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Sklyarov Case Opens Today 318

Posted by timothy
from the please-use-the-pirate's-entrance dept.
weakethics writes "The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."
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Sklyarov Case Opens Today

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  • by Anonymous Coward on Monday December 02, 2002 @02:39PM (#4795157)
    Copyright test in San Jose
    Russian expected to take stand in Adobe E-book code case

    Carrie Kirby, Chronicle Staff Writer Monday, December 2, 2002

    After a year of delays, the government is finally set to try in San Jose this week the first criminal case stemming from a law designed to bring copyright into the 21st century.

    The United States of America vs. ElcomSoft Ltd. pits the need to protect intellectual property in the age of Internet file-trading and CD burning against the public's traditional right to use media they buy any way they want to.

    The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books.

    When the case was first brought in July 2001, it garnered international attention because it was the first criminal test of the Digital Millennium Copyright Act, a 1998 law eagerly sought by entertainment and software companies and bitterly opposed by cryptography researchers and free-speech advocates.

    The case also grabbed headlines because the U.S. attorney for the Northern District of California actually jailed a Russian graduate student, Dmitry Sklyarov, for allegedly writing a computer program that violates the law.

    To many, locking up a skinny, pale-faced student for writing a computer program was as ridiculous as incarcerating people who tear the "Do not remove" tags off mattresses. But to protesters who surrounded the San Jose jail, Sklyarov's incarceration was no laughing matter. His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment.

    Now, Sklyarov, 27, is expected to serve as the government's star witness.

    In December 2001, Sklyarov agreed to testify in the case in exchange for having the charges against him dropped. Actually, he is expected to testify for both the plaintiff and the defendant, said Judy Trummer, spokeswoman for both Sklyarov and ElcomSoft.

    "He has a single story to tell, and it doesn't differ with who calls him to the stand," Trummer said.

    Jury selection for the trial is scheduled to begin this morning. However, Sklyarov and ElcomSoft's president, Alex Katalov, were not expected to arrive in the United States until Sunday night or this morning, Trummer said. ElcomSoft attorney Joe Burton planned to ask for a delay if his client is not present, she said.

    Katalov and Sklyarov both had difficulties getting visas to return to the United States, but have finally received "parole visas" that allow them to be in the country only for the duration of the trial, Trummer said.

    Northern District of California Assistant U.S. Attorney Scott Frewing may also call to the stand a number of people who bought ElcomSoft's E-Book cracking program, and two investigators employed by Adobe, whose complaint against ElcomSoft started the case.

    The case, to be tried by U.S. District Judge Ronald M. Whyte, is expected to draw much attention, because the issue of copyright in the digital age is as hotly contested now as it was when Sklyarov was first arrested 16 months ago.

    But Peter Toren, a former Justice Department attorney who prosecuted technology copyright cases, said that some of the case's drama may have worn off since Sklyarov was first arrested.

    Then, supporters of consumer rights and free speech warned that criminal prosecutions based on the Digital Millennium Copyright Act would stop encryption research and other legitimate activities.

    But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law.

    "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years," Toren said.

    E-mail Carrie Kirby at ckirby@sfchronicle.com.
    • I don't get it (Score:3, Interesting)

      by roemcke (612429)
      The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books.

      I don't get it.. How can Adobes intellectual property rights have been violated? It's the pdf content that has been cracked (is now viewable without licensed viewer) NOT the pdf viewer !!??

      • Re:I don't get it (Score:5, Insightful)

        by DeComposer (551766) on Monday December 02, 2002 @04:03PM (#4795839) Journal

        But Adobe wrote and has patented the technology that encrypts the contents of the eBook. The DMCA specifically prohibits the circumvention of such security devices and Adobe, who uses this particular device, feels that they may face a substantial loss of revenue if their technology is cracked.

        Analogously, if a lock manufacturer has their technology circumvented (i.e. someone creates a universal key) is it the responsibility of the users of the locks (whose stuff might get stolen) to pursue the keymaker, or is it the responsibility of the lock manufacturer? Arguably, in a case such as this, both the responsibility and the financial incentive reside with the lock manufacturer to pursue the keymaker.

        OTOH, Skylarov's tool essentially restores fair-use rights that Adobe has stolen from eBook consumers.

        I create copyrighted material. I prefer that my material is protected from plagiarizing. But if some kid likes my music well enough to download MP3's of it (not that that's an even remotely plausible scenario), I'm not going to lose any sleep thinking that I've lost that $0.03 royalty. Far better IMO to view it as free advertising. And if the kid's parents hear it enough, maybe they'll buy him the CD and then I'll get the whole $0.38.

        As far as I'm concerned, the DMCA is bad law. I hope it gets struck down resoundingly and that Michael Eisner gets so angry about its defeat that his ulcer explodes and drowns him in gastric acid (or the non-violent equivalent, if you prefer--whatever that is).
        • Re:I don't get it (Score:4, Insightful)

          by gorilla (36491) on Monday December 02, 2002 @04:24PM (#4796009)
          Historically, a lock manufacturer with a lock which is too easily circumvented has had to go out and invent a better lock. That's how we've got better and better locks.
      • It doesn't matter if anyone's IP rights have been infringed.

