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Sklyarov Case Exposes DMCA Contradictions 288

Posted by timothy
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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Sklyarov Case Exposes DMCA Contradictions

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  • No mention.... (Score:2, Interesting)

    by Liquid(TJ) (318258)
    Of course, the NYT isn't going to mention that he rotted for two weeks without bail. The FBI and it's corprate backers know they may not win the legal battle, so they gotta try to scare the hell out of the tech crowd too...
  • by Masem (1171) on Monday August 13, 2001 @10:03AM (#2113153)
    Was that it emphasized the fact that the DMCA harms the common man moreso than the one that is technologically adapt. A good case was the guy that had a virus incident that caused his ebooks to become unregistered (he probably had to reinstall his OS). He was left only with the options of either registering the second 'installation' of the e-books on that computer, or save it for a different computer like his laptop. He wasn't technologically adapt enough to figure out how to bypass the measures himself, and thus was harmed by the control measures in the fact that he 'lost' one use of the e-book.

    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.

  • This law has been around for three years now, and I don't think it's likely to dissappear in any shorter time than that. The Skylarov case is certainly going to be a landmark one, which means that it will almost certainly see the Federal Appeals Courts, and, if they grant it considerations, the supreme court. Boucher ammendment aside, I know that there are those among us who will continue to argue that outlawing the writing of code is a violation of the first amendment to the U.S. Consitution ("The Congress shall make no law . . . . abridging the freedom of Speech or of the Press . . .").

    At least they finally let him out on bail. My lord he looks tired in that picture.
  • If the device used to enable fair use can't tell the difference between fair use and illegal use then the device must be illegal?

    Well then we MUST make handguns illegal. A gun can't tell the difference between a legal use, and being used to commit a crime.

    It MUST be made legal to SELL any tool that has a LEGAL purpose, even IF it can be used for an illegal one. Otherwise EVERYTHING is illegal. Guns, cars, screwdrivers, etc.
    • If the device used to enable fair use can't tell the difference between fair use and illegal use then the device must be illegal?

      Well then we MUST make handguns illegal. A gun can't tell the difference between a legal use, and being used to commit a crime.

      It MUST be made legal to SELL any tool that has a LEGAL purpose, even IF it can be used for an illegal one. Otherwise EVERYTHING is illegal. Guns, cars, screwdrivers, etc.

      Dare I say that this logic is accurate and complete. It dosn't overreach, it dosn't gloss over anything. How can we possibly allow guns who's sole purpose is killing things, to be distributed? Simple, they have reasonable uses. Do people indiscriminatly kill each other? Very rarely.

      Why?

      The law gives gun owners reasonable leway, in return they are expected not fire except for practice, hunting animals, or unless necessary for their own defence. All good citizens in return assist in the enforcment process by calling in seen/heard gun shots to the police.

      The RIAA/MPAA will enjoy no such cooperation until the freedom to obey the law or not is in the peoples hands. Expecting people to be encryption experts to excert their freedoms over their copy of the intellectual property is not reasonable, any more than building their own gun would be.

  • by Anonymous Coward on Monday August 13, 2001 @10:00AM (#2120803)
    The DMCA written on toilet paper!!!
  • While reading over the stories surrounding this case for the past few days, I am reminded of the situation with the US Spy Plane earlier this year. Americans were being held in a foregin state, against their will, and for reasons which were debatable. Isn't the United States being the pot that calls the kettle black, here? Come on, what's the deal? I live in and love most things about this country, but when something like this crops up, it makes me sick to think of the people who drempt up such a convoluted thing as arresting a foreign national on disputable grounds... especially (and this is probably the biggest reason) because a large corporation is wetting its corporate pants. The hypocricy in this country, and around the world, needs to stop.
  • The DMCA (Score:4, Informative)

    by Midnight Thunder (17205) on Monday August 13, 2001 @09:43AM (#2123595) Homepage Journal
    For those of you who have been elsewhere for the past few months, you can check out the following page [eff.org] on the subject at the EFF [eff.org]. Another page [educause.edu] has a link to the act [gpo.gov], in PDF.
    • Re:The DMCA (Score:2, Informative)

      Another link of interest is the Anti-DMCA [anti-dmca.org] website. It is a good thing to share this link with friends that know nothing about this issue.

