[free-sklyarov] Re: Boston Globe article

Eric Eldred ericeldred at usa.net
Fri Jul 20 10:43:35 PDT 2001


>My story is finished.  It's at
>http://www.boston.com/dailyglobe2/201/business/Hacker_s_arrest_decried%2b.shtml
>Thanks for assisting me.

>Hiawatha Bray

Watha, there is a slight but important inaccuracy in
the story:


>However, the DMCA makes it a federal felony to crack encryption that >limits
the copying of digital information. It carries a possible five->year prison
sentence and $500,000 fine.

What Sklyarov is charged with is "trafficking" in a "device"
that can be used to decrypt, not in the actual "crack" itself.
The DMCA says nothing about decryption done to gain fair use
and not disseminated to others.  For example, a librarian who
happens to be an expert cryptographer can decrypt an encrypted
ebook whose contents happen to be in the public domain, perfectly
legally even under the DMCA.  The only legal problem is if she
tells someone else how to do it, since the same encryption means
might be used to lock up a book not in the public domain.  The only criterion
is if the "technical" means of encryption are "effectively" used to control
use.

(As an example, at my ebook site, http://www.eldritchpress.org,
there are a couple of books I publish, that I took from the
encrypted Microsoft Reader format.  The underlying book content
is in the public domain.  But it would probably be illegal for
me to tell you how I did it.)

As others have ably pointed out here, the words "crack" and
"hacker" are not appropriate in this case, as the accused
is neither a hacker nor a cracker, but a respected research
scientist.  It should be the DMCA on trial here, not him.

I hope the DMCA will be overturned.  But there are good reasons
to argue for freedom for Sklyarov on many grounds.  Note that
the accused is not charged with infringing copyright, and the
accuser is not the copyright holder to a ebook that anyone can
show was illegally copied or infringed.  In fact, it is necessary
to buy the ebook before applying AEBPR to it.  I don't think the
DMCA was ever meant to prohibit this fair use.  It might be the
case that copies of ebooks made with the program might be distributed to
others; in that case, ordinary copyright laws can be used to stop
the distribution, and the DMCA is superfluous.

Secondly, the DMCA contains provisions protecting research
and reverse engineering of cyphers and codes.  I don't think
that this user-based discrimination of speech is valid, but
if the DMCA is held to be constitutional, then these exceptions
ought to apply to Sklyarov if they apply to anybody.  His presence
in the U.S. was simply to give a talk on the fruits of his
research, not to sell the program or import it from a country in
which it is perfectly legal.  

Thirdly, the AEBPR has significant legal commercial use to
be allowed under the DMCA.  All it does, really, is permit the
legal purchaser of an encrypted ebook to view the ebook on 
another platform in another format--in fact, in PDF format,
which is also owned by Adobe.  The situation is very similar to
the legal battle between Real Networks and other companies (partly
owned by Microsoft) over programs that transformed from one
proprietary format to a competitor's.  I can't see how this can
ever be considered to be copyright infringement.  The user of the
program has to buy a legal copy to begin with.  Once this first
sale is made, I can't see how the courts can enforce the publisher's
control over all uses of the ebook.  The situation is exactly 
parallel to that of a printed book publisher trying to prohibit all
purchasers of the book from reselling it or redistributing it in
a different binding from the original.

As an example, in order for a blind person to read some of these
books encrypted by Adobe, it would be necessary either for the
user to be an expert cryptographer, or else buy the AEBPR and
use it to decrypt a legally purchased copy of the ebook and feed
it into a text to speech synthesizer or Braille printer.  There
are whole classes of users who have legitimate uses for AEBPR
and the courts need to recognize that a balance has to be struck
between publishers and users.  And Adobe is not the publisher!


Many of these issues arose in the 2600 trial and briefs.  I am
glad that we now have a case about ebooks, since I think that
the general public might be more concerned about books than about
software programs that many fear are magic.  Locking up books is
against the public interest, unnecessary, and corrupts our laws.

We need to put the focus on the DMCA being a bad law, one that is
not even in the best interests of software companies like Adobe,
nor of ethical ebook publishers, and certainly not of authors, who
uniformly wish their books to be accessible to all readers.  We
need to point out that if the DMCA is upheld then the U.S. lead in
software will evaporate as intelligent programmers move to free
countries.  We need to point out that locking up books means the
death of public libraries and used book stores.



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