        1. Make a circumvention device
        2. really bad dude = you = terrorist
        3. go directly to jail
  • by phraktyl (92649) <`wyatt' `at' `draggoo.com'> on Monday December 02, 2002 @02:39PM (#4795166) Homepage Journal
    Free Kevin!

    Wait, sorry---wrong trial...
    • by unicron (20286)
      Free Kevin, indeed. I was really interested in reading this until I caught the "right-thinking people everywhere" remark. This sensationalist news-reporting has to go stop on /.. Is it really that hard to leave just a smidgeon of objectivity? Their are a lot of you that you claim their are a lot of nefarious organizations out there trying to take away my rights and influence the way I think but I'm starting to see the lines blur between us and them. Instead of right-and-wrong it's become my-way-their-way.

      So in the future, admins could you please try to just report the news without shallow, short-sighted remarks and let us form our own opinions about the story? It would go a long way with me.
      • by jmu1 (183541)
        I've never, in the four or so years that I've read /. that this was a haven for objective journalism, much less journalism at all. I mean, we can't all be Fox News Network( wink, wink ).

        I am capable of coming to my own conclusions, as are others. Reading of various opinions, facts and observing their validity is how I so such. I don't expect everyone to either be completely stoic, nor do I expect anyone to succum to my way of thinking.

        You've come here, I'm guessing for a pretty long time. By now you should have decided whether or not this little haven of geekdom is worthy of your readership. If you haven't, give it another try. If you have, and you decided it's not to your liking, stop bitching and go somewhere else.

        It'll be interesting to watch the fate of the DMCA unfurl, for sure. I'll be watching from as many sidelines as I can.

      • To be truly objective is not humanly possible. Everyone has an opinion, and it will come through. We call the news reporing objective when it agrees with our own preconcieved notions, so stop crying for objectivity when you really just want everyone to agree with you.
  • by pheph (234655) on Monday December 02, 2002 @02:41PM (#4795179) Homepage
    "But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law." ... The reason he hasn't heard about it is the same reason that many projects don't exist right now.
    • Whomever modded this troll is an idiot. pheph is spot on. The reason this is the only case that he has heard of is it is the only one the DoJ thought they had a snowball's chance in hell of winning. Any other case could possibly be used as precedent to challenge their darling little law.

      This makes me sick. This guy doesn't care if a blind person can read an ebook, he probably could afford to hire someone to read it to him!

      I truly pray justice prevails in this case. Though considering the current political and legal climate in the US, I don't have much hope...
      • Can you name me a few examples of cases that the DOJ isn't bringing to court for fear of setting a destructive legal precedent? I'm not denying that your statement may be accurate, but I'm not familiar with these cases.

        • Thats not the point. The point is that before any controversial project reaches any sort of maturity, developers discontinue their research, etc out of fear from legal attacks based on the DMCA. Just because nobody has been sued, doesn't mean no one has been intimidated.
          • I totally agree with that analysis of the situation. But that's not what was said in the message I commented on. That post seemed to suggest the DOJ was prosecuting this case because it had a chance and that it was not prosecuting others because it would lose. No argument that people are being intimidated :)
        • by kableh (155146) on Monday December 02, 2002 @05:17PM (#4796416) Homepage
          A big one would be the Felton vs SDMI fiasco. They threatened his legitimate work with a DMCA lawsuit, then, after that fucked up any chance of him presenting his work at a security conference, denied that they had any intention of suing.

          I'm probably not being accurate by saying the DoJ. In the Felton case, it was the SDMI consortium and RIAA that threatened him. My reply was just a bit hasty.

          That isn't the point though. These cases never come to light because those who are challenged can't even begin to mount a legal defense, and therefore, fold like Superman on laundry day. The mere threat of invoking the DMCA has most definitely had a chilling effect. I'm sure you're aware of this though, and that was the point I was trying to make.
      • by uncoveror (570620) <.moc.rorevocnu. .ta. .retsambew.> on Monday December 02, 2002 @04:11PM (#4795902) Homepage
        Reading adobe e-books aloud violated one version of their licence agreement rading e-books aloud to the blind could itself violate the DMCA.
  • by Jacer (574383) on Monday December 02, 2002 @02:43PM (#4795199) Homepage
    these things obviously don't go hand in hand, or the trial would have already been over. Then again it may be a bit harder to try when the plantiff drops the charges, and the ill informed government picks them up... Or they could have been just trying to keep him behind bars until technology changes enough he's no longer a threat (mitnick) in anycase, the DMCA is the spawn of satan...
  • by TVmisGuided (151197) <`moc.liamg' `ta' `pmuj.nala'> on Monday December 02, 2002 @02:47PM (#4795226) Homepage

    The reason there haven't been any cases is because none of the small-time developers who have run afoul of the DMCA so far have had deep enough pockets to hire lawyers with enough intestinal fortitude to take it on and get it shot down. One good failure of the DMCA in case law would be all it takes, but (IMO) unless you've got the financial resources of Microsoft, Sun, Oracle et al you ain't gonna get the job done. So rather than fight the good (but expensive) fight, developers get that nasty letter which threatens to invoke DMCA and they knuckle under.


    'Nuff said.