      I was surprised at the number of people I know who didn't know anything on the subject, in most cases they hadn't even heard of the DMCA. You will probably find the same thing if your friends aren't /. readers.
  • well, good (Score:4, Funny)

    by p3bf (459005) on Monday August 13, 2001 @09:28AM (#2123624) Homepage

    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)

    by Black Parrot (19622) on Monday August 13, 2001 @10:42AM (#2131010)
    You know, it occured to me over the weekend that the present spate of bad laws are based on the assumption that corporations have an entitlement to make a profit on distributing things digitally. And it's that sense of entitlement that results in laws that violate our constitutional rights.

    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.
    • In reinforcement of that: in American law, copyrights and patents were not established as a fundamental right of the creator, but rather as a right that the creator gets for a limited time in return for making the creation freely available after expiration, and allowing certain non-paid uses before expiration (fair use for copyright, free access to patent archives for patents). There is no entitlement to intellectual property, there is just that deal. "The best Congress money can buy" has already made a joke out of "limited time" in the case of copyright, by tacking on another 20 years or so everytime the first Mickey Mouse copyrights get close to expiring. If the DMCA sticks, they've overturned the original deal entirely: if the copyright ever expires you can legally copy the item, but no one can legally sell you the tools.
  • Alienation.. (Score:4, Interesting)

    by FordImperfect (512893) on Monday August 13, 2001 @09:44AM (#2131784)
    "Ms. Samole said she ended up downloading a pirated version of "Fight Club," which is how she intends to obtain her movies in the future. "I'm completely alienated," she said. "I'm never going to rent a DVD again." Hmmm... thats what people will start doing.. something akin to civil dis-obedience. Nothing would be more frustrating than not able to watch the DVD you bought.. and only a fool will make the same mistake again... Those morons are going to dig their own grave... meanwhile i am going to shrug the atlas and sit back and watch them die.
    • I wonder how long it'll be before the MPAA, or Ms. Samole's ISP start sending her legal threats based on the information in the article. Maybe the name was fake.
  • Muddying the law (Score:5, Insightful)

    by Blue Aardvark House (452974) on Monday August 13, 2001 @09:44AM (#2131785)
    From the article:

    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)

    by pgpckt (312866) on Monday August 13, 2001 @09:38AM (#2134552) Homepage Journal
    http://archives.nytimes.com/2001/08/13/technology/ ebusiness/13NECO.html?0813inside [nytimes.com]

    Can't article submitters please take the easy step of replacing www with archives? It works every time.
  • ...the Digital Millennium Copyright Act, a 1998 law that some legal experts say extends rights to consumers even as it effectively prevents them from exercising those rights.

    Hello? Those rights already existed - it's called the 1st Amendment. The DMCA even has language expressly affirming those rights to fair use. Here is an article that is critical of the DMCA, yet is still full of pro-media-conglomerate bias! How can we win this when even our "friends" are getting it wrong?

  • by James Foster (226728) on Monday August 13, 2001 @09:33AM (#2135880)
    What I'm wondering is, what exactly do they want with Sklyarov?
    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.
    • by Nater (15229)
      The US seems to have a lot of double standards

      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.
    • I wondered about that very same thing, actually. But what you're forgetting (I think) is that he also presented his results in the US, and I think (=hope!) that's what makes him prosecutable. I haven't stayed current with the details of the case though, so I could be totally wrong.
    • Most countries (US and Russia included, I believe) have a mutual incarceration policy. DS would probably serve his sentence in Russia.

