Once Upon a Time in a land far away called Russia a young knight named Dmitry came of age. He studied the newest technologies and honed his skills as a computer programmer. One day our knight made a brilliant discovery and traveled to a foreign land named Las Vegas to share his new craft. He embarked on a tournament of cryptographers, but much to his dismay Dmitry angered the Lords of Corporate Monopolies by encroaching on their lair and threatened their treasures. To protect their riches, the Lords hailed the King to build a deep and treacherous moat to surround their corporate castles. When Dmitry attempted to cross the moat, the King's men captured and imprisoned our hero. Now, Dmitry must rely on the law of the land to gain his freedom and return home to Russia.
While this fairy tale seems like a fable of yesteryear, it's actually a depiction of the past six months in the life of 26-year-old Russian programmer, Dmitry Sklyarov. Sklyarov is accused of authoring a computer program entitled "Advanced eBook Processor" ("AEBPR") which unlocks Adobe System Inc.'s eBook Reader. Sklyarov and his employer, Elcom Ltd., ("ElcomSoft") a software company headquartered in Moscow, Russia, were criminally indicted August 28, 2001 in the Northern District of California on charges of illegally trafficking in a product designed to circumvent copyright protection measures. According to the U.S. Department of Justice, this case is one of the first criminal prosecutions in the country under the Digital Millennium Copyright Act ("DMCA").
The Adobe eBook Reader is a program that enables consumers to purchase and read protected literature in eBook format from a personal computer. After downloading the eBook Reader software, consumers can buy eBooks from online retailers that then authorize the eBook to be read on the same computer from which the purchase was made. The publisher or distributor of the recently purchased eBook is able to authorize or limit the consumer's ability to copy, distribute, print, or have the text read audibly by the computer. "Adobe designed the eBook Reader to permit the management of such digital rights so that in the ordinary course of its operation, the eBook Reader effectively permitted the publisher or distributor of the eBook to restrict or limit the exercise of certain copyright rights of an owner of the copyright for an eBook distributed in the eBook Reader format." In other words, a consumer cannot retain and transfer their lawfully purchased eBook to another computer, hard drive, or operating system. Consumer complaints that this constrained readers far more than ink-on-paper copies opened the door for Sklyarov's AEBPR to enter the scene.
Adobe, fueled by concern that the AEBPR software was allowing people to copy and view eBooks in other formats and on multiple computers, first brought ElcomSoft and Sklyarov to the attention of the FBI on June 26,2001. However, after Sklyarov's arrest and a plethora of negative publicity and protest Adobe withdrew it's support for the Department of Justice's criminal complaint via a joint press release with the EFF dated July 23, 2001. A July 20, 2001 meeting between EFF and Adobe representatives prompted this withdrawal. Adobe has now joined with the EFF in recommending the release of Dmitry from federal custody.
"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."
Critics argue that companies like Adobe are merely using copyright law as a means of maintaining corporate dominance. In his keynote address at the Linux World Conference and Expo, Lawrence Lessig, Stanford Law School professor and technology pundit, stated that "Copyright and patent law, ostensibly designed to protect innovation, now have become tools large companies can use to maintain their dominance and control." Adobe's most powerful protection against invaders is the Digital Millennium Copyright Act ("DMCA").
Our hero's greatest hurdle is the murky water of the DMCA moat that surrounds corporate castles, like Adobe. The DMCA was enacted in 1998 to implement the World Intellectual Property Organization (WIPO) obligations in the United States. In an attempt to prevent widespread piracy, the DMCA restricts fair use by employing digital-rights-management technology to restrict intellectual property.