    • by McChump (218559) on Monday December 02, 2002 @03:18PM (#4795493)
      No, not 'nuff said. You've missed the point.

      The DCMA has criminal and civil provisions. THIS IS THE ONLY CRIMINAL DCMA CASE THAT HAS EVER BEEN PRESENTED, period. You're talking about the civil provisions of the DCMA (which are admittedly terrible, nasty , awful, misused, all of that stuff). The Justice Department simply doesn't go around sending out cease and desist letters.

      From a tactical standpoint, I'm hoping that Elcomsoft gets convicted, since I'm betting that the criminal provisions of the law will be deemed overbroad and vague on appeal. Then, by implication, thoose arguments will become more available to defendants in civil DCMA cases.
  • One case, sure (Score:2, Insightful)

    by Henry V .009 (518000)
    And how many threatening legal letters that got content pulled were there?
  • by Mitreya (579078) <mitreyaNO@SPAMgmail.com> on Monday December 02, 2002 @02:48PM (#4795232)
    What can this case do? It seems to me that what Elcomsoft + Sklyarov did is clearly against DMCA. So unless DMCA is repealed, they will be found guilty of violating it, no?

    This is not deep-linking, they *did* break the copy protection. As wrong as DMCA might be, it is a law at the moment.

    • Appeals (Score:5, Insightful)

      by wiredog (43288) on Monday December 02, 2002 @02:54PM (#4795296) Journal
      That's the point. We want to lose at trial. That way we can (try to) get the law tossed on appeal.
      • Re:Appeals (Score:3, Insightful)

        by cheezedawg (413482)
        I think you are forgetting that there is somebody named Dmitry involved here- I highly doubt he wants to lose his criminal trial just on the off chance that the law gets repealed afterwards. Its easy for you to say that because you are not the person on trial here. "Come on Dmitry- take one for the team!"
        • I think you are forgetting that there is somebody named Dmitry involved here- I highly doubt he wants to lose his criminal trial just on the off chance that the law gets repealed afterwards. Its easy for you to say that because you are not the person on trial here. "Come on Dmitry- take one for the team!"

          Dmitry is not on trial -- Elmcosoft is. Dmitry got off on a plea bargain. (He got to go away if he agreed to testify.) Probably it was a case of the prosecution finally realizing that Dmitry was a pretty sympathetic dependent, from a media/public point of view. In any event, the company is who's on trial, and as such it's probably fines and so forth (not jail time) that we're talking about. There is no personal harm that Dmitry will be taking.

          -Rob

        • Re:Appeals (Score:3, Insightful)

          by DarkZero (516460)
          As others have noted, it's Elcomsoft on trial now, not Dmitry, but I don't think that's really the important issue here. I think what's really important is that Elcomsoft is probably guilty of breaking this law and that their best hope is to get convicted and then have the law itself struck down on appeal.

          It's not "taking one for the team". I think it's probably a reasonable legal strategy when you've been convicted of a dubious law that has not been tested in court.
    • That is the point. to get it to the supreme court so they can strike it down.

    • Well, aside from the fact that the law is an affront to all things free and right, the program in question was written in Russia. As far as I know, the DMCA has no authority there. If I am not mistaken, Russian law guarantees the freedoms that the eBookReader software returns to the user.
      • the program in question was written in Russia. As far as I know, the DMCA has no authority there.

        However, Russian law cannot grant authority to sell Russian products to U.S. residents, which Elcomsoft did.

        • by nate1138 (325593) on Monday December 02, 2002 @03:13PM (#4795459)
          And US law cannot grant authority to arrest a Russian citizen who performed the illegal act in his own country. If this was a US citizen, our government's attitude would be completely different. He didn't sell anything. His company did. He is not an officer, owner, or anything else of consequence. He is simply an employee.
          • Yes it can.

            If he was FedEx'ing heroin or mail-bombs to US citizens, you bet the US would swear out a warrant, and negotiate an extradition with the Ruskies.

            BTW, the /. summary is innacurate and misleading. The company is being charged, not the programmer. Sklyarov is a witness for both the prosecution and defense.

            Simple spin, slashbots will be more adamant in defending a person, than a corporation.
            • by MindStalker (22827) <mindstalker.gmail@com> on Monday December 02, 2002 @03:51PM (#4795732) Journal
              But he was an employee. Ok lets take this in reverse. Remember when yahoo was charged with selling nazi stuff in france. If a american employee of Yahoo went to france on a visit and got arrested? What would we all be saying? now descision making executives of a coperation can be criminally arrested for thieir discisions. But this guy didn't make the discision to sell his program in American he simply produced an legal program in his country, and his employer made a discision to skirt the law and try selling it in the US.

              You also seemed to have missed the point that Sklyarov was initially charged with this crime and spent a few weeks in jail for it, I hope he gets some sort of compensation.
          • It can, if the person happens to be somewhere he is under US jurisdiction. Which pretty much means that a lot of people can't travel to the US before you get more sane legislation.
      • the program in question was written in Russia
        Yeah, but didn't they arrest him right after he demonstrated it in America?
      • You've nailed one of the many reasons that they dropped the charges against Dmitri.

