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U.S. To Drop Charges Against Sklyarov 329

Posted by timothy
from the in-exchange-for-testimony dept.
Schmerd writes: "The New York Times has a story saying that charges will be dropped against Dmitry Sklyarov in exchange for his testimony against his employer ElcomSoft." Si adds: "It looks like Dmitri might be home for Christmas. This is not the end of the trial, but it appears Dmitri has been freed, pending certain stipulations." jij adds this breaking news article on the Associated Press wire as well. (The AP story is also at Wired). Update: 12/13 22:23 GMT by T : sam@caveman.org links to a slightly more in-depth AP report at the Seattle Post-Intelligencer.
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U.S. To Drop Charges Against Sklyarov

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  • This is good (Score:1, Offtopic)

    by billmaly (212308)
    Flame me if you must, but following Sept. 11, Dmitry's "crimes" don't seem quite as heinous as previously depicted.
  • by flynt (248848)
    I knew this would happen. You know why? Cause it was stupid. And usually when stupid things happen, someone made a mistake. Mistakes usually get corrected, just like this one. Sure it probably sucked being in jail for months, but look around where you are, is it really that much worse than what you see?
    • by nyet (19118)
      You poor, deluded, naive little boy.

      How exactly is forcing him to rat out his boss in return for being let out of jail (where he has been rotting for months, by your OWN admission) correcting a mistake?
  • I mean, this is great for Dimitry, but it seemed like a perfect case to test the DMCA against the First Amendment.
    • by Bonker (243350) on Thursday December 13, 2001 @05:27PM (#2701425)
      The fact that it was a good test case is probably amoung the foremost of the reasons it was dropped.

      Say what you will about evil crackers and hackers who restlessly violate people's property. Dmitry was obviously not one of these people. He wrote a tool to do something that is still quite legal in Russia, and is considered to be quite a scholar and expert by many. Any competent lawyer would have been able to present him as such. He would have a huge chance of getting

      The U.S. has zero chance to uphold the DMCA unless they get precident behind it that come from using it to prosecute someone who they can present as having evil purposes... such as any of the alleged DoD crackers arrested this week.

      As long as the people who get involved in lawsuits are fairly upstanding individuals, they can't afford to prosecute. Once they come across someone who would probably be sent up the river even without the DMCA, then they'll prosecute.

      Just watch...
      • The fact that it was a good test case is probably amoung the foremost of the reasons it was dropped... As long as the people who get involved in lawsuits are fairly upstanding individuals, they can't afford to prosecute. Once they come across someone who would probably be sent up the river even without the DMCA, then they'll prosecute.

        Umm, just one thing: They haven't dropped the case, and they're still going to prosecute. The change is that they're going to prosecute Elcomsoft rather than Dmitry. As another poster said, this is really the best of all possible outcomes: the DMCA will be tested on a case in which arguably zero damage was done to the plaintiff and Dmitry gets to go home.

        Also, remember that it's possible that in spite of Congress' zeal in passing this law that the DOJ may not feel the same way about it. It's not unreasonable to think that law enforcement officials might see the DMCA as just another pain in the ass law they have to enforce as opposed to, say, rooting out terrorists (which is much more likely to earn a promotion). Maybe they want to test it and get it thrown out so they don't have to screw with it anymore.

      • Are they legally allowed to wait until someone breaks the DMCA "a lot" ??

        I know.. I know.. legal questions and slashdot shouldn't mix, but I'm curious
        • by Anonymous Coward
          No, selective prosecution is not legal (due to the Constitution). But it is very hard to prove. Also, just to get my two cents in, Dmitry should not testify, no way, no how. He's under the duress of forced imprisonment under a false law further under false charges (he is not his employer, which is the only entity which could be held to have violated the unconstitutional sections of the DMCA being used to prosecute). The U.S. government owes Dmitry money, time, and an apology. Dmitry owes the U.S. government nothing. This situation has been sick.
        • Back in the 30s (IIRC), the feds used this very tactic against doctors who were prescribing "too many" narcotics. They initially charged several perfectly legitimate doctors with violations of the Harrison narcotics act, but the courts kept aquiting them.

          So the feds waited until they caught some slimebag selling narcotics presriptions with no medical justification. They prosecuted that guy and won. Which is only sensible, since no jury wants to aquit some slimebag dope pusher.

          However, that case effectivly set the precident that the feds had the power to regulate what real doctors could and could not prescribe for their patients.

