans to protest and commit acts of civil disobiedience when we believe a law is unjust. We must, of course, expect to be punished for our actions, but we must never fall blindly into the belief that we should obey and accept people punsihed under unjust laws, to do so is to sign away our freedoms one by one, because as many of you know waiting and writing to Congress to get something done, is not the most effective thing you can do.
Someone who is being punished under an unjust law is being unjustly punished, and you should not support punishing him, if you do not believe the law is just, to do so is hipocrasy.
Parent
Re:Skylarov not guilty in the eyes of Justice (Score:3, Insightful)
Not quite. Two simple points prove this statement wrong:
Re:Skylarov not guilty in the eyes of Justice (Score:3, Insightful)
I suspect DMCA is very unconstitutional, and hopefully if EFF can make a good enough case The Court can be convinced to overturn it; so supporting them in this effort is important.
Your "democratic action" does have its place. Even if it doesn't reverse this law, making your displeasure over DMCA known (in an thoughtful, clear fashion) to your representatives in Congress gives them feedback on the quality of their legislation and may prevent future similar "bad laws" from being enacted in the 1st place. This feedback is very important, but often times legislatures get insulated from the results of their work, and then some poor person (like Dimitri) has to be the "test case" victim to get it corrected in The Courts.
"Democratic action" has its place, but democracy (or in our case a republic) without constitutional restrictions and a judiciary system is tyranny waiting to happen.
While in theory I also disagree that all "wrong laws" must be obeyed, in this context the difference is only academic. The injustices and tragedies of war are so great that I think the laws must be very, very wrong and very, very uncorrectable before that step can be justified. But having your gov't know in the back of their mind that they could never rule out such a response is a useful deterrence to extremist bureaucrats.
Re:Skylarov not guilty in the eyes of Justice (Score:3, Insightful)
Hogwash. When the law is wrong, it is the DUTY of decent people to disobey it.
-jcr
Burning Dmitry (Score:2, Informative)
Re:Burning Dmitry (Score:3, Funny)
Funniest thing I've read today.
C-X C-S
law and guilt (Score:5, Interesting)
I'm not saying he should be charged or jailed or such. God forbid I support the government's actions here. Thing is, the issue isn't his guilt (as he is clearly guilty) but why the DMCA exists in the first place.
Don't proclaim Sklyarov's innocence, because he isn't. Instead, proclaim the injustice of a law that imposes draconian punishments for things that should not be illegal in the first place.
Re:law and guilt (Score:5, Insightful)
There's probably fifty things you've done today that are crimes in other countries (read much about Afghanistan lately) - keep things in perspective.
ALSO - if you plead guilty, then this doesn't go through the courts with the potential result of the DMCA being declared unconstitutional. If everybody pleads guilty there is ZERO chance of the law being struck down.
Don't be obtuse.
Parent
It's quite simple why he is guilty (Score:3, Interesting)
Dmitry violated our law on our soil and has been locked up for it. I hate the DMCA as much as any of us, but he is guilty, and proclaiming him as innocent merely makes one look uninformed.
Re:It's quite simple why he is guilty (Score:4, Insightful)
He came here and spoke about his program, hence he trafficked his information here, which is illegal under the DMCA.
I don't believe that talking about weaknesses in software is illegal. It certainly isn't trafficking.
The trafficking in this case is the sale in the US of software that he first wrote. The fact that he was outside the US is allegedly irrelevant as he/Elcomsoft used a US based server/service to sell the software.
Claiming he is guilty is surely against US judicial protocol as he is "Presumed Innocent until Proven Guilty".
Proclaiming him one way or the other merely makes one look uninformed.
Zwack
Parent
Re:It's quite simple why he is guilty (Score:4, Insightful)
Pleading not guilty means that he gets his day in court when he (and his representation) can argue that the DMCA is unconstitutional.
*That* is the way that laws can be struck down.
Parent
Shouldn't that be "law VS guilt"? (Score:2)
If all that was needed to institute change was people "proclaiming" against immoral unethical laws then you folks in the US of A would still be a colony of the Brits. The fact that actions speak louder than words and that action is often the only way to effect change *was* the whole point of the Boston Tea party I believe..
As I see it, the only unfortunate aspect is that it's a non-US citizen involved; an American in his place would have been a much better symbol of how slippery the slope has become.
Re:law and guilt (Score:5, Interesting)
Doesn't matter. This is a criminal action against an employee of ElcomSoft. ElcomSoft paid him to do programming for the eBook processor. He did not place the program on a US server, he did not engage a US company to handle credit card orders, he did not sell the product. He just wrote code.