        Elcomsoft does business in the US. They can be tried in US courts as long as they would like to continue doing business here. The only charge against Dmitri that would have flown is due to his presentation here in the US. The DMCA makes it illegal to tell other people how to circumvent encryption on copyright material. He did that. Of course that is a much clearer free speech issue, so I think they got a little scared.
    • "What can this case do?" ... "As wrong as DMCA might be, it is a law at the moment."

      If Elcomsoft is found negligent, they can appeal. The federal court could find that the DMCA is unconstitutional and render it inapplicable for the 7 or so states under which it has jurisdiction.

    • Point 1: A lot of people feel the DMCA is unconstitutional. They don't want to see court
      cases where the DMCA is upheld.

      Point 2: Many people feel the DMCA is a law "bought" by the entertainment industry. They feel the DMCA is another example of how our government is representing big business rather than the voters.

      Point 3: Many companies HAVE used threats of DMCA action as a weapon against would-be competition or a challenge to their control of the market. Even if the party the threat is against has not actually violated the DMCA, the cost of going up against a huge corporation in court is enough to scare a lot of people.

      Point 4: Elcomsoft and Sklyarov made their software in RUSSIA. Some people feel that the Sklyarov, at least, should not be punished for doing something in Russia that was against a US law.
    • How can they violate a draconian yankee law in Russia?

      Yes he visited the states, but he did not break the law (do the act) while in the states. He does not sell the software his employer does.
    • We want this to be a test-case, so that the DMCA can be over-turned.

      But the problematic point is that the US has no jurisdiction. The Elcomsoft and Skylarov are in Russia, so the US has no jurisdiction over them what-so-ever. I'm startled that Skylarov and Elcomsoft are actually appearing before a US court. Had they stayed in Russia, the US court would have no jurisdiction/sovereignty what-so-ever. The court could have ruled against Elcomsoft, but would have no way of enforcing a punishment, as Elcomsoft is in Russia.

      Now that Elcomsoft's president is in the US, they can use that as leverage to enforce their ruling, by imprisoning Elcomsoft's president until Elcomsoft acquiesces.

      I don't see why Skylarov and Elcomsoft are being so stupid. They have no obligation what-so-ever to come to the US. Skylarov could stay in Russia, say fuck the agreement to testify, and suffer no consequence. Likewise with Elcomsoft.
      • If you choose to do business in a country, your business actions in that country are subject to the laws of that country. So the instant Elcomsoft knowingly sold its first copy of the program to a US citizen, the DMCA had jurisdiction over that act. You are right the DMCA has no jurisdiction over Dmitry - he wasn't involved in sales, so he wasn't the one violating the DMCA by choosing to provide the product to US citizens. But the company itself is under the jursdiction.

        The possible punishments are limited, though. At most the US can tell Elcomsoft it is not allowed to do business inside the US.
  • by Dunark (621237) on Monday December 02, 2002 @02:48PM (#4795234)
    Only one criminal case in four years, but how much intimidation? And how many websites, etc, taken down without anything resembling due process?
  • criminal cases (Score:5, Insightful)

    by Techi (529851) on Monday December 02, 2002 @02:50PM (#4795265) Homepage
    It seems that some people have misunderstood how the DMCA is being abused. Companies are not trying to get people jailed for violations, they are just reaming them of all of their money. Though it is possible for criminal prosecution to result from a violation of the DMCA, big companies want money more than imprisonment.
  • The whole reason (Score:4, Insightful)

    by jmu1 (183541) <jmullman@nospAm.gasou.edu> on Monday December 02, 2002 @02:51PM (#4795270) Journal
    we have laws is for intimidation. As much as I hate to say it, laws are not there to punish people but to deter particular situations which are popularly held as inappropiate. So, I suppose that the DMCA has been a success in that respect. However, the inability to actually enforce such a broad, generaized law makes the law useless in the long run.

    Perhaps one day soon, congress will realize what a mammoth beast this thing is and kill it. Perhaps they will realize that they should make enforcable legislation. Nah, just pipe dreams.

    • As much as I hate to say it, laws are not there to punish people but to deter particular situations which are popularly held as inappropiate

      Key word: "popularly." And obviously, many of the situations that the DMCA doesn't allow are situations that are *not* popularly held as inappropriate, but rather held as inappropriate by those who have the money. Much as I hate to say it, this government is becoming less and less representative of the people as a whole.
      • Quite true.

        However, given that legislators only hear from those with money(or those who have been trodden upon by previously passed legislation), it is often percived by those in public offices that what they are doing is popular.

        I'm hoping that after a few very public lashings, the people of this country will start paying attention, writing their elected officials, and attend public meetings.

        With the past year's aggression and neglect toward liberty, citizens are getting their hair mussed and looking to the government to fix everything so they can go back to playing their X-boxes and eating their TV dinners. If the Federal government doesn't watch out, they may legislate themselves out of a job(and no, I'm not talking about elections).

  • by pubjames (468013) on Monday December 02, 2002 @02:52PM (#4795272)

    As I understand it the DCMA is supported by the film and music industry because it allows them to create technologies which they can wrap their content in, which are illegal to try to break.

