Press Releases: July 2001
Dismisses Defamation Suit Against Breast Implant Activist as Meritless
Electronic Frontier Foundation Media Release
Oakland, CA - In a trail-blazing 27-page order, Alameda Superior Court Judge James A. Richman dismissed a defamation lawsuit filed against a breast implant awareness activist, finding that it was a meritless SLAPP (Strategic Lawsuit Against Public Participation). The court held that a 1996 federal law protects individuals from civil liability for posting to an Internet newsgroup a statement created by another.
Ilena Rosenthal, Director of the Humantics Foundation in San Diego, was sued for defamation based on her postings on Internet newsgroups. On July 25, 2001, Judge Richman granted Rosenthal's motion to dismiss the complaint against her as a meritless SLAPP. Two self-proclaimed "Quackbusters," Stephen Barrett, M.D., of Allentown, Pennsylvania, and Terry Polevoy, M.D., of Canada, joined by their attorney and co-plaintiff, Christopher Grell, of Oakland, California, filed suit against the activist. Judge Richman found that none of the plaintiffs had valid claims against Rosenthal. He ruled that Rosenthal's statements calling Barrett and Polevoy "quacks," and Barrett "arrogant" and a "bully" who tried to "extort" her, were not actionable because "they do not contain provably false assertions of fact, but rather are expressions of subjective judgment."
Judge Richman further found that only one statement by Rosenthal was arguably defamatory -- a document written by someone else which Rosenthal re-posted to an Internet newsgroup. Judge Richman held that this statement by Rosenthal was protected under section 230 of the federal Communications Decency Act (CDA), a law Congress enacted in 1996 expressly "to promote the continued development of the Internet and other interactive computer services," which Congress declared should be "unfettered by Federal or State regulation."
Judge Richman held that section 230 of the CDA "provides immunity to users, as well as providers, of interactive computer services." He found that Rosenthal, "as a user of an interactive computer service, that is, a newsgroup, . . . is not the publisher or speaker" of statements made by a third person. Thus, Judge Richman concluded, "she cannot be civilly liable for posting it on the Internet. She is immune."
Lee Tien, Senior Staff Attorney for the Electronic Frontier Foundation (EFF), the leading Internet civil liberties organization, said "in enacting section 230, Congress tried to protect free speech on the Internet from chilling threats of costly litigation. This decision will help achieve that goal and marks a solid victory for free expression. Internet speech would be stifled if individuals could be found liable for the defamatory statements of others."
Mark Goldowitz, counsel for defendant Rosenthal and the Director of the California Anti-SLAPP Project, said, "Judge Richman's opinion is significant. To my knowledge, this is the first court to rule that Internet re-posting is immune from civil liability under federal law. This ruling greatly advances freedom of speech on the Internet. Also, it is very rare for a trial court judge to issue anything even close to a 27-page order."
Ilena Rosenthal, one of several defendants named in this high-profile Internet libel case, heads an international support group for women harmed by breast implants. Rosenthal believes that this suit, one of several the so-called "Quackbusters" have filed against critics of their tactics, has been used to intimidate and threaten others into silence for fear of being named as a "Doe" in this lawsuit. "They are a dominant threat to alternative and complementary medical practices and practitioners," Rosenthal said. "Their campaigns obstruct health freedom and attempt to chill the voices of their critics and opponents."
* For a copy of Judge Richman's 27-page opinion in Barrett v. Clark:
(For discussion of section 230 of the CDA, see pages 17-20.)
* For a copy of section 230 of the Communications Decency Act, 47 U.S.C. Sec. 230:
* For a copy of memoranda filed in support of Rosenthal's special motion to strike:
Lee Tien, EFF Senior Staff Attorney,
Mark Goldowitz, Director, California Anti-SLAPP Project (CASP),
Ilena Rosenthal, defendant in Barrett v. Clark,
breast implant awareness activist, Director, Humantics Foundation,
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member supported organization and maintains one of the most linked-to Web sites in the world:
The California Anti-SLAPP Project (CASP) is a public interest organization dedicated to the eradication of SLAPPs (Strategic Lawsuits Against Public Participation) in California. Founded in 1991, CASP has led a broad coalition for anti-SLAPP legislation, which resulted in enactment of California's pioneering legislation to protect against SLAPPs in 1992, and amendments to strengthen the law's protections in 1997 and 1999. CASP monitors implementation of the anti-SLAPP law and assists SLAPP targets and their attorneys with use of the law. For more information about CASP and SLAPPs:
About defendant Ilena Rosenthal:
For more information about defendant Ilena Rosenthal and her work on breast implant awareness, email her at email@example.com. See also:
Breast Implants: The Myths, The Facts, The Women, by Ilena Rosenthal (information booklet)
Article on saline implants in Glamour Magazine, Nov. 2000:
"Breast Implants, America's Silent Epidemic," in Total Health Magazine, Nov.-Dec. 2000)
Note: EFF has no official position on breast implants or possible health risks thereof. Our interest in this case is the First Amendment issues raised. Press inquiries relating to Ms. Rosenthal's work should be directed to the Humantics Foundation, not EFF.
After Meeting with US Attorney's Office
Robin Gross, EFF Staff Attorney - Intellectual Property,
+1 415-436-9333 x112,
[NOTE: Will Doherty will be out of the office until
August 8, so please direct media requests to Robin
or to firstname.lastname@example.org]
San Francisco, CA - Representatives of the Electronic Frontier Foundation (EFF) met with representatives of the U.S. Attorney's office in San Francisco today. There was a productive dialog, however the U.S. Attorney's office did not agree to drop the prosecution against Russian programmer Dmitry Sklyarov.
"The people from the U.S. Attorney's office heard our concerns and asked probing questions about the Digital Millennium Copyright Act," explained EFF's Executive Director Shari Steele. "However, they did not give any indication of their plans for Dmitry, so we encourage everyone to keep up the pressure and join the protests."
Having explored good faith negotiations, the Electronic Frontier Foundation rejoins the call for nonviolent protests worldwide to secure the immediate release of Dmitry Sklyarov and drop all criminal charges against him.
