EFFector, Vol. 14, No. 15; July 22, 2001

EFFector Vol. 14, No. 15 July 22, 2001 editor@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 175th Issue of EFFector (now with over 28,000 subscribers!):

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FBI Arrests Programmer in Las Vegas for eBook Software;

Russian Distributed Tool that Increases Purchasers' Control of eBooks

Electronic Frontier Foundation Media Release

For Immediate Release: July 17, 2001

Contact:

San Francisco - The FBI arrested Russian citizen Dmitry Sklyarov in Las Vegas, Nevada, yesterday on charges of distributing a product designed to circumvent copyright protection measures. Sklyarov, who was in Las Vegas to deliver a lecture on electronic book security, allegedly authored a program which permits editing, copying, and printing of electronic books by unlocking a proprietary Adobe electronic book format. DoJ/US Attorney press release:
http://www.eff.org/IP/DMCA/US_v_Sklyarov/20010717_doj_sklyarov_pr.html

Charged in one of the first United States criminal prosecutions under the Digital Millenium Copyright Act (DMCA), Sklyarov is currently in custody in Las Vegas pending transfer to the Northern California US Federal District Court. For the full text of the complaint, see:
http://www.eff.org/IP/DMCA/US_v_Sklyarov/20010707_complaint.html
For more on the DMCA, see:
http://www.eff.org/IP/DMCA/

The case involves Advanced eBook Processor (AEBPR), software developed by Sklyarov's Russian employer Elcomsoft. According to the company's website, the software permits eBook owners to translate from Adobe's secure eBook format into the more common Portable Document Format (PDF). The company maintains that the software only works on legitimately purchased eBooks.

Adobe's eBook format restricts the manner in which a legitimate eBook buyer may read, print, back up, and store electronic books. The Advanced eBook Processor appears to remove these usage restrictions, permitting an eBook consumer to enjoy the ability to move the electronic book between computers, make backup copies, and print. Many of these personal, non-commercial activities may constitute fair use under U.S. copyright law. Of course, the Advanced eBook Processor software may also make it easier to infringe copyrights, since eBooks, once translated into open formats like PDF, may be distributed in illegitimate ways.

Robin Gross, attorney with the Electronic Frontier Foundation (EFF), explained, "The U.S. government for the first time is prosecuting a programmer for building a tool that may be used for many purposes, including those that legitimate purchasers need in order to exercise their fair use rights."

Jennifer Granick, Clinical Director at the Stanford Law School Center for Internet and Society, commented that "the DMCA says that companies can use technology to take away fair use, but programmers can't use technology to take fair use back. Now the government is spending taxpayer money putting people from other countries in jail to protect multinational corporate profits at the expense of free speech."

Alexander Katalov, President and Owner of Elcomsoft, expressed anger and disappoint over Sklyarov's arrest: "Dimitry is only one of the programmers who worked on this program, so I don't understand why it is his sole responsibility. In Russia, we have no law like the DMCA. In fact, distributing Adobe's eBook software is illegal in Russia, since Russian law requires that the software permit the purchaser to make at least one legal copy."

Two protest sites that are organizing rallies:
http://www.freesklyarov.org/
http://www.boycottadobe.org/
(Note: EFF does not presently endorse an Adobe boycott; we are meeting with senior Adobe VPs and legal staff Mon. morning, July 23, and hope to convince them to reverse their position on Sklyarov, and urge the Dept. of Justice to drop the case and set him free.)

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
http://www.eff.org/

EFF Statement on the Arrest of Dmitry Sklyarov

from Executive Director Shari Steele

Once again, the Digital Millineum Copyright Act (DMCA) is proving itself to be as harmful to civil liberties as we predicted it would be. The latest victim is a Russian programmer named Dmitry Sklyarov, who authored a program that permits editing, copying, and printing of electronic books by unlocking a proprietary Adobe electronic book format.