    What happens if we create a file compression/security method that incorporates an original encryption technology, with some mechanism by which you only give out the key to people you trust? We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support. Wouldn't that be a good way of demonstrating the stupidity of this law?
    • What happens if we create a file compression/security method that incorporates an original encryption technology, with some mechanism by which you only give out the key to people you trust?

      And this is where it falls down. The **AA don't actually mind (much) if you give out a key to your friends and give them copies of your stuff. It's just like taping a CD for a friend - it doesn't achieve the kind of critical mass that actually cuts into their profit margins. Only anonymous access does that.

      What you're proposing is not really any different from putting your MP3s etc onto an SCP server and emailing the password to your friends (but only them). Technically illegal, but small fry.

      • Rhubard is right -- this won't do it. You need to do something a little more involved.

        First, you do what pubjames suggested -- encrypt your files strongly and share them via P2P. Be sure to put something to which you own the copyright in each file (a small image of a tree or something like that)!

        Second, give instructions for finding the password on your web site. The URL you put in should point to a click-through where you promise you are not a law enforcement agent (DMCA has a law-enforcement exclusion that this will close off).

        That click-through will take you to a page where you have the password. The password should also be encrypted, but very badly. I suggest rot13. This page gives permission to decrypt the password only to individuals wishing to view content for their personal pleasure.

        Law enforcement agents can't look at the page because of the click-through (otherwise it's "entrapment"). I'm not sure that this is true in an on-line context, so don't blame me if it goes wrong!

        Any geek worth their salt will be able to tell that the password is rot13 and have access to the content. If someone from the **AA "decrypts" it, they've violated the DMCA.

        I wouldn't try this myself, but it *might* work!
    • I think we should stop using P2P networks and start sharing files by sending specially trained bees which could live in our noses. When stimulated properly, the bee will reveal the byte sequences by doing its hive dance...therefore a swarm of bees descending over your house will actually be the encoding for "...!XXX GOODBLOWJOB.AVI"
    • by AntiNorm (155641) on Monday December 02, 2002 @03:16PM (#4795479)
      We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support. Wouldn't that be a good way of demonstrating the stupidity of this law?

      They would then just use their 'we can hack P2P to find bad stuff' attitude to break it, and the government would let them. As I said a few posts ago, the government is not representative of the people as a whole, but representative of those with money. This isn't the way it should be, but it's the way it is.
    • No, because the DMCA is about copy controls ("technological measures") that restrict access to copyrighted content. If this compression/security method does not primarily protect content that you own the copyright to, then the RIAA breaking it surely won't be circumvention of a copy control mechanism.

      Also, as far as I know, just because information is obtained illegaly (by private citizens or corporations), that doesn't mean that it can't be used to sue you.
    • We could then put whatever material we wanted on P2P networks, and the film and music industry representatives wouldn't even be able to find out what we were sharing without breaking the law they support

      That sounds cool but I don't think it will work.

      In order to qualify for protection under the DMCA, aren't you required to use encryption methods to protect copyrighted works?

      I don't think you'll be covered if you use encryption to protect SOMEBODY ELSE'S copyrights. You have to have the copyright yourself.

      It's not like I could encrypt my bootleg of When Animals Attack or whatever, and then distribute it, and hope to get off because The Man decrpyted it in violation of the DMCA. What I did was illegal in the first place, so the fact that The Man broke his own laws to get me is probably trivial.

      I say probably, but it is conceivable that there's a judge out there who would throw out the evidence (i.e. the decrypted file) because The Man didn't have a court order or subpoena or whatever allowing the decryption. Don't bet on it.

      While your plan would certainly demonstrate the stupidity of the law, most judges would overlook that transgression to get to the "root" which is the fact that all p2p users and open source advocates are, in their minds, a bunch of thieves or something. Which is funny, because I'm sure their kids or grandkids have hard drives full of mp3s, and they don't even know it. They think p2p is some freakish seamy underworld, and in fact it's as common as AOL. Heck, maybe they even trade shows on their TiVo or ReplayTV or whatever, and don't even realize what they're doing. Because TiVO has brought corporate legitimacy to p2p, and more than that they've mainstreamed themselves -- witness the "My TiVo thinks I'm gay" sitcom episodes. Without corporate backing and media buy-in, you will be viewed as an outcast. (Look at the people who live off-grid, for example.) In this case, it's obvious that ElcomSoft, a foreign company whose every product cracks files, is fighting an uphill battle. They will probably lose, and the wording will be in such a way that an appeal won't serve the purpose of challenging the DMCA.

      This whole controversy smacks of the clash of generations, of "kids" threatening the power base of an older generation who has never played a FPS game or knows what a LAN party is. I don't think we'll see any victories anytime soon, but in twenty years, when copyrights are set to expire again, your Congressional Representatives might have actually grown up in a house with a computer or two in it. They will have a different outlook.
      • I don't think you'll be covered if you use encryption to protect SOMEBODY ELSE'S copyrights. You have to have the copyright yourself.

        But the point is that stuff could be encrypted so that you couldn't tell what it was unless you circumvented the copy protection, which is what the DMCA is all about. So if on the P2P network some people were trading materials to which they owned the copyright, and other people were not, how do you go about proving anything without breaking the law? The people sharing legitimate files could rightly sue them under the DMCA.