A protest is already scheduled in San Francisco for 11:30am this coming Monday, July 30, at the Federal Courthouse at 450 Golden Gate Ave. Additional July 30th protests are scheduled in Los Angeles, Boston, Chicago, and Minneapolis, and future protests will likely occur in 25 or more cities worldwide in coming weeks.
from crypto researcher Ross Anderson, Cambridge U., UK
Ross Anderson, FIEE, FIMA
Reader Security Engineering
University of Cambridge
Robert S. Mueller, III
United States Attorney
450 Golden Gate Avenue,
San Franscisco, Ca 94102
Fax: (415) 436-7234
July 26, 2001
Dear Mr Mueller,
The Sklyarov case
I lead the security group at Cambridge University. We are recognised as one of the leading research groups in the world in the field of information security. The research that we do is scientifically important, useful, legitimate and benefits mankind. I wrote the seminal paper on peer-to-peer systems ('The EternityService') which has since led many companies -- from Microsoft down to small start-ups -- to work on mechanisms for large-scale distributed data storage and retrieval, in which hundreds of millions of users may share the spare capacity on eachothers' hard disks for data backup. I coauthored the seminal paper on physical attacks on smartcards, which has led to a EU research project to develop next generation smartcard processors -- in which my team is a major player. I also coauthored the paper that introduced 'soft tempest' -- the idea of reducing the compromising electromagnetic emanations from electronic equipment using software rather than hardware; this technique is already fielded in the flagship email encryption product from Network Associates Inc. and has the potential to save the military forces of NATO countries over a billion dollars a year. I also coauthored the seminal paper on the vulnerabilities of copyright marking schemes, which has led to a tool (Stirmark) that is now the industry benchmark for testing marking systems. Colleagues in my group coauthored the seminal papers on cryptographic protocols and on protocol verification.
The arrest of Dmitri Sklyarov is of extreme concern to me. Security research at an internationally competitive level is inherently an adversarial business; the field advances through a coevolution of attack and defence. Understanding and documenting the vulnerabilities of existing systems is critical to progress. The prospect that I might be arrested in the USA for research work done here at Cambridge University , and published in a responsible way through the usual academic channels, is alarming. The arrest has also alarmed many of my colleagues.
I serve on the program committees of a number of leading international conferences, including the Information Hiding Workshop. The DMCA risks have persuaded my colleagues to hold the next workshop in Eindhoven, Holland, rather than at MIT. Another conference on whose committee I serve, the Fast Software Encryption workshop, was held last year in New York and this year in Tokyo; it is unlikely to return to the USA until thef reedom of speech issues are resolved. Computer security and cryptography academics in Europe and elsewhere are getting the impression that the USA is becoming a hostile place.
A former student of ours, Igor Drokov, has known Dmitry Sklyarov for about ten years, and assures me that he is a talented researcher who is known as a law-abiding citizen rather than as a hacker/cracker.
I am concerned about reports that his arrest was due to a civil dispute between his employer and Adobe, Inc. If a law-abiding serious researcher can face arrest because his work is seen as inconvenient or harmful by a big US company, then many if not most of the top researchers in the field are at risk. For example, my smartcard work is conducted in partnership with the French company Gemplus and the Israeli company NDS. It poses a direct competitive threat to a US company, Atmel. If I publish an attack that breaks their product but not Gemplus's or NDS's product -- even unwittingly -- then can Atmel have me arrested? Will I be held without bail for years since -- as a foreign national -- I am considered to be a potential fugitive?
Many countries including my own encourage academics to work closely with industry, so that the fruits of research can be realised more quickly for the benefit of the whole economy. Is US polic yabout to provide a strong disincentive for people in the IT sector to engage in competitive and pre-competitive research? Our whole experience at Cambridge is that good research in science and technology tends to be driven by real problems; academics who retreat into theory tend to be much less productive.
I realise that neither you nor the FBI can change the law. However, I hope that you hav e, and will exercise, discretion not to prosecute in cases that are highly questionable or marginal, especially where these cases may cause international incidents, harm the US economy, and damage the excellent reputation that your country has earned for the defence of freedom of speech worldwide over the last two generations.
I have for years been an opponent of the anti-Americanism that becomes fashionable in Europe from time to time, and that unfortunately reared its head again recently at Genoa. The Sklyarov case does not help those of us who consider ourselves to be America's friends.
New Museums Site
Cambridge CB2 3QG England
Tel: +44 1223 334733
Fax: +44 1223 334678
Will Doherty, EFF Online Activist / Media Relations,
+1 415 436 9333 x111
Robin Gross, EFF Staff Attorney - Intellectual Property,
+1 415 436 9333 x112
San Francisco - Representatives from the Electronic Frontier Foundation will meet at 9:00am Pacific Time, this Friday, July 27, with representatives from the office of the U.S. Attorney for the Northern District of California.
EFF will make a good faith attempt at negotiations aimed at dropping all charges against Dmitry Sklyarov and securing his immediate release from jail.
For more information about the Sklyarov case, see:
Free Dmitry Sklarov campaign sites:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
There's been a lot of debate about the recent jailing of a young Russian named Dmitry Sklyarov, who helped write a controversial program that used to be sold by his employer, a Moscow company named Elcomsoft.
This missive will be a bit different from some of the others you've read because I'm an ebook publisher -- one of the first. In addition, I've made pretty much all the money I've got from publishing copyrighted material online, have written professionally myself, am the son of full-time author and a heavy defender of the rights of authors.
Back in 1992 and 1993 I made two pioneering (and foolishly far too early) moves in ebooks. First, I built a subscription library of top science fiction, offering readers "all you can read" for a flat monthly fee. In 93 I published an online and CD-rom anthology that even today is one of the largest anthologies of current fiction ever published in one volume. So I have some history in this market. Yet I'm also chairman of the Electronic Frontier Foundation (EFF), the organization that's been leading the fight against the problems with the new copyright laws and the prosecution of Sklyarov.
The program that got him arrested, the Advanced eBook Processor, "unlocks" books published in the Adobe eBook format, so that you can extract the ordinary text of the book and do what you want with it. That includes a variety of harmless things like moving it to your new computer when you upgrade, or reading it 20 years from now when the publisher has gone out of business.
It also includes nefarious actions, like republishing the book out to people who didn't pay for it.
The Adobe eBook system, like many other "digital rights management" tools, provides a tool to encrypt books and "lock" them so that they can only be read using the eBook reader. In turn, the reader software only lets you do certain things with the books it decodes. Only things the publisher of the book has decided to let you do.
Making an "unlocker" for such systems was made illegal under a new revision of copyright law in 1998 called the Digital Millennium Copyright Act. In fact, though normally copyright is the subject of lawsuits, the DMCA made certain actions federal crimes. And that's how Sklyarov ended up in jail. He helped his employer write a program that bypasses the locks, and his employer briefly sold it in the USA. (They sold a grand total of 7 copies, 15% of them to Adobe.)
His employer, it seems, violated the U.S. law when it sold the program in the USA. Writing and selling such software is not just legal, but encouraged in Russia, where there are limits on the locks that publishers can put on books.
The Department of Justice alleges that because Sklyarov helped write the program and his employer sold it that he is personally a criminal. They arrested him at his hotel in Las Vegas as he was on his way to the airport to go back home. He had come to a convention in Las Vegas called DefCon, where computers security people and hackers of both the good and bad stripes gather to discuss computer security issues.
He went there because he got started in all this doing the well respected practice called cryptanalysis. Cryptanalysis is code-breaking. It involves looking at code-based security systems for flaws. Cryptanalists like Alan Turing are now widely regarded as among the greatest contributors to the defeat of Nazi Germany -- they are some of the greatest heros of the 2nd world war.