      Ahh, the Siberian mines... think about that, next time you run DeCss or the like :-)

    • Blockquoth the poster:
      What I'm wondering is, what exactly do they want with Sklyarov?
      He's the perfect scapegoat:
      • 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.
    • The Russian gov't ought to put out a warrant for the FBI agents involved -- and particularly the guy that's up for head of the Federal Bureau of Idiocy -- for kidnapping, and press the case before the World Court. Grounds (1) the questionable jurisdiction for arresting Skylarov (his program is quite definitely legal in Russia -- and copy protection that does not allow a backup copy is illegal -- and I haven't seen any evidence that Skylarov was in control of whether his program could be sold to Americans), (2) they apparently shuttled him around after the arrest so as to avoid a bail hearing for TWO WEEKS, blatantly in violation of the US Constitution. They ought to be indicted here for kidnapping & conspiracy to violate civil rights, but you aren't going to see a federal prosecutor going after other federal agents... If the FBI can arrest a foreigner for violating US law in another country, it should be possible to try them in another country for acts committed here that violate the laws of BOTH countries.
  • by dpilot (134227) on Monday August 13, 2001 @11:51AM (#2137430) Homepage Journal
    It seems to me that in this whole debate, we need to make clear the difference between COPYright and ACCESSright. That's the real rub about the DMCA, it legally transforms copyright into accessright, and gives the copyright holder new controls not previously granted.

    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)

    by abe ferlman (205607) <bgtrio@ya h o o . c om> on Monday August 13, 2001 @09:52AM (#2138591) Homepage Journal
    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.

    tar -xvzf dmca.tar.gz
    cd dmca
    ./configure
    creating cache ./config.cache
    checking for extra includes... no
    checking for extra libs... no
    checking for a BSD compatible install... /usr/bin/install -c
    checking whether legal environment is sane... no
    *Exit with error code 1

  • ...in the first paragraph here [latimes.com]?
  • by byoungvt (225652) on Monday August 13, 2001 @10:10AM (#2139229) Homepage
    as usual I will have pictures and info up from tonights rally ASAP. Also Dmitry is the topic of a KQED radio program at 9AM Featuring the EFF vs. AAP. I will put the streaming link up for the broadcast on my site! http://sjrally.n3.net> BJY [n3.net]
  • We need to have as many technical and scientific minds work with the lawyers of the EFF all through this case. This being the first case testing this abomination of a law, we need to make sure that it is rightly patched and/or overturned. We don't want to fall for a 'quick fix' that seems to be better, when in the long run the law still favors the wrong side. Make sure the lawyers know what to get fixed and how to fix them properly for the benefit of everyone.

    I'm sure the media cartels are grinding their gears to find the right obfuscated solution that may satisfy people now, yet still retain the draconian measures currently in place. Just getting his release is not enough, the law must be made right.

    - A non-productive mind is with absolutely zero balance.
    - AC
  • by rao (118784) on Monday August 13, 2001 @11:46AM (#2141430)
    I sometimes think that we don't dare stand up against the DMCA. After all its, the entertainment industry that keeps us entertained. Oh what do we do to kill the idle hour? What did we ever do before game consoles, CDs and DVDs.

    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/2001/7/31/20314/1 524/20#20

    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)