    • That's what Aimster did/Madster does. Kindof. The whole point was that in order to view the files you downloaded, you had to violate your license agreement. Dunno about circumventing encryption.

      They seem to be failing due to obscurity since the name change, rather than legal problems. I'm sure that their legal safety would only last so long as they remain obscure.
  • by haedesch (247543)
    Case Opens Sklyarov
  • Quick trial? (Score:5, Insightful)

    by MacAndrew (463832) on Monday December 02, 2002 @03:05PM (#4795388) Homepage
    Conceding for now the DMCA's validity, is there much in the way of factual disputes here? If the facts check out, do you accept that ElcomSoft is guilty? I'm pretty sure I do. I'm not saying I want them to be guilty, just guessing at the outcome.

    ElcomSoft was doing this for profit, if that makes any moral difference. Selling locksmithing tools to a burglar is not particularly savory or legal, and this aspect will make the jury less sympathetic (notice that ElcomSoft wanted a jury). If the skirmishes over the statute did not extricate them, I don't know what chance they have unless there is a juicy factual dispute about who-did-what-where. Yet they haven't pleaded out, assuming a plea agreement was even offered in the test case... Hmm. Need details. Speculation overload.

    It is intriguing that no cases have been brought. Yes the law has been used for intimidation, but the prosecutors have no obligation to let anyone off with a warning -- they can prosecute the first infraction. It would be interesting to know why the law apparently has been given low priority.

    BTW, I agree the treatment of Dimitry Sklyarov (sp?) was shameful. I don't think Kevin Mitnick is a good analogy, however. Their actions and alleged crimes were of very different natures. Yes, there were problems in the Mitnick prosecution as well, but Sklyarov's no Mitnick.

    Here [eff.org] is the EFF's somewhat dated FAQ on the case, more detailed certainly that the Chronicle.
    • Hmmm, OK lets take for a moment that the DMCA is valid and enforcable in the USA, and that a US business interest (Adobe) is allowed to drag a Russian business interest (Elcomsoft) into court for violating DMCA in the US. Ignoring Sklyarov in this whole mess entirely for the sake of arguement, could not Adobe be hauled into Russian court by Elcomsoft for being in violation of Russian law? After all the product they created was designed to make Adobe's product complient with the law in Russia.

      Frankly the whole thing is going to end badly I fear. More US 'we can but you can't' style legal shenanigans.
    • I'm not saying I want them to be guilty, just guessing at the outcome.

      I A N A L, all the below is uninformed opinion.

      The initially trial isn't what's interesting in a case like this, as odds are everyone will agree that Elcomsoft is guilty under the law as written. What is interesting is the appellate process: is the law as written valid law under constitutional tests? And to test that, you've got to have a guilty verdict first: in the US, only appellate courts can rule on the constitutionality of a law, and noone can bring a court case unless they are an interested party - which in this case means Elcomsoft needs a guilty verdict before they have standing for a case at the appellate level.

  • The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."


    Do you realy need to be left handed to dislike the DMCA? I mean I know that left handers are the only ones in their right mind, but truely even left brained people can see the flaws of the DMCA.

    Or does this have to do with Conservative vs. liberal views?
    • Let's call this what it is:

      Intellectual Property Rights vs. Innovation Rights

      In this case it can be argued that Dmitry Sklyarov is a hacker who hacked together and conspired to traffic a digital crowbar that disables the lock Adobe's eBook.

      - OR -

      Dmitry Sklyarov is just a mere employee who wrote software for his employer to enable the user to convert THIER personal eBooks to other formats.

      The irony this dichotomy is: THERE IS NO DICHOTOMY. Both Statements are correct.

      The real question is: Should ElcomSoft be criminally convicted for writing a very legitimate software? It's legitmate in Russia. It was a legitimate and common type of software in the US not too long ago. It only allows the user to convert THIER personal eBooks to other formats. It has many valid uses. ...but in the US, it's against the law...

      Nope... Doesn't seem like a Conservative vs. Liberal Issue to me...

  • by bwt (68845)
    I agree that the DMCA has not had the effect it was intended to have. It is very similar to the Napster decision in this regard. Sklyarov's company IS the first criminal prosecution. 2600 lost, but DeCSS is still available. They didn't have to pay any real damages either. Felten published his paper. Any dolt can watch DVD's under linux with a variety of players that get better every few months. The bottom line is that the general public is quietly ignoring this law.

    The only real effect of the DMCA is that companies can't openly distribute stuff that violates the DMCA. Good. It makes people who want that stuff anyway look to alternative channels of software distribution to get it.
    • Re:I agree (Score:5, Interesting)

      by Tom7 (102298) on Monday December 02, 2002 @03:30PM (#4795569) Homepage Journal
      > The only real effect of the DMCA is that companies can't openly distribute stuff that violates the DMCA.

      I don't think that's really true. The DMCA is used to intimidate and annoy regular well-intentioned folks like myself on a weekly basis. Check out my dmca troubles [cmu.edu] over a font program I wrote, for instance.
      • Re:I agree (Score:3, Interesting)

        by bwt (68845)
        First of all, you deserve a lot of credit for standing up to the allegations that were sent your way. Bravo.