          Vaguely recalled source: "Drug Crazy", by Mike Gray.
    • by omnirealm (244599) on Thursday December 13, 2001 @05:58PM (#2701589) Homepage
      I mean, this is great for Dimitry, but it seemed like a perfect case to test the DMCA against the First Amendment.

      I couldn't disagree with you more. Dmitry was the absolute wrong test case. He is not within the jurisdiction of the DMCA, since he did not develop the software on American soil and he did not distribute the software in America. While his employer did distribute the software in America, Dmitry cannot be held responsible for the actions of his employer.

      This "test" kept Dmitry locked up on a foreign land away from his family for a crime he did not commit.

      The test case needs to be an American citizen, preferably a prominent university professor or researcher, who would publish an encryption circumvention technology, and who would be willing to go to jail in protest of the injustice of the law. This would not show contempt for the law; rather, it would show the highest respect for law.
      • He is not within the jurisdiction of the DMCA, since he did not develop the software on American soil and he did not distribute the software in America.

        Actually, ElcomSoft DID distribute the software in America. For profit. According to the complaint, an Adobe employee ordered the software over the internet as an FBI agent watched. It was paid for with American dollars through Paypal.

        When Adobe received the package at their American address, it was opened in front of the FBI. The Adobe employee then demonstrated to the FBI that the software could, indeed, decrypt their books. The rest is history.

        Dmitry was also caught distributing the software at DefCon, but I think he was giving it away, not selling it.

        ElcomSoft would have been fine if they didn't sell the software to anyone in the U.S. That's pretty simple, really - just don't ship anything to a U.S. address. If you're going to sell a product in a foreign country, you should at least make yourself aware of how the laws in that country pertain to your product.

        There's a reason Budweiser doesn't ship to Saudi Arabia - alcohol is illegal there. (Which is a bit ironic because it was Arabs who invented beer in the first place). I put that law on the same level as the DMCA in backwardness, but hey, it's their country and they can have whatever laws they want.

        The difference between Budweiser and ElcomSoft is that Budweiser respects the laws of other countries, no matter how backward they may seem.

  • Is this really a positive step? Wouldn't it have been better to have the law struck down in court as unconstitutional?

    Of course, it's definitely better for Dmitry.

    Twoflower
    • by JScarpace (463675) on Thursday December 13, 2001 @05:18PM (#2701371) Homepage
      The case is continuing in court, but it won't be against Dmitry, just Elcomsoft.

      This really is the best of both worlds. We get the opportunity to see the DMCA blown out of the water, and Dmitry gets to go home for the holidays.
      • by pdqlamb (10952)
        And wait, it gets better. If Ashcroft and his DoJ pursue the case and win, courtesy of judges carefully bought and paid for, nobody gets hurt (except the civil liberties of Americans). Elcomsoft goes to a Russian court, which throws out any penalty because what they did wasn't against Russian law. Elcomsoft chooses its banks carefully and wisely, and the government can't collect. Asscroft looks like a fool.
        • Any chance the case would drag out long enough for a new election and the chance to put someone else in the White House. I'm not saying that a different A.General would make a difference *cough*Microsoft*cough*, but its possible. Of course we may have to elect a Libertarian to the presidency... I wonder if we can get Butterfly ballots declared a federal mandated form ;)
  • Isn't he part owner of the company he works for?

    So he'd be going free in exchange for testemony against himself???
  • If I've read the articles correctly, Dmitri does not have to testify against ElcomSoft. He just has to testify, whether for or against, it doesn't make a difference.
    • no no, they are just saying testify because it is assumed that it will be on the DOJ side. he is making the deal with them, so he is going to be their witness...................

      Of cource, this is the same DOJ that let MS off the hok after having they had the company's face ground into the pavment, so I guess anything is possable :-p
    • This is kinda true. He has to testify as a government witness, but he doesn't have to lie on the stand (which would be illegal anyway :)

      In other words, he can say what he likes in response to the questions of the DOJ lawyer, but the DOJ gets to pick the questions.

      If this all seems unusually Machiavellian to you, well, it is.

  • by tcyun (80828) on Thursday December 13, 2001 @05:19PM (#2701373) Journal

    In today's agreement, Dmitry will be required to testify for the government and ElcomSoft expects him to testify for their case as well. The story Dmitry has to tell is exactly the same regardless of which side calls him to testify. Dmitry's story has not changed since that day in July, when the FBI arrested him in Las Vegas, and he is quite happy to tell his story again and again, if need be.


