U.S. To Drop Charges Against Sklyarov

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 : [e-mail] links to a slightly more in-depth AP report at the Seattle Post-Intelligencer.

Re:A Positive Step?

[JScarpace]

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.

Why this will be good for breaking the DCMA.

[JASegler]

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

Would you not do the same thing?

[Chloe Dubois]

If you were suddenly arrested by the federal polices, and held in jail for many months without being able to see your wife and very young child, I doubt you would give up the chance to see your family and native home again. He is no "weak-hearted coward" for putting his own dedication to his family above your silly anti-DMCA campaigning. He is just a regular person like you or myself, he does not wish to be the revolutionary or martyr for your cause.

I for one am happy to know he is free to be seeing his wife and children; I know if I were kept a long time from my soon-to-be-husband Yves for a great part of a year, I would do anything to see him again, and I think you would too.

DOJ is biding their time....

[Bonker]

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...

DMCA will never get to the US Supreme Court

[JungleBoy]

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

Re:Would you not do the same thing?

[zbuffered]

The company he works for put up his bail and arranged for his defense, no? So if what he says in trial goes strongly against them, i.e. "I didn't want to write it, but they made me, honest!" then he's a coward. If, however, he says, "yeah, I wrote it, they bought it from me and decided to sell it" or some such thing, well that's different.
Also, I don't seem to know of any charges being held against his employers yet, so for now, nobody is in trouble. This wrong has been righted, if only temporarily.

Free at last

[sllort]

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.

Re:Legal Advice for foreigners

[(void*)]

What do you mean, he demostrated an action that broke US law?What did he demostrate? He GAVE A TALK. That TALK has, as a subject matter, how to crack ebook encryption. Is that a demostration?

By that peculiar logic, Hollywood should be jailed and locked up by DEMOSTRATING how to hijack airplanes. I would say that is more appropriate example of DEMOSTRATING, than giving a talk.

Say what you want about legality. The whole point is that this piece of legality is immoral, unconstitutional.

Re:Well that sucks ...

[omnirealm]

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.

Re:DMCA will never get to the US Supreme Court

[smyle]

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

Re:Red's Free America, Film at 11

[Brendan Byrd]

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.

Poor reporting

[booch]

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.

Re:What does it matter anyway?

[Teancom]

I doubt if he was in college, that he was an executive of the actual company. AFAIK, it is only the execs that have the "enter the country and get arrested" order. Simply being a member of "the family" is not a crime... Same reason they don't arrest mobster's wives, and prosecute for aiding and abetting.

Re:Is Selective Prosecution legal?

[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.

Living in utopia

[david_g]

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...

Re:Legal Advice for foreigners

[startled]

However, his talk was a detailed explanation on how to circumvent ebook encryption, and under the DMCA that very act is illegal.

Trafficking in a circumvention device is illegal; I'd be quite surprised if giving a talk about was-- even a Congressman can figure out that a prior restraint law would get smacked down real fast. Do you happen to have a passage in mind that would make the action you described illegal?

Re:It ain'tover til the fat lady sings

[Uncle Warthog]

Hmmm. Not good. This reeks strongly of "This is your confession. Sign here, please."

The wording appears to be trying to paint Dmitry and ElcomSoft in as damning a light as possible (which, let's face it, isn't very, except when viewed vs. the DMCA).

I find it difficult to imagine that he came out with that on his own without it somehow being prompted or, worse yet, ghost written. What I don't find it difficult to imagine is that this may have been his only chance of seeing his wife and children on any kind of semi-permanent basis.

The worst thing is that the government is reserving the right to place him on trial (or should I say back on trial) any time a year or more from now. They have not said they'll definitely be dropping charges against him. I can easily forsee a situation where, in a year or once the ElcomSoft trial is over, the government could cobble together some explanation of how Dmitry didn't meet his "obligations" and place him back on trial.

I had hoped our government wouldn't be resorting to this kind of tactic. It's beginning to get to the point where I'm actually ashamed to call myself a citizen here.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:DMCA will never get to the US Supreme Court

[David Gould]

(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."

US law scares me away from the high-tech jobs

[NKJensen]

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?

Re:Well that sucks ...

[JohnDenver]

As for those of you calling the prosecution of Russian citizens committing crimes on American soil unconstitutional and evil, I hope to have your support when I visit Germany and hold pro-Nazi rallies and am arrested for them. After all, I'm from the US and am not bound by the German law even if I'm in Germany, right?

Umm... That would be a great point, IF he broke the law on US soil, but SURPRISINGLY even the DOJ knows he broke this notorious US law on Russian soil.

The reason they arrested Dmitry is because his company TRAFFICKED said illegal software, by targeting the US marking when selling it on the Internet. NOTE: Dmitry did not traffic any software, he just wrote it.

The best analogy for this case is: You wrote some software which accesses porn around firewalls for your employer. Your employer decideds to traffic this software into Saudi Arabia, where for the sake of argument they just enacted a law banning devices from gathering porn off the Internet.
You take a vacation to Saudi Arabia and are arrested.

A. The software you wrote in your country is perfectly legal and should not subject you to other country's laws, unless YOU decide to knownling profit by trafficking to a country you know where this software is illegal.
B. Employees shouldn't be held liable for thier companies actions.

Don't you think this case is setting a horrible precident for other countries to emulate?

You can tell the DMCA was written by a corporation

[evanpcordes]

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.