        On the other hand, you prove my point. You are still distributing your program. Their attempts to shut you down failed. They probably did "annoy" you, but it is very clear from reading your letters that they did not "intimidate" you. Since they have not brought litigation against you, it appears instead that you have intimidated them.

        The ambiguities in the DMCA cut both ways, and the 2600 case illustrates that you may have to litigate for years and in the end all you will get is an injunction that applies to one of the 30,000 kayakers coming down the Hudson, to paraphrase the judge.
        • Re:I agree (Score:4, Insightful)

          by Tom7 (102298) on Monday December 02, 2002 @06:43PM (#4797059) Homepage Journal
          Sure, but I think I am in a special situation. First, I've had similar legal threats before, so I know not to be scared off over a few emails. Second, my content is hosted by a (relatively) enlightened provider (my university). Third, I'm a grad student with no money and no particular responsibilities to family, job, etc.

          If any of these things wasn't true, I think I'd have much more trouble keeping the program up. If my ISP took it down, as the safe harbor provisions of the DMCA make so tempting, what would I do? If I had money to lose or couldn't afford the court time because of job commitments or family, how could I risk going to court over something so silly? If I didn't realize that such mails are often just a bunch of hot air, how would I have reacted? I think that many more projects get taken down voluntarily precisely because hobbyists can't afford to provide defense, even if they are in the right.

    • by Gorimek (61128) on Monday December 02, 2002 @03:37PM (#4795611) Homepage
      That may seem like no big deal, but one effect is that it adds to the many laws that a lot of people break daily.

      This adds up to that everyone is a criminal and can be put in jail at will by The Authorities, should they ever feel that need. And that is not a free society.
  • by jaredcoleman (616268) on Monday December 02, 2002 @03:10PM (#4795426)
    "His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment."
    Can someone explain this argument to me? I honestly do not get it. My understanding is that free speech means that the government can't throw me in jail for saying "DMCA sucks!" But just because I have freedom of speech doesn't mean that I can do malicious things with my speech and expect no consequences. I can be prosecuted for yelling "fire" in a crowded movie theatre, so why can't I be prosecuted if my speech is malicious in some other way? Also, how can you justify interpreting 'speech' in this broad way? I can't imagine the framers would agree. Just honestly curious, no flame please.

    • by Tom7 (102298)
      The argument is essentially that programs are a form of expression (including machine code), and thus are protected speech. This has been upheld by courts, for instance (I believe) in the Bernstein crypto software case. (Personally, while source code as speech makes perfect sense to me, I'm a little bit reluctant to call compiler-generated machine code 'speech', though there is some remnants of speech in there.) In the 2600 case the judge rejected this argument because, though he held source is protected speech, the source code in this case was also simultaneously a "device" (ie, a circumvention device) under the DMCA. This is similar to considering a libelous poem to be simultaneously a creative work (ie, copyrightable) but also illegal because of its libelous content.
    • The History of Yelling Fire in a Crowded Theatre

      As long as we're talking about Justice Oliver Wendell Holmes's classic example of unprotected speech, let's learn a little about the context, especially considering it's been invoked by so many people in so many contexts.

      The analogy came from the Schneck v. United States in which Schneck was being prosecuted for causing subordination among soldiers who had been drafted in WWI. He and others had circulated leaflets asking draftees to not "submit to intimidation". The leaflets did not encourage draftees to break the law, rather it encourage them to consider their rights.

      Justice Holmes opinion was that the constitution protects these leaflets during peace time, and that wartime deserved special circumstances.

      In order to support his special circumstances opinion, he illustrated his opinion with the famous "Fire in a Theatre" analogy.

      The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

      Justice Holmes upheld his convictions that the leaflets presented "A Clear and Present Danger"

      Of course, when the founder father drafted the Bill of Rights, they must of forgot about their own "Clear and Present Danger" that they presented to His Majesty's Empire.


      Oh wait, If the founding fathers were hung up on this "Clear and Present Danger" exception, why didn't they write it down, but rather write the Second Amendment and Third Amendments instead?

      Source Code - A Precise Mathematical Notation?

      What do these things have in common?

      Literature, Music, Paintings, Sculptures, WebPages, Movies, Pornography, Video Games

      They're all Intellectual Works protected by copyright law!!!

      What do these things have in common?

      Literature, Music, Paintings, Sculptures, WebPages, Movies, Arm Bands, Middle Fingers, Flag Diapers

      They're all protected by the First Amendment!!!

      What does Copyright Law Consider Expression?

      According the US Copyright Office, in order for a work to be copyrighted, it must be a work that is a fixed in a tangible form of expression. Therefore, ALL copyrighted materials are tangible forms of expression!

      What does the Law Say?

      Title 17, Circular 92, Chapter 1, Section 102
      Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

      Is Software Really a form of Expression?

      I like working with extremes myself, so let's start with Video Games. They seem to be the most expressive form of all expression. A great Video Game mixes and blends all sorts of art, music, and literary work and combines it all with an intelligent engine, which is a mathematical art form in itself. If one wanted to be an artist that truly affects and influences people, wouldn't it be logical to blend many art forms into one cohesive form of immersive art?

