[free-sklyarov] Comments on the indictment

[David Haworth]

Thanks to cryptome for an HTML version of the indictment.
(http://cryptome.org/dmitry-indict.htm)

A couple of comments on the indictment document which might be of
interest to the defence team (does anyone know how to bring this
to their attention?)

Paragraph 1.f
> Consumers who wished to purchase books formatted for the Adobe
> Acrobat eBook Reader ("eBook Reader") could download a free
> copy of the eBook Reader to their personal computer and then
> purchase the ebook from an online retailer. Upon purchasing the ebook
> from the online retailer, a series of electronic communications
> between and among the computers of the online retailer -- including,
> typically, an Adobe-supplied server -- and the customer's computer
> authorized the ebook to be read on the computer from which the
> purchase was made.

The communication is specifically between the eBook Reader and the
servers, not between the computer as a whole. This is an important
point, because the rest of the software on the computer, and any subsequently
installed software, is not explicitly authorised to access the eBook.
Neither is it forbidden to access the eBook. Furthermore, the customer
is not informed of these "permissions", so is unable to determine
if his actions, or the actions of the software he runs, are "permitted".
The secrecy of these transactions was admitted by Adobe in their original
complaint.

Paragraph 1.g
> When an ebook purchased for viewing in the Adobe eBook Reader
> format was sold by the publisher or distributor, the publisher or
> distributor of the ebook could authorize or limit the purchaser's
> ability to copy, distribute, print, or have the text read audibly
> by the computer.

Technically incorrect. The publisher could authorize or limit the
Adobe eBook Reader's ability to perform these actions. There is nothing
that informs other software of this "authorisation", nor is there
anything that informs the purchaser.

Furthermore, the list of actions the "publisher or distributor"
can permit or forbid is incomplete. It should include sell, give, lend,
and possibly others. Only a small subset of these are actions that
the _copyright holder_ has the right to authorise or forbid
(distribute, copy under certain circumstances). The rest he has
no rights to authorise nor forbid. Furthermore, the distributor
is unlikely to have any of these rights, since he is almost
certainly not the copyright holder. And the publisher may only
deny permission when he is the copyright holder. So in the majority of cases
(if not in all cases) the use of the tool, and hence the distrbution
of it, would be perfectly legal. If the publishers want legal protection
against third-party software, the should limit their restrictions
to what is permitted by law.

> Adobe designed the eBook Reader to permit the
> management of such digital rights so that in the ordinary course
> of its operation, the eBook Reader effectively permitted the
> publisher or distributor of the ebook to restrict or limit the
> exercise of certain copyright rights of an owner of the copyright
> for an ebook distributed in the eBook Reader format.

"During the normal course of its operation" the reader software
does nothing to permit or forbid access to the data files that
form the eBook. The reader software therefore plays no role in
the protection of the eBook, either "during the normal course
of its operation" or otherwise. Once this is firmly established,
the only protection that is available is contained within the
data file which, "during the normal course of operation", remains
passively on the computer's hard disk. The effectiveness of the
protection is therefore the effectiveness of the encryption, which is
clearly ineffective.

Dave


-- 
David Haworth
Baiersdorf, Germany
david.haworth at altavista.net