[free-sklyarov] (no subject)

[xyz at kalifornia.com]

Case highlights law's threat to fair-use rights

Silicon Valley, 7/19/2001
http://www.siliconvalley.com/docs/opinion/dgillmor/dg071801.htm

The music industry is no longer threatening computer science professor
Ed Felten with civil lawsuits for his research into one of the
industry's digital copy-protection schemes. He doesn't have the same
assurance, however, that the United States government won't launch a
criminal prosecution if he proceeds.

That uncertainty grew more pronounced this week when the FBI arrested a
visiting Russian computer scientist Monday in Las Vegas, charging him
with violating the 1998 Digital Millennium Copyright Act by distributing
software that cracked a system for encrypting electronic books. It was
one of the first criminal prosecutions under a bad law that was designed
to protect copyright owners from unauthorized copying but is having all
kinds of other negative effects.

Before I explain why Felten feels more jeopardy than ever as a result of
his efforts to publish scholarly research, you need to understand some
background as well as what happened to the Russian programmer.

The Digital Millennium Copyright Act (DMCA), a gift to the well-financed
entertainment and software industries, trashed the public interest. It
gave copyright owners the right to assert absolute control over
copyrighted material, effectively allowing them to prevent the public
from asserting a variety of traditional user's rights, including the
``fair use'' of making personal copies.

In this week's case, Adobe Systems sicced the cops on the Russian
programmer, Dmitry Sklyarov, who'd written and was selling software that
broke Adobe's encryption method for the Acrobat software it uses for
what it calls eBooks. Sklyarov, in Las Vegas at a security conference,
was arrested after giving a talk on -- you guessed it -- security
measures in electronic books.

The DMCA makes it a crime to ``manufacture, import, offer to the public,
provide or otherwise traffic in any technology, product, service,
device, component or part thereof'' that ``is primarily designed or
produced for the purpose of circumventing protection afforded by a
technological measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof.''

Hollywood, the music industry and software companies have used this
breathtakingly broad measure to file a variety of civil lawsuits. The
recording companies' threats against Felten and his colleagues were part
of a campaign to keep software that breaks encryption, no matter how
feeble the encryption method is in the first place, out of circulation.
It's as if we outlawed cars on the principle that they could be used to
help crooks escape from bank robberies.

Please understand what's at stake here -- some fundamental and
traditional rights.

Software that breaks encryption schemes is not, by itself, a certain
sign that its purpose is to help people make illegal copies. We have the
right to make personal copies of copyrighted works. That's fair use, and
fair use is enshrined in our law.

Sklyarov's company, ElcomSoft (www.elcomsoft.com), says its software has
entirely legitimate uses. People who have purchased eBook files can
convert the files to a format that can be read on types of computers not
currently supported by Adobe's eBook Reader software, for example. The
company, on its Web site, also offers scathing criticism of Adobe's
encryption methods, saying they are inherently weak.

For its part, Adobe seems to see only the piracy potential in such
code-breaking software. In the process, Adobe is asserting the right to
prevent people from making fair-use rights with electronic books they
buy. Hollywood and the record industry insist on the same restrictive
control over digital versions of the works they own.

OK, back to Felten, who teaches at Princeton University. He ran afoul of
the DMCA earlier this year. He and other researchers had taken up the
music industry's challenge to break a digital watermarking scheme that
was under consideration for CDs and other digitally recorded music.

They easily defeated the watermarking system, and prepared to describe
their results at an academic conference. But the music industry --
specifically, a consortium that has come up with the watermarking idea
in the first place -- and a software company that had worked on the
system threatened the researchers, citing the DMCA, leading them to
withdraw their paper.

Felten and his colleagues then filed suit, asking a federal judge in New
Jersey to specifically allow them to publish -- to allow them their
First Amendment rights -- and declare the DMCA unconstitutional. The
industry and software company, no doubt realizing their blunder, have
sent letters to the judge, promising they won't sue even if the paper is
published.

But the U.S. Justice Department, also a defendant in the Felten suit,
hasn't responded. And after Tuesday's arrest, it's no wonder that Felten
-- and programmers and researchers everywhere -- should be feeling
considerably more nervous. A federal prosecutor in San Jose told me
Tuesday that the law under which was Sklyarov charged wouldn't apply in
Felten's case, but why should he take the risk?

So, under the DMCA, it's a crime to spread the word about technology
that maintains your fair-use rights. One of these days, it may be a
crime to talk about anything that displeases the control freaks who run
the entertainment and software industries.