Sklyarov is a PhD student in Moscow, and as an academic exercise in such research, he examined the security of the Adobe eBook locking system. Truth is, he found it to be of a very poor design, with several flaws. He described these, and then got employed by Elcomsoft to make a program to demonstrate the flaws. Adobe makes the claim, quite possibly valid, that Elcomsoft's goal was to make money selling a tool to let people illicitly copy books locked by Adobe's tools. Sklyarov, however, is mainly an academic and employee -- he owns no part of Elcomsoft and got his salary regardless of how well the program did.
Unfortunately, because he's a Russian, he's in a lot more trouble. He's thousands of miles from home and family and the world he knows. And the courts will feel that if they let him out in the street, he would be a fool not to be on the next plane to Moscow. So they have to keep him in jail, where a U.S. resident would be out on bail, planning his defense.
Digital Rights Management (DRM) is controversial in part because it changes the rules of how publishing works. Publishers ask for DRM because digital books are trivially easy to copy, and in particular, to copy without paying for them. Paper books can also be copied, but putting all the pages through a photocopier is a fair bit of work, so most people don't do it.
This difference of degree is important to the publishers. The ease of digital copying is so great that the whole world can get a book with only one person buying it, if the world is so inclined. They have reason to be scared of that.
At the same time, DRM allows a degree of control over publishing that's far beyond what existed in the paper world. As noted, paper books can also be copied if you have the time or a fancy machine. More commonly people copy a single page out of a book for reference later, and most publishers don't mind a great deal. An eBook can be set to not allow even the slightest copying, not even the copy and paste of a single sentence.
Paper books can be lent to friends, but of course you can't read them while they are on loan, and you can only loan to one person at a time. eBooks that are unlocked can be lent to the whole world at once (which scares the publishers) but can also be set so they can not be lent at all, and commonly are.
Paper books can be sold, in fact copyright law explicitly assures this with a special doctrine describing the rights after "first sale" on a copyrighted work. Locked ebooks can be set so they can't be sold, and again they commonly are.
Ordinary text files on a computer, like web pages, can be read in all sorts of programs -- web browsers, ebook readers, word processors etc. -- and easily moved to different machines (Windows, Apple, Linux, Palm) on demand. Locked ebooks can only be read in their special reader program, and normally only on the computer or device they were sold for.
Regular books and computer files are subject to a number of special exemptions to copyright law called "fair use" in the USA. These exemptions, defined by the courts and the congress, are in place to make sure that copyright law doesn't get out of hand, and especially to make sure it doesn't violate the first amendment. For example, you can copy and paste a page out of this article (or any other copyrighted work) if you want to write something critical about it, or teach about it, or make fun of it. You don't have to ask me. You can do it even if I tell you not to.
This is essential. Movie critics would never be able to show clips of movies they are panning otherwise, and that would limit their 1st amendment right to be critics.
You can also make a backup copy of it, or move it from one machine of yours to another to read it there, again without me being able to deny you.
In theory you have the rights to do all this with an ebook, but a locked eBook can be sealed up so you don't have the physical ability to do it.
Now locked eBooks, when done well, can solve some of these problems. They can be programmed to be able to move from machine to machine (this is a must for people who, like me, upgrade their computer every few years.) They can be programmed so you can loan them out, or give them away, or sell them, losing your own access in the process. Adobe has done some of these things.
Unfortunately in these cases, the usual means provided for acts like these is to contact the publisher or provider of locked ebook software, and ask them to give you the magic keys to perform such a special operation. If they let anybody copy from machine to machine, then they face that great fear of one copy going to the whole world. As such, the ability to do things that are inherently possible with paper books becomes a privilege which is bestowed, and which can be revoked. Or, even more likely, it can become impossible because the publisher is no longer in business.
Walk through the halls of a fine library or antiquarian book store, and consider what it would be like if the books on the shelves that come from publishers who are now out of business could no longer be read. Imagine if this were true simply because the supplier of the printing press or the inks were out of business.
Or perhaps they can still be read -- but only on that old 286 computer running DOS 6.0 that you threw out 15 years ago. Such is the risk of tying reading of a book to a single device until granted otherwise by the publisher or maker of the publishing tools.
You can imagine why people are concerned about this. We have publishers scared to death of being unable to sell their books, and readers scared of books turning into pages in guarded steel boxes without many of the useful abilities they took for granted.
It can be argued that people retain all the rights of trade, first sale and backup on the encrypted bits. But this dodges the issue. The encrypted bits are literally just noise unless there is a tool to read them, so when it comes down to defining the nature of reading, we have to look at what people can actually do with their books.
Stop the tools!
The publishers, scared as they were, saw the need for locked books (and more-so music and movies) and lobbied congress for a convoluted law -- the DMCA -- to protect the locks. In the past, copyright law protected the books, making the actual unauthorized copying unlawful. They changed the law to make the copying tools themselves illegal, and in some cases criminal.
It's like, in many ways, making the photocopier itself illegal rather than dealing with the person doing the photocopying. It's like making locksmith's tools illegal because they can unlock doors, rather than just making breaking and entering illegal.
Uncharitably, Sklyarov's company sold a lock-picking tool. More charitably they made an electronic analog of a photocopier that handles deliberately hard to photocopy books. He found the flaws in Adobe's locks and helped design the tool. That's part of how he ended up in jail.
(There are laws in several states against carrying lock-picks, but almost all these laws make it illegal only if they are carried for criminal purpose, and it's rare for their manufacture to be illegal.)
One thing people don't like about the law is that it protects even really badly designed computer locks. If they put on the simplest security that a high school student can break, a person who publishes how to break it in software code can still go to jail. Even if -- and this is literally true in this case -- the books are locked just by replacing every letter with the one 13 letters later in the alphabet, a code you may remember from when you were ten years old.
This isn't to say that the victim is at fault in a burglary because they have a simple lock anybody can break. It does say that when you make it illegal to even publish how to get past a trivial lock that even the people who want strong locks will never get them. (Cryptographers know that the only way to make strong codes is to make sure they are constantly strained and tested.)
Now the picture I've painted so far makes it seem crazy that he's in jail or could go to jail for what he did, especially since he did it in Moscow, where it's all perfectly legal.
Yet reasonable people are pushing to keep him in jail. Until we made compelling arguments to them on the matter, Adobe was so angered by the program he wrote that they -- a company full of programmers -- landed this programmer in jail and were encouraging keeping him there.
Some people don't buy the philosophy that making tools should be legal, and the nefarious uses of the tools should be what's illegal. This is nothing new, and this split occurs in all sorts of other debates, most around things like guns, marijuana pipes and even lock-picks. Most of the time the camp that blames the tools loses, though not always. Generally most support a justice system based on the presumption of innocence. If a tool has a legitimate use, it should be legal, even if the majority of its use is illicit.