Think about it this way; I, in the normal course of my employment, am instructed to make a program to aid the mastering of an inhouse DVD/VCD video product. As part of the program, I write a decryption algo to reduce our pre-mastered DVD discs to plain files so they can me shuffled, re-encoded, etc. The company finds this acceptable, and in fact good enough it thinks it can get some of its partners to use the software for a fee.
What I did, as a programmer, was legal. Even if I had knowledge that the company may decide to sell it as a commercial product, the burden is on them to acquire the relevant permission. Licensing for sale the CSS IP, the MPEG encoder, etc. Their problem. Not mine. If they are called up on the carpet for IP violations, contributory infringement, DMCA violation, etc, only the company and its officers are legally responsible. Not me.
Same with ElcomSoft. They are liable if their sale of the product violated law, not DS..
Parent
A Response from Russia (Score:5, Informative)
Re:A Response from Russia (Score:3, Informative)
This is exceedingly humiliating. (Score:5, Insightful)
This is exceedingly humiliating and depressing. It was less than 15 years ago that we encouraged Gobachev to tear down the wall, to enact change in a totalitarian regime that completely restricted freedom of speech.Now that same country is warning it's citizens against our lack of freedoms.
Words fail.
Parent
Re:This is exceedingly humiliating. (Score:4, Interesting)
I have paid my taxes, and my dues. I'm strongly considering re-rooting myself into a true free economy and country. I know nothing is perfect, but there are many countries that are much better than what we're finding here. I try to relate this to the automobile industry, and the rail road industry. It takes a while for thought transition to change. For individuals to accept the new innovation into daily life and then a balance will occur. Unfortunately, through all those "revolutions" we have kept our speech. Here, we have lost our voice. Our freedom of speech has been abolished and placed into the hands of other individuals, not appointed by state, to determine what is ok to say.
I feel useless to change this, but I will never stop protesting. I'll never stop sending emails to everyone I know. I believe in freedom, sadly enough I don't believe in America anymore.
Parent
Re:You're very wrong (Score:3)
how bizarre.
democracy dates back a long time before capitalism. we could go back to ancient athens. you might not think of that as democratic though. we could go to tenth-century iceland. (iceland, where they still haven't bothered with capitalism. they did get democracy, back, though. capitalism. what a crazy idea. :)
capitalism also dates back before democracy. that is, unless you think of early nineteenth-century Britain, the birthplace of capitalism, as democratic. I'm unsure as to whether I'd call it democratic now. never mind before 1832.
fascism is also not rule by corporations. that's what we call feudalism. (our modern feudal lords use intellectual property rights instead of land rights. both are fictions of the law.) fascism is rule by gangs: it was named after the fascisti, and a key component of Nazism as well as the Mussolini and Franco regimes was the gangs of thugs who kept people in line.
Bullies (Score:2, Funny)
I like this Tom Clany quote better:
There are two ways you can deal with bullies
You can shock them; or
you can kill them.
Needless to say there are at least 50000 bullies (ie, industry lobiests) in washington alone, so killing is out. Any great ideas on how to collectively shock them? The sheer logistics are mind bogling, but it would be fun to try 8)
Maskirovka
I don't care that my spelling stinks.
Re:Bullies (Score:2, Funny)
Well, if we keep them in DC, they'll probably get shot anyway.
DMCA coming to Europe (Score:5, Informative)
We can still stop this! Check out here [eurorights.org] and if you're in Britain, write a letter to your MP [faxyourmp.com]. You can and should make a difference.
You've got to admire his boss... (Score:5, Insightful)
Not guilty plea *was* the right thing to do (Score:5, Informative)
I'm really saddened that Russia had to issue its advisory, but again maybe that will be a wake up call to everyone that there is something very very wrong with the way the DMCA is being enforced. One would hope that we can settle the issue internally before it becomes more of an international issue than it already is. The US preaches so much about "human rights" and begs for other countries to "do the right thing" even though their laws are written differently. It's time we practice what we preach.
Don't blow off jury duty!!!! (Score:4, Insightful)
Perhaps the judge can't just proclaim the law as unfair and set Skylarov free, but the jury can refuse to convict him for any reason - even if they just don't like the law in question. If the trial is in Frisco, then there's a good chance that there will be some geeks on the jury (especially since there are so many out of work geeks there these days)
http://www.erowid.org/freedom/jury_nullificatio
http://www.fija.org/
http://civilliberty.about.com/cs/jurynullificat
(please disreagard the previous psudo post, I accidentally hit return when the focus was on the "Submit" button)
Parent
Re:Not guilty plea *was* the right thing to do (Score:5, Informative)
Are you high?!
