Sklyarov Case Opens Today 318
weakethics writes "The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."
Article Text in anticipation of server destruction (Score:5, Informative)
Russian expected to take stand in Adobe E-book code case
Carrie Kirby, Chronicle Staff Writer Monday, December 2, 2002
After a year of delays, the government is finally set to try in San Jose this week the first criminal case stemming from a law designed to bring copyright into the 21st century.
The United States of America vs. ElcomSoft Ltd. pits the need to protect intellectual property in the age of Internet file-trading and CD burning against the public's traditional right to use media they buy any way they want to.
The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books.
When the case was first brought in July 2001, it garnered international attention because it was the first criminal test of the Digital Millennium Copyright Act, a 1998 law eagerly sought by entertainment and software companies and bitterly opposed by cryptography researchers and free-speech advocates.
The case also grabbed headlines because the U.S. attorney for the Northern District of California actually jailed a Russian graduate student, Dmitry Sklyarov, for allegedly writing a computer program that violates the law.
To many, locking up a skinny, pale-faced student for writing a computer program was as ridiculous as incarcerating people who tear the "Do not remove" tags off mattresses. But to protesters who surrounded the San Jose jail, Sklyarov's incarceration was no laughing matter. His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment.
Now, Sklyarov, 27, is expected to serve as the government's star witness.
In December 2001, Sklyarov agreed to testify in the case in exchange for having the charges against him dropped. Actually, he is expected to testify for both the plaintiff and the defendant, said Judy Trummer, spokeswoman for both Sklyarov and ElcomSoft.
"He has a single story to tell, and it doesn't differ with who calls him to the stand," Trummer said.
Jury selection for the trial is scheduled to begin this morning. However, Sklyarov and ElcomSoft's president, Alex Katalov, were not expected to arrive in the United States until Sunday night or this morning, Trummer said. ElcomSoft attorney Joe Burton planned to ask for a delay if his client is not present, she said.
Katalov and Sklyarov both had difficulties getting visas to return to the United States, but have finally received "parole visas" that allow them to be in the country only for the duration of the trial, Trummer said.
Northern District of California Assistant U.S. Attorney Scott Frewing may also call to the stand a number of people who bought ElcomSoft's E-Book cracking program, and two investigators employed by Adobe, whose complaint against ElcomSoft started the case.
The case, to be tried by U.S. District Judge Ronald M. Whyte, is expected to draw much attention, because the issue of copyright in the digital age is as hotly contested now as it was when Sklyarov was first arrested 16 months ago.
But Peter Toren, a former Justice Department attorney who prosecuted technology copyright cases, said that some of the case's drama may have worn off since Sklyarov was first arrested.
Then, supporters of consumer rights and free speech warned that criminal prosecutions based on the Digital Millennium Copyright Act would stop encryption research and other legitimate activities.
But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law.
"I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years," Toren said.
E-mail Carrie Kirby at ckirby@sfchronicle.com.
I don't get it (Score:3, Interesting)
I don't get it.. How can Adobes intellectual property rights have been violated? It's the pdf content that has been cracked (is now viewable without licensed viewer) NOT the pdf viewer !!??
Re:I don't get it (Score:5, Insightful)
But Adobe wrote and has patented the technology that encrypts the contents of the eBook. The DMCA specifically prohibits the circumvention of such security devices and Adobe, who uses this particular device, feels that they may face a substantial loss of revenue if their technology is cracked.
Analogously, if a lock manufacturer has their technology circumvented (i.e. someone creates a universal key) is it the responsibility of the users of the locks (whose stuff might get stolen) to pursue the keymaker, or is it the responsibility of the lock manufacturer? Arguably, in a case such as this, both the responsibility and the financial incentive reside with the lock manufacturer to pursue the keymaker.
OTOH, Skylarov's tool essentially restores fair-use rights that Adobe has stolen from eBook consumers.
I create copyrighted material. I prefer that my material is protected from plagiarizing. But if some kid likes my music well enough to download MP3's of it (not that that's an even remotely plausible scenario), I'm not going to lose any sleep thinking that I've lost that $0.03 royalty. Far better IMO to view it as free advertising. And if the kid's parents hear it enough, maybe they'll buy him the CD and then I'll get the whole $0.38.
As far as I'm concerned, the DMCA is bad law. I hope it gets struck down resoundingly and that Michael Eisner gets so angry about its defeat that his ulcer explodes and drowns him in gastric acid (or the non-violent equivalent, if you prefer--whatever that is).