Of particular relevance are the new alligators swimming around the DMCA moat: the new anti-circumvention provisions of the Copyright statute. These new provisions make it illegal to engage in an act of circumvention of a technical protection (17 USC ¤1201(a)(1)), to develop and provide tools to others which would allow them to access a technologically protected work (17 USC ¤1201(a)(2)) and to manufacture, import, provide or traffic in tools that would enable another to circumvent protection to copy a protected work (17 USC ¤1201(b)(1)(A)). The DMCA's anti-circumvention provisions have both civil and criminal penalties carrying a maximum of 5 years' imprisonment and/or a fine of up to $500,000. The DMCA essentially backed the efforts of copyright owners to protect their works from piracy behind digital walls with an artillery of legal sanctions.
These provisions have spawned debates regarding prior restraint of free speech and fair use. Critics are concerned that the DMCA limits access to what would otherwise be public domain works. Further, the DMCA severely limits the circumstances when computer scientists can try to crack circumvention systems for research purposes.
A recent civil case illustrates the murky waters of the DMCA. In June 2001, Edward Felten, a Princeton computer scientist, and the USENIX, or the Advanced Computing Systems Association filed suit against our old friends the Recording Industry of America ("RIAA") asking the court to declare that under the First Amendment he could publish his findings without violating the DMCA. According to the Electronic Frontier Foundation ("EFF"), after issuing a challenge to scientists to hack the music industry's encryption system, SDMI, the RIAA allegedly threatened Felton with prosecution if he disclosed the technical details of his research. This was the first established First Amendment "chilling effect" of the DMCA.
In another blow to free speech activists, on November 28, 2001 the Second Circuit court of appeals upheld a lower court decision banning 2600 magazine from publishing the computer code DeCSS on its website. In that case, Universal City Studios, Inc. v. Reimerdes, 2600 magazine was sued under the anti-trafficking provisions of the DMCA for posting the DeCSS code on it's hacker oriented website. DeCSS is a computer code that circumvents the CSS encryption technology employed to prevent the unauthorized viewing and copying of motion picture DVDs.
With decisions such as this and convoluted drafting, it's easy to see why the DMCA has become an almost insurmountable moat which maintains corporate monopolies. But, how does our hero fit into the picture?
Sklyarov, Russian graduate student and computer programmer, created AEBPR software which unlocks Adobe's eBook reader and in doing so unlocks the castle doors. Sklyarov and his employer, ElcomSoft, made the AEBPR program available for purchase on their website. Individuals wishing to purchase the AEBPR program could download a partially functional copy of the program and then were directed to pay approximately $99 to an online payment service based in Issaquah, Washington. Upon making payment, purchasers received a registration number permitting full-use of the AEBPR program.
The AEBPR program works by creating a "naked file," which enables any one to read an eBook without purchasing it from the bookseller. It allows each eBook file to be opened in any PDF (Portable Document Viewer) without any of the restrictions associated with Adobe's eBook Reader format. With the use of AEBPR, consumers can edit, copy, or print the eBook that responds to consumer complaints about eBook transferability between multiple computers or operating systems.
In July 2001, Sklyarov traveled to America to demonstrate his findings. Sklyarov went to Las Vegas to give a presentation on eBook security at the Def Con 9 conference. The annual conference bills itself as the "largest underground Internet Security gathering on the planet."
Upon receiving a tip from Adobe, the FBI arrested Sklyarov July 16, 2001 at the Alexis Park Hotel in Las Vegas on charges of "trafficking in software designed to circumvent copyrighted software" and of aiding and abetting. If convicted, Sklyarov would face a statutory maximum penalty of five years in prison and a $250,000 fine for each DMCAviolation.
On August 28, 2001, in a foreign country, far from his home and family, Sklyarov was indicted with five counts of copyright violation under the DMCA. Sklyarov was then held in jail until August 6, when he was released on $50,000 bail on condition he remain in California. After an August 30, 2001 arraignment, in which Sklyarov pled not guilty he remained in California, not knowing his fate.