    - from the planetpdf article

    To say that he is going to testify "against" his employer seems to be a bit much. The various articles say that he will testify and that it is unsure which side will call him first.
  • by waldoj (8229) <`waldo' `at' `jaquith.org'> on Thursday December 13, 2001 @05:19PM (#2701375) Homepage Journal
    [waldo@tux]$ whois freesklyarov.org

    AgentZero Technologies
    955 Massachusetts Ave #130
    Cambridge, MA 02139
    US

    Domain Name: FREESKLYAROV.ORG

    Record last updated on 13-Dec-2001.
    Record expires on 18-Jul-2002.

    [waldo@tux]$ whois freedsklyarov.org

    No match for domain "FREEDSKLYAROV.ORG".


    Hmm...

    -Waldo Jaquith
  • come one (Score:2, Interesting)

    by Anonymous Coward
    The Times carried the AP wire. Wired carried the AP wire. You also linked to the AP directly. Don't the editors read before they publish? They're all the same!
    • Twenty posts begging for a mirror?


      This story probably wont generate a slashdotting, in some part because of the number of different sites linked to.


      But somebody always has to complain about something then, dont they.

  • If you look at the facts this is a good deal for everyone.

    Dmitri gets to go home.
    He gets to testify about writing a legal program in Russia.
    The DMCA test case becomes US vs ElcomSoft.

    Unfortunately, I doubt the chilling effect on presenting scientific/research papers will get explored. Although he would be able to persue a judgement like Felton went for and not get it thrown out like his was.

    -Jerry
  • A good deal... (Score:2, Informative)

    by Xerithane (13482)
    The DMCA still will be tried, and may or may not withstand judgement. However, no single person is getting the shaft from the long arm of the law which will help make this much easier on everyone involved on the defensive end.

    Let him testify, my guess is his testimonial will serve ElcomSoft better in defense.

    ... So, if he weighs the same as a duck ...
  • had better be willing to go to jail for his beliefs, in Russia, for an indefinite amount of time. Because otherwise, stfu.
  • The article states Dmitry lives in San Mateo with his wife and 2 kids. Did that change since the trial and he decided that he really did like the good ol' USA?

    At least they put on that Defcon was about hacking, you wouldn't want people to actually know it is a security conference that a lot of legitimate people speak and learn at.

    I thought /. reviewing of facts was bad.. geez.
    • by Gonarat (177568)

      Dimitry really did not have much choice. He was released from jail on bail provided he stayed in California. His wife and kids came to the U.S. because Dimitry was not allowed to return to Russia.

    • At least they put on that Defcon was about hacking, you wouldn't want people to actually know it is a security conference that a lot of legitimate people speak and learn at.

      Strangely, the writer seemed to change his/her mind midway through.
      At the beginning, we have:

      Sklyarov was arrested after speaking at a hacking convention in Las Vegas on July 16.

      but at the end:

      Adobe complained to the FBI, which arrested Sklyarov as he was preparing to fly back to Russia from the computer security convention.

      Maybe the AP just wants a little variety to spice things up.
      • Easy, it's a hacking convention in security convention clothing...
      • I thought the whole AP article was absolute drivel. It did not convey any clear story what so ever, and was slightly misinformed.

        I would have liked to have seen, "Dmitry is currently staying in San Mateo with his wife and kids, on condition of his release on bail forbidding him to return to russia."

        At least they didn't advertise him as a l33t h4x0r
  • by JungleBoy (7578) on Thursday December 13, 2001 @05:28PM (#2701429)
    I doubt that the DMCA will ever be tested in the US Supreme Court, especially in a criminal case. The corporations who put the law in place won't risk lost profits by letting the DMCA be test against the Constitution at the highest level. They will continue to beat people (and small companies) with it, then they will either get the case dropped or thrown out.

    There is something severely wrong with the check and balances system of the US Gov't. Laws don't have to be constitutional to be passed. Corporations (or AG Ashcroft) just have to keep the nconstituional laws from being tested all the way up to the SC. What we really need is a judiciary review of new laws (before they go into effect) which pits them against the constitution.

    -JungleBoy
    • Sorry, but there's nothing in the constitution preventing Congress to pass constitutional laws. Indeed, there's nothing in the consistition saying that the courts are where laws are deemed to be constitutional. The Supreme Court took this power upon itself, way back when (sorry, I forget the case where they decided it). They basically said "if we don't, then who?".
      • there's nothing in the consistition saying that the courts are where laws are deemed to be constitutional. The Supreme Court took this power upon itself, way back when (sorry, I forget the case where they decided it).