    by DiveX (322721) <slashdotcontact@oasisofficepark.com> on Monday August 13, 2001 @09:48AM (#2141691) Homepage
    While sitting in your warm bedroom or at your cool office saying how great it was that he was arrested so that the law can be challenged in court, Dmitri is most likely sitting in a one room cell with little but a cot, metal toilet, and TV down the hall. His family is most likely sick with worry since they realize that there is little to nothing that they can do. Any time an American (born or recent addition) is imprisoned for a crime in some foreign, there is often a public (US) outcry. In the Spring of 1994, an 18-year-old Michael Fay, was caned in Singapore for spray painting cars. Many in the United States expressed outrage at the primitive brutality of the punishment. Even President Clinton expressed his dismay and criticized the punishment as cruel and close to barbarism and torture. I really doubt Dmitri is glad to play a small part at the legal challenge of the DMCA. If you were in that position, your lawyer would most likely suggest (and you would accept) that if you can be quietly get let off with time served and a small fine that you accept it. If my lawyer were to suggest, 'we're going to fight this until your bitter end', then I'll be asking for new representation. Poor Dmitri is being used as a pawn by both sides. Corporate America is using him to scare the programming community into submission (i.e. you're next) and the community is using him to strike down a law.
    • Dmitri should have known that he was at risk for being arrested- he took the chance of taking actions that put him at risk for being prosecuted for DMCA violations, then flew to a hacker conference in the USA to talk about the exact actions which were in violation of the law.

      The best test case for unconstitutional laws are people who have volunteered to publically break the law in order to fight it, but sometimes people 'volunteer' less explicitly, like Dmitri...

    • Dmitri is most likely sitting in a one room cell with little but a cot, metal toilet, and TV down the hall.
      Great argument except for one thing... Dimitry is out on bail, crashing with a Russian friend in California.

  • Last fall, Congress adopted the library's recommendation that when the copyright safeguards malfunction on "literary works, including computer programs and databases," that an individual has legally purchased, the person be allowed to use technology like the software Mr. Sklyarov developed to regain reading access to the work.


    Can this be used as an argument for DeCSS? The encryption on DVDs is so weak that it "malfunctioned"?

    It's a stretch, I know.
  • by T1girl (213375) on Monday August 13, 2001 @09:30AM (#2142350) Homepage
    Would someone please just let this poor guy go home to his wife and kids and sort this all out later?
    • While I agree with you, its not gonna happen and we need this case to go to the courts. This is the first big test case and overall we really need this to expose the DMCA as the fraud that it is.

      It sucks for him no doubt. But if his case wins us the repeal or watering down of the DMCA, he'll be a hero.

      I figure if the above happens, lets setup a fund for his family & kids and make donations as a way to thank him for his trouble for improving things here. Life can be rough in RUssia, the least we can do is improve his standard of living a bit as a why of thanking him for hte trouble he went through to, hopefully, get rid of this stupid law.

      • While I agree with you, I also want to remind that Dmitry did not have any choice as far as I know, which pretty much does not make him a hero.

        Did he have any chance not to be arrested? Guess no. Could he choose the date of the hearing? Nope. Etc, etc,etc.

        The only thing is for sure - DMCA sux :)

        • you don't have to have a choice to be a hero. I don't think Stephen Biko had a choice, for example.

          I'm not sure Dmitry stands up to Biko's rather high standard. but you never know. the case is yet young.

        • Re:Let my people go (Score:2, Interesting)

          by Hostile17 (415334)

          While I agree with you, I also want to remind that Dmitry did not have any choice as far as I know, which pretty much does not make him a hero

          While it does not make him a hero, it does make him a Martyr, which I am sure means nothing to him, but to us it is everything. Every oppressive government fears is a Martyr, because they can be a powerful figure to rally around, and this is what turns a few peasents into a fanatic army.

        • Re:Let my people go (Score:5, Interesting)

          by ichimunki (194887) on Monday August 13, 2001 @10:46AM (#2144800)
          Dmitry must have had some clue he was in something of a grey area when he decided to come to America to present his work at a hacker convention (I mean, it's Def Con, not the O'Reilly Open Source convention, after all). If he was so completely unaware of the potential for his situation to go this way, then I'd have to ask who invited him here without giving him some background and pointing out some potential risks. He's Russian, he should have an understanding of what it means to go against the political will of the local secret police (in our case, the FBI). That the Russian secret police don't give a damn about copyrights (in part because their laws are different) doesn't mitigate the fact that the secret police in the USA do-- and are not known for how they treat Russian computer experts.