Although not an U.S. citizen, Sklyarov has most recent poster child for free speech on the Internet. The irony is that AEBPR is legal in Russia. It is the sale to American citizens that allows the FBI to force Sklyarov and ElcomSoft into a jousting competition. However, many still believe that Sklyarov belongs in jail. Inside.com's legal editor, Roger Parloff argues that Sklyarov wasn't arrested for his speech at Def Con 9, but rather for selling AEBPR to U.S. customers, for American dollars, using a U.S. based billing agent. Parloff contends that the FBI certainly had jurisdiction over this knowing and intentional violation of copyright law. He further emphasizes the importance of Sklyarov's arrest by noting that on the Internet it takes only a single unprotected copy to disseminate copyrighted material worldwide. Of course, first amendment advocates contend that Sklyarov should be free because the moat he's trying to cross violates the law of the land.
Before the great castles were erected and the moats were dug, the former Kings of this land issued decrees proclaiming freedom of speech for all its subjects. The first amendment protects expression and deems any restraint on expression a prior restraint. This allows citizens to speak out without fear of government constraint. While this is a constitutional right, there are limitations. One such limitation is the Copyright Act. Copyright law must juggle the competing concerns of allowing free speech, and fostering technological innovation. Copyright law grants a monopoly in the copyright holder to limit the use and dissemination of their work. To place limits on this monopoly, courts have established fair use.
Fair use permits limited use of copyrighted works for specified uses, free of liability for copyrightinfringement. Traditionally, fair use has nurtured socially useful forms of expression. "It has been viewed as a safety valve that accommodates the exclusive rights conferred by copyright with the freedom of expression guaranteed by the First Amendment."
In Universal City Studios, Inc. v. Reimerdes, the DMCA was challenged on First Amendment grounds because computer code is protected speech, therefore prohibiting the dissemination of code is a prior restraint and because it was overbroad in preventing fair use of encrypted works. However, in a recent opinion, the Second Circuit held that the "DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred." While the court held that computer code does qualify as protected speech, it also stated that the DMCA "does not impose a limitation on the opportunity of any person to make a variety of traditional fair uses." The court then concluded by noting that "[f]air use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original."
Nevertheless, by controlling access to copyrighted works, the DMCA may be frustrating the purposes of those citizens wishing to make fair use of such works. Often, it is difficult if not impossible to access works without circumvention, regardless of purpose.
It is this backdrop of heated debate and unrest among the subjects that our hero is thrust into battle against the corporate monopolies. His only assistance in crossing the moat and entering the castle is the shield of the King'sdecree: the first amendment.
Armed with AEBPR, the First Amendment, and a fair use defense Dmitry is embarking on a long battle where he is merely a pawn in a much larger game. "The Sklyarov case is being used by opponents of the DMCA ....The DMCA's opponents are using the case to get at the bigger argument that there are legitimate fair use reasons for using this technology."
Whether Sklyarov is the best choice for a hero is irrelevant, because the debate about the DMCA islegitimate. When the law was passed, people were unable to foresee the future uses of this legislation. "It takes imagination to understand the broad implications that the DMCA could have, as electronic distribution of music, videos, and publicationsincreases." Green Article. Now, Sklyarov's case has brought the many shortcomings of the DMCA into the public eye.
Sklyarov's participation in creating and distributing AEBPR will most likely be deemed to fall within the DMCA. Under 17 USC 1201(b)(1)(A), manufacturing, providing, or offering to the public any technology which is primarily designed for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright in a copyrighted work. Sklyarov wrote the AEBPR code which unlocked the protective measures Adobe placed on their eBooks. AEBPR's sole purpose is to get around Adobe's technological locks. Then, his company distributed this code to the public via their company website. While it has been argued that Adobe's protective measures were weak, that does not grant hackers a license to unlimited free access.
The DMCA seemed to offer a slight glimmer of hope because it contains an exception for permissible acts of encryption research. Unfortunately for our hero, this exception only applies to subsection (a)(1)(A), which Sklyarov was not charged with violating. In fact, all of the useful exceptions under the DMCA that could have aided Sklyarov's case apply only to subsection (a) of the statute.