Re:I don't get it (Score:4, Insightful)
Re:I don't get it (Score:3, Interesting)
Re:I don't get it (Score:4, Insightful)
In the case in question, Skylarov explained at a conference how bad Adobe's e-book encryption is and how incredebly simple it is to break it, and found himself soon arrested.
It's the equivilent of being thrown in jail because you publicised to consumers how bad Mr Smith's Lock Company is, and proved it by showing how you can break into any of Mr Smith's locks with a simple paperclip.
Re:I don't get it (Score:3, Insightful)
To expand upon this: If I lock myself out of my apartment and I know how to use a credit card to gain access, I'm not violating the law. But if I go next door and use my credit card on my neighbor's lock, I have crossed the legal boundary and am now guilty of trespassing. The crime is not the method I used to gain access, but that I used that method inappropriately.
Further, if the concepts of the DMCA were applied in the real world, I could be arrested just for showing someone how to use a credit card to gain access to their own apartment.
--K.
P.S. The first one of you freaks that shows up at my door with a credit card will be the first to discover that I'm also a supporter of the 2nd Amendment: The right to keep and arm bears; my bear's name is Uber.
Re:I don't get it (Score:2)
1. Make a circumvention device
2. really bad dude = you = terrorist
3. go directly to jail
Say it with me now... (Score:5, Funny)
Wait, sorry---wrong trial...
Re:Say it with me now... (Score:3, Insightful)
So in the future, admins could you please try to just report the news without shallow, short-sighted remarks and let us form our own opinions about the story? It would go a long way with me.
Re:Say it with me now... (Score:3, Interesting)
I am capable of coming to my own conclusions, as are others. Reading of various opinions, facts and observing their validity is how I so such. I don't expect everyone to either be completely stoic, nor do I expect anyone to succum to my way of thinking.
You've come here, I'm guessing for a pretty long time. By now you should have decided whether or not this little haven of geekdom is worthy of your readership. If you haven't, give it another try. If you have, and you decided it's not to your liking, stop bitching and go somewhere else.
It'll be interesting to watch the fate of the DMCA unfurl, for sure. I'll be watching from as many sidelines as I can.
Re:Say it with me now... (Score:2)
Re:Say it with me now... (Score:2)
That idiot is a lawyer (Score:5, Insightful)
Re:That idiot is a lawyer (Score:3, Insightful)
This makes me sick. This guy doesn't care if a blind person can read an ebook, he probably could afford to hire someone to read it to him!
I truly pray justice prevails in this case. Though considering the current political and legal climate in the US, I don't have much hope...
Name the incident... (Score:2)
Re:Name the incident... (Score:2)
No argument... (Score:2)
Re:Name the incident... (Score:4, Insightful)
I'm probably not being accurate by saying the DoJ. In the Felton case, it was the SDMI consortium and RIAA that threatened him. My reply was just a bit hasty.
That isn't the point though. These cases never come to light because those who are challenged can't even begin to mount a legal defense, and therefore, fold like Superman on laundry day. The mere threat of invoking the DMCA has most definitely had a chilling effect. I'm sure you're aware of this though, and that was the point I was trying to make.
Re:That idiot is a lawyer (Score:4, Interesting)
Due process, and speedy trial (Score:4, Insightful)
Where CYA is the name of the game... (Score:5, Insightful)
The reason there haven't been any cases is because none of the small-time developers who have run afoul of the DMCA so far have had deep enough pockets to hire lawyers with enough intestinal fortitude to take it on and get it shot down. One good failure of the DMCA in case law would be all it takes, but (IMO) unless you've got the financial resources of Microsoft, Sun, Oracle et al you ain't gonna get the job done. So rather than fight the good (but expensive) fight, developers get that nasty letter which threatens to invoke DMCA and they knuckle under.
'Nuff said.
Re:Where CYA is the name of the game... (Score:5, Insightful)
The DCMA has criminal and civil provisions. THIS IS THE ONLY CRIMINAL DCMA CASE THAT HAS EVER BEEN PRESENTED, period. You're talking about the civil provisions of the DCMA (which are admittedly terrible, nasty , awful, misused, all of that stuff). The Justice Department simply doesn't go around sending out cease and desist letters.
From a tactical standpoint, I'm hoping that Elcomsoft gets convicted, since I'm betting that the criminal provisions of the law will be deemed overbroad and vague on appeal. Then, by implication, thoose arguments will become more available to defendants in civil DCMA cases.