That was, honestly, my first gut response to your message. You're operating under a critical, severe misunderstanding of how American jurisprudence works.
- The Constitution is the supreme law of the land.
- No unconstitutional laws exist.
- The judge must uphold the law.
... If the DMCA violates any of Dmitry's rights under the Constitution--and note that he has a hell of a lot of rights, even though he's a foreigner--then that's it; game over; prosecution loses.No ifs, ands or buts here. The Constitution is this nation's highest law; so high, in fact, that it automatically trumps any other law which comes into conflict with it.
This is actually a little judicial fiction that lawyers tell themselves, because unconstitutional laws are passed on a regular basis. However, the instant that a judge finds a law to be in conflict with the Constitution--i.e., there's a formal finding by a court that a law is inconsistent with the nation's highest law--then the law in question is not merely voided. If it were voided, that would mean at one point it was enforceable. Laws which are held to be unconstitutional are retroactively erased; they are invalid ab initio, from the very beginning. Is the law unconstitutional? If so, then that law doesn't exist and, more to the point, never existed in the eyes of the court.
A judge is responsible for seeing to it that the laws are properly applied--including the Constitution, the nation's highest law. A judge who will not judge laws for Constitutional correctness is a judge who is utterly incompetent for the bench, and who needs to be impeached.
Parent
Professional Repsonsibilies and DMCA Awareness (Score:5, Insightful)
6 PROFESSION - Software engineers shall advance the integrity and reputation of the profession consistent with the public interest.
One implication of this principle is that we all need to stay informed on events related to the intergrity and reputation of our profession in order to defend ourselves against unjustified external attacks. Clearly, the Sklyarov case represents an attack of unprecedented ferocity on the profession of software engineering. Iam currently teaching 2 sections of a graduate-level software engineering course, and in an informal poll last week Iwas shocked to learn that less than five out of sixty students had heard of the DMCA or Dmitri Sklyarov. I emphasized that it is our professional duty to keep informed and to speak out against the persecution of software engineers. Besides linking to information on this and related cases on my course webpages, Iam considering some type of assignment that will encourage students to respond in some way to the threat represented by the DMCA. Letter writing campaign? Protest actions? I am writing slashdot to solicit recommendations.
The Cyber Archipelago (Score:5, Informative)
My point (and I do have one) is that the enforcement of infinitesimally minute behaviors requires the rooting out and punishing of the majority of the citizens of a nation: the mother country goes to war on its citizens. The way to do this is to put each and every citizen at risk of loss of liberty; i.e., each citizen is breaking some law or another. In this manner, the State gains control over the behavior of its population, and in a greater degree than just copying ebooks. Once you have copied an ebook, or, taken to the logical extreme, say, exceeded 55 mph (or snuck a beer into a college football game), you are a criminal.
But, while speeding doesn't leave a record of itself, ebook copying does and so leaves a legacy, a record of the crime. It can be likened to arresting you for a failed drug test; you are not doing a crime now, but there is proof that you once did.
For these reasons, the framers of the Constitution would wisely refrain from endorsing the bastardization of their concept of protection of Science and Arts through copyright. The prosecution of the law requires that we become Stalinist in the degree to which we must root out the crime. Napster points this out effectively, in my opinion: the only way to catch all those crimes is to monitor each and every terminal 24/7. And that gives away too much power to the government for freedom to be guaranteed, even in a Democracy.
If you didn't follow that, feel free to email me with any questions you might have...
Re:The Cyber Archipelago (Score:5, Interesting)
The way things are headed, I can GUARANTEE you that things like speeding WILL INDEED be monitored. It starts slowly, but we're already on that slope. Put a toll transponder in your car. We've already seen these transponders used to track people [yahoo.com]. Next up, you'll get a ticket if you jump on a toll road and get from Exit A to Exit B in an average time that would exceed the speed limit.
But why stop there? These things are cheap enough. Make them mandatory in all cars. Monitor your car speed through GPS. Violate the speed limit, get a ticket in the mail. Plus tracking devices can help the cops find any car at any time because they're ALL being tracked. That's a GOOD thing, right? Fight crime, right?
This country is going to hell quickly. I fear for the life that my son is going to have.
-S
Parent
Re:The Cyber Archipelago (Score:4, Interesting)
Finally, when it comes down to having an extra 20 bucks a month to feed your kids, or having that extra bit of privacy, I'm pretty sure where most people will come down.