        That would be Marbury vs. Madison


      • (I assume you meant "unconstitutional".)

        Sorry, but there's nothing in the constitution preventing Congress to pass [un]constitutional laws.

        How about all those sentences that begin with "Congress shall make no law..."? To my non-lawyer's ear at least, that sounds like a pretty explicit statement that it is illegal for Congress to make such a law. (I just said the same thing twice, didn't I?) It seems that when Congress does make such a law, they are committing a crime: it says they shall not do it ==> they did it ==> they broke the law. Right?

        I just wish it included some provision for punishment of those who violate the supreme law of the land. Maybe your point would be better stated as "There is no incentive for Congress to pay any attention to the Constitution, since othing bad happens to them when they violate it."
      • Well, for what it's worth... any court can overturn any law over which it has jurisdiction. Trial (state circuit, federal district) courts don't have the right to rule on the merits of a law: they try fact, they assume the law is good.

        Once they decide on fact, an appellate court (state appellate, federal circuit) has the right to rule on the merits of a law / interpretation of law. For an ever popular example: Microsoft will always be a monopolist who has abused its power, no matter what an appellate court will ever say, unless it says that the legal reasoning in coming to that conclusion was somehow flawed.

        But the appellate court can say that the something in the law is wrong... that ol' Jackson was not impartial in his remedy, even that the law means for Microsoft to be explicitly exempt from the Sherman Antitrust Act. They can quite literally say the law means anything they want it to. In truth it is here where laws get "overturned" (they can make any judge quake in his boots at the prospect of having a decision overturned by the precedent set)

        The Supreme Court reviews the judiciousness of the appellate court, or can short-circuit the appellate level entirely (and can also hear a trial in original jurisdiction). For example, if an appellate panel had said that the Sherman Act was meant to exempt Microsoft the Supreme Court would likely laugh the whole way through their opinion sustaining the original trial court findings.

        So, to cut a long story middling, what happens in the trial court doesn't matter, but it doesn't really have to make it all the way to the Supreme Court if the appellate decision is thoughtful, and comes out from some respected judges.

        By the way, only a small proprtion of cases, maybe 5% are heard on appeal, and of those only another small fraction of those appealed are successful. Very few appeals decisions are heard by the Supreme Court (maybe five percent of the five percent where the appellants file for a further appeal).

    • Points of clarification. The Federal Court can declare in this case (or others) that a particular section of the DMCA violated the 1st Amendment. We should be already aware that this could happen. For instance, in the DeCSS case, the Court ruled that the 1st Amendment was not violated. They could have easily ruled the other way.

      At this stage, an appeal to the Federal Court of Appeal can be made. The Court of Appeal does not necessarily have to accept to hear the case. If they don't then the lower court decision sets a precident.

      If the Appeal is heard, then the decision of this Court sets the precident. Then it is on the Supreme Court which may or may not wish to take up a potential appeal.

      Congress in passing laws do have staffers who do review the constitutionality of a particular law. However, you cannot say that a bunch of Congressional staffers will have the insight and knowledge of the Constitution that Federal judges have. Certainly, not at the level of the Court of Appeal or the SC.

      Furthermore, the SC only rules on less than 100 cases per year. In many (all?) instances, their rulings are focused on a few specific aspects of the law and the Constitution. It would be totally unfeasible for the higher courts to evaluate all aspects of the laws that Congress pass.

      Ironically, the Constitution does not state that the SC has the authority of judicial review of Federal laws. This precident was set forth in Marbury versus Madison whereby the SC declared that the Constitution implicitly granted them this power. The SC later set the precident that they also have the power of judicial review when it comes to state laws.

    • Well, in this neck of the global wood, several constitutional bodies have the right to challenge any and all laws before the local version of the Supreme Court. This would be Germany, and a construct called "Normenklage" allows at least members of parliament (I forgot the other, probably the president and the executive, as well as lower courts) to put a law up in front of the Bundesverfassungsgericht, which is the supreme court tending to constitutional questions, and basically ask "Is this constitutional?" No need for a case or anything.

      Wonder why the U.S. doesn't have something like that...?

    • A good friend of mine who is a former legislator in Illinois told me "The only law i ever passed that i was sure was constitutional was a pay raise for the Supreme Court"
  • Free at last (Score:2, Insightful)

    by sllort (442574)
    Free at last.

    We can make whatever political statement we like about the American laws he may or may not have broken.

    But I'm pretty sure he's going to be happy to go home to Russia and see his wife and children.