Re:Where CYA is the name of the game... (Score:3, Interesting)
Remember that this is a criminal case. If Elcomsoft wins, the Justice Dept. most likely will not appeal. The prosecution's right to appeal in criminal cases is very limited, and I don't see how any of the pretrial rulings by the judge in this case are legally wacky in favor of Elcomsoft (if anything, they've been biased against Elcomsoft). Therefore, legal issues regarding the validity of the criminal provisions of the DCMA will only be heard by an appellate court if Elcomsoft loses the case. An appeal is crucial, since only if the case works its way up the appellate ladder will we ever get a ruling against the law.
Since Dimtry is no longer a party to the case, the only real penalty than can be levied is a fine anyway. Thus, this is a relatively harmless way for there to be a good result in the end.
One case, sure (Score:2, Insightful)
So what exactly is the point...? (Score:4, Insightful)
This is not deep-linking, they *did* break the copy protection. As wrong as DMCA might be, it is a law at the moment.
Appeals (Score:5, Insightful)
Re:Appeals (Score:3, Insightful)
Re:Appeals (Score:2)
I think you are forgetting that there is somebody named Dmitry involved here- I highly doubt he wants to lose his criminal trial just on the off chance that the law gets repealed afterwards. Its easy for you to say that because you are not the person on trial here. "Come on Dmitry- take one for the team!"
Dmitry is not on trial -- Elmcosoft is. Dmitry got off on a plea bargain. (He got to go away if he agreed to testify.) Probably it was a case of the prosecution finally realizing that Dmitry was a pretty sympathetic dependent, from a media/public point of view. In any event, the company is who's on trial, and as such it's probably fines and so forth (not jail time) that we're talking about. There is no personal harm that Dmitry will be taking.
-Rob
Re:Appeals (Score:3, Insightful)
It's not "taking one for the team". I think it's probably a reasonable legal strategy when you've been convicted of a dubious law that has not been tested in court.
Re:Appeals (Score:3, Interesting)
Re:Appeals (Score:3, Informative)
Yes and no.
The Federal District Court actually can rule on the Constitutionality of a law or other state act: in criminal matters, they conduct suppression hearings all the time.
I've been in Federal court precisely once in my 15-year career, so I'm not expert (IAAC, but IANAL). However, the purpose of a trial is to submit factual evidence to a trier of fact (usually a jury) so that they can rule as to guilt or innocence. IOW, questions of law are typically settled before the jury is even empaneled.
In other words, if this is the actual trial then there's not much left to happen at this stage wrt getting the DMCA tossed out. Everything here (from the non-participant anti-DMCA point of view which appears to be the majority on /.) is just getting positioned for the appeal.
As for the question of a countersuit...I don't believe so. In civil cases they can happen all the time. In this case Sklyarov MIGHT have a civil rights claim under 42 USC 1984. I wouldn't bet on it, though. However, IIRC the trial now opening is a criminal matter. Criminal cases basically cannot be privately prosecuted in the United States. Only a District/State's/Commonwealth Attorney (in state courts) or a United States Attorney (in Federal courts) can initiate criminal proceedings.
I don't know if this will simplify this for you or confuse you even more, but here's some background:
Civil cases are (usually) cases between two private parties. The stakes are monetary damages, and possibly an order from a court to either perform some legally-required duty or to refrain from some other activity.
Criminal cases are cases filed by a prosecutor, on behalf of the People (of the United States/of the State of XXX), in which he alleges that the defendant committed some offense "against the peace and dignity of the People of the blah blah blah." Criminal cases can only be filed for a violation of some specific provision of law.
So, this trial is basically to deal with the question of fact "Did he, or didn't he?" At this point, any real change of law will probably have to come through the appeals process, and a Federal Court of Appeals ruling is only binding in that court's own circuit. IOW, IIRC this is in the Ninth Federal Circuit. That means, an appellate ruling either way is only binding in a few states on the Pacific Coast. It will be persuasive in the other courts.
Re:So what exactly is the point...? (Score:2)
Re:So what exactly is the point...? (Score:3, Informative)
Selling to USA residents (Score:3, Informative)
the program in question was written in Russia. As far as I know, the DMCA has no authority there.
However, Russian law cannot grant authority to sell Russian products to U.S. residents, which Elcomsoft did.
Re:Selling to USA residents (Score:5, Insightful)
Re:Selling to USA residents (Score:2)
If he was FedEx'ing heroin or mail-bombs to US citizens, you bet the US would swear out a warrant, and negotiate an extradition with the Ruskies.
BTW, the
Simple spin, slashbots will be more adamant in defending a person, than a corporation.
Re:Selling to USA residents (Score:4, Insightful)
You also seemed to have missed the point that Sklyarov was initially charged with this crime and spent a few weeks in jail for it, I hope he gets some sort of compensation.
