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Sklyarov, Elcomsoft Plead Not Guilty 484

squared99 writes: "I'm sure it has already flooded slashdot, but Dmitri has entered his plea, not guilty. This NYTimes article talks about it. Not sure I like the mention of bumper stickers, as opposed to the real people who have been protesting, but at least it talks about the support he has been getting. It even appeared as one the main newsworthy item on my daily NYTimes newsletter, Yay! Let's keep up the support and protests. As my brother said to me the other day, "The only way to beat bullies is to stand up to them."" See also Elcomsoft's statement about the case, a story in the Boston Globe, and this cute fable about a DMCA future. Update: 08/31 19:37 PM GMT by M : one more link - the Russian Foreign Ministry has warned its programmers not to travel to the United States.
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Sklyarov, Elcomsoft Plead Not Guilty

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  • by cmorriss ( 471077 ) on Friday August 31, 2001 @03:26PM (#2240455)
    "Even where the law is wrong it must be obeyed"

    Is the criminal justice system not part of our democracy? You seem to imply laws can only be changed if the Congress passes a law to repeal it. That's not true at all. If the law is unconsititutional, the judicial system has more than enough power to declare it so.

    Sounds like you're fighting for the wrong side.
  • by fcd ( 89027 ) on Friday August 31, 2001 @03:39PM (#2240530)
    An unjust law does not demand being followed simply because it is the law. Our country has a history of unjust laws. Take for example the Jim Crow laws in the south. You state that you agree with the people who put MLK in jail. The people who turned dogs and hoses on protestors, civil protestors, not violent ones, simply because it is the law?

    It is our duty as Americans to protest and commit acts of civil disobiedience when we believe a law is unjust. We must, of course, expect to be punished for our actions, but we must never fall blindly into the belief that we should obey and accept people punsihed under unjust laws, to do so is to sign away our freedoms one by one, because as many of you know waiting and writing to Congress to get something done, is not the most effective thing you can do.

    Someone who is being punished under an unjust law is being unjustly punished, and you should not support punishing him, if you do not believe the law is just, to do so is hipocrasy.

  • Re:law and guilt (Score:5, Insightful)

    by furiousgeorge ( 30912 ) on Friday August 31, 2001 @03:42PM (#2240552)
    Please explain how is is guilty of doing work in another country where this activity isn't illegal? When did the US's jurisdiction become international.

    There's probably fifty things you've done today that are crimes in other countries (read much about Afghanistan lately) - keep things in perspective.

    ALSO - if you plead guilty, then this doesn't go through the courts with the potential result of the DMCA being declared unconstitutional. If everybody pleads guilty there is ZERO chance of the law being struck down.

    Don't be obtuse.
  • by brulman ( 183184 ) on Friday August 31, 2001 @03:45PM (#2240566)
    for showing up in court yesterday to stand by his employee. He certainly didn't have to come all the way from Russia, and risked getting arrested himself to do so. It impressed me a great deal, and hopefully it will have a similar effect on the court.

  • sorry, but nope (Score:2, Insightful)

    by Seumas ( 6865 ) on Friday August 31, 2001 @03:50PM (#2240603)
    Sorry, but if it was a non-american involved, he would still be ignored by the public and the media. Any little attention he would manage to receive would be with the accusation that he is a rampant cracker and criminal spawned by bullying through his highschool years and society's general lack of morality, yadda yadda yadda.

    American's don't care about things unless it affects their religion, the children or their cable television prices.
  • by daoine ( 123140 ) <moruadh1013@ya h o o . com> on Friday August 31, 2001 @03:54PM (#2240626)
    despite the fact that he knowingly and willfully comitted an act of copyright infringement. This is a crime.

    Not necessarily the case. If it is the case that

    -in Russia, it is legal to copy software and its content for backup purposes
    -in Russia, it is legal to sell software to create said backups
    -Elcomsoft made no sales of circumventing software to US companies

    then in fact, it's pretty hard to enforce a US law, because it doesn't take place in the US. If this had happened to a US programmer in a US company, the case would be much cleaner...because it WOULD be illegal. In fact, it's surprising that they aren't choosing a local to hold up as an example. It would be much easier to convict an American who broke the law in the US.