    You know, Russia. Where he's safe from government persecution.
  • ...a la the Damian Conway purchase. Anyone in the right place to set up a little "hey, sorry our country hassled you, here's something for your trouble" fund? Or am I just being naieve thinking, well, among other things, that I can spell naieve?
  • by chuckw (15728) <chuckw@quantumlinux.com> on Thursday December 13, 2001 @05:34PM (#2701461) Homepage Journal
    What does it matter if he testifies against his company? The US can't do a darn thing to them since they aren't in this country. Look at the DeBeers monopoly. Diamonds aren't rare at all, but DeBeers made some strategic agreements with countries to keep most of the supply locked up. Now the DeBeers executives will be arrested if they ever enter this country. That judgement hasn't done a darn thing. DeBeers still operates and so will ElmComsoft(SP?). I think it's just the justice department's way of saying, "Yeah, it's a stupid law, but we'd look stupid if we just let you go, so we're going to ask you to do something stupid so we can save face."
  • by Greyfox (87712)
    You're free to go Dmitry! Sorry about holding you in a US Jail all that time! Changed our minds!

    He should be able to sue for something. Damned if I can think what, though.

  • I don't live in CA and couldn't get there anyway but why don't all the people who protested for him through a party in his honor before he goes home. Show him that not all Americans are jackasses and celebrate his freedom at the same time. Obviously he'd rather go home to his wife and kids but the party could easily be before he is allowed to leave California, it would at least lighten up the time before he gets to go home.
  • by eddy the lip (20794) on Thursday December 13, 2001 @05:39PM (#2701494)

    for some reason, the wired print version [wired.com] has more info, including this bit:

    ElComSoft's chief executive, Alex Katalov, said he was pleased that the company, not Sklyarov, would bear sole responsibility for the charges.
    i have to say, i'm very impressed with ElComSoft's generally enlightened attitude.

    wouldn't it be ironic if a russian company played a role in freeing america from an unjust law?

    • wouldn't it be ironic if a russian company played a role in freeing america from an unjust law?

      It's even more ironic that the term "Russian company" exists at all. Thank god the Cold War is over!

      Unforunately, we hand them a unhealthy dose of corporate greed called capitalism. If only they kept the socialistic ideals with a democratic government.
  • I would be first in line to purchase it.
  • This farce, was ill conceived. The program was written in Russia. It was not against the law there, but US douchebags thought they would make a "statement". How pathetic are US anyway? Back-ups of software for archival purposes have been legal for years. Was everyone asleep at the wheel on this one? Shit, I am embarrassed at being an American. "Slick Happens"
  • Link (Score:2, Informative)

    by RageMachine (533546)
    If anyone is interested in exactly what this program is and what it does. Here is the trial version produced by ElcomSoft. They had to strip it from their site. But here is the URL for the download. I would suggest version 2.2. Version 2.2 decrypts %25 of the e-book. The full version was originally sold for $99.

    It will be interesting to see if anyone will hack this version and make it able to decrypt %100 of the E-Book.

    http://diddl.firehead.org/censor/adobe_ebook/
  • How is this selling out, and why would it be a bad thing? His duty to his employer doesn't extend to concealing any illegal activities the employer may have committed.
    • by bstadil (7110)
      concealing any illegal activities the employer may have committed.
      The question about legality is the not simple as what they are accused of is n9t illegal in Russland. How would you feel if your caompny was charged with something say illegal in Saudi like selling alcohol and then had to go to jail . testify on the Henious nature of booze?
    • His employer has apparently been pushing for this solution for a long time, since they face "only" a maximum of 500.000 USD in fines, while Dmitri would face years in prison and a much larger fine, and Elcomsoft is on trial anyway. Having a someone they know and trust added as a witness where they stand to loose a maximum of 500.000 USD (and how would a US court manage to force a Russian company to pay a fine?) seems like a low price for them for freeing an employee and friend.
  • Dmitry goes home (deserved) but has to give testimony of hiy employer. The case is not dismissed, will go against Elkomsoft. The US Justice will find or construct enough evidence to win the case. It offers Elkomsoft to drop charged in exchange for know-how and services in terms of password cracking and deciphering systems. If they don't they shatter the company.

