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