[sklyarov-chicago] Editorial in Washington Post

[Keith Lamont]

Editorial in Washington Post:

Jailed Under a Bad Law

Tuesday, August 21, 2001; Page A16

THE ARREST by federal authorities of a Russian computer programmer 
named Dmitry Sklyarov is not the first time the so-called Digital 
Millennium Copyright Act has led to mischief. It is, however, one of 
the most oppressive uses of the law to date -- one that shows the 
need to revisit the rules Congress created to prevent the theft of 
intellectual property using electronic media. Mr. Sklyarov, a 
graduate student in Moscow and an employee of a company called 
ElcomSoft, helped write a program that disables copy protections on 
the Adobe eBook Reader, a system designed to let people read 
book-length texts comfortably on computers. Writing the program did 
not violate Russian law, and ElcomSoft then made its program 
available over the Internet, provoking a fight with Adobe.

The trouble for Mr. Sklyarov was that under the digital millennium 
law, it is a crime in this country to distribute programs designed to 
frustrate copy protection schemes. ElcomSoft was attempting to sell 
the program over the Web in this country. Adobe complained about the 
ElcomSoft program to the FBI and mentioned that Mr. Sklyarov happened 
to be in Las Vegas giving a talk at a conference of hackers on the 
vulnerabilities of Adobe's systems. The bureau obligingly picked him 
up last month. He was finally released on bail in California this 
month.

The digital millennium law is troubling, since the same programs that 
can be used to pirate content commercially often have legal uses as 
well. It does not offend someone's copyright to make what is called 
"fair use" of proprietary material -- such as, for example, quoting 
passages from texts or playing snippets of music. Programs to break 
copy protection schemes can be used to facilitate fair use, as well 
as infringing uses of copyrighted material. Simply banning the 
dissemination of such programs, without reference to the purpose of 
the dissemination, inhibits the use of intellectual property far more 
broadly than does the copyright law itself.

That problem is greatly magnified when the law's criminal penalties 
come into play. It seems wrong for Mr. Sklyarov to be subject to 
criminal penalties for writing a program that has potentially legal 
uses, without any obligation on the government's part to prove that 
he intended to aid piracy. Adobe itself has recognized that his 
prosecution would be unjust. But dropping this case should only be a 
beginning; the law itself needs to be substantially narrowed. 
Protecting intellectual property is a compelling government interest, 
but so is protecting academic inquiry, intellectual exchange and free 
speech. A better balance must be sought.

=A9 2001 The Washington Post Company