[free-sklyarov] Free Sklyarov.

[Igor Motsnyi]

Dmitry’s arrest and the charges against him pose serious questions as to the 
proper application of Sec. 1201 and 18 U.S.C. Sec. 371-Conspiracy provisions 
by the Federal prosecutor’s office. I would like to stress here the word 
application. The provisions of the DMCA under consideration have been a 
constant target for the criticism from various sides: practitioners, 
scholars, etc. For a moment let’s set aside all the flaws of the DMCA 
anti-circumvention rules and concentrate on the actual language of Sec. 
1201. Whether the software produced by ElcomSoft is a “device or product 
primarily designed to circumvent effective technological measures” needs to 
be argued in detail and the answer can not be given very easily. The most 
striking point here is the acts that are prohibited by the Statute: 
“manufacture, import, offer to the public or otherwise traffic in any 
technology...”-Sec. 1201(a)(2). Dmitry has entered the US with the purpose 
of taking part in a conference. He was not manufacturing, importing, 
offering to the public or trafficking it in any other technology. ElcomSoft 
was selling the software via the Internet in the US but not Dmitry himself. 
He did not come to the US to sell some samples of the Advanced eBook 
Processor (AEBPR). He was not going to distribute software on the US 
territory. Making a speech on the security aspects of Electronic books and 
documents as well as demonstration of their weaknesses can not amount to the 
acts prohibited by the DMCA. The fact that he was a copyright holder does 
not bring any changes to the outcome. There are two completely different 
things: the one is to be the author, and the other is to behave in a way 
forbidden by the DMCA, that is to say manufacture, offer to the public, etc. 
If you are the author it does not necessarily mean that it is you and only 
you who exploits the work. The distinction between Moral and Economic rights 
is of a great importance in that respect. Under Russian software law and 
copyright law the copyright on software created in connection with 
employment relationships always belongs to the employee as oppose to 
economic rights belonging normally to the employer (Articles 9 & 12 of 
Russian software law and Article 14 of Russian Copyright Law). It is 
ElcomSoft who has economic rights, i.e. to manufacture, import, offer to the 
public, etc. Dmitry can by no means be accountable for the allegations he is 
charged with. He did none of the acts enumerated in Sec 1201.
Reading the Indictment I could not find anywhere the support of the charges 
against Dmitry in relation to Sec. 371 of the U.S.C. either. How can charged 
with conspiracy to commit acts listed above if he could by no means be able 
of performing all these actions (manufacture, offer to the public, etc). He 
is just an employee of ElcomSoft, not a director or a holder of any other 
top position in the company. He can not be responsible for the behavior of 
the whole company.
In short, despite all the drawbacks of the American legislation in question 
the accusation looks quite ridiculous and seems to ignore obvious facts and 
general legal principles. The wrong interpretation and, as a corollary, 
application of the legislation is the starting point of the problem.

Igor Motsnyi.


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