I think those siding with punishing the toolmaker rather than the copyright infringer should step back and look at the scale of this. One can understand, when the subject is guns, and killing people, how some people side with banning guns and thus interfering with the legal uses of the weapons by innocent people. Indeed they advocate such bans even in spite of the arguments that the 2nd amendment disallows them.
But we're talking copyright infringement here, not murder. Yes, it can be costly, but on the grand scheme, most people don't see jail time as an appropriate response to the actual pilfering of ebooks, let alone the making of tools that might facilitate such infringement.
There are valid uses for Elcomsoft's tool, and as such the good or evil lies in the hands of the user, not the programmer.
Adobe was particularly concerned, I think, because Elcomsoft was selling the tool. Others have made unlockers before and given them away, but this company was making a (meagre) business of it. Adobe felt hurt, I think, at a company making a business out of reversing their hard work. They were annoyed that the company was in Russia and could ignore them, because Russia didn't have such a law. They complained to the FBI, and told them one of the programmers was coming to Nevada. The FBI promptly arrested him. In the end Adobe realized that was the wrong way to deal with this problem.
This is particularly true because, while he did play a role in writing the program, Sklyarov is just an employee. All the countries of the world routinely pass their own local (and to other perspectives, bizarre) laws but don't enforce them on people in other lands. Imagine a world where, if the U.S. company you worked for country did things that violated obscure laws in Saudi Arabia this could result in you or any other employee being hauled into jail if you visited Saudi Arabia or any other place that extradited to it. I suspect a lot of people could never travel the world if this were how things operated.
The internet is raising these jurisdiction questions all the time. Americans were rightly incensed when France ordered Yahoo to stop allowing their users to auction off Nazi memorabilia, whose sale is illegal in France. Even more angry when Germany moved to jail a Compuserve executive because Compuserve carried newsgroups with content potentially illegal in Germany.
These issues won't go away, but it's sad to see the first person jailed by the USA would be the foreign programmer of a software tool who had been invited to the USA as a guest. The DMCA criminal issues are contentious enough as they are. Throwing in the jurisdictional question muddies the issue, and benefits nobody. Obviously not the man denied bail, but also not the legal eagles on both sides who want to set DMCA precedents.
Hard to use
As an early ebook publisher, I know that right now the public is mostly resistant to ebooks. This resistance derives mostly from a feeling that people don't want to read a book on a computer. Turns out that once you design your ebooks and the devices well, this prejudice is abandoned by many readers, but other problems persist, including weight, limited battery life, flickering displays and inability to browse.
The publishers of ebooks need to put fewer barriers in front of the reader, not more, so it's bemusing that some have put such a strong focus on DRM. Those who release books in open formats that can be read anywhere do face more illicit copying than they would find in the paper world, but in many cases they also get more sales.
Publishers are looking for new models for how to get financial return in the electronic world. They are out there, and a number of promising suggestions are already being tried. The problem many have with DRM is that, in spite of the goals, it doesn't simulate the dynamic of the old paper book, but locks it up even more.
Perhaps if paper had allowed publishers to make books that could not go in libraries or used book stores they would have. Perhaps they would have made books that professors couldn't photocopy a few pages from to hand to their literature class. Is this the legal regime we would have wanted?
The problem with the DMCA gets worse, however. If publishers want to put their books in a super lockbox, they should still have the right to do so. But the DMCA goes far further. It lets them put the books in a weak lockbox, and then arrest anybody that shows how the lock is weak, and writes software that opens it. This actually encourages the design of poor locking systems, as was the case for DVD movies.
People have the right to keep secrets, for example, and to pile on security to protect them. But the DMCA question is not really one of whether the publishers can have locks. Whether they should use them is a moral question. The DMCA question is akin to asking, if the secrets get out because of poor security, are the people who found out how to get past the security liable or criminal? If Coca-cola holds up their secret formula to a window you can see with a telescope once a day, you might feel that people who see it still shouldn't publish it. But is the person who reveals where the window is a criminal?
The DMCA contains exemptions for researchers, reverse engineers, cryptanalysts and even fair use. But in practice, in real court cases, those exemptions have shown to be close to useless. When one magazine published the results of reverse engineers who figure out how to play a locked DVD movie, the judge ruled that the magazine itself was not a reverse engineer or cryptographer, it just published their work. As such it could be shut down. Not much of an exemption.
Where is the answer?
Well, first of all, release Sklyarov. He's not the right test case for anybody and his kids miss their father.
Next realize that before you can work out the best dynamic for protecting ebooks to keep them commercial, you need to have an industry in the first place. Ebook sales are still tiny, and nobody has really worked out the right way to sell them. I personally favour the subscription model (which I tried to build in 1992, offering all you can eat and dividing up the money to the authors based on who got most widely downloaded) or possibly a system I call "microrefunds" or the "Don't Pay" button, where people can freely trade content, and silently pay a small fee to the rights-holder when they do, but have the ability to ask not to pay (get a microrefund) at any time.
Criminalizing the tools just creates a pointless war. Computer experts just consider an attempt at a lock to be a challenge, and the weak systems can and will be broken even with the threat of jail. The jail will just make them do it underground, releasing the programs for free rather than selling them. No book reader for a PC can every truly protect its content, since it's always possible for a program to read the screen (whose contents are in the computer's memory) and convert it back to text.
Open formats encourage everybody, commercial and non-commercial, to make great tools to read and distribute the formats, and even great tools to help make money from them. If the proprietary formats provided some benefit to the actual reader, then one could imagine a market for them. But they don't, they only limit the reader, giving the reader very little reason to want them. The publishers want them, or think they do. (While the American Publisher's Association -- or some of it -- lauded the jailing, the Electronic Publishers Coalition condemned it.)
The debate over how to publish digital books will continue for some time. However, the issue of whether a young programmer from another country should sit without bail in a jail cell is much simpler. Whether you love DRM or hate it, sending people to jail for writing programs accomplishes little that's positive. It will make those who work in the area of computer security and cryptanalysis very frightened -- it has already done so. Sadly, it frightens both the "white hats" and "black hats" at the same time, as evidenced by the fact that a very white hat Princeton professor had to cancel giving a paper at a conference due to a letter threatening DMCA penalties.
While the white hats sit in fear, the black hats (and some of the white) will move underground, producing programs but releasing them anonymously, for free. Adobe was particularly concerned about a commercial product unlocking their books, but they and other DRM vendors would suffer much more commercial damage from free programs, and have less dialogue with those who find the flaws in their systems.
Nobody benefits. And most of all, the consumer doesn't benefit, and in the end the customer is always right. When I published e-books, I did them in open formats, and frankly never got any significant reports of lost sales due to piracy. Due to an inability to get rights outside the USA on two stories, I did have to do a simple DRM on those, and it caused far more problems and customer hassle than having the stories was worth.