    Granted, Slashdot creates cult heros, but I think this is the wrong example to pick on them for. In this case, it's not a matter of someone not getting their free-as-in-beer stuff. It's a much more complicated scheme of making an example of someone who didn't necessarily break the law.

  • by guygee ( 453727 ) on Friday August 31, 2001 @03:57PM (#2240644)
    The sixth principle of the IEEE/ACM Software Engineering Code of Ethics and Professional Practice [computer.org] states:

    6 PROFESSION - Software engineers shall advance the integrity and reputation of the profession consistent with the public interest.

    One implication of this principle is that we all need to stay informed on events related to the intergrity and reputation of our profession in order to defend ourselves against unjustified external attacks. Clearly, the Sklyarov case represents an attack of unprecedented ferocity on the profession of software engineering. Iam currently teaching 2 sections of a graduate-level software engineering course, and in an informal poll last week Iwas shocked to learn that less than five out of sixty students had heard of the DMCA or Dmitri Sklyarov. I emphasized that it is our professional duty to keep informed and to speak out against the persecution of software engineers. Besides linking to information on this and related cases on my course webpages, Iam considering some type of assignment that will encourage students to respond in some way to the threat represented by the DMCA. Letter writing campaign? Protest actions? I am writing slashdot to solicit recommendations.

  • by radish ( 98371 ) on Friday August 31, 2001 @03:57PM (#2240646) Homepage

    Surely this is a troll?? Well just in case, here's the "Skylarov for Dummies" explanation:

    The guy has NOT been charged with infringing copyright (or if he has that's not what's being complained about) - it's the charge of "creating a circumvention device". This is prosecuting him for creating a tool which MIGHT be used to infringe copyright, but has other legitimate uses as well. If someone uses a hammer to break into my home, I say prosecute the guy breaking in, not the guy who designed the hammer. I bet you use copiers from time to time - what if Xerox were forced to stop making copiers because someone MIGHT use them to copy the pages of a copyright protected book?


  • by brlewis ( 214632 ) on Friday August 31, 2001 @03:59PM (#2240657) Homepage
    Without action to raise public awareness, people will think laws are being passed to "protect intellectual property" rather than to take away constitutional rights [salon.com] for the convenience of industry.
  • by tshak ( 173364 ) on Friday August 31, 2001 @04:00PM (#2240659) Homepage
    Skylarov not guilty in the eyes of Justice, but he is guilty in the eyes of the law, as far as I can see.

    Not quite. Two simple points prove this statement wrong:

    • It is arguable if parts of the DMCA is constitutional. If the law is unconstitutional, it can not be upheld.
    • It is arguable if he violated the DMCA while in the US.

  • by Zwack ( 27039 ) on Friday August 31, 2001 @04:01PM (#2240672) Homepage Journal

    He came here and spoke about his program, hence he trafficked his information here, which is illegal under the DMCA.

    I don't believe that talking about weaknesses in software is illegal. It certainly isn't trafficking.

    The trafficking in this case is the sale in the US of software that he first wrote. The fact that he was outside the US is allegedly irrelevant as he/Elcomsoft used a US based server/service to sell the software.

    Claiming he is guilty is surely against US judicial protocol as he is "Presumed Innocent until Proven Guilty".

    Proclaiming him one way or the other merely makes one look uninformed.


  • Funy you should mention *he* looks uninformed.

    Pleading not guilty means that he gets his day in court when he (and his representation) can argue that the DMCA is unconstitutional.

    *That* is the way that laws can be struck down.
  • by Chris Y Taylor ( 455585 ) on Friday August 31, 2001 @04:04PM (#2240698) Homepage
    As cmorriss points out, laws in the U.S. are not only amended through the legislature, they are also declared null and void if they are found unconstitutional by The Court. This does NOT require any sort of "democratic action". In fact, if the Supreme Court rules that a law is unconstitutional then it doesn't matter how popular it is with the public, it is gone. Personally I rather like it that way; it prevents a "tyranny of the majority" and protects even unpopular rights and the rights of unpopular groups (to a point).