Re:Selling to USA residents (Score:2)
Re:So what exactly is the point...? (Score:2)
Re:So what exactly is the point...? (Score:3, Insightful)
Elcomsoft does business in the US. They can be tried in US courts as long as they would like to continue doing business here. The only charge against Dmitri that would have flown is due to his presentation here in the US. The DMCA makes it illegal to tell other people how to circumvent encryption on copyright material. He did that. Of course that is a much clearer free speech issue, so I think they got a little scared.
Re:So what exactly is the point...? (Score:2)
"What can this case do?" ... "As wrong as DMCA might be, it is a law at the moment."
If Elcomsoft is found negligent, they can appeal. The federal court could find that the DMCA is unconstitutional and render it inapplicable for the 7 or so states under which it has jurisdiction.
Re:So what exactly is the point...? (Score:3, Insightful)
cases where the DMCA is upheld.
Point 2: Many people feel the DMCA is a law "bought" by the entertainment industry. They feel the DMCA is another example of how our government is representing big business rather than the voters.
Point 3: Many companies HAVE used threats of DMCA action as a weapon against would-be competition or a challenge to their control of the market. Even if the party the threat is against has not actually violated the DMCA, the cost of going up against a huge corporation in court is enough to scare a lot of people.
Point 4: Elcomsoft and Sklyarov made their software in RUSSIA. Some people feel that the Sklyarov, at least, should not be punished for doing something in Russia that was against a US law.
Re:So what exactly is the point...? (Score:2)
Yes he visited the states, but he did not break the law (do the act) while in the states. He does not sell the software his employer does.
Re:So what exactly is the point...? (Score:3, Interesting)
But the problematic point is that the US has no jurisdiction. The Elcomsoft and Skylarov are in Russia, so the US has no jurisdiction over them what-so-ever. I'm startled that Skylarov and Elcomsoft are actually appearing before a US court. Had they stayed in Russia, the US court would have no jurisdiction/sovereignty what-so-ever. The court could have ruled against Elcomsoft, but would have no way of enforcing a punishment, as Elcomsoft is in Russia.
Now that Elcomsoft's president is in the US, they can use that as leverage to enforce their ruling, by imprisoning Elcomsoft's president until Elcomsoft acquiesces.
I don't see why Skylarov and Elcomsoft are being so stupid. They have no obligation what-so-ever to come to the US. Skylarov could stay in Russia, say fuck the agreement to testify, and suffer no consequence. Likewise with Elcomsoft.
Re:So what exactly is the point...? (Score:3, Interesting)
The possible punishments are limited, though. At most the US can tell Elcomsoft it is not allowed to do business inside the US.
Re:So what exactly is the point...? (Score:2)
So, in short, they're dumb for coming to the US.
Re: Sklyarov Case Opens Today (Score:5, Insightful)
criminal cases (Score:5, Insightful)
The whole reason (Score:4, Insightful)
Perhaps one day soon, congress will realize what a mammoth beast this thing is and kill it. Perhaps they will realize that they should make enforcable legislation. Nah, just pipe dreams.
Re:The whole reason (Score:2)
Key word: "popularly." And obviously, many of the situations that the DMCA doesn't allow are situations that are *not* popularly held as inappropriate, but rather held as inappropriate by those who have the money. Much as I hate to say it, this government is becoming less and less representative of the people as a whole.
Re:The whole reason (Score:2)
However, given that legislators only hear from those with money(or those who have been trodden upon by previously passed legislation), it is often percived by those in public offices that what they are doing is popular.
I'm hoping that after a few very public lashings, the people of this country will start paying attention, writing their elected officials, and attend public meetings.
With the past year's aggression and neglect toward liberty, citizens are getting their hair mussed and looking to the government to fix everything so they can go back to playing their X-boxes and eating their TV dinners. If the Federal government doesn't watch out, they may legislate themselves out of a job(and no, I'm not talking about elections).
Using the DCMA against itself (Score:5, Interesting)
As I understand it the DCMA is supported by the film and music industry because it allows them to create technologies which they can wrap their content in, which are illegal to try to break.
What happens if we create a file compression/security method that incorporates an original encryption technology, with some mechanism by which you only give out the key to people you trust? We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support. Wouldn't that be a good way of demonstrating the stupidity of this law?
Re: Using the DCMA against itself (Score:3, Interesting)
And this is where it falls down. The **AA don't actually mind (much) if you give out a key to your friends and give them copies of your stuff. It's just like taping a CD for a friend - it doesn't achieve the kind of critical mass that actually cuts into their profit margins. Only anonymous access does that.
