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Yes,
But.... No Butt
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Commentary
from Bertie Mudd
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The new millennium
heralds an old dogfight. A recent fracas between corporate watchdogs
and the indie wagon train of freedom-to-compute-or-bust protestors
turned ugly and unforgiving when Russian programmer Dimitry Sklyarov
was arrested for alleged violation of the Digital Millennium Copyright
Act (DMCA)1,
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1
Dimitry Sklyarov was charged with one count of trafficking in
a product designed to circumvent copyright protection measures
in violation of Title 17, United States Code, Section 1201 (b)(1)(A).
Section 1201 includes the first few paragraphs of the DMCA, written
in 1998. They include this text: "No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title."
It doesn't
require that the person bypassing the scheme do it with intent
to infringe someone's copyright. DMCA critics say users should
be allowed to circumvent technological protection for research,
criticism, or fair use purposes, such as reading an encrypted
eBook on another computer.
To quote
Lawrence Lessig, "The DMCA outlaws technologies designed to circumvent
other technologies that protect copyrighted material. It is law
protecting software code protecting copyright. The trouble, however,
is that technologies that protect copyrighted material are never
as subtle as the law of copyright. Copyright law permits fair
use of copyrighted material; technologies that protect copyrighted
material need not. Thus when the DMCA protects technology that
in turn protects copyrighted material, it often protects much
more broadly than copyright law does. It makes criminal what copyright
law would forgive."
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a federal
felony, after speaking in Las Vegas at a hacker's convention on
the perceived weaknesses in e-book encryption as contained in
Adobe's "eBook Reader." 2
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2
Mr. Sklyarov is "alleged to have been the author of a program,
'Advanced eBook Processor,' that unlocked the 'eBook Reader' produced
by Adobe Systems, Inc.... The eBook Reader permits consumers to
read the encrypted eBook only on the specific computer utilized
to engage in the transaction. Because the book is sold in encrypted
form and is only accessible through the eBook Reader, the copyright
holder's interest in the book is protected." An affidavit (also
quoted above) filed by the FBI in connection with the criminal
complaint from the United States Attorney's Office, Northern District
of California, stated, "the Advanced eBook Processor would allow
anyone to read the eBook on any computer without paying the fee
to the bookseller, and the program lists Mr. Sklyarov as the copyright
holder of the Advanced eBook Processor, and that the program was
distributed by ElcomSoft Company, Ltd. of Moscow, Russia, through
its website."
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The scent
of economic mayhem from the alleged software pirate's welcome
mat sent the bloodhounds from Adobe barking at the treed Sklyarov;
then the U.S. Attorney's office threw him into jail, unmoved by
Adobe's subsequent retraction from the role of victim. 3
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3
After alerting the US Attorney's office because of their concern
that "a digital lock pick" was being "distributed to enable others
to compromise the copyrighted works of authors, artists, developers
and publishers," Adobe met with the Electronic Frontier Foundation
to help broker a deal for Sklyarov's release. "We strongly support
the DMCA and the enforcement of copyright protection of digital
content," Colleen Pouliot, Adobe's general counsel said. "However,
the prosecution of this individual in this particular case is
not conducive to the best interests of any of the parties involved
or the industry." This retraction has fallen on deaf ears in the
US Attorney's office: "As long as a crime has been committed,
we'll prosecute."
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Often the
government is like the old testament- too many rules and no mercy.
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By shoving
Adobe's lame efforts to protect and preserve copyright under a
harsh code-breaking light, Sklyarov crossed over the corporate
line of defense set up to maintain the status quo from intrusive,
confusing, even radical thoughts that might rewrite the rules.
This case might land on a constitutionally guaranteed free-speech
battlefield, if political stakes rise high enough. Then the statute
could be amended and a classic balance of "fair use" rights restored.
4
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4
As Bruce Perens said on 2 August, "DMCA proponents use the act
to restrict your fair-use rights under copyright law; among
them the right to read or view your own copy of the media, the
right to sell a used book, lend it to a friend, or check it out
of the library, and even the right to re-read a book without
paying an additional fee."
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Adobe should
kick itself hard for not taking a page from its own corporate
silly bus: bigger fish eat smaller fish because they can and they
must to survive. Wake-up time in the Valley of the Silly Con.
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Adobe must
say yes to innovative code e-lucidation of its products from anyone,
anytime, reward their ingenuity, and then bait the hook with an
evermore-sweeter carrot for the next case. But to tighten up the
built-in porosity masquerading as product security, at the cost
of nibbling a crumb or two of humble pie, Adobe proved itself
inept at tightening the leash. Now they seem on track to cut a
deal with ElcomSoft, Sklyarov's Russian employer, not to sell
or distribute their "illegal digital lock pick." They win the
Ebby Award,5
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5
As in ebb: To fall back from a better to a worse state; to decline.
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for the quickest
display of Russian judgment.6
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6
As in rush-to-judgment.
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Their knee-jerk
reaction was an exaggerated swipe at the threatening existence
of software pirates who endanger both independents and corporate
giants when it comes to guarding the larder. The prevailing dangers
of copyright infringement are real, the police are well-trained
but largely clueless, the facts will remain elusive. Hackers seem
safe if hidden in plain sight. To slap the hacker's wrist when
caught in the cookie jar is not a surprise counter-attack. The
risk comes with the job. What was Dimitry thinking when he laid
out his excellent debunking work for those in attendance that
day? Would his presentation prick the attention of Adobe as well,
and how might they respond? As insecure as the publishing industry
might be concerning eBook's ultimate value, Sklyarov should take
heart that he has provided a unique service: hackers have always
kept industry on its toes, and any immediate harm will only result
in a better product in the long run.
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A hacker's
instinct, however, is to do what they want to do, watch the fireworks,
and don't get caught with burnt matches. If you can't hack it,
whack it. Even if you're not paranoiac, it doesn't mean that you're
not being watched.
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At what point
does the loss of freedom to innovate divert an individual's predilection
to obey the reasonable and tolerant rules of the road? To quote
Lawrence Lessig once again, "Research into security and encryption
depends on the right to crack and report. Only if weaknesses can
be discovered and described openly will they be fixed."
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About the Author:
Bertie Mudd may
be contacted by email, in care of the Editor at editor@arts4all.com. This is his first article
for the Newsletter.
Resources:
Mr. Lessig's Op-Ed
piece appeared in The New York Times on 30 July 2001 and can
be read at http://www.nytimes.com/2001/07/30/opinion/30LESS.html
The FBI affidavit
is quoted in a 17 July 2001 press release of the Office of the US Attorney,
Northern District of California, on the web at http://www.usaondca.com/press/html/2001_07_17_sklyarov.html
Ms. Pouliot is
quoted in http://www.wired.com/news/politics/0,1283,45484,00.html
Wired's
Declan McCullagh, at http://www.wired.com/news/politics/0,1283,45484,00.html,
attributes his "as long as a crime has been committed" quotation
to a government source.
Mr. Perens wrote
a Commentary for zdnet.com, at http://www.zdnet.com/filters/printerfriendly/0,6061,2800985-2,00.html
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