Mr. Sklyarov has been brought up on criminal charges under the DMCA for distributing a product designed to circumvent copyright protection measures. This is different than the 2600 and Felten cases, which are civil lawsuits. In a civil lawsuit, one private citizen (or company) sues another for money and/or the cessation of a particular action. In a criminal case, the government brings charges against an individual (or company) and the punishment for conviction can be prison and/or fines. Info on the 2600 Case:
http://www.eff.org/IP/DMCA/MPAA_DVD_cases/
Info on the Felten case:
http://www.eff.org/Legal/Cases/Felten_v_RIAA/

EFF has been in contact with the Assistant U.S. Attorney (AUSA)'s office trying to track Mr. Sklyarov's whereabouts and speak with him directly. While the arrest took place in Las Vegas, the complaint was executed in San Jose, meaning that Mr. Sklyarov will be sent to California to stand trial. We have spoken with his colleagues, criminal defense attorneys and others to help with his defense. After he arrives in California, our first order of business is to get Mr. Sklyarov out of jail on a bond pending his trial. EFF has begun to pull together a top-notch legal team to help him defend his right to talk about and distribute the Advanced eBook Processor software program, and we'll be ready to step in as soon as it is appropriate. Full text of the complaint:
http://www.eff.org/IP/DMCA/US_v_Sklyarov/20010707_complaint.html

EFF knew when we took on the 2600 Case over a year ago that fixing the DMCA would require several legal challenges. EFF remains committed to chipping away at this law until it no longer poses a threat to our right to free speech.

Lest anyone be confused, this case is not about copyright infringement. Mr. Sklyarov is not accused of infringing anyone's copyrights. He is accused of building the Advanced eBook Processor, a tool that allows the legitimate purchaser of an e-book to translate it from one digital format into another (from Adobe's eBook format into Adobe's Portable Document Format). Mr. Sklyarov is not being prosecuted for using the tool himself -- in fact, such a prosecution would be impossible, since using such a tool (as distinguished from building or distributing one) breaks no law. Mr. Sklyarov has entered the strange Twilight Zone of the DMCA, where using a tool is legal, but building it is a crime.

We invite your support. If you are not yet an EFF member, please join with us at http://www.eff.org/support . If you already are a member and wish to make a donation, you can use that same link to get to our donation page.

Together we will keep the pressure on anyone who chooses to degrade our basic rights. Thanks for your help.

EFF Letter From Executive Director Shari Steele

to Attorney General John Ashcroft (July 20, 2001)

The Honorable John Ashcroft
Attorney General
Department of Justice
950 Pennsylvania Avenue N.W.
Washington, D.C. 20530

At the request of Adobe Corporation, Dmitry Sklyarov was arrested by the FBI on July 16th and charged with crimes under the Digital Millennium Copyright Act (DMCA). Mr. Sklyarov is a Russian national who came to the United States to deliver an academic presentation on his technological innovations. His arrest and subsequent detention without bail are shameful and opportunistic actions against an individual who was here simply to share his knowledge and technical expertise with American scientists.

Dmitry Sklyarov is not accused of any copyright infringement of any sort. He is a computer programmer. He stands accused of writing software that enables purchasers of electronic books to exercise their lawful fair use rights when viewing their eBooks. Such software is both legal and required in Russia, where it was written and developed. And while the DMCA does not prohibit its use in the US, providing the technology is banned under the DMCA. Courts have determined time and time again that computer code is creative expression worthy of First Amendment protection. Mr. Sklyarov is currently being held captive for the content of his ideas that demonstrate the flaws in Adobe's software and because he expressed them in the most precise scientific language available to his profession, computer code. Mr. Sklyarov's right to free expression under the U.S. Constitution and international treaty obligations must be respected.