    Might just happen. Maybe not. Who knows, but it sure is a scary thought.
    • Threatening someone with damages and then offering to "protect" against that threat in exchange for some services is called racketeering and is supposed to be illegal.
    • The maximum punishment for ElcomSoft is 500.000 USD. It's highly unlikely that a few sales will cause the court to come back with the maximum punishment. Hardly much of a set of bargaining chips for DOJ.
  • by autopr0n (534291)
    This is fantastic news for Sklyarov, personaly. And I for one am glad to see this played out on the more traditional copyright battlefeilds... between companies without worrying about anyone going to jail. Not to mention against people in another country as well. So unless Russia agrees to extradite these people not to much can happen to them, other then having their US (and possibly other WIPO nations) frozen.

    But ultimately, this is still a loss for our freedoms and everything. Adobe had to consider the public outcry in the computer world. The Hollywood conglomerates won't. The US DOJ still proved that they're willing to go out and do 'the real thing' against individual programmers. And there was no legal victory for the EEF or any of the anti-DMCA people (not that I think Sklyarov should have martyred himself). Hopefully we'll be able to get the thing overturned, but it's going to be harder to defend a Russian company with the lead programmer testifying against them, then the sympathetic coder with a family back home.
  • Alexander Katalov (Score:5, Interesting)

    by BrotherPope (8102) on Thursday December 13, 2001 @06:13PM (#2701659)
    ElComSoft's chief executive, Alex Katalov, said he was pleased that the company, not Sklyarov, would bear sole responsibility for the charges.

    Hands down, Mr. Katalov is the coolest employer I've ever seen. Since Dmitry's arrest, he had been front-and-center, doing what it took to get Dmitry free regardless of the risk. Thomas C. Greene [mailto] raised this issue in an article [theregister.co.uk] in The Register [theregister.co.uk] a while back and it got my attention. But I am very impressed that he continued to put responsibility on his company when Dmitry would have provided a convenient scapegoat.
  • by thumbtack (445103) <thumbtack@ j u n o . com> on Thursday December 13, 2001 @06:15PM (#2701672)
    There is a big difference. Deffered is kind of like probation. "Do this for this long and we will remove the charges completely..If you don't the full charges will be reinstated and since we now have your confession your goose is cooked". This is often used to allow the prosecution to "drop" charges while saving face. Sometimes used to gain testimony, sometimes to force the person to adhere to certain conditions and often used to give a win-win spin to the case. "he did technically break the law, but we see no need to prosecute...blah..blah ...blah...

    From The US Attorneys Office
    FOR IMMEDIATE RELEASE
    December 13, 2001

    The United States Attorney's Office for the Northern District of California announced that Dmitry Sklyarov entered into an agreement this morning with the United States and admitted his conduct in a hearing before U.S. District Judge Whyte in San Jose Federal Court.

    Under the agreement, Mr. Sklyarov agreed to cooperate with the United States in its ongoing prosecution of Mr. Sklyarov's former employer, Elcomsoft Co., Ltd. Mr. Skylarov will be required to appear at trial and testify truthfully, and he will be deposed in the matter. For its part, the United States agreed to defer prosecution of Mr. Sklyarov until the conclusion of the case against Elcomsoft or for one year, whichever is longer. Mr. Sklyarov will be permitted to return to Russia in the meantime, but will be subject to the Court's supervision, including regularly reporting by telephone to the Pretrial Services Department. Mr. Sklyarov will be prohibited from violating any laws during the year, including copyright laws. The United States agreed that, if Mr. Sklyarov successfully completes the obligations in the agreement, it will dismiss the charges pending against him at the end of the year or when the case against Elcomsoft is complete.

    Mr. Sklyarov, 27, of Moscow, Russia, was indicted by a federal Grand Jury on August 28, 2001. He was charged with one count of conspiracy in violation of Title 18, United States Code, Section 371, and two counts of trafficking for gain in technology primarily designed to circumvent technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A), and two counts of trafficking for gain in technology marketed for use in circumventing technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A).

    In entering into the agreement with the government, Mr. Sklyarov was required to acknowledge his conduct in the offense. In the agreement, Mr. Sklyarov made the following admissions, which he also confirmed in federal court today:

    "Beginning on a date prior to June 20, 2001, and continuing through July 15, 2001, I was employed by the Russian software company, Elcomsoft Co. Ltd. (also known as Elcom Ltd.) (hereinafter "Elcomsoft") as a computer programmer and cryptanalyst.