    I suspect DMCA is very unconstitutional, and hopefully if EFF can make a good enough case The Court can be convinced to overturn it; so supporting them in this effort is important.

    Your "democratic action" does have its place. Even if it doesn't reverse this law, making your displeasure over DMCA known (in an thoughtful, clear fashion) to your representatives in Congress gives them feedback on the quality of their legislation and may prevent future similar "bad laws" from being enacted in the 1st place. This feedback is very important, but often times legislatures get insulated from the results of their work, and then some poor person (like Dimitri) has to be the "test case" victim to get it corrected in The Courts.

    "Democratic action" has its place, but democracy (or in our case a republic) without constitutional restrictions and a judiciary system is tyranny waiting to happen.

    While in theory I also disagree that all "wrong laws" must be obeyed, in this context the difference is only academic. The injustices and tragedies of war are so great that I think the laws must be very, very wrong and very, very uncorrectable before that step can be justified. But having your gov't know in the back of their mind that they could never rule out such a response is a useful deterrence to extremist bureaucrats.
  • by sealawyer ( 473327 ) on Friday August 31, 2001 @04:07PM (#2240720)
    I've seen a number of posts suggesting that there is no doubt about Dmitri's guilt. Here is a list of conceivable ways that Dmitri could be found not guilty.

    1) The DMCA is unconstitutional. No valid law to break means not guilty.

    2) No jurisdiction over whatever activities Dmitri did commit. I don't think Dmitri can be prosecuted for writing or using the program in Russia. He must be implicated in the sales activity.

    3) Although Dmitri is the copyright holder, the government does not establish that he colluded with Elcomsoft to sell the product in the US. Most countries don't have the same kind of "work for hire" copyright laws as the US, so it is perfectly plausible for a Russian employee to be a credited with the copyright and yet not be the motivating factor in his employer's sales strategy.

    I haven't read the latest charges so I don't know what evidence the government has other than what was alleged in the original affidavit.

    For those people who want to see the whole thing played out to the end, there is this encouraging news from Dmitri's lawyer:

    Mr. Burton said Mr. Sklyarov would not plea-bargain. "That is out of the question," he said.
  • by Pinball Wizard ( 161942 ) on Friday August 31, 2001 @04:11PM (#2240738) Homepage Journal
    with the Skylarov case. First, there is a big difference between Ed Felton, who broke the SDMI encryption and Skylarov. Felton did his work as a purely academic excercise, whereas Skylarov made a product and distributed it for sale.

    Seems to me if Skylarov was only interested in promoting better security he wouldn't have tried to sell his product. This looks to me like someone trying to make a buck off an insecure product.

    Look at it another way. I come up with a key that can open and start any Ford vehicle. I have a couple of options. I could contact Ford and show them the tech that allows anyone to break into their vehicles. Or, if I don't want to deal with Ford directly I could publish the findings in an academic journal without trying to sell the key.

    Instead of doing that, however, I decide to market and sell keys that can break into every Ford. Now, don't you see what's wrong with that? I could have taken the high road, but instead I tried to make a buck. This is pretty much what Dmitry did.

    I can assure you, that if anyone tries to market a key that will unlock any Ford, that person will get thrown in jail if caught. Why should software be different?

  • by JeremyYoung ( 226040 ) on Friday August 31, 2001 @04:27PM (#2240803) Homepage
    My country has humiliated me. My country, the United States, has deeply embarassed me. How is it that the country that stood for freedom of speech has now gone so low as to begin warping laws that it's citizens granted artists to restrict civil rights? Worse yet, we're not restricting the civil rights of our own citizens, WE'RE RESTRICTING THE CIVIL RIGHTS OF CITIZENS FROM COUNTRIES WHOM WE ENCOURAGED TO EMBRACE FREE SPEECH. In fact, we're doing such a good job of it, that now Russia is warning it's citizens not to travel to our country, just like our country constantly warns us not to travel to China.