By immediately assuming that anyone who attempts to circumvent technological protections of copyright has a nefarious purpose the DMCA implicitly assumes that the only reason to create or use such a technology is for piracy. The moat is so deep that it doesn't bother to look at the purposes behind circumvention, but rather immediately assumes that piracy is the one and only goal of decryption. In doing so, it leaves no life raft for true scientific research; the same research that enabled the very technological advancements which prompted the DMCA.
While some copyright protection is warranted, the DMCA isn't the least intrusive mean of fostering creative innovations. The DMCA takes the irrational approach of punishing the technological innovators rather than those individuals who misuse the technology. This counteracts the primary goal of the copyright monopoly. Firearms serve as a fitting analogy. Firearm manufacturers needn't worry if their products will be used for good or evil purposes. Inevitably, consumers will use products for both legal and illegal purposes. Fortunately, we only hold those who commit illegal acts accountable for their actions. But, in the case of the DMCA, anti-circumvention technology creators are punished for making a neutral product that can be used for illicit purposes regardless of their intentions.
The DMCA also provides corporations with legal aid by using government efforts to protect private copyright monopolies. This is to the detriment of society at large because it scares off competition thereby preventing new products from entering the market. The net effect is a breakdown of the free market system with limited choices for the average consumer. It also gives a large advantage to those with the means to hire legal counsel, namely corporations. By being such corporation friendly legislation, the DMCA is benefiting only a tiny fraction of society. It is increasing costs for consumers and small start-up companies.
The DMCA is a murky cesspool of stripped freedoms and corporate favoritism surrounding glimmering fortresses which reap the benefits designed for artists and researchers while the remaining subjects of the land make do with the limited options of bread and water. Is there anything that can help our hero cross this trench of legislation?
In light of the recent decision in the Corley case, Sklyarov's chances of crossing the moat with the help of the king's law are slight. We know who provides the king with his riches: The Lords of the Corporate Castles.
If our hero is to survive he must show that AEBPR allows consumers to make fair use of eBooks. Fair uses include news reporting, commentary, criticism, and education. AEBPR allows consumers to space shift eBooks between computers, make back-up copies of lawfully purchased eBooks, cut and paste portions of literary works for fair uses, print the eBook to read it in hard copy form, and allows users whose operating systems don't currently support eBook formats access to eBooks. Though these are all worthwhile uses, they will likely fall on unsympathetic ears.
Further, because the court in Reimerdes deemed the DMCA content-neutral regulation there is no requirement that the statute encompass the least speech-restrictive means of protecting copyright. The applicable test is whether the DMCA promotes a substantial governmental interest that would be achieved less effectively absent the regulation. This is a very low standard to meet. In Reimerdes, the anti-trafficking provision of the DMCA was not held to be First Amendment violations. The court reasoned that the provision did patronize copyright protection and any incidental restraint of expression or fair use was simply necessary to accomplish the goals of impeding infringement.
While it is clear that although the public is up in arms about the potential effects of the DMCA, the judiciary is not willing to force the legislature to eat crow just yet. The DMCA simply doesn't rise to the level of prior restraint (at least not in the court's view). Perhaps, the judiciary is simply waiting for the right test case, which will highlight the chilling effect of the DMCA. Is Sklyarov's case the best test? Probably not. While Sklyarov was in fact a student doing research, his company used his research and marketed AEBPR to U.S. consumers for profit. This fact coupled with the court's suggestion in Corely that fair use is not a guarantee of access shows that the cards are stacked against our hero.
Our hero will retrace his steps and return home to Russia with amazing tales to tell of his adventures. On December 13, 2001 the Associated Press reported that all charges against Sklyarov will be dropped in exchange for his testimony in ElcomSoft's trial. "ElcomSoft's chief executive, Alex Katalov, said he was pleased that the company, not Sklyarov, would bear sole responsibility for the charges." Dmitry will be back in Russia with his family for the holidays. At last, a happy ending for Dmitry, but will it be a happy ending for the DMCA as well? Only time will tell...