    "Prior to June 20, 2001, I was aware Adobe Systems, Inc. ("Adobe") was a software company in the United States. I was also aware Adobe was the creator of the Adobe Portable Document Format ("PDF"), a computer file format for the publication and distribution of electronic documents. Prior to June 20, 2001, I knew Adobe distributed a program titled the Adobe Acrobat eBook Reader that provided technology for the reading of documents in an electronic format on personal computers. Prior to June 20, 2001, I was aware that documents distributed in the Adobe Acrobat eBook Reader format are PDF files and that specifications of PDF allow for limiting of certain operations, such as opening, editing, printing, or annotating.

    "Prior to June 20, 2001, as a part of my dissertation work and as part of my employment with Elcomsoft, I wrote a part of computer program titled the Advanced eBook Processor ("AEBPR"). I developed AEBPR as a practical application of my research for my dissertation and in order to demonstrate weaknesses in protection methods of PDF files. The only use of the AEBPR is to create an unprotected copy of an electronic document. Once a PDF file is decrypted with the AEBPR, a copy is no longer protected by encryption. This is all the AEBPR program does.

    "Prior to June 20, 2001, I believed that ElcomSoft planned to post the AEBPR program on the Internet on the company's website www.elcomsoft.com. I believed that the company would charge a fee for a license for the full version of the AEBPR that would allow access to all capabilities of the program.

    "After Adobe released a new version of the Adobe Acrobat eBook Reader that prevented the initial version of the AEBPR program from removing the limitations or restrictions on an e-book, I wrote software revisions for a new version of the AEBPR program. The new version again decrypted the e-document to which it was applied. The version of this new AEBPR program offered on the Elcomsoft website only decrypted a portion of an e-document to which it was applied, unless the user had already purchased a fully functional version of the earlier version and had both versions installed on the same machine. The new version was developed after June 29, 2001. At that time, Elcomsoft had already stopped selling the program. The version of this new program offered on the Elcomsoft website did not provide a user with an opportunity to purchase it or convert it to a fully functional one, and was developed as a matter of competition.

    "On July 15, 2001, as part of my employment with Elcomsoft, I attended the DEF CON Nine conference in Las Vegas, Nevada. At the conference I made a presentation originally intended for the BlackHat conference that immediately preceded the DefCon Nine in July 2001 in Las Vegas, Nevada. The same group of people organizes both BlackHat and DefCon Nine. Since there was no available slot for a presentation at BlackHat at the time when the paper was sent for the committee consideration, the organizers of both conferences suggested that the paper be presented at the DefCon rather than at BlackHat. The paper that I read at DefCon is attached as Exhibit A. A principal part of my presentation is comprised of my research for the dissertation. In my presentation when I said "we", I meant Elcomsoft."

    Mr. Sklyarov's employer, Elcomsoft, remains charged in the case, and the Court in that matter has set hearings for various motions on March 4, 2002, and April 1, 2002.

    The prosecution of Elcomsoft is the result of an investigation by the Federal Bureau of Investigation. Scott Frewing and Joseph Sullivan of the Computer Hacking and Intellectual Property ("CHIP") Unit are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of legal technician Lauri Gomez.

    A copy of this press release and key court documents filed in the case may also be found on the U.S. Attorney's Office's website at www.usdoj.gov/usao/can <http://www.usaondca.com>.

    All press inquiries to the U.S. Attorney's Office should be directed to Assistant U.S. Attorney Matthew J. Jacobs at (415)436-7181 or Assistant U.S. Attorney Ross Nadel, Chief of the CHIP Unit, in San Jose...
  • Poor reporting (Score:5, Insightful)

    by booch (4157) <{moc.kehcubgiarc} {ta} {0102todhsals}> on Thursday December 13, 2001 @06:16PM (#2701675) Homepage
    The AP article says:
    He lives with his wife and two children in an apartment in San Mateo and was working on a doctorate in computer science.
    Which makes it sound like he was living in the US before he was arrested. The only reason he's living in San Mateo is that the US won't let him go home to Russia. His family had to be flown here to live with him.
  • by dackroyd (468778)
    From the US attorneys office of North California and their press release [usdoj.gov].

    "For its part, the United States agreed to defer prosecution of Mr. Sklyarov until the conclusion of the case against Elcomsoft or for one year, whichever is longer."

    Er, so that means the case is not dropped just deferred, but they aren't going to prosecute him until the case against Elcomsoft is resolved.

    Mr. Sklyarov will be prohibited from violating any laws during the year, including copyright laws.

    Er, so he doesn't get special permission to break laws ? :-?

    "Elcomsoft, remains charged in the case, and the Court in that matter has set hearings for various motions on March 4, 2002, and April 1, 2002."