    This is exceedingly humiliating and depressing. It was less than 15 years ago that we encouraged Gobachev to tear down the wall, to enact change in a totalitarian regime that completely restricted freedom of speech.Now that same country is warning it's citizens against our lack of freedoms.

    Words fail.
  • by Noer ( 85363 ) on Friday August 31, 2001 @04:37PM (#2240842)
    You make some good points. Another way to look at this (esp. the whole Napster thing, or your speeding example) is that when a LARGE percentage of a population (need not be an actual majority) are breaking the same law, the law needs to be examined closely.

    Perhaps there's something quite wrong with society; if 30% of the population were murderers, this would definitely be the case. But perhaps it's an indication that the law should be changed. Should SO many people get speeding tickets all the time, especially when they're only a fraction ("selective enforcement" police units really scare me) of the total number of people speeding? Should everyone who used Napster be punished? Any society that has as large a percentage of its population in prison as ours does definitely has a problem (note: most of these people are in for drug-related offenses, which I think probably shouldn't be illegal).

    A friend of mine often rants against unenforced laws; he thinks the speeding laws should be STRICTLY enforced, so that people would get pissed and demand that the law be changed. Perhaps this is true; it's a variation on the idea that a society that criminalizes (whether or not it punishes) a large % of the population has a major problem.
  • Re:law and guilt (Score:2, Insightful)

    by Frums ( 112820 ) on Friday August 31, 2001 @04:45PM (#2240883) Homepage Journal
    The problem with these analogies is that they are all wrong

    Sklyarov wrote the software and the company sold it. So, imagine you are a photographer in a country that allows the sale of porn with 16 year olds. You take pictures and get paid for it. The company sells their magazines in America. You visit america for a conference on risque photography and get arrested.


  • by ErikTheRed ( 162431 ) on Friday August 31, 2001 @04:52PM (#2240915) Homepage
    Speed monitoring [zdnet.com] has already been tried by car rental agencies, albeit without legal success.

    One of my biggest beefs with law in general is that there is far, far too much of it. Many laws are routinely disregarded by the population - underage drinking, speed limits on freeways, and especially taxes - because they are far too restrictive, to the point where they defy common sense. Because we (Americans, and I'm sure plenty of others) live in a land rife with dictu absurda, we have developed a sense that we only have to follow laws that makes sense to us.

    We also have a population largely willing to throw away its rights in order to combat the trendy social concern of the day. Of course, this is largely abetted by those with a political agenda that doesn't trust the common citizen to go about their day-to-day business without infinite hand-holding from big brother.

    In order to develop respect for the law, we need to have a set of laws worth respecting.
  • by bnenning ( 58349 ) on Friday August 31, 2001 @05:00PM (#2240949)
    Seems to me if Skylarov was only interested in promoting better security he wouldn't have tried to sell his product.

    So what? Nowhere in the Constitution or Bill of Rights does it say that your rights can only be exercised for nonprofit purposes.

    I can assure you, that if anyone tries to market a key that will unlock any Ford, that person will get thrown in jail if caught.

    As usual, most real-world analogies don't work well here. Dmitry's program doesn't allow users to "unlock" any ebook, only ones that they actually own. The MPAA's description of DeCSS as a "digital crowbar" is actually more accurate. Crowbars have both legal and illegal uses, and it is not illegal to sell, possess, or describe how to make one.

  • Hell of a deal (Score:3, Insightful)

    by buss_error ( 142273 ) on Friday August 31, 2001 @05:01PM (#2240957) Homepage Journal
    ...When Russia has to tell it's citizens not to vist the United States because they might be thrown in jail for something they did in their own country. It's just too ironic.
  • by Gonarat ( 177568 ) on Friday August 31, 2001 @05:19PM (#2241033)

    If you are a big enough target, it doesn't matter where you are. Look at Manuel Noriega -- he was arrested for Drug Trafficing while he was physically in Panama and brought back to Miami by the U.S. Military to face charges. He is currently in a U.S. jail. I'm not commenting on Noriega's crimes, just that Panamanian Sovereignty did not matter.

