[free-sklyarov] My letter to Senator Kennedy - final version

[Seth Finkelstein]

[Probably to be hand-delivered after the Boston protest]

July 30 2001

Dear Senator Kennedy  

I am writing to you concerning the Digital Millennium Copyright Act
(DMCA), and the use of the DMCA to arrest and press criminal charges
against Russian graduate student and programmer Dmitry Skylarov when
he was in the United States for a conference. Because of the DMCA and
a dispute between Mr. Skylarov's employer and a US company, he is
currently being held in prison without bail and faces a possible
jail term of many years.

I urge you to use your position on the Judiciary Committee to examine
reforms to the Digital Millennium Copyright Act. The public should be
able to exercise its traditional fair-use rights in copyright without
fear of imprisonment. Please take the upcoming Senate confirmation
hearings for U.S. Attorney Robert Mueller to be FBI Director as an
opportunity to examine the conduct of the U.S. Attorney's Office in
the case of Mr. Skylarov. Many organizations have called for the DMCA
charges to be dropped against Mr. Skylarov so that he can be
freed. Even the company which put the events in motion has now asked
the prosecution be halted.

I write to you with special credentials and particular concern in this
matter. Just this year I received the award of being named a 2001
Pioneer Of The Electronic Frontier by the Electronic Frontier Foundation.
I was profiled in the New York Times on July 19. The award was for
hundreds of hours of unpaid decryption work and investigation in the
service of free-speech causes. I will not take the time to go into
details, except to stress that it involved decryptions which could
have subjected me to civil and perhaps criminal liability under the
provisions of the DMCA. My work, along with others doing similar
investigations, was responsible for obtaining a narrow exemption from
the Library Of Congress under the DMCA for performing those
investigations. However, even so, other provisions of the DMCA may
still subject me and others to civil and even criminal penalties. Such
concerns are still a major worry of mine. Seeing a corporation able to
instigate the arrest of a programmer, and a US Attorney's Office
continuing prosecution even after the corporation has decided to ask
for the programmer's release, is an extremely chilling effect.

My own work provided vital evidence in support of litigation for a
precedent-setting court case against censorship in libraries, a case
which was argued in part by the American Civil Liberties Union. The
extreme prohibitions and penalties of the DMCA will cause a widespread
chill of technical research. We have already seen threats of lawsuits
from industry lobbying groups against professors planning to present
academic papers. Imprisoning programmers takes this potential
suppression to a new and unprecedented level.

As one of the few Senators who voted against the Communications
Decency Act (CDA) in 1996, your principled stance against censorship
of the Internet is well-known. The case of Mr. Skylarov demonstrates
how the Digital Millennium Copyright Act has become far removed from
any legitimate interests of copyright. If publishers are able to set
in motion arrests of programmers, as part of their copyright
protections, this will have a profound negative influence on copyright
debates, technical research, and the fair-use rights of everyone.

Sincerely,
Seth Finkelstein


-- 
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
http://www10.nytimes.com/2001/07/19/technology/circuits/19HACK.html