Digital books are bigger today, but I don't think that equation has changed. The customer is still always right, and the fight to get any sort of adoption at all for ebooks is far more important than the fight to lock them up. The fight should never have led to putting a programmer in jail.
Skylarov made an eBook unlocking tool while he was in Russia. That's legal to do in Russia. His employer -- not him -- then allegedly sold 7 copies of the tool into the USA. Assuming the tool is ruled a "circumvention device" under the DMCA, that's illegal.
A just society punishes those who actually do harm, not those who make tools which can be used to do harm. While the law does waver from that ideal, it seems that copyright infringement, and this case in particular, is a poor arena to make one of the exceptions. Especially one of the criminal exceptions.
In fact, the tool has a number of legitimate purposes, because without it, the dynamic of reading books changes, and removes a variety of fundamental rights and abilities that society has traditionally found to be of great benefit. Those include the "fair uses" which allow copying without the permission of the copyright holder.
On top of all the other contentious issues, this case brings up sticky international jurisdiction questions. Can the USA punish programmers in Russia who do things that are legal in Russia the moment they walk on U.S. soil? Should it?
The foreign aspect deepens the injustice more. While a U.S. programmer charged with this crime would be out on bail working on his defense, Sklyarov is forced to sit in jail, possibly for a long time, because he can't get bail as a flight risk. (You would be a flight risk in his shoes, too.)
As we've seen, punishing those who find the flaws in the security of the locks on digital content does more than stop pirates. It scares academics and silences protected speech.
Even if you feel that publishers have the right to use DRM if they want to, without us telling them it's bad for them, the real question behind the DMCA is whether we should throw those who fairly break the protection into jail.
There are other answers to selling online content that don't involve draconian DRM.
The DMCA needs a test case, but this one isn't it. It's not a good case for the pro-DMCA folks because of jurisdictional issues and the fact that it's his employer who sold the program not him. It's not a good case for anti-DMCA folks because a man stays in jail, thousands of miles from his family while the case is worked out.
4 stages of looking at what Dmitry did and is accused of
Did Dmitry make infringing copies of some eBook? Shouldn't that be illegal?
It is illegal, but he didn't do anything like that.
Did he sell a program in the USA that makes infringing copies of eBooks?
He didn't sell anything in the USA. He did help write a program that his employers allegedly sold a few copies of in the USA.
So this program his employers sold, it makes infringing copies of eBooks?
No, the copies it makes are generally legal. The program would normally be run by people who have legally bought a locked eBook. It would give them an unlocked regular file. It is legal for them to make and have this file, since they paid for the book in the first place.
So where is the copyright infringement going on here?
Once a person runs the program and has their own legal, unlocked copy, they have the ability to make further copies that they give away or sell. That would be a copyright infringement.
Of course, what Dmitry's employer allegedly did -- selling the unlocking program in the USA -- is not an infringement of any book publisher's copyright, but is illegal under the new DMCA law. So now Dmitry, the employee who designed the software, is in jail without bail.
Congressman Rick Boucher Urges Reaffirmation of Fair Use Rights
The American public has traditionally enjoyed the ability to make convenience and incidental copies of copyrighted works without the necessity of obtaining the prior consent of the owner of the copyright. These traditional "fair use" rights are at the foundation of the receipt and use of information by the American public.
From the college student who photocopies a page from a library book for use in writing a report to the typical television viewer who records a broadcast for viewing at a later time to the prudent home computer owner who makes back-up copies of the information he has lawfully stored on his hard drive, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain prior approval from the owner of the copyright prior to making the copy.
In fact fair use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. The very vibrancy of our democracy is dependent on the information availability and use facilitated by the Fair Use Doctrine.
The time, in my view, has come for the Congress to reaffirm the Fair Use Doctrine and to bolster specific fair use rights which are now at risk.
In 1998, responding to the concerns of copyright owners, Congress passed the Digital Millennium Copyright Act. Its announced purpose was to protect from piracy copyrighted material in an environment which poses special concerns for copyright owners. The copyright owners made the valid point that unlike analog technology in which each successive copy degrades in quality, with digital technology a copy of a copy of a copy contains the same clarity and integrity as the original of the work. They also made the valid point that in the networked environment, perfect copies by the thousands can be sent simultaneously across the globe with a single click of a computer mouse. Copyright owners urged that the Congress provide greater protections to them to guard against piracy of copyrighted works in the digital networked era.
The Digital Millennium Copyright Act is the Congressional response to these realities. There are some who believe that it went too far and that in the extension of new protections to copyright owners that it placed in peril the traditional fair use rights of the users of information.
For example, it creates in Section 1201 (a) a new crime of circumventing a technological protection measure which guards access to a copyrighted work. Under Section 1201, the purpose of the circumvention is immaterial. It is a crime to circumvent a password or other gateway even for the purpose of exercising fair use rights. There is no requirement under Section 1201 that the circumvention be for the purpose of infringing a copyright. Any action of circumvention without the consent of the copyright owner is made criminal by this provision.
Some now foresee a time when through the operation of Section 1201 what is available for free on library shelves today may only be available in the future on a "pay per use" basis. A time will arrive when virtually all new material will be sent to libraries on CD-Roms. That material may easily be guarded by a password, which under the provisions of Section 1201(a) would qualify as a "technological protection measure." In exchange for a fee for each viewing, the password may be used. It would be a simple matter for the creator of the content to impose a requirement that a small fee be paid each time the copyrighted work is accessed by library patrons. Under this scenario, the most recently arrived library material would be available only on a pay per use basis. The student who wants even the most basic access to material to write his term paper would have to pay for each item he reads.
Several members of Congress made the effort in 1998 to limit the new crime under Section 1201 to circumvention for the purpose of infringing the copyright, but the momentum to enact the measure essentially unamended was too strong, and our effort fell short. With a growing realization on the part of the education community and supporters of libraries of the threat to fair use rights which Section 1201 poses, perhaps the time will soon come for a Congressional re-examination of this provision and for the assemblage of a national effort of sufficient size and intensity to enable a much needed modification of the provisions of Section 1201 (a) to occur.
Perhaps the only conduct which should be declared criminal is circumvention for the purpose of infringing the copyright. Perhaps a more limited amendment could be crafted to insure the continued exercise of fair use rights in libraries and in scholastic settings notwithstanding the provisions of Section 1201.
And there are other challenges.
I am concerned about the apparent attempt of some in the content community who are seeking to protect their copyright interests in material contained in digitally broadcast television programs by insisting that the television signal quality be degraded or by insisting on the use of set- top box technology which could potentially prohibit all copying. The reasonable expectations of television viewers to be able to make home recordings of programs for time shifting and other historically accepted purposes are now placed at risk.
