[free-sklyarov] Was a law even broken?

[Nathan Bushyager]

I apologize if anyone gets this twice, the first time it told me I was not 
a list member because I sent it with a different reply address.

I have seen many messages on this list which complain about the nature of 
the DMCA and whether it can be applied to foreign citizens.  I am writing 
this message to promote a discussion on whether Dimitry actually violated 
the DMCA.  While I believe that the DMCA is both wrong and 
unconstitutional, I do not believe that arguing these points will actually 
help to free Dimitry, at least in the near future.  I have read the FBI 
compliant and believe that Dimitry was arrested for the following reasons:

1. He is the author and copyright holder of a computer program designed to 
circumvent the access restrictions on copyrighted works.
2. That program was made available and distributed in the United States.

The DMCA makes both of these acts illegal under US law.  As it is law, and 
it is the job of the justice department to enforce the law, the FBI 
believes that it is justified in its actions.  They are not allowed to 
ignore the law.  While I believe that a DMCA test case is needed to revoke 
the law, I do not believe that this is such a case.

I find both of the premises in the FBI complaint questionable.

1.  First, the creation cannot be illegal because it was performed in a 
foreign country where the US has no jurisdiction.
2.  Provided the program cannot legally be distributed in the US, Sklyarov 
did not perform the distribution.  The program was distributed by a 
corporation, Elcomsoft.  I have seen no evidence that Mr. Sklyarov was a 
party to this distribution.  As such, he has broken no law.

Now, this being said, I am not a lawyer.  I am very interested in the 
opinion of others on my arguments.  Especially those with legal 
expertise.  I believe the first focus of this movement should be to get 
Dimitry released from prison and returned to his home.

Nathan Bushyager