What you're proposing is not really any different from putting your MP3s etc onto an SCP server and emailing the password to your friends (but only them). Technically illegal, but small fry.
Re: Using the DCMA against itself (Score:3, Funny)
First, you do what pubjames suggested -- encrypt your files strongly and share them via P2P. Be sure to put something to which you own the copyright in each file (a small image of a tree or something like that)!
Second, give instructions for finding the password on your web site. The URL you put in should point to a click-through where you promise you are not a law enforcement agent (DMCA has a law-enforcement exclusion that this will close off).
That click-through will take you to a page where you have the password. The password should also be encrypted, but very badly. I suggest rot13. This page gives permission to decrypt the password only to individuals wishing to view content for their personal pleasure.
Law enforcement agents can't look at the page because of the click-through (otherwise it's "entrapment"). I'm not sure that this is true in an on-line context, so don't blame me if it goes wrong!
Any geek worth their salt will be able to tell that the password is rot13 and have access to the content. If someone from the **AA "decrypts" it, they've violated the DMCA.
I wouldn't try this myself, but it *might* work!
Er, no... (Score:3, Informative)
Re:Using the DCMA against itself (Score:2, Funny)
Re:Using the DCMA against itself (Score:5, Insightful)
They would then just use their 'we can hack P2P to find bad stuff' attitude to break it, and the government would let them. As I said a few posts ago, the government is not representative of the people as a whole, but representative of those with money. This isn't the way it should be, but it's the way it is.
Re:Using the DCMA against itself (Score:2)
Also, as far as I know, just because information is obtained illegaly (by private citizens or corporations), that doesn't mean that it can't be used to sue you.
Re:Using the DCMA against itself (Score:3, Interesting)
That sounds cool but I don't think it will work.
In order to qualify for protection under the DMCA, aren't you required to use encryption methods to protect copyrighted works?
I don't think you'll be covered if you use encryption to protect SOMEBODY ELSE'S copyrights. You have to have the copyright yourself.
It's not like I could encrypt my bootleg of When Animals Attack or whatever, and then distribute it, and hope to get off because The Man decrpyted it in violation of the DMCA. What I did was illegal in the first place, so the fact that The Man broke his own laws to get me is probably trivial.
I say probably, but it is conceivable that there's a judge out there who would throw out the evidence (i.e. the decrypted file) because The Man didn't have a court order or subpoena or whatever allowing the decryption. Don't bet on it.
While your plan would certainly demonstrate the stupidity of the law, most judges would overlook that transgression to get to the "root" which is the fact that all p2p users and open source advocates are, in their minds, a bunch of thieves or something. Which is funny, because I'm sure their kids or grandkids have hard drives full of mp3s, and they don't even know it. They think p2p is some freakish seamy underworld, and in fact it's as common as AOL. Heck, maybe they even trade shows on their TiVo or ReplayTV or whatever, and don't even realize what they're doing. Because TiVO has brought corporate legitimacy to p2p, and more than that they've mainstreamed themselves -- witness the "My TiVo thinks I'm gay" sitcom episodes. Without corporate backing and media buy-in, you will be viewed as an outcast. (Look at the people who live off-grid, for example.) In this case, it's obvious that ElcomSoft, a foreign company whose every product cracks files, is fighting an uphill battle. They will probably lose, and the wording will be in such a way that an appeal won't serve the purpose of challenging the DMCA.
This whole controversy smacks of the clash of generations, of "kids" threatening the power base of an older generation who has never played a FPS game or knows what a LAN party is. I don't think we'll see any victories anytime soon, but in twenty years, when copyrights are set to expire again, your Congressional Representatives might have actually grown up in a house with a computer or two in it. They will have a different outlook.
Re:Using the DCMA against itself (Score:3, Interesting)
But the point is that stuff could be encrypted so that you couldn't tell what it was unless you circumvented the copy protection, which is what the DMCA is all about. So if on the P2P network some people were trading materials to which they owned the copyright, and other people were not, how do you go about proving anything without breaking the law? The people sharing legitimate files could rightly sue them under the DMCA.
Re:Using the DCMA against itself (Score:2)
They seem to be failing due to obscurity since the name change, rather than legal problems. I'm sure that their legal safety would only last so long as they remain obscure.
In Soviet Russia... (Score:2, Insightful)
Quick trial? (Score:5, Insightful)
ElcomSoft was doing this for profit, if that makes any moral difference. Selling locksmithing tools to a burglar is not particularly savory or legal, and this aspect will make the jury less sympathetic (notice that ElcomSoft wanted a jury). If the skirmishes over the statute did not extricate them, I don't know what chance they have unless there is a juicy factual dispute about who-did-what-where. Yet they haven't pleaded out, assuming a plea agreement was even offered in the test case... Hmm. Need details. Speculation overload.