          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.
          • If we don't fight, the "O'Reilly Open Source" will have in the future the same negative connotation that DefCon does now. Microsoft, that "upstanding shining star of American innovation and productivity" *cough*, has demonized Open Source, saying it "destroys intellectual property", and hence innovation.

            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.

          • by Hard_Code (49548)
            "If he was so completely unaware of the potential for his situation to go this way, then I'd have to ask who invited him here without giving him some background and pointing out some potential risks."

            Yeah, I mean, who really abides by international law, or their own constitution these days?...
            • Re:Let my people go (Score:2, Interesting)

              by ichimunki (194887)
              What international law is the USA violating? Please tell me, I'll add it to the next letter I send a politician about this. And I realize the DMCA may be an unconstitutional law, but unfortunately the system is built to allow such laws to pass and requires that court cases be tried in order for the judicial branch to find otherwise. Generally laws are only subject to judicial review after such time as they have been enforced. If not, they should be, since issuing injunctions against the enforcement of laws until such time as they have undergone judicial review is in itself a subversion of the Constitution (as it essentially adds another layer to the veto process).

              Given the enormous attention given the civil case of the MPAA vs. 2600, and the civil case of the RIAA vs. Napster, one would have to assume that at some point the criminal portions of the DMCA would be enforced as well. I'm guessing that Adobe, as part of their discussions with the FBI, made it clear that they were having a hard time suing a Russian company for violating the non-Russian DMCA by doing something that is entirely legal in Russia, but here was an opportunity to hold the perpetrator accountable by the only means pragmatically available according to the DMCA. Obviously the Feds bought it, since Dmitry is still in jail. Or maybe the FBI was just frustrated that it couldn't find anyone else to arrest at Def Con. In which case, you're probably right. It was completely arbitrary.
              • On the other hand, if someone wanted the DCMA to be invalidated what would be the best way of doing it without ticking off a lot of people and spending the least amount of money? You arrest someone from another country for violation of that law and use them as the legal acid-test.
                Because of the fact that Abobe has withdrew their complaint and the FBI is still intent on pursuing this line of action, it seemingly makes sense that someone higher up does want this case to, at a minimum, recieve world wide attention and possibly, actually go to court. Think about it. Other countries have already started down this path. What better way to wake everyone up?
                Of course, the best part is, (as long as your name isn't Sklyarov) since he's from another country, the amount of presure to actually prevent him from being taken to court is going to be minimal compared to using a citizen.
              • What international law is the USA violating? Please tell me, I'll add it to the next letter I send a politician about this.

                Extraterritoriality.

                There's a common principle in international law that, with very few exceptions, states should only prosecute people as criminals if their illegal behaviour occurred in the jurisdiction of the state prosecuting.

                For example, if a brewer visits Saudi Arabia, he or she should not be held criminally liable for assisting in the distribution of liquour in Saudi Arabia. Only if the brewer brought a bottle of the Cap'n should an arrest be made.

                However, the United States (like some other countries; say, Turkey) violates this rule all the time. Anytime Cuba is mentioned, for example. So I wouldn't hold your breath.

    • by Anonymous Coward
      Adobe no longer wants Sklyarov prosecuted [slashdot.org]. And I'm sure, neither does the MPAA or RIAA. The reason is that they know that the first challenge to the DMCA in court will results in its weakening, affirmation of user's rights, or total dumping of the DMCA (see the MPAA vs Sony/Betamax trial for an example of this).

      Corporations love powerful but unconstitutional/illegal laws like this that they can use to beat people over the head with. However, if the person has the time or resources to mount a strong defense, the corporations will "back down" and let this one trouble maker go so that the law stays in full force and on the books so they can use it against the next guy.

      Fortunately in this case, the US gov't is going to force the issue.

      • Yeah, I know they recanted after the EFF pointed out to them that this fracas has made people all over the world hate them, but god DAMN it, they caused this mess and the very least they could do if they were serious about making amends is PAY FOR DMITRY'S DEFENSE.