There is a way to protect copyrights in digitally broadcast programs and to permit television viewers to make copies of television programs for home use. The model is contained in Section 1201 (k) of the Digital Millennium Copyright Act which was designed for analog television broadcasts.
The Section requires video cassette recorders to respond to Macrovision, a copy prevention technology, and to block copying of rental movies encoded with Macrovision. In exchange for this statutory mandate, viewers are granted the right to make unlimited copies of off-the-air television broadcasts and one copy for time shifting purposes of pay per view movies which may only be purchased at specific times.
Where there is no reasonable expectation of being able to make a copy, such as in the case of a movie rented from a video store, the VCR will block all copying in its response to Macrovision encoding.
This arrangement for the world of analog broadcasts offers a model for resolution of the present debate over how to protect copyrights associated with digital broadcasts. In exchange for a reasonable set of guaranteed home recording rights, along the lines of Section 1201 (k), I am hopeful that an arrangement can be achieved through a negotiated agreement to employ in the video stream watermarks or other encodings which would prevent copying that is inconsistent with the recording rules and to require that recording equipment recognize and respond to the encoding. Such an agreement should extend to all digital TV programming whether it is delivered by cable, satellite or over the air.
The time has come for the motion picture studios to present a proposal along these lines to the manufacturers of recording equipment. There is an urgent need for an agreement which will simultaneously protect copyrights and the home recording rights of television viewers.
In the meantime, I hope that the creative community will not attempt unilateral approaches to protecting content which would either defeat home recording rights or degrade the quality of digital broadcasts.
Congress should also reaffirm fair use principles in other specific areas:
Traditional distance learning applications use broadcast and closed circuit television, and a special copyright exemption accommodates these educational broadcasts. Today, a new era of distance learning has arrived in which personal computers and the Internet are replacing the television set and closed circuit systems as the delivery medium. The copyright exemption should be broadened to include the new technology and to expand to the home the setting in which distance learning can occur.
1. The First Sale Doctrine should be made applicable to on-line sales accompanied by downloads of the purchased material. Under current law, a book or CD purchased in a "bricks and mortar" store can be given to a friend or sold to another person without obtaining the consent of the copyright owner. The key to the permissibility of the transaction is that at any given point in time only one copy of the material is extant. The same principle should apply to material downloaded from the Internet. The technology exists to enable the transfer of a downloaded item to a third party with the simultaneous deletion of the material from the hard drive of the individual who is transferring it. The analogy to the transaction I previously described in the physical world is exact, and the First Sale Doctrine should be extended to apply to the on- line experience with equal force.
2. Given the architecture of the Internet and personal Computers, the simple act of viewing a downloaded image, listening to webcasting, or sending an e-mail message creates an incidental or temporary reproduction, and many consumer electronics products temporarily store bits, representing audio clips or audio visual works in a buffer as part of their normal operation. These temporary copies, which are essential to the operation of digital products and networks, should be made unequivocally lawful under the copyright law.
3. Current law permits a computer user to make back-up copies of software so that the program can be restored in the event of a hard disk crash. But current law does not permit an archival copy to be made of copyrighted data associated with the program. For example, under current law, the software which enables the recording on a hard drive of music lawfully downloaded from the Internet can be archived for back-up purposes. However, the music which was lawfully downloaded cannot be archived. In the event of a hard disk crash, the purchaser of the music would be required to go back to the seller and purchase another copy. The current exemption permitting the archive of software should be expanded to permit the archive of any copyrighted data which is lawfully acquired and is associated with the software.
4. The in store exemption for music sampling should be expanded to cover samples of music which are accessed over the Internet for purposes of determining whether or not to make a purchase of the music. Under the current in store exemption, bricks and mortar stores are able to share with their customers samples of recorded music, and millions of Americans routinely put on headphones in record stores and listen to the music before they purchase it. The same opportunity should be provided for sales accomplished over the Internet. Brief samples of recorded music should be made available without the need to obtain the permission of the owners of the music copyrights.
5. Purchasers of audio CDs should be able to contract with on -line services for the storage of music on the CDs they have purchased which they can access over the Internet at a time and place of their choosing. The misic would be stored in an on-line locker specific to each subscriber. Today, people physically carry their CDs from their home to their car to their office to a friend’s home for the purpose of listening to the music they have purchased. The Internet offers the opportunity for enhanced convenience by enabling people to leave their CDs at home and have access to their music by downstream from an on- line locker at any location where they can obtain Internet access. The owners of music copyrights are fully compensated, in this example, when the individual purchases the CD at the outset. He should then have complete freedom without interference from the copyright owner to access the music on that CD over the Internet at a time and place of his choosing.
This are [sic] some of the steps which taken together would constitute an appropriate reaffirmation of fair use rights for consumers, and I look forward to the time in the very near future when the attention of Congress will turn to the need through these and potentially other steps to create a better balance between the rights of copyright owners and the rights of the users of copyrighted information.
Seeking Release of Dmitry Sklyarov
By Facsimile and Personal Delivery
Robert S. Mueller, III,
United States Attorney
450 Golden Gate Ave., Box 36055
San Francisco CA, 94102
Fax (415) 436-7234
Re: United States v. Sklyarov
Dear Mr. Mueller:
I am the Executive Director of the Electronic Frontier Foundation (EFF). I write to request a meeting with you to discuss the Sklyarov case. We have been attempting to contact you by telephone since Monday afternoon, but have not yet been successful.
As you may be aware, yesterday Adobe Systems, Incorporated, in a joint press release with the EFF, recommended the release of Mr. Sklyarov from federal custody. We attach a copy of the joint press release for your convenience.
Since the original complainant no longer wishes that this case be prosecuted and since Mr. Sklyarov remains in custody in Las Vegas, NV, far from his home and family, we would like to meet with you to discuss how Mr. Sklyarov can be freed.
We are available to meet at your convenience. Given the broad attention that this matter has garnered, Adobe's change of heart and the fact that Mr. Sklyarov remains in custody, we expect that there soon will be significant protests aimed at your offices calling for his release. While the EFF does not have the ability to control independent protests, if you indicate your willingness to meet with us by the end of the day Wednesday, July 25, we will, as a sign of good faith, refrain from calling for or organizing additional protests before that time.
We were pleased with Adobe's willingness to discuss this matter in a frank and open manner and hope that you will be willing to do the same. You can reach me on my office phone (415) 436-9333 x 103.
of Russian Programmer
Contacts for EFF:
Will Doherty, EFF Online Activist / Media Relations,
+1 415-436-9333 x111
Robin Gross, EFF Staff Attorney - Intellectual Property,
+1 415-436-9333 x112
Contact for Adobe:
Holly Campbell, Senior Corporate Public Relations Manager,
San Jose, Calif. - Adobe Systems Incorporated (Nasdaq: ADBE) and the Electronic Frontier Foundation (EFF) today jointly recommend the release of Russian programmer Dmitry Sklyarov from federal custody.