--locust
Parent
Re:The Cyber Archipelago (Score:3, Informative)
It is also the defense companies. I can't look up the story I read about it (dang dial-up), but basically it was about the installation of speed monitoring cameras set-up in Wash, D.C. They had generated nearly $37 million for the city by snaggin every speeder. The fun part is that Lockheed Martin (IIRC) set them up for free...with a 35% take of the total revenue generated. So once, we start moving to a corporate police state, no one can break a law (get tough on "crime"), and ho boy will profits go through the roof.
Bush might see this as "saving the economy", but a 5 year old would probably see it as cutting open the goose to get the golden egg. Our system worked because of Freedom, capitalism was a stepping stone (and a dang useful one at that, but it has its downsides, see: our media, MS, RIAA, drug corps ad'ing on TV selling drugs no one needs until they think they do, the death of education, and yes, there's an etc. here too).
Re:The Cyber Archipelago (Score:3, Informative)
Two of the nightmare examples stated in this thread have already come true. The state of Indiana will ticket drivers on their toll highways if the timestamps on their toll cards indicate they were driving faster than the speed limit, and Progressive Insurance has been testing a system where the insuree has a GPS device installed in their car, ostensibly for an insurance discount. If the car is driven at night, or through a bad neigborhood, premiums go up. Acme Auto Rental has been slapping people who speed in their rental cars with surcharges automatically added to their credit card bill.
Smile for the unblinking camera and welcome to Hell.
Re:The Cyber Archipelago (Score:4, Insightful)
Perhaps there's something quite wrong with society; if 30% of the population were murderers, this would definitely be the case. But perhaps it's an indication that the law should be changed. Should SO many people get speeding tickets all the time, especially when they're only a fraction ("selective enforcement" police units really scare me) of the total number of people speeding? Should everyone who used Napster be punished? Any society that has as large a percentage of its population in prison as ours does definitely has a problem (note: most of these people are in for drug-related offenses, which I think probably shouldn't be illegal).
A friend of mine often rants against unenforced laws; he thinks the speeding laws should be STRICTLY enforced, so that people would get pissed and demand that the law be changed. Perhaps this is true; it's a variation on the idea that a society that criminalizes (whether or not it punishes) a large % of the population has a major problem.
Parent
Re:The Cyber Archipelago (Score:5, Insightful)
One of my biggest beefs with law in general is that there is far, far too much of it. Many laws are routinely disregarded by the population - underage drinking, speed limits on freeways, and especially taxes - because they are far too restrictive, to the point where they defy common sense. Because we (Americans, and I'm sure plenty of others) live in a land rife with dictu absurda, we have developed a sense that we only have to follow laws that makes sense to us.
We also have a population largely willing to throw away its rights in order to combat the trendy social concern of the day. Of course, this is largely abetted by those with a political agenda that doesn't trust the common citizen to go about their day-to-day business without infinite hand-holding from big brother.
In order to develop respect for the law, we need to have a set of laws worth respecting.
Parent
Why are you so sure Dmitri is guilty? (Score:3, Insightful)
1) The DMCA is unconstitutional. No valid law to break means not guilty.
2) No jurisdiction over whatever activities Dmitri did commit. I don't think Dmitri can be prosecuted for writing or using the program in Russia. He must be implicated in the sales activity.
3) Although Dmitri is the copyright holder, the government does not establish that he colluded with Elcomsoft to sell the product in the US. Most countries don't have the same kind of "work for hire" copyright laws as the US, so it is perfectly plausible for a Russian employee to be a credited with the copyright and yet not be the motivating factor in his employer's sales strategy.
I haven't read the latest charges so I don't know what evidence the government has other than what was alleged in the original affidavit.
For those people who want to see the whole thing played out to the end, there is this encouraging news from Dmitri's lawyer:
Mr. Burton said Mr. Sklyarov would not plea-bargain. "That is out of the question," he said.
I have a few problems (Score:3, Insightful)
Seems to me if Skylarov was only interested in promoting better security he wouldn't have tried to sell his product. This looks to me like someone trying to make a buck off an insecure product.
Look at it another way. I come up with a key that can open and start any Ford vehicle. I have a couple of options. I could contact Ford and show them the tech that allows anyone to break into their vehicles. Or, if I don't want to deal with Ford directly I could publish the findings in an academic journal without trying to sell the key.
Instead of doing that, however, I decide to market and sell keys that can break into every Ford. Now, don't you see what's wrong with that? I could have taken the high road, but instead I tried to make a buck. This is pretty much what Dmitry did.
I can assure you, that if anyone tries to market a key that will unlock any Ford, that person will get thrown in jail if caught. Why should software be different?
Re:I have a few problems (Score:3, Insightful)
So what? Nowhere in the Constitution or Bill of Rights does it say that your rights can only be exercised for nonprofit purposes.
