[free-sklyarov] Generic reply to the "Dmitry is a criminal" comments

Seth David Schoen schoen at loyalty.org
Tue Jul 24 15:33:15 PDT 2001


tom moore writes:

> [note to list: Feel free to use, make suggestions, correct spelling
> mistakes, or delete...]
> 
> Dmitry helped to create a tool that can be used to circumvent digital
> encryption technology.

I think this is too vague.  It doesn't circumvent encryption
technology in general, but it (subject to criticism by lawyers)
circumvents a particular encryption scheme.

> As many people do not have the technological
> background to understand what this means, I'll make an analogy to the
> physical world, with which we are all familiar.

It's very risky to do that!

> In the physical world, we secure our property stored in physical boundaries
> with physical locks.  Laws exist that demand that these boundaries be
> respected with or without the locks, but the locks are put in place to
> discourage those who might not respect the law.
> 
> Circumvention devices are devices that may be used to bypass these physical
> locks.  This definition can include (among the more obvious examples)
> lockpicks, skeleton keys, crowbars, credit cards, and coat hangers.  Any of
> these items may be used to bypass locks, but the items themselves are not
> illegal.  Bypassing the locks themselves is not illegal, either.  Actually
> violating the property that the locks were put in place to protect, on the
> other hand, is.

This analogy is extremely unfortunate: it's been used by the copyright
industries and they use it because they feel that the public will
agree with them upon hearing this analogy.

"Violating" property is vague.

Information is not property and ...

... when you buy copies of copyrighted works, the copies are
traditionally sold, not licensed.  (That's why all these licenses
_claim_ "This software is licensed, not sold" -- because normally it
would be sold.  Whether the licenses are factually correct when they
say that the software is licensed, not sold, is another issue.)

The copies are then _your property_, yet copyright law still applies
to prevent you from using this property _in certain very specific
ways_.

http://www4.law.cornell.edu/uscode/17/202.html

   Ownership of a copyright, or of any of the exclusive rights under a
   copyright, is distinct from ownership of any material object in which
   the work is embodied. Transfer of ownership of any material object,
   including the copy or phonorecord in which the work is first fixed,
   does not of itself convey any rights in the copyrighted work embodied
   in the object; nor, in the absence of an agreement, does transfer of
   ownership of a copyright or of any exclusive rights under a copyright
   convey property rights in any material object.

17 USC 202.

Because of this distinction, analogies to physical property are
extremely misleading.  Measures to enforce copyright aren't measures
to protect property, and they aren't even necessarily _like_ measures
to protect property.

> Dmitry's software can best be thought of in these terms.  Existing law
> addresses the question of theft of intellectual property.

http://www.fsf.org/philosophy/words-to-avoid.html

I take this is pretty serious.  In a letter I wrote, I compared
copyright violations to tax evasion, rather than to theft:

http://www.loyalty.org/~schoen/copyright-subsidy.txt

The point is not that copyright infringement is legal but that it is
quite a distinct crime from other crimes such as theft or trespass.

> Dmitry is not
> accused of pirating intellectual property, but rather with creating a
> circumvention device.  In fact, the software in question was not created in
> the United States, but rather in Russia.

If you're writing to people who complained that "Dmitry sucks!  Dmitry
is a pirate!" then the jurisdiction argument is just completely
uninteresting to them.

I mean, the jurisdiction argument is important, but not to people who
think that "Dmitry sucks and is a pirate".  They'll read this and think,
"Oh, OK.  So Dmitry sucks and is a _Russian_ pirate".

I suggest that, when you write to people whose concerns are about
Dmitry Sklyarov personally having done something bad, you should
completely avoid the jurisdictional stuff, and explain why he is not a
bad person, why his software has substantial non-infringing uses (and
in fact was not marketed as a tool for copyright infringement!), how
consumers are benefitting, and points in this vein.

> Russian law does not only permit
> the use of Dmitry's code, it explicitly grants people the right to create
> backup copies of computer files, which is impossible on Adobe's files
> without the use of his software.  It is questionable whether the DMCA
> applies to Dmitry's case, for these reasons.  Dmitry's company, not Dmitry,
> marketed the software in the US. Dmitry's role was simply to talk about the
> software, and its broad implications for the technology of electronic books
> in general.

