On July 17, Russian programmer Dmitry Sklyarov gave a speech at the DefCon hackers' conference in Las Vegas, explaining a new software algorithm he'd developed. Soon afterwards, he was arrested by the FBI.
Sklyarov didn't steal anything. He didn't hurt anyone. And he's not a spy. No, he went to jail simply because he figured something out.
His software — as published by Elcom, the company he works for in Russia — eliminates the encryption from protected Adobe Acrobat (PDF) files. Once processed by Sklyarov's program, PDF eBooks can be read, copied and manipulated without restriction, regardless of the wishes of their publishers.
It's a clever hack. Unfortunately for Sklyarov, it also happens to be a crime. Under a federal law called the Digital Millennium Copyright Act (DMCA), it's illegal to disseminate any mechanism designed to circumvent a digital copy-protection measure.
"Only in America," Sklyarov may well be thinking now. And he'd be right, because so far no other country in the world has a copyright law as outrageous and restrictive as the DMCA. In fact, in his native Russia, precisely the opposite is true. There, it's illegal to design a scheme that prevents private citizens from making copies of media for their own use.
In general, international copyright law has always taken into account the individual's right to make use of materials purchased in a fair and reasonable way. The so-called fair-use doctrine makes it permissible to photocopy a page from a magazine to hang on your refrigerator, for example. It's also what allows you to tape a TV program to watch later or to excerpt portions of copyrighted works if you plan to include them in a review.
But with the passage of the DMCA, you'd best keep one eye looking over your shoulder. When this law passed in 1998, it gave copyright owners (most notably, the giant media corporations that lobbied for it) broad leeway to bring suit against anyone seen as interfering with their sacred right to line their own pockets — civil liberties be damned. And unfortunately for the rest of the world, the United States has recently seen fit to exercise its own corporate doctrine on a global scale.
You may remember the first DMCA-related tussle, which centered on a software program called DeCSS that could remove the encryption from DVD videos. In that case, the Department of Justice brought suit against 2600 magazine — not for writing the software, but merely for linking to the DeCSS source code on its Web page.
As troubling as that was, however, Jon Johanssen — the Norwegian citizen who actually created the code — fared much worse. In response to the outcry from American corporations, police raided the 16-year-old Johanssen's home, seizing his computer and phone equipment. Later, multiple lawsuits were filed against him by the likes of MGM, Sony, Universal, Warner Bros. and others.
In the Dmitry Sklyarov case, we've taken our bullying tactics still one step further. Sklyarov, 27, now languishes in a U.S. jail, half a world apart from his family — including two small children. And remember: Sklyarov's eBook reader was published in Russia, where writing decryption code is perfectly legal. Thus, the crime for which Sklyarov was arrested is, quite literally, giving a speech.
Those in the software, music and movie industries see these types of legal actions as perfectly valid. They're fond of throwing around terms like "piracy," likening duplication of copyrighted works to pillaging and anarchy.
But no charges of piracy — or, indeed, any kind of unlawful duplication — have been brought against Sklyarov. None were ever introduced in the DeCSS case, either. Rather than any actual copying, in each case it was simply the act of explaining how something could be copied that, under the DMCA, constituted a crime.
Got that? It's not that either Sklyarov or Johanssen stole anything. It's that the software each created could potentially be used to steal.
By the same logic, medical researchers giving speeches about toxins could be arrested, since their discoveries could be used to commit murder. Or a manufacturer of bobby pins could be sent to jail for designing items that could be used to pick locks.
The DMCA's corporate supporters would argue that, unlike bobby pins or medical chemistry, there is no legal use for unauthorized software that circumvents copy-protection measures. But that's an overly simplistic view, and one that fails to take into account the intelligence and ingenuity of those involved in these "crimes."
The primary motive for the creation of both Sklyarov's eBook decoder and the DeCSS software was to allow digital media to be used on operating systems not supported by the formats' creators — most notably, Linux.
To illustrate, you can't play a DVD without decrypting the video stream. Most DVD-ROM drives ship with commercial software to handle that task, but because the secrets of CSS encryption were so jealously guarded by the movie industry, no open-source equivalent for Linux was available.
Reverse engineering a decryption program like DeCSS was therefore the first natural step in developing free Linux DVD player software. In effect, by declaring DeCSS illegal, the DMCA rendered the creation of open-source DVD software itself a crime.
In the case of Sklyarov's eBook decoder, there are numerous applications besides just reading the books under Linux. The decoder could be used to enable a device to read eBooks aloud to the blind, for example. It could also lead to third-party text search and analysis engines.
The possibilities aren't lost on other programmers, either. Adobe, the creator of the PDF format, has actually backed off from its earlier stance toward Sklyarov, largely due to the efforts of the Electronic Frontier Foundation. It has even gone so far as to request that Sklyarov be released.
Unfortunately, Sklyarov's fate is in the hands of lawyers, not his fellow software developers. The Justice Department plans to make an example of him, despite Adobe's objection. The DMCA is law, DOJ spokespeople argue, and they plan to uphold it.
We can expect more of this type of thing, as well. Congress has earmarked a $10 million budget for copyright-infringement cases for 2002. Make no mistake: Copyright law exists for a reason, and there are valid uses for this money. But throwing programmers in jail isn't one of them.
Put plainly, what Sklyarov did should not be illegal here, any more than it is in Russia. The issue has nothing to do with creators' rights to profit from their work. For big media conglomerates to insinuate as much is just a smokescreen, and an insulting one at that. What creator's rights have been infringed in this case, if not Dmitry Sklyarov's?
At best, the United States must look fairly foolish to the international community. At worst, our detainment of a foreign national under a dubious commercial code must seem a reprehensible violation of civil liberties and a thumbing of our noses at international law. To continue on this course can only hurt us in the long run.
In particular, the impact on the sciences could be grave. Who would be willing to come to the United States to carry out research work if publishing the findings of that research could land them in jail?
With the US's stature in world politics, however, and the weight of our business interests, it seems extremely likely that other nations may soon follow our lead with DMCA-like laws of their own. But instead of setting this poor example, shouldn't the United States take measures to be a world leader in civil rights — not just in commercial litigation?
Not every politician in the U.S. agrees with the DMCA. Representative Rick Boucher (D-Virginia) is one who has serious reservations about the breadth of the law. It's up to us to let others in the government know we want a loosening of the law's restrictions.
What we'll be up against, however, are well-funded lobbies supported by the major record labels, the software-publishing industry and the music industry, among others. Still, this issue is too important for us to overlook. What we risk is a gradual strengthening of the powers of corporations at the expense of our civil liberties.
But first things first. Let's do the right thing. The breadth of the DMCA's language is an issue that needs to be hammered out in the courts and on the congressional floor; let's not make one man's future hang in the balance while we get around to it. The Justice Department should free Dmitry Sklyarov.