  • by ldopa1 ( 465624 ) on Friday August 31, 2001 @05:25PM (#2241054) Homepage Journal
    First of all, the "Justice" Department doesn't carry out justice. Our "Justice" system is based on the concept of Jurisprudence, which basically means that America has taken the stance that it is better to let someone go who actually did commit a crime rather than imprison (or kill!) someone who might not have. This is why we use the terms "Guilty" and "Not-Guilty" instead of "Guilty" and "Innocent."

    "Not-Guilty" does not imply that the person did not actually commit a crime, just that the person does not fit the legal definition of "Guilty." That's exactly why O.J. Simpson is walking the street a free man today. They could not say that Orinthal J. Simpson murdered Nicole Brown Simpson and Ron Goldmann beyond any reasonable doubt.

    That said, even Sklyarov's arrest and imprisonment is definately against the grain. He is being treated at Guilty without a trial. He entered a plea of "Not-Guilty," because while he may have committed a crime, he and his legal team belive that he is not accountable to the law (under the law) for his actions. Specifically, they belive the DMCA is flawed and inherently unsupportable.

    My personal view of this should be quite obvious. For clarification purposes, I think the law is asinine. I don't think anyone has pointed out to the Justice Department that everyone who has a Web Browser (nay, a text editor, for that matter) is violating the DMCA. Section 117 of the law gives no exception for that kind of technology. The law specifically states that any computer program capable of displaying copyrighted material against the rules of the copyright is illegal. It makes no provision for the level of protection afforded. It could be argued that HTML is a form of copyright protection (i.e. META tags) as it obscures the text of the material. Furthermore, it should be pointed out that all it takes to make a copyright is to say "copyright 2001" and it's legally binding.

    From the perspective desk, think of this: I can legally obtain, sell, and distribute the components to make nitrogen tri-iodide (a highly unstable explosive, don't try this at home kids). All I need is to go to my local Osco Drug, buy some Iodine crystals, househole ammonia and coffee filters, and bingo, I've got a HIGHLY explosive chemical that requires no fuse mechanism other than a rock, BB or anything else that'll impart a kinetic shock to the material (including fingers). I cannot go to jail for that. However, I can be fined up to $500,000 and get 25 years in jail for writing:

    "UNLOCK COPYRIGHTED MATERIALS FROM SUBMITTED DOCUMENT" as soon as I write the compiler for this new language. Note, it's not illegal to write the compiler, just the words above.

    Of course, under the DMCA, slashdot will be guilty of violating the DMCA for distributing that code, and everyone reading this message will be guilty too. Just as soon as I write that compiler.....

  • by Anonymous Coward on Friday August 31, 2001 @06:07PM (#2241211)
    If American's can prosecute visitors who do stuff legally in their own country that would be illegal in the USA I think other countries should do this too.

    This means those American's:

    1. Owning handguns will now be arrested on entry to the UK regardless of whether they have a gun on them at the time

    2. Who do not practice Islams will be arrested on entry to Saudi Arabia

    The list could go on.

    I'd also advise any Dutch people who may have legally smoked pot not to enter the USA as you're logically as much a target.

  • by rking ( 32070 ) on Friday August 31, 2001 @06:11PM (#2241232)
    I'm not going to walk you through the indictment [usdoj.gov]. If you don't want to read it that's fine, but please refrain from replying until you obtain at least the slightest bit of information about the case, such as what he's charged with.

    I have read it. What I'm wondering is whether you have. None of it mentions Dmitry Sklyarov being involved in selling software in the USA. It talks about him authoring it in Russia, where it was lawful for him to do so, it talks about his employers selling it through a distributor in the USA, it talks about him being scheduled to give a speech at a conference in the USA.

    Whether any business anywhere committed any offence under any law isn't even an issue here.

    Well, since Elcomsoft is listed as a defendent, I'd say it is.

    To the charges against Elcomsoft, sure. But not to the charges against Dmitry Sklyarov. He did not sell software in the USA.