It is intriguing that no cases have been brought. Yes the law has been used for intimidation, but the prosecutors have no obligation to let anyone off with a warning -- they can prosecute the first infraction. It would be interesting to know why the law apparently has been given low priority.
BTW, I agree the treatment of Dimitry Sklyarov (sp?) was shameful. I don't think Kevin Mitnick is a good analogy, however. Their actions and alleged crimes were of very different natures. Yes, there were problems in the Mitnick prosecution as well, but Sklyarov's no Mitnick.
Here [eff.org] is the EFF's somewhat dated FAQ on the case, more detailed certainly that the Chronicle.
Re:Quick trial? (Score:2)
Frankly the whole thing is going to end badly I fear. More US 'we can but you can't' style legal shenanigans.
Re:Quick trial? (Score:2)
I'm not saying I want them to be guilty, just guessing at the outcome.
I A N A L, all the below is uninformed opinion.
The initially trial isn't what's interesting in a case like this, as odds are everyone will agree that Elcomsoft is guilty under the law as written. What is interesting is the appellate process: is the law as written valid law under constitutional tests? And to test that, you've got to have a guilty verdict first: in the US, only appellate courts can rule on the constitutionality of a law, and noone can bring a court case unless they are an interested party - which in this case means Elcomsoft needs a guilty verdict before they have standing for a case at the appellate level.
legal challenges (Score:4, Informative)
I just didn't want people going off on what a terrible law it is, or that it violated free speech.
Right thinking people? (Score:2, Funny)
Do you realy need to be left handed to dislike the DMCA? I mean I know that left handers are the only ones in their right mind, but truely even left brained people can see the flaws of the DMCA.
Or does this have to do with Conservative vs. liberal views?
It's not even Conservative vs. Liberal (Score:3, Insightful)
Intellectual Property Rights vs. Innovation Rights
In this case it can be argued that Dmitry Sklyarov is a hacker who hacked together and conspired to traffic a digital crowbar that disables the lock Adobe's eBook.
- OR -
Dmitry Sklyarov is just a mere employee who wrote software for his employer to enable the user to convert THIER personal eBooks to other formats.
The irony this dichotomy is: THERE IS NO DICHOTOMY. Both Statements are correct.
The real question is: Should ElcomSoft be criminally convicted for writing a very legitimate software? It's legitmate in Russia. It was a legitimate and common type of software in the US not too long ago. It only allows the user to convert THIER personal eBooks to other formats. It has many valid uses.
Nope... Doesn't seem like a Conservative vs. Liberal Issue to me...
I agree (Score:2)
The only real effect of the DMCA is that companies can't openly distribute stuff that violates the DMCA. Good. It makes people who want that stuff anyway look to alternative channels of software distribution to get it.
Re:I agree (Score:5, Interesting)
I don't think that's really true. The DMCA is used to intimidate and annoy regular well-intentioned folks like myself on a weekly basis. Check out my dmca troubles [cmu.edu] over a font program I wrote, for instance.
Re:I agree (Score:3, Interesting)
On the other hand, you prove my point. You are still distributing your program. Their attempts to shut you down failed. They probably did "annoy" you, but it is very clear from reading your letters that they did not "intimidate" you. Since they have not brought litigation against you, it appears instead that you have intimidated them.
The ambiguities in the DMCA cut both ways, and the 2600 case illustrates that you may have to litigate for years and in the end all you will get is an injunction that applies to one of the 30,000 kayakers coming down the Hudson, to paraphrase the judge.
Re:I agree (Score:4, Insightful)
If any of these things wasn't true, I think I'd have much more trouble keeping the program up. If my ISP took it down, as the safe harbor provisions of the DMCA make so tempting, what would I do? If I had money to lose or couldn't afford the court time because of job commitments or family, how could I risk going to court over something so silly? If I didn't realize that such mails are often just a bunch of hot air, how would I have reacted? I think that many more projects get taken down voluntarily precisely because hobbyists can't afford to provide defense, even if they are in the right.
Building a police state (Score:4, Insightful)
This adds up to that everyone is a criminal and can be put in jail at will by The Authorities, should they ever feel that need. And that is not a free society.
I don't understand... (Score:5, Interesting)
Source code as speech (Score:3, Informative)
A Little History on yelling "Fire" and much more!! (Score:3, Insightful)
As long as we're talking about Justice Oliver Wendell Holmes's classic example of unprotected speech, let's learn a little about the context, especially considering it's been invoked by so many people in so many contexts.