      What about Source Code

      If you're going to describe what source code is to someone who's never seen it, it can be best describe as a very precise mathematical notation. A program is almost always a mathematical model representing real object or phenomenon. A Database is a mathematical model of an index filing system, while a Word Processor is a mathematical model of type setting machine. When these models are executed on a computer, they may behave just like the physical device, but it is still only a model of that device, expressed in a mathematical notation.

      If it's copyrightable, it's expression. You can't have it both ways...
    • "I can be prosecuted for yelling "fire" in a crowded movie theatre,"

      Please allow me to fix your analogy. The DMCA isn't about yelling "fire" in a crowded theater, it's about keeping people from saying "This theater is a fire hazard." Doing so would require both reverse-engineering the theater (to see what the specific hazards are) and distributing the information to people who may not have bought a movie ticket (and therefore never having been in the theater themselves).

      Those together are made illegal by the DMCA, because saying "This theater is a fire hazard" would seriously hamper the theater's sales and their "right" to make a profit.
  • I'm sick of this: which is it? I've seen both spellings used pretty consistently, but never in the head and body of the same article. Good reporting starts with getting the name spelled right: could someone clue me in?

  • "The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books."

    What the layman will think: Those Russians are trying to steal our stuff!!! We need to stop them! What lawyers will think: Those Russians are trying to steal our stuff!!! We need to stop them!

  • by asolipsist (106599) on Monday December 02, 2002 @03:16PM (#4795476)
    As other posters have pointed out, the main effects of the DMCA appear through fear of litigation rather than Federal court cases. A group of us, telecom grad students, wrote a paper on quantitative effects (chilling) of the DMCA on security research. We used the bugtraq incidence list as our source of raw data. We concluded there were some measurable effects, though kinda small.

    (its an academic paper, you have to find some sort of effect right!)

    you can check it out here [fox-den.org]

    (I know .doc is bad! sorry, lost the pdf version)
  • by Ektanoor (9949) on Monday December 02, 2002 @03:35PM (#4795601) Journal
    The USA Federal Government fought for tens of years the Soviet Regime. One of its reasons was that the soviet power was more intimidation than jurisprudence.

    11 years after the Fall of the Soviet Union, Russian citizens fight a federal law that is more intimidation than jurisprudence... in the USA.
  • by Newer Guy (520108) on Monday December 02, 2002 @03:37PM (#4795613)
    Morons will be morons!

    How much simpler can I say it?

    AND...the USA has morons everywhere, from the president on down!
    Who do you think ELECTS the morons? Other morons.
    Or are they the morons after all?
    Why? Because many smart people like us ACT like morons and don't even bother to vote!
    In the last election, 61% of the registered voters didn't vote. I voted. Did you?
    Probably another 20-30% of the people eligible to vote aren't even registered. Are you?
    The DMCA is probably the most anti-freedom law ever passed. We all bitch about it. Did you vote?

    Maybe you people who didn't vote or register are the morons after all.

    Think about it.

    "Evil flourishes when good people do nothing"
    -Edmund Burke-
    • The DMCA is probably the most anti-freedom law ever passed.

      Right.

      Sedition Act (1798)

      SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, ... shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

  • by Anonymous Coward
    I hate the DMCA as much as the next guy, But it seems people aren't very clear on why Skylarov was arrested. He wasn't arrested for writing the program, (Directly anyway), he was arrested for giving a presentation about how he broke it, in th US no less. Of course, I could be wrong.
  • by drinkypoo (153816) <martin.espinoza@gmail.com> on Monday December 02, 2002 @03:49PM (#4795721) Homepage Journal

    it's about intimidation rather than litigation

    In today's legal world, litigation em about intimidation. Let's say you have a private plane that fails because a spark plug breaks (fairly unlikely I know, spark plugs don't actually break that often), and you crash-land it in a mall.

    Now, everyone sues everyone. The mall sues you, your insurance company, the spark plug company, the airport in which you store your plane, and the maker of the plane. The maker of the plane sues the spark plug company. The spark plug company sues the company that sold them the clays for the ceramic.

    This is also why most insurance policies contain a clause which you must agree to in order to get insured which says that if anyone sues you and the insurance covers the suit, you have to basically agree that you are in the wrong, and they will settle. So suing people has actually become the science of settlements; How much are they likely to settle with me for? How much can we settle for and have it still be cheaper than going to court? Etc.

    Obviously the DMCA and related are solely intended to intimidate the masses via persecution of the few, but don't try to play it up like it's unusual. The courts are used for intimidation and extortion every day. It's just a matter of course.

  • by Ektanoor (9949) on Monday December 02, 2002 @04:30PM (#4796060) Journal
    O'Reilly's site has a very detailed and interesting article called "And Justice for Adobe" [oreillynet.com]. It has lots of details, a chronology of events and several links related to the case.
  • by wfrp01 (82831) on Monday December 02, 2002 @04:44PM (#4796209) Journal
    a single criminal case because ... why?

    Maybe because the beneficiaries of this remarkably stupid legislation are afraid to death that litigation will turn on the DMCA's unconstitionality, rendering it null and void.

If a camel is a horse designed by a committee, then a consensus forecast is a camel's behind. -- Edgar R. Fiedler

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