        Until and unless they do something more than say, "Oops, we're sorry we called in the jackbooted thugs, but it's of our hands now, and gosh, we really wish they would just let him go!", I say Adobe deserves to be on all of our shit lists, even above MicroSquish.

        Would someone please re-post the names of the perps who fucked Dmitry over? Let's start with that incompetent prick who decided to call in the thugs instead of FIXING the crypto in his pathetic excuse for a product.

        -jcr
      • by sphealey (2855) on Monday August 13, 2001 @11:49AM (#2144969)
        "Adobe no longer wants Sklyarov prosecuted. And I'm sure, neither does the MPAA or RIAA"

        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
  • I think it is a good thing Sklyarov was arrested. I mean, it would suck to be arrested, no doubt. But it was going to happen eventually, sooner than later. A case like this is exactly what we need to have this law rewritten in a way that makes more sense.
    • Re:A good thing? (Score:3, Insightful)

      by Tim C (15259)
      I only hope that Sklyarov (not to mention his family and friends) shares your sentiments.

      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
      • While I think that it was a serious mistake on the part of DMCA advocates to use a foreign national as a test case. I would rather not see that sort of human cost, but I am glad that they let him out on bail.

        This case is great because it highlights the problems with the law in a way that arguably could not be done with an American citizen. The important thing is, we have to win it because of the human cost issue. If we don't then we have a much greater problem on our hands.

    • Re:A good thing? (Score:3, Insightful)

      by GreyPoopon (411036)
      I think it is a good thing Sklyarov was arrested.

      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).

      • Good point. I would much rather it be an American, and much rather him be treated with rights, such as a timely bail hearing, etc.
      • Re:A good thing? (Score:3, Informative)

        by _xeno_ (155264)
        ...arrested for something as simple as speaking at a convention.

        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.

    • A case like this is exactly what we need to have this law rewritten in a way that makes more sense.

      I don't think this is a good test case, because public opinion is already biased against Sklyarov. I have seen numerous stories referring to him as a "Russian Hacker" such as Russian hacker released on bail after U.S. arrest (06-Aug-01) [cnn.com]and Hacker supporters ask Adobe to aid in defense (02-Aug-01) [cnn.com]. Even if the article explains that what he did was legal in Russia, the sentiment is already turned against him by the title. "Hacker" has become a Bad Word(tm) to the majority. While the /. crowd might not see such an evil meaning, the general public certainly does. I think we would be much better off with an academic (like Prof. Felton) as the defendant in the test case, rather than a "Russian Hacker".

  • by cs668 (89484) <cservin@cromagnon.com> on Monday August 13, 2001 @10:28AM (#2143898)
    I know that this seems far fetched because ebooks have not become popular. But, if in the future they did become the only way publishers released books libraries would not be able to lend them.

    The DMCA seems to criminalize the library that might someday exist.
    • But, if in the future they did become the only way publishers released books libraries would not be able to lend them.

      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)

    by pgpckt (312866) on Monday August 13, 2001 @09:47AM (#2143924) Homepage Journal
    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.


    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 /.ers couldn't even handle this.

    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?
    • 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 /.ers couldn't even handle this.

      And furthermore, even if a person *could* design the tools, (in the case of DVDs) the DVD-CCA licenses the key to decrypt the DVD. Individuals would have to either pay for the license, $5,000 for an annual license (although they may deny you) or acquire it "illegally" (i.e. reverse-engineer). So, in the case of DVDs, there is no realistic and/or legal way for a consumer to write a program themselves (witness Jon Johanson).

      So much for that idea.

    • "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.

      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.
    • by hbo (62590)
      Maybe she should be heading the Patent Office instead. Her "friends" could help them get a clue.
    • Re:I love this part (Score:2, Interesting)

      by Dunedain (16942)
      Most interestingly, manufacturing a circumvention device for use in your own home is still illegal under the DMCA. It allows their use for security research and backup purposes, but not their manufacture. Similarly, it's legal for a child to smoke a cigarette in most places -- but it's not legal to give him one or leave one where he could get it.
    • by crovira (10242)
      The DMCA tells you that if your vehicle is broken, its illegal for you to make or own a wrench to fix it or to hire a mechanic.