Adobe is also withdrawing its support for the criminal complaint against Dmitry Sklyarov.
"EFF praises Adobe for doing the right thing," said Shari Steele, EFF Executive Director. "We are pleased to see that Adobe has lived up to the high standard of integrity that has made the company successful. While we don't agree on every detail of the Digital Millennium Copyright Act (DMCA), we look forward to working together with Adobe to secure Dmitry's immediate release."
"We strongly support the DMCA and the enforcement of copyright protection of digital content," said Colleen Pouliot, Senior Vice President and General Counsel for Adobe. "However, the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry. ElcomSoft's Advanced eBook Processor software is no longer available in the United States, and from that perspective the DMCA worked. Adobe will continue to protect its copyright interests and those of its customers."
Sklyarov was arrested July 16 on a criminal complaint filed by the U.S. Attorney for the Northern District of California under the DMCA. ElcomSoft is the Moscow-based company employing Sklyarov.
About Adobe Systems Incorporated
Adobe Systems Incorporated ( http://www.adobe.com ) builds award winning software solutions for Network Publishing, including Web, print, video, wireless and broadband applications. Its graphic design, imaging, dynamic media and authoring tools enable customers to create, manage and deliver visually-rich, reliable content. Headquartered in San Jose, Calif., Adobe is the second largest PC software company in the U.S., with annual revenues exceeding $1.2 billion.
to Attorney General John Ashcroft
Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110
The Honorable John Ashcroft
Department of Justice
950 Pennsylvania Avenue N.W.
Washington, D.C. 20530
July 20, 2001
Dear Attorney General Ashcroft:
At the request of Adobe Corporation, Dmitry Sklyarov was arrested by the FBI on July 16th and charged with crimes under the Digital Millennium Copyright Act (DMCA). Mr. Sklyarov is a Russian national who came to the United States to deliver an academic presentation on his technological innovations. His arrest and subsequent detention without bail are shameful and opportunistic actions against an individual who was here simply to share his knowledge and technical expertise with American scientists.
Dmitry Sklyarov is not accused of any copyright infringement of any sort. He is a computer programmer. He stands accused of writing software that enables purchasers of electronic books to exercise their lawful fair use rights when viewing their eBooks. Such software is both legal and required in Russia, where it was written and developed. And while the DMCA does not prohibit its use in the US, providing the technology is banned under the DMCA. Courts have determined time and time again that computer code is creative expression worthy of First Amendment protection. Mr. Sklyarov is currently being held captive for the content of his ideas that demonstrate the flaws in Adobe's software and because he expressed them in the most precise scientific language available to his profession, computer code. Mr. Sklyarov's right to free expression under the U.S. Constitution and international treaty obligations must be respected.
Not only are Dmitry Sklyarov's human and civil rights being abused, the inability of programmers to distribute fair use tools infringes on the free speech rights of all of citizens who legitimately need them. Fair use is an integral part of the bargain of rights struck between the public and authors under U.S. copyright law. The U.S. Supreme Court has held that fair use provides the necessary breathing room to prevent a conflict between copyright and the guarantees of freedom of expression under the First Amendment. Although the Constitution mandates that copyrighted works pass into the public domain, the DMCA has outlawed all tools necessary to gain access to the works, even after those works rightfully belong to the public. Technology permits publishers to restrict access to and control the use of copyrighted works in ways that dangerously exceed the bounds of copyright, encroaching upon the public's rights to use and access knowledge.
While copyright holders are not accountable for the manner in which they release a work, the people must be permitted to take necessary steps in order to exercise their rights under the law. Jailing Dmitry Sklyarov strips people everywhere of that right and chills important research. The DMCA must be reigned in to comport with the limits set by the US Constitution.
When the DMCA was passing through Congress in 1998, the copyright industry promised it was needed as a shield for protection. Now as law, its used as a powerful sword to squelch speech and competition and kill fair use. Congress never intended for the DMCA to destroy fair use, in fact it expressly tried to protect it. As Attorney General, we ask that you honor this intent and your obligation to uphold the Constitution by dropping the charges against Dmitry Sklyarov and allowing him to return home to his wife and two small children.
Electronic Frontier Foundation
Publishers Hail Government Action Against Russian Ebook Hacker
Publishers Hail Government Action Against Russian Ebook Hackers
Washington, DC: The nation's largest association of book and journal publishers today hailed the actions of the U.S. Department of Justice in arresting and charging a Russian cryptographer for trafficking in software that was primarily designed to "hack" technological safeguards that prevent unauthorized copying and distribution of ebooks.
The actions at issue were taken in accordance with provisions of the Digital Millennium Copyright Act (DMCA), which was enacted by Congress in 1998 to implement two international copyright treaties that were adopted by the World Intellectual Property Organization (WIPO) and endorsed by the United States and nearly 100 other nations two years earlier. Among other things, the DMCA prohibits the manufacture or distribution of products or services that are primarily designed or produced to circumvent technological protection measures used by copyright owners, thereby meeting the treaties' requirement that signatory countries provide "adequate legal protection and effective legal remedies against circumvention" of such measures.
According to news reports and documents filed by the Justice Department in the case, Dmitry Sklyarov is the alleged author of a program, "Advanced eBook Processor," which was designed to unlock and strip the technological protection measures from the "eBook Reader" produced by Adobe Systems Incorporated. Sklyarov, who was arrested a day after addressing a "hackers convention" in Las Vegas on the subject of this software, is an employee of ElcomSoft, a Russian software company that has allegedly been selling the software through its website.
Pat Schroeder, President and Chief Executive Officer of the Association of American Publishers (AAP), hailed the Justice Department's actions as consistent with the DMCA's "anticircumvention" provisions and the underlying Congressional intent to promote the availability of books and other copyrighted works on the Internet and in other digital formats.
According to Mrs. Schroeder, "It's only common sense to expect that, if the public wants desirable books to be available online and through other digital media like the Adobe Reader, the authors and publishers who have the legal rights to commercially exploit such works in the global digital marketplace must have reasonable assurances that the market value of their works can be protected from the extraordinary risks of illegal reproduction and distribution that are made possible by the capabilities of digital media. Congress understood this when it enacted the DMCA to help promote the online availability of copyrighted works."
"Distribution of the means to strip ebooks of their access and copyright protections is not a public service, any more than it would be a public service to distribute the keys that unlock a bookstore or public library," Mrs. Schroeder said. "It merely facilitates theft, and makes it less likely that ebooks will soon become a popular reading format."
The Association of American Publishers is the national trade organization of the U.S. book publishing industry. AAP's 310 members include most of the major commercial publishing houses, along with many small and medium-sized houses, university presses, and scholarly societies. Among the Association's top priorities is the protection of intellectual property rights in all media.