The analogy came from the Schneck v. United States in which Schneck was being prosecuted for causing subordination among soldiers who had been drafted in WWI. He and others had circulated leaflets asking draftees to not "submit to intimidation". The leaflets did not encourage draftees to break the law, rather it encourage them to consider their rights.
Justice Holmes opinion was that the constitution protects these leaflets during peace time, and that wartime deserved special circumstances.
In order to support his special circumstances opinion, he illustrated his opinion with the famous "Fire in a Theatre" analogy.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Justice Holmes upheld his convictions that the leaflets presented "A Clear and Present Danger"
Of course, when the founder father drafted the Bill of Rights, they must of forgot about their own "Clear and Present Danger" that they presented to His Majesty's Empire.
Oh wait, If the founding fathers were hung up on this "Clear and Present Danger" exception, why didn't they write it down, but rather write the Second Amendment and Third Amendments instead?
Source Code - A Precise Mathematical Notation?
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Pornography, Video Games
They're all Intellectual Works protected by copyright law!!!
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Arm Bands, Middle Fingers, Flag Diapers
They're all protected by the First Amendment!!!
What does Copyright Law Consider Expression?
According the US Copyright Office, in order for a work to be copyrighted, it must be a work that is a fixed in a tangible form of expression. Therefore, ALL copyrighted materials are tangible forms of expression!
What does the Law Say?
Title 17, Circular 92, Chapter 1, Section 102
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
Is Software Really a form of Expression?
I like working with extremes myself, so let's start with Video Games. They seem to be the most expressive form of all expression. A great Video Game mixes and blends all sorts of art, music, and literary work and combines it all with an intelligent engine, which is a mathematical art form in itself. If one wanted to be an artist that truly affects and influences people, wouldn't it be logical to blend many art forms into one cohesive form of immersive art?
What about Source Code
If you're going to describe what source code is to someone who's never seen it, it can be best describe as a very precise mathematical notation. A program is almost always a mathematical model representing real object or phenomenon. A Database is a mathematical model of an index filing system, while a Word Processor is a mathematical model of type setting machine. When these models are executed on a computer, they may behave just like the physical device, but it is still only a model of that device, expressed in a mathematical notation.
If it's copyrightable, it's expression. You can't have it both ways...
Re:I don't understand... (Score:3, Insightful)
Please allow me to fix your analogy. The DMCA isn't about yelling "fire" in a crowded theater, it's about keeping people from saying "This theater is a fire hazard." Doing so would require both reverse-engineering the theater (to see what the specific hazards are) and distributing the information to people who may not have bought a movie ticket (and therefore never having been in the theater themselves).
Those together are made illegal by the DMCA, because saying "This theater is a fire hazard" would seriously hamper the theater's sales and their "right" to make a profit.
Re:You understand. They don't understand... (Score:2)
Congress shall make no law...abridging the freedom of speech, or of the press....
Nothing about political speech in there. It seems pretty clear and direct to me.
Re:You understand. They don't understand... (Score:2)
Sklyarov or Skylarov? (Score:2)
I'm sick of this: which is it? I've seen both spellings used pretty consistently, but never in the head and body of the same article. Good reporting starts with getting the name spelled right: could someone clue me in?
What the layman will think... (Score:2)
What the layman will think: Those Russians are trying to steal our stuff!!! We need to stop them! What lawyers will think: Those Russians are trying to steal our stuff!!! We need to stop them!
Measuring the effects of the DMCA (Score:5, Interesting)
(its an academic paper, you have to find some sort of effect right!)
you can check it out here [fox-den.org]
(I know
The Irony of History (Score:5, Insightful)
11 years after the Fall of the Soviet Union, Russian citizens fight a federal law that is more intimidation than jurisprudence... in the USA.
The point is simply this... (Score:4, Interesting)
How much simpler can I say it?
AND...the USA has morons everywhere, from the president on down!
Who do you think ELECTS the morons? Other morons.
Or are they the morons after all?
Why? Because many smart people like us ACT like morons and don't even bother to vote!
In the last election, 61% of the registered voters didn't vote. I voted. Did you?
Probably another 20-30% of the people eligible to vote aren't even registered. Are you?
The DMCA is probably the most anti-freedom law ever passed. We all bitch about it. Did you vote?
Maybe you people who didn't vote or register are the morons after all.
Think about it.
"Evil flourishes when good people do nothing"
-Edmund Burke-
DMCA most anti-freedom law? (Score:2)
Right.