All jurisdictional and procedural stuff.  So people who say "Dmitry is
bad" may not care about any of this.  This is what you call "legal
technicalities" when someone defends somebody you think is evil.

> The DMCA, which Dmitry is accused of violating, attempts to make illegal the
> investigation, creation, possession, and use of these devices.  In our
> real-world analogy, it is like prosecuting someone for breaking into their
> own car with a wire coathanger.  The DMCA would make the coathanger illegal,
> and make anyone discussing how to employ one subject to arrest.  Note that
> the DMCA does not make actual car theft illegal (it already is).  Rather, it
> makes illegal any item, action, or discussion that would make getting past
> the locks on a car illegal.
> 

Fair enough, but your analogy will be confusing to someone who doesn't
understand copyright or DRM.  That person will say

"But it's _their_ property, it's not your property!"

Remember that some people have never heard that fair use exists as a
concept in U.S. copyright law, never mind that there are noninfringing
uses other than reading.

You can try to teach these by example.  For instance, in a message
I'll forward here soon, I mentioned that I know a grad student who
reproduced part of a cartoon in an academic presentation.  This is
legal, but DRM technology could have prevented it.  The Adobe eBook
reader could have prevented it; AEBPR could have permitted it.

Someone knows a blind person who couldn't read an encrypted manual.
Elcomsoft's software allowed this person to convert the manual into a
format that text-to-speech software could deal with.

No joke, real harms from DRM, real solutions and real non-infringing
uses from circumvention.  As Dave Barry always says, "I am _not_
making this up"!

> In the United States, we have always respected freedom of speech.

See e.g. _Free Speech in Its Forgotten Years, 1870-1920_ by David M.
Rabban.

> Knowledge
> itself has never been considered a crime.  You are free to buy books on bomb
> building, free to discuss drug use, and free to talk about how to rob a
> bank.  The only time you may be subjected to prosecution is if you actually
> bomb something, use drugs, or rob a bank.

Nope!  Remember the "aiding and abetting" law -- with which Sklyarov has
actually been charged.

If someone is trying to murder someone and you knowingly give the
prospective murderer a book on poisons, or a map to a weapon shop, the
fact that what you provided was a map or a book will not protect you.

Although DeCSS is protected by the first amendment -- and let's
pretend courts agreed -- if someone says "Hey, I want to go pirate
some DVDs" and you give him a copy of DeCSS, the first amendment will
not protect you either.

Teaching, with the specific intent to facilitate a crime, can be
illegal.  So can other speech acts.

The government has been pointing this out at length in the DeCSS case,
where it's not actually relevant.  But it's worth attacking the
relevance than disputing the fact.

> The DMCA seeks to change that,
> and, by doing so, threatens the values we hold most dear.

Grumble, grumble.  This is one of several problems with the DMCA, and
the rhetorical "most dear" may not be appropriate.

There are other laws which may be more of a threat to free speech than
the DMCA is, which is not to minimize the threat from the DMCA, which
is very serious.

> Dmitry's case should be immediately dismissed, even under the DMCA.
> However, it must not stop there.  The DMCA itself is bad law that
> fundamentally seeks to change the traditional rights of consumers and bypass
> the First Amendment.  It does nothing to further laws that safeguard
> intellectual property, which already exist and are actively enforced.  It is
> a dangerous first step into the Orwellian world of thought-crime.  It was
> pushed past the American people as an obscure technological measure that
> most would never have noticed.  Now that we see what it really is, though,
> it is up to us to make sure that the law is repealed, and that no other such
> law is ever passed.

Here I think your rhetoric is again too strong and it would be better
to be more specific about non-infringing and fair uses which are
prevented (there are many!) and speech acts that are suppressed (there
are again many).

Yes, the law is a step toward things that could be that bad, but
you're writing to people who might not even disagree with it yet.
I suffer from the same tendency to want to emphasize with my choice of
language just how grave certain risks are.  But it's important to give
people evidence where they might not yet have been exposed to it at
all.

-- 
Seth David Schoen <schoen at loyalty.org>  | Lending, printing, copying, giving
Temp.  http://www.loyalty.org/~schoen/  | and text-to-speech are permissions
down:  http://www.loyalty.org/   (CAF)  | enabled by the publisher.  -- Adobe




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