[free-sklyarov] Re: Continuing the fight

[Seth Finkelstein]

On Fri, Dec 14, 2001 at 11:36:46PM -0700, Richard Stallman wrote:
> The dropping of charges against Sklyarov is a good thing, but we must
> not think of it as our victory, because we did not win it.  Rather, it
> is largesse from powers that feel completely triumphant.  They believe
> that their successes in court, together with the example presented by
> Sklyarov's treatment so far, make their dominion so strong that
> nothing can challenge it.

	Indeed. I concur, but from a slightly different analysis.
Arguably, this isn't even "largesse". The dismissing of charges is
based on Sklyarov's agreement to "cooperate with the United States in
its ongoing prosecution ...". It seems that overall, Adobe and DMCA
advocates will get the best of both worlds. With Sklyarov's testimony,
they're set to establish a strong DMCA court decision. Given the
prior jailing of Sklyarov, they've already intimidated people. 
Dropping the charges against him personaly in returns for testimony
helping to win the case, and establish law, is a logical maneuver.

	This is not to breath a word, in any way, shape, or form,
against whatever Sklyarov did to obtain his freedom. He's suffered
much. But freedom for Sklyarov isn't the same as freedom from the
DMCA. That's important to keep in mind in the outcome.

	Here's something I wrote today for a law and policy discussion list:

[Regarding http://www.usdoj.gov/usao/can/press/html/2001_12_13_sklyarov.html ]

      Date: Sat, 15 Dec 2001 14:22:42 -0500
      From: Seth Finkelstein
      Subject: Re: DOJ press release on Dmitry Sklyarov deal

	I was just pondering the Sklyarov plea bargain, and the
implications thereof. It's edifying to note just how the "agreement"
matches up with the DMCA provisions:
[ http://www4.law.cornell.edu/uscode/17/1201.html ]
 
U.S. Department of Justice wrote:
> In the agreement, Mr. Sklyarov made the following admissions, ...
 
> "Prior to June 20, 2001, as a part of my dissertation work and as
> part of my employment with Elcomsoft, I wrote a part of computer
> program titled the Advanced eBook Processor ("AEBPR").  I developed
> AEBPR as a practical application of my research for my dissertation
> and in order to demonstrate weaknesses in protection methods of PDF
> files. The only use of the AEBPR is to create an unprotected copy of
> an electronic document.
 
1201(b)(1):
 
       o (A) 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;
 
> Once a PDF file is decrypted with the AEBPR, a copy is no longer
> protected by encryption.  This is all the AEBPR program does.
 
        o (B) has only limited commercially significant purpose or use
          other than to circumvent 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; or
 
> "Prior to June 20, 2001, I believed that ElcomSoft planned to post
> the AEBPR program on the Internet on the company's website
> www.elcomsoft.com.  I believed that the company would charge a fee
> for a license for the full version of the AEBPR that would allow
> access to all capabilities of the program. ...

	Thought: As I read it, the DOJ essentially has Sklyarov
testifying himself that his program violates the DMCA. And it doesn't
seem hard to legally establish that ElcomSoft "conspired" with
him. Does Adobe come out the big winner here? They've already put the
fear of the DMCA into programmers via the arrest and jailing of
Sklyarov. With a plea-bargain for Sklyarov, almost all of the
_cause celebre_ aspect of the case is gone. But the chances for
having a strong court decision in favor of the DMCA seem increased.
 
        None of this should be read AT ALL as a criticism of the
plea-bargain. I know better than almost anyone the pressures
which can be brought to bear on a programmer. I'm only wondering
what this all means.

--
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html
BESS's Secret LOOPHOLE: http://sethf.com/anticensorware/bess/loophole.php
BESS vs Google: http://sethf.com/anticensorware/bess/google.php