    This is pretty standard - if you smuggle in drugs they don't drop the charges just because you're working for a drug lord. "I was just following orders" went out in the 40s.

    But NOTHING in the indictment suggests that Dmitry Sklyarov did anything remotely analogous to smuggling in drugs. He wasn't selling or otherwise distributing the software in the USA.
  • Interesting Quote (Score:2, Insightful)

    by avalys ( 221114 ) on Friday August 31, 2001 @06:18PM (#2241262)
    From the article on yahoo -
    "Sklyarov, 26, spent 21 days in prison before being freed on bail amid noisy protests by advocates of free speech and other supporters. He pleaded not guilty." (my emphasis)

    I wasn't aware that the U.S needed any advocates of free speech.
  • by bridgette ( 35800 ) on Friday August 31, 2001 @06:26PM (#2241296)
    Unfortunately, a plea of not guilty will not lead to a legal examination of the DMCA either, at least not directly. The court's duty is to enforce the existing law, not to ratify or amend it. As I understand American law, the judge is not at liberty to simply say, "Well, this law is clearly unfair. Therefore we'll just have to release Mr. Skylarov." His only duty is to determine whether or not Skylarov violated the DMCA, and issue an appropriate sentence.

    Perhaps the judge can't just proclaim the law as unfair and set Skylarov free, but the jury can refuse to convict him for any reason - even if they just don't like the law in question. If the trial is in Frisco, then there's a good chance that there will be some geeks on the jury (especially since there are so many out of work geeks there these days)

    http://www.erowid.org/freedom/jury_nullification /j ury_nullification.shtml
    http://civilliberty.about.com/cs/jurynullificati on /

    (please disreagard the previous psudo post, I accidentally hit return when the focus was on the "Submit" button)
  • by jcr ( 53032 ) <jcr.mac@com> on Friday August 31, 2001 @06:26PM (#2241300) Journal
    "Even where the law is wrong it must be obeyed"

    Hogwash. When the law is wrong, it is the DUTY of decent people to disobey it.

  • by goingware ( 85213 ) on Friday August 31, 2001 @07:33PM (#2241502) Homepage
    One has a moral obligation to disobey unjust laws. [goingware.com].
    -- Martin Luther King

    In more detail - the Supreme Court does not render advisory opinions. That is, you cannot simply ask the court to judge whether a law is constitutional or not. To have a law declared unconstitutional, one must actually violate the law and pursue one's defense to the highest court in the land.

    The benefit of having unjust laws struck down by the Supreme Court comes at the cost of risking one's freedom if one's attempt proves unsuccessful - or even one's life, in the event the law in question provides for capital punishment.

  • by Aexia ( 517457 ) on Friday August 31, 2001 @07:37PM (#2241516)
    They're oppose DMCA.

    I mean, what other way is there to get rid of DMCA right now? Have Congress repeal it? Yeah right.

    OTOH, if he were convicted and the convicted was overturned on grounds that the DMCA was unconstitutional, that'd be good...

    Maybe that explains why DoJ is so headstrong on "convicting" an easily popularized guy? They know the case will eventually lose and they want it to because that's the only way to get rid of it.

    Of course, it's inconvienent for Dmitri, but then again, someone's gotta be the martyr and it might as well be someone who isn't an American.
  • by Anonymous Coward on Friday August 31, 2001 @09:40PM (#2241875)
    Adobe instigated this prosecution and must be held responsible for the consequences of their actions. Adobe should fund the defense and appear as defense witnesses. Adobe should grant full authorization to Skylarov and Elcomsoft, retroactively. If they do not fulfill these basic duties, Adobe must be held responsible for the consequences to Skylarov, his family, and Elcomsoft, a tooth for a tooth, an eye for an eye, and a life for a life.
  • by Anonymous Coward on Friday August 31, 2001 @11:44PM (#2242109)

    Seems to me if Skylarov was only interested in promoting better security he wouldn't have tried to sell his product. This looks to me like someone trying to make a buck off an insecure product.

    Isn't that what Adobe did?

Exceptions prove the rule, and wreck the budget. -- Miller