I can assure you, that if anyone tries to market a key that will unlock any Ford, that person will get thrown in jail if caught.
As usual, most real-world analogies don't work well here. Dmitry's program doesn't allow users to "unlock" any ebook, only ones that they actually own. The MPAA's description of DeCSS as a "digital crowbar" is actually more accurate. Crowbars have both legal and illegal uses, and it is not illegal to sell, possess, or describe how to make one.
Some implications of this & the Oz news (Score:4, Funny)
It follows that:
These sound crazy, don't they? But, really, what's the difference between a South Carolina doctor being convicted of practicing in South Carolina, without a California licence, and some Russian geek being convicted of DMCA "violations" arising from work in Russia?
Well, other than Russia is a lot further away, isn't even part of the US, and other such details. The doctor example I gave would actually be far more reasonable. At least the alleged events would have happened on the same Continent!
Coverage in Time and Newsweek too... (Score:3, Informative)
Time Magazine [time.com]
Newsweek [msnbc.com]
W
The Attorney's office broke the DMCA (Score:3, Interesting)
From CNN [cnn.com]:
The U.S. Attorney's office brought charges against ElcomSoft after purchasing a copy of the software over the Internet from ElcomSoft's Web site, which is hosted in the U.S. and uses a U.S.-based payment services provider, the indictment said.
So, the way that they knew about the crime was to commit the crime of purchasing, and thus owning "illegal" software? I guess they probably think that this is like the cop who poses as a buyer for crack on the street?
Hell of a deal (Score:3, Insightful)
Can I pimp this report? (Score:3, Informative)
Many of the issues here are discussed in a recent report:
M. Skala. "New Media Copyright Extensions Would Harm Canada [sooke.bc.ca]", Aug 2001
It is a long read for the weak, but it clear and to the point as to why "laws" such as the DMCA is a bad idea, giving a short history of copyright and a summary of recent events in the world of IP/DRM. I believe it can help people focus their arguments.
Martin Luther King's take on the DMCA (Score:3, Insightful)
-- Martin Luther King
In more detail - the Supreme Court does not render advisory opinions. That is, you cannot simply ask the court to judge whether a law is constitutional or not. To have a law declared unconstitutional, one must actually violate the law and pursue one's defense to the highest court in the land.
The benefit of having unjust laws struck down by the Supreme Court comes at the cost of risking one's freedom if one's attempt proves unsuccessful - or even one's life, in the event the law in question provides for capital punishment.
Note to G.W. Bush's handlers.. (Score:3, Interesting)
That way, your corporate masters get to keep this blatantly unconstitutional bludgeon around to threaten anyone else who seeks to expose their incompetence. The longer you keep the DMCA out of court, the more damage it can do to the constitution your sock-puppet took an oath to uphold.
-jcr
Re:Miscommunication (Score:3, Funny)
Re:Miscommunication (Score:3, Funny)
Re:Miscommunication (Score:2, Interesting)
Re:Biased Slashdot Coverage.. (Score:3, Informative)
>>infringement.
Don't be obtuse.
First - the 'crime' occured in another country.
Second - he didn't commit copyright infringement. He developed a tool. If i go down to the library, take a book and photocopy it, does that mean Xerox (and it's engineers) are guilty of 'copyright' infringement. No it doesn't. For the same reason a gun manufacturer isn't guilty of murder if i shoot somebody in the head. For the same reason if i take a hammer and break into your house, Sears isn't guilty of break and enter. If i burn a copy of a friends CD, HP (the manufacturer of my burner) isn't guilty of copyright infringent.
Don't confuse a tool and the use of a tool. Why should this case be treated differently because it deals with bits instead of physical objects. It's EXACTLY the same as the Xerox example.
And i won't even go into the agument about how the DMCA tramples other established rights.
Re:Biased Slashdot Coverage.. (Score:4, Insightful)
Not necessarily the case. If it is the case that
-in Russia, it is legal to copy software and its content for backup purposes
-in Russia, it is legal to sell software to create said backups
-Elcomsoft made no sales of circumventing software to US companies
then in fact, it's pretty hard to enforce a US law, because it doesn't take place in the US. If this had happened to a US programmer in a US company, the case would be much cleaner...because it WOULD be illegal. In fact, it's surprising that they aren't choosing a local to hold up as an example. It would be much easier to convict an American who broke the law in the US.
Granted, Slashdot creates cult heros, but I think this is the wrong example to pick on them for. In this case, it's not a matter of someone not getting their free-as-in-beer stuff. It's a much more complicated scheme of making an example of someone who didn't necessarily break the law.
Parent