[UFO Chicago] [email@example.com: Fwd: NYTimes.com Article: Jail Time in the Digital Age]
Peter A. Peterson II
Mon, 30 Jul 2001 15:03:03 -0500
----- Forwarded message from Stanton McCandlish <firstname.lastname@example.org> -----
Jail Time in the Digital Age
By LAWRENCE LESSIG
Dmitri Sklyarov is a Russian programmer who, until recently, lived
and worked in Moscow. He wrote a program that was legal in Russia,
and in most of the world, a program his employer, ElcomSoft, then
sold on the Internet. Adobe Corporation bought a copy and
complained to the Federal Bureau of Investigation that the program
violated American law and that, by the way, Mr. Sklyarov was about
to give a lecture in Las Vegas describing the weaknesses in Adobe's
electronic book software. Two weeks ago, the F.B.I. arrested Mr.
Sklyarov. He still sits in a Las Vegas jail.
Something is going terribly wrong with copyright law in America.
Mr. Sklyarov himself did not violate any law, and his employer did
not violate anyone's copyright. What his program did was to enable
the user of an Adobe eBook Reader to disable restrictions that the
publisher of a particular electronic book formatted for Adobe's
reader might have imposed. Adobe's eBook Reader, for example, has a
read-aloud function. With it, the computer will read out loud an
appropriately formatted eBook text. A publisher can disable that
function for a particular eBook. Mr. Sklyarov's program would
enable the purchaser of such a disabled eBook to overcome the
restriction. A blind person, for example, could use ElcomSoft's
program to listen to a book.
The problem from Adobe's perspective, however, is that the same
software could enable a pirate to copy an electronic book otherwise
readable only with Adobe's reader technology — then sell that
copy to others without the publisher's permission. That would be a
copyright violation, and it is that possibility that led Congress
to enact the statute that has now landed Mr. Sklyarov in jail
— the Digital Millennium Copyright Act.
The D.M.C.A. outlaws technologies designed to circumvent other
technologies that protect copyrighted material. It is law
protecting software code protecting copyright. The trouble,
however, is that technologies that protect copyrighted material are
never as subtle as the law of copyright. Copyright law permits fair
use of copyrighted material; technologies that protect copyrighted
material need not. Copyright law protects for a limited time;
technologies have no such limit.
Thus when the D.M.C.A. protects technology that in turn protects
copyrighted material, it often protects much more broadly than
copyright law does. It makes criminal what copyright law would
Using software code to enforce law is controversial enough. Making
it a crime to crack that technology, whether or not the use of that
ability would be a copyright violation, is to delegate lawmaking to
code writers. Yet that is precisely what the D.M.C.A. does. The
relevant protection for copyrighted material becomes as the
technology says, not as copyright law requires.
America is essentially alone in this strategy of techno-lawmaking.
Most nations in the world — including, importantly for Mr.
Sklyarov, Russia — regulate copyright violations through
copyright law, not through laws aimed at code writers. But what the
Sklyarov case means is that this controversial experiment in the
United States now essentially regulates the world. If you produce
and distribute code that cracks technological protection systems,
and that code can be accessed in the United States, then it's just
a matter of time before our F.B.I. comes knocking at your door.
This is bad law and bad policy. It not only interferes with the
legitimate use of copyrighted material, it undermines security more
generally. Research into security and encryption depends upon the
right to crack and report. Only if weaknesses can be discovered and
described openly will they be fixed.
Increasingly, in the United States, this freedom has been lost. In
April, for example, Edward Felten, a Princeton professor and
encryption researcher, received a letter from recording industry
lawyers warning him that a paper he was about to present at a
conference — it described the weaknesses of an encryption
system — could subject him to enforcement actions under the
D.M.C.A.. Mr. Felten understood the threat and decided not to
present his paper. Largely as a result of this experience, he is
now the lead plaintiff in a lawsuit challenging the Digital
Millennium Copyright Act on First Amendment grounds.
Authors have an important and legitimate interest in protecting
their copyrights. The law should help authors where it can. But the
law should not push its power beyond the protection of copyright,
and the law should especially not criminalize activities that are
central to research in encryption and security.
Adobe understands this. After extensive meetings with the
nonprofit Electronic Frontier Foundation — and widespread
protests on the Internet, at Adobe's San Jose, Calif.,
headquarters, in Moscow and elsewhere — Adobe announced it
did not think the prosecution of Mr. Sklyarov was conducive to the
best interests of the parties involved or of the industry.
Yet Mr. Sklyarov still languishes in jail, puzzled, no doubt,
about how a free society can jail someone for writing code that was
legal where written, just because he comes to the United States and
gives a report on encryption weaknesses.
Lawrence Lessig, a law professor at Stanford University, is author
of the forthcoming ``The Future of Ideas'' and a member of the
Electronic Frontier Foundation board.
FREE DMITRY SKLYAROV -- FBI has imprisioned a Russian software
engineer for promoting and teaching the concept of "fair use".
Read more: http://www.eff.org/alerts/20010719_eff_sklyarov_alert.html