      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)

    by l2718 (514756) on Monday August 13, 2001 @09:48AM (#2144084)
    From the times article:

    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?
  • by Flower (31351) on Monday August 13, 2001 @09:49AM (#2144086) Homepage
    Allan Adler, vice president for legal and governmental affairs at the Association of American Publishers, has an explanation. "There is no device that can distinguish between a fair use and a non-fair use,"

    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.

  • by Jacco de Leeuw (4646) on Monday August 13, 2001 @10:38AM (#2144644) Homepage
    Crypto expert Niels Ferguson [xs4all.nl] was at the HAL2001 [hal2001.org] festival yesterday, speaking about AES/Rijndael vulnerabilities. At the end of his presentation, he wanted to add a personal note.

    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...

  • by ben_tarval (512334) on Monday August 13, 2001 @11:01AM (#2144668)
    Here are some little known facts about this case - at least ones which I haven't seen covered in the media, or on the Free-Dmitry mailing lists.

    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)

    by sdo1 (213835) on Monday August 13, 2001 @09:32AM (#2145219) Journal
    As much as I'd like to see the charges tossed out now (I doubt that DS wants to be a pawn in this... he probably just wants to go back to Russia), going to trial could be quite helpful. Unlike the 2600 trial, this one could easily be painted in a better light.

    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
    • Only questions of fact get to a jury (and mixed law and fact). This case will soley be a question of law. Juries do not get to decide if a law if legal.

      • by Kotetsu (135021) on Monday August 13, 2001 @09:47AM (#2143923) Homepage
        Juries do not get to decide if a law if legal.

        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.
        • Jury nullification (Score:3, Informative)

          by wiredog (43288)
          You most certainly *do* have the right to decide if a law is legal when you are on a jury.

          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.

          • Wether [sic] or not the law is constitutional is decided in the appellate courts.

            No. Any Federal District Court in the land can declare any law to be unconstitutional. It's not exclusively a matter of Circuit or Supreme jurisdiction.

            (District Court = local, regional Federal Courts. Circuit Court = appellate court. Supreme = Supreme Court of the United States.)
          • Yes, you are correct that a jury can not change the law (that would be moronic), but a jury can chose not to enforce a law that the defence convinces them is mearly wrong (not just unconsitutional). The question is can a jury do this legally.
  • Don't worry (Score:5, Funny)

    by briggsb (217215) on Monday August 13, 2001 @09:33AM (#2153931)
    Congress has already passed legislation [bbspot.com] to remedy the situation.
  • by pieterh (196118) on Monday August 13, 2001 @10:30AM (#2155142) Homepage
    A small voice asks... what happens when Microsoft encrypt their email protocols, network file sharing protocols, office document formats, and then start prosecuting programmers who try to hack these protocols, say... to allow Linux to interoperate with Windows.

    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.

    • Too late.

      Actually, they used patent law, not the DMCA. But Windows Media Player support was ripped out of an Open Source player many months ago, after legal notice to the author by Microsoft.

      I'm also sure the DMCA will be one more tool in their arsenal.
    • A small voice asks... what happens when Microsoft encrypt their email protocols, network file sharing protocols, office document formats, and then start prosecuting programmers who try to hack these protocols, say... to allow Linux to interoperate with Windows.

      You mean like what they did when they first "released" the spec for Microsoft Kerberos with a click-wrap license [slashdot.org], then asked Slashdot to remove un-clickwrapped copies (or links to same) [slashdot.org], and finally made most of the info available without the clickwrap [slashdot.org]?

      Yeah, they'd never do anything like that.

I bet the human brain is a kludge. -- Marvin Minsky

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