Sedition Act (1798)
SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, ...
shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Possible misinterpretation (Score:2, Informative)
litigation is about intimidation (Score:4, Insightful)
In today's legal world, litigation em about intimidation. Let's say you have a private plane that fails because a spark plug breaks (fairly unlikely I know, spark plugs don't actually break that often), and you crash-land it in a mall.
Now, everyone sues everyone. The mall sues you, your insurance company, the spark plug company, the airport in which you store your plane, and the maker of the plane. The maker of the plane sues the spark plug company. The spark plug company sues the company that sold them the clays for the ceramic.
This is also why most insurance policies contain a clause which you must agree to in order to get insured which says that if anyone sues you and the insurance covers the suit, you have to basically agree that you are in the wrong, and they will settle. So suing people has actually become the science of settlements; How much are they likely to settle with me for? How much can we settle for and have it still be cheaper than going to court? Etc.
Obviously the DMCA and related are solely intended to intimidate the masses via persecution of the few, but don't try to play it up like it's unusual. The courts are used for intimidation and extortion every day. It's just a matter of course.
Some details on the case (Score:5, Informative)
a single criminal case because... (Score:4, Insightful)
Maybe because the beneficiaries of this remarkably stupid legislation are afraid to death that litigation will turn on the DMCA's unconstitionality, rendering it null and void.
Nah, Adobe will sue them (Score:2)
Re:Adobe Is Dead (Score:5, Insightful)
Joe user doesn't have the money for Adobe products, however, Joe Company does. And they do pay for it, and they 'do' use it. Adobe controls the market on both Mac's and PC's --- and before you give me the LInux aspect, remember that it aint used like the other OS's for desktop publishing. Adobe is also a crucial instrument into the Postscript that everyone plus grandma uses.
acrobat and pdf are only a portion of the pie that they eat.
so, before you start the elimination rounds early, get your facts straight.
disclaimer: i dont agree with their decision about Elcomsoft, i am merely looking at this from a desktop publishing environment (from which i am gainfully employed.) so, in essence, adobe will survive long past this silly dmca bs.
I totaly agree (Score:2)
*shrug* course all this has been argued before.
Microsoft has no vested interest in squashing them (Score:2)
Re:Adobe Is Dead (Score:4, Interesting)
It will indeed. I am a technical writer with well over ten years experience in the field. Among technical writers, FrameMaker is used more than all other tools combined for producing printed documentation. It predominates because it is by far the best tool for that purpose. Microsoft Word was not designed to typeset books, and is not suitable for the purpose. Anyone who has tried to use it for that purpose can testify to that. <wry grin>
In addition, FrameMaker has some truly wonderful electronic publishing capabilities. I've used it for years to produce fully hyperlinked PDF versions of printed manuals and online help for web-based applications. I have even set up single source documentation systems using it -- systems that allowed me to produce printed documents and online help from the same source files.
Without FrameMaker or Acrobat, I'd have a much harder time doing my job.
In my opinion (along with the rest of you), the DCMA is a wonderful example of outright legislative malpractice. The congressmen that wrote it and sponsored it probably deserve to be tossed out on their asses when they come up for re-election. This particular case is an embarrassment and black eye to the United States. Adobe should have known better than to get within a light year of the thing, much less actively work to get anyone prosecuted under it. :/
But none of that has anything to do with the quality of Adobe's products.
Inertia is Interesting... (Score:3, Insightful)
In the Macintosh graphic design field, where Adobe has their most rabid supporters, there is a severe issue because QuarkXpress isn't supported on OS X. The problem is, Quark is the premiere desktop publishing tool and even Adobe hasn't been able to take that away.
You would think, since Adobe has cornered the market on just about every other graphic design aspect, that people would immediately switch to their equivalent page layout product. After all, inter-program functionality should be more fluid. Still, even with compatibility issues, there are a lot of people running multiple OS or multiple machine configurations just to use both Quark and OS X. That's inertia... in a big way.
It took Microsoft years to kill off Netscape (or eclipse, for those who still hold out some hope of their resurrection) and that was long before the Web became what it is today. People still aren't as attached to their web browsers as they are to tools like Photoshop, Illustrator, and Quark. Microsoft has a long way to go before they reverse Adobe's inertia in graphic design, PC or Mac.
Re:First Post! (Score:2, Funny)
I think you misspelled Dmitry.
No they didn't, moderators on crack (Score:3, Informative)
look here [eff.org].
Nope... Sklyarov (Score:2, Informative)
The yolk's on you...
Re:Nope... Sklyarov (Score:2, Informative)