EFF Urges His Immediate Release
The Electronic Frontier Foundation and community activists urge concerned citizens to join in a San Francisco Bay Area protest on Monday, July 23, against software firm Adobe's role in the jailing of programmer Dmitry Sklyarov.
The local protest is part of a multinational effort to secure the release of Sklyarov, who was arrested for distributing electronic book software that expands the capabilities for reading, sharing, printing, and making backups of electronic books.
According to a Justice Department complaint used by the FBI in the Las Vegas arrest of Sklyarov earlier this week, Adobe requested that the Justice Department take action against the programmer, resulting in his arrest shortly after giving a conference presentation on security weaknesses of Adobe's eBook Reader software.
"Adobe, seeking to protect electronic property rights at any cost, has apparently pushed the U.S. Department of Justice into an ill-advised arrest of a Russian programmer under the Digital Millenium Copyright Act," reported EFF Executive Director Shari Steele.
Robin Gross, EFF Staff Attorney, said, "We join the international community in expressing outrage at the selective arrest of programmer Dmitry Sklyarov for allegedly distributing software that we believe is perfectly legal and helpful to electronic book purchasers."
"Our hearts go out to Dmitry's wife, children, and colleagues who are likely distraught by what appears to be a most disgraceful arrest," added Will Doherty, EFF Online Activist. "We protest Adobe's role in perpetrating this grave miscarriage of justice."
The San Francisco Bay Area protest will occur at Adobe Headquarters, from 11:00 am to 1:00 pm this Monday, July 23. Protestors will gather in San Jose at the Quetzalcoatl snake sculpture at the south end of Cesar de Chavez Park, at the corner of South Market St. and West San Carlos St, then march to Adobe Headquarters at 345 Park Avenue in San Jose.
Protest organizers include the Electronic Frontier Foundation, BoycottAdobe.com, and a loose-knit group of activists linked together through the free-sklyarov email list.
The organizers request that attendees bring along U.S. or Russian flags and signs. Free T-shirts from a group called BoycottAdobe.com will be distributed to the first fifty attendees.
Protests are also expected in Moscow, Denver, Boston, Seattle, and other locations.
For the latest information on the Sklyarov case, media releases, legal filings, and the protests, including ridesharing options, see:
from EFF Executive Director Shari Steele
Once again, the Digital Millineum Copyright Act (DMCA) is proving itself to be as harmful to civil liberties as we predicted it would be. The latest victim is a Russian programmer named Dmitry Sklyarov, who authored a program that permits copying, printing and lending of electronic books by unlocking a proprietary Adobe electronic book format.
Mr. Sklyarov has been brought up on criminal charges under the DMCA for distributing a product designed to circumvent copyright protection measures. This is different than the 2600 and Felten cases, which are civil lawsuits. In a civil lawsuit, one private citizen (or company) sues another for money and/or the cessation of a particular action. In a criminal case, the government brings charges against an individual (or company) and the punishment for conviction can be prison and/or fines.
EFF has been in contact with the Assistant U.S. Attorney (AUSA)'s office trying to track Mr. Sklyarov's whereabouts and speak with him directly. While the arrest took place in Las Vegas, the complaint was executed in San Jose, meaning that Mr. Sklyarov will be sent to California to stand trial. We have spoken with his colleagues, criminal defense attorneys and others to help with his defense. After he arrives in California, our first order of business is to get Mr. Sklyarov out of jail on a bond pending his trial. EFF has begun to pull together a top-notch legal team to help him defend his right to talk about and distribute the Advanced eBook Processor software program, and we'll be ready to step in as soon as it is appropriate.
EFF knew when we took on the 2600 Case over a year ago that fixing the DMCA would require several legal challenges. EFF remains committed to chipping away at this law until it no longer poses a threat to our right to free speech.
Lest anyone be confused, this case is not about copyright infringement. Mr. Sklyarov is not accused of infringing anyone's copyrights. He is accused of building the Advanced eBook Processor, a tool that allows the legitimate purchaser of an e-book to translate it from one digital format into another (from Adobe's eBook format into Adobe's Portable Document Format). Mr. Sklyarov is not being prosecuted for using the tool himself -- in fact, such a prosecution would be impossible, since using such a tool (as distinguished from building or distributing one) breaks no law. Mr. Sklyarov has entered the strange Twilight Zone of the DMCA, where using a tool is legal, but building it is a crime.
We invite your support. If you are not yet an EFF member, please join with us at http://www.eff.org/support. If you already are a member and wish to make a donation, you can use that same link to get to our donation page.
Together we will keep the pressure on anyone who chooses to degrade our basic rights. Thanks for your help.
Distributed Tool that Increases Purchaser's Control of eBooks
The FBI arrested Russian citizen Dmitry Sklyarov in Las Vegas, Nevada, yesterday on charges of distributing a product designed to circumvent copyright protection measures. Sklyarov, who was in Las Vegas to deliver a lecture on electronic book security, allegedly authored a program which permits editing, copying, and printing of electronic books by unlocking a proprietary Adobe electronic book format.
Charged in one of the first United States criminal prosecutions under the Digital Millenium Copyright Act (DMCA), Sklyarov is currently in custody in Las Vegas pending transfer to the Northern California US Federal District Court.
The case involves Advanced eBook Processor (AEBPR), software developed by Sklyarov's Russian employer Elcomsoft. According to the company's website, the software permits eBook owners to translate from Adobe's secure eBook format into the more common Portable Document Format (PDF). The company maintains that the software only works on legitimately purchased eBooks.
Adobe's eBook format restricts the manner in which a legitimate eBook buyer may read, print, back up, and store electronic books. The Advanced eBook Processor appears to remove these usage restrictions, permitting an eBook consumer to enjoy the ability to move the electronic book between computers, make backup copies, and print. Many of these personal, non-commercial activities may constitute fair use under U.S. copyright law. Of course, the Advanced eBook Processor software may also make it easier to infringe copyrights, since eBooks, once translated into open formats like PDF, may be distributed in illegitimate ways.
Robin Gross, attorney with the Electronic Frontier Foundation (EFF), explained, "The U.S. government for the first time is prosecuting a programmer for building a tool that may be used for many purposes, including those that legitimate purchasers need in order to exercise their fair use rights."
Jennifer Granick, Clinical Director at the Stanford Law School Center for Internet and Society, commented that "the DMCA says that companies can use technology to take away fair use, but programmers can't use technology to take fair use back. Now the government is spending taxpayer money putting people from other countries in jail to protect multinational corporate profits at the expense of free speech."
Alexander Katalov, President and Owner of Elcomsoft, expressed anger and disappointment over Sklyarov's arrest: "Dimitry is only one of the programmers who worked on this program, so I don't understand why it is his sole responsibility. In Russia, we have no law like the DMCA. In fact, distributing Adobe's eBook software is illegal in Russia, since Russian law requires that the software permit the purchaser to make at least one legal copy."