    I don't think this case will get resolved for _years_. There's not that much of a dispute about what actually happened, it's just the interpretation of whether it's illegal or not....and it seems that the US government don't want to see this case resolved quickly, and so it isn't going to be sped through the courts or through the appeals.

    Hey, does that mean that my Free Sklyarov T-shirt is now a collectors item ?
  • As far as I understand it, he was released on bail for a while. Unless he was under 24h surveilance he could have easily made it to Mexico or Canada at which point he could have caught a plane to Russia.

    I'm sure it's all very illegal to do that, but really, who cares? It's just a US court charging him with a US law, paid for by US corps.

    Once he made it home to Russia I would imagine he'd be hard to extradite. He might never be able to travel to the US again, but that's not really a big drawback, especially for him... I doubt even if all charges were dropped tomorrow (with no conditions) that he'd ever come back willingly.

    So, why not just skip the country? It's painfully obvious that he has no moral reason to stay and suffer punishment.

    Is it a matter of difficulty? I've never (before Sept 11, at any rate) had any problem crossing the US/Canada or US/Mexico border. (I assume that's a skin-color related difficulty, and mostly when coming *from* mexico.)

    I sure as hell wouldn't stick around, risking 20 years (or more) in prison in a foreign country when I could flee to my home country where everyone agreed that I hadn't committed a crime.
  • Living in utopia (Score:2, Insightful)

    by david_g (24196)
    It's funny... Someone said once that we have the bad habit of loving things and using people, when it really should be the other way around.

    It's funny because this situation illustrates it extremely well.

    On the one hand, there's the Big Bad Microsoft, hand in hand with all the content providers, all wanting to narrow what people can do with the "digital content" they buy. As someone who loves music (fortunately, the kind that doesn't sell that much and can be bought at used cd stores for very little) I find the thought of not being able to rip the cd's to my laptop (so I can listen to whatever I feel like listening to without having to carry a bunch of cd's from one place to another), disturbing. If I paid for the thing, I should be able to do what I wanted with it, shouldn't I? I'm revolted at the degree of selfishness and greed that's taking over content producers, and while I understand that they have an obligation to the shareholders and owners, I find it very sadening to see that the maximization of profits leads to so much trampling of other freedoms.

    On the other hand, there's this whole bunch of people, in their rightful indignation, ready to take arms against the enemy. You know, it's kind of funny the way we end up being so concerned about some things and not at all concerned about others. In fact, this could be a great way to stop watching so many movies, or to stop hearing so much music, or even to stop being so much time at the computer. The problem here is that we are getting so attached to these virtual fixes that the ones that provide them will (obviously) look for way of earning more from it. Doesn't it say so much about our present condition?

    Everyone's loving things more (and probably using people more). So why don't we stop? There's such a big world out there (and a real one, for that matter), so many opportunities to have a life, so many things to do... I can say for sure that I would like to learn a lot of stuff, read a whole ton of other stuff, and to be a lot more sociable than what I currently am.

    And, you know what? If people stopped caring so much with the small things, the ones that produce them probably wouldn't be so busy trying to rip everyone off...

    Strange world that in which we live...

  • by Catbeller (118204) on Thursday December 13, 2001 @09:58PM (#2702628) Homepage
    That sums up part of the deal. For one year, he has to not break American law WHILE HE IS LIVING IN RUSSIA.

    Is this Pournelle's American Empire at last? Has anyone noticed that the DOJ now claims worldwide powers?

    So fast, so fast it's happening...
  • by NKJensen (51126) <nkj&internetgruppen,dk> on Friday December 14, 2001 @02:51AM (#2703276) Homepage
    US law seems unpredictable to a scary degree, I for one would never consider relocating to the US due to this. This feeling is certainly shared by many other non-US residents.

    When the economy is recovering next time, this may become a problem. To those of you out temporality of work, how about spending your effort changing this situation to the better?
  • by evanpcordes (543925) on Friday December 14, 2001 @04:14PM (#2705690)
    Sklyarov had faced five charges and up to 25 years in prison -- five years for each violation of the DMCA -- and fines of up to $2.25 million. ElcomSoft faces a $500,000 fine if found guilty of the five counts of "conspiring, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader."

    Hmmmm..... So if I, an individual citizen, break the DMCA, I go to jail and pay a very large fine. If I become "Individual Citizen, Inc." and break the DMCA, I don't go to jail and I pay a small fine. The CEOs who wrote the law were smart enough to protect themselves.

If I have seen farther than others, it is because I was standing on the shoulders of giants. -- Isaac Newton

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