Not only are Dmitry Sklyarov's human and civil rights being abused, the inability of programmers to distribute fair use tools infringes on the free speech rights of all of citizens who legitimately need them. Fair use is an integral part of the bargain of rights struck between the public and authors under U.S. copyright law. The U.S. Supreme Court has held that fair use provides the necessary breathing room to prevent a conflict between copyright and the guarantees of freedom of expression under the First Amendment. Although the Constitution mandates that copyrighted works pass into the public domain, the DMCA has outlawed all tools necessary to gain access to the works, even after those works rightfully belong to the public. Technology permits publishers to restrict access to and control the use of copyrighted works in ways that dangerously exceed the bounds of copyright, encroaching upon the public's rights to use and access knowledge.

While copyright holders are not accountable for the manner in which they release a work, the people must be permitted to take necessary steps in order to exercise their rights under the law. Jailing Dmitry Sklyarov strips people everywhere of that right and chills important research. The DMCA must be reigned in to comport with the limits set by the US Constitution.

When the DMCA was passing through Congress in 1998, the copyright industry promised it was needed as a shield for protection. Now as law, its used as a powerful sword to squelch speech and competition and kill fair use. Congress never intended for the DMCA to destroy fair use, in fact it expressly tried to protect it. As Attorney General, we ask that you honor this intent and your obligation to uphold the Constitution by dropping the charges against Dmitry Sklyarov and allowing him to return home to his wife and two small children.

Electronic Publishers Coalition Condemns Criminal Use of DMCA

In stark contrast to a trade association of offline publishers (American Assocation of Publishers or AAP), the online e-Book industry group Electronic Publishers Association (EPC) sharply attacks the prosecution of Dmitry Sklyarov:

For Immediate Release

Contact information:

While all publishers are concerned about professional copyright thieves, the Electronic Publishers Coalition condemns the use of the criminal provisions of the DMCA against Dimitry Sklyarov, a Russian programmer and cryptanalyst visiting the United States.

"Persecution of an individual shouldn't be any company's response to a commercial disagreement, especially regarding copyright," Connie Foster, the EPC executive director said Sunday.

"All members of the EPC -- not just a small portion of them as with print-oriented groups like the AAP -- work with the Adobe and other electronic formats to publish their e-books, and we recognize that the same technology that benefits publishers with lower production and distribution costs also aids copyright violators."

"We also recognize from our close experience working with electronic books, that readers need and deserve greater leeway with the e-books they purchase than the current limited DRM and security technology provides," Foster stated. (Note: DRM -- for "Digital Rights Management", a.k.a. copy prevention -- provides permissions control with e-books, disallowing [or permitting] such things as copying text to a computer's clipboard, printing of the content, and lending the e-book to another computer's reading system.)

Foster continued, "In this case, readers' interests should be paramount, and the leading e-book formats -- Adobe's among them -- slight them by making it impossible to open an e-book when upgrading to a new computer or when suffering a number of all-too-common computer woes, such as virus infection and hard-disk failure."

"At this point in e-books' development, we think it's just too early for companies such as Adobe that have nascent content-delivery systems to think they have solved all their problems and to resort to criminal charges against a programmer who discovered and discussed serious flaws in the program's security structure."

Foster went on to note: "Some people think Adobe has to pursue this type of action to reassure publishers their content is safe. But what publishers need to know is that Adobe understands the technology and its current limits, and the problems with its own software, and that it understands what our customers -- that is, readers-- need and what the immature e-book industry needs in order to grow."

Sklyarov, a graduate student at Bauman Moscow State Technical University, reported at a Las Vegas conference on his research on e-book security performed for his dissertation. His research was later incorporated into a permissions-removal program called Advanced E-book Processor, or AEBPR, by ElcomSoft, a Russian software company that now employs him. The program apparently sold fewer than ten copies before being pulled from the market at Adobe's insistence. It had not been available commercially for more than two weeks before Sklyarov's visit to America.

AEBPR allows users to make backups of legally purchased Adobe eBooks that ignore the eBooks' restrictions on copying, printing and lending, if any, and permit the eBook to be read on a replacement copy of Adobe eBook Reader if the initial installation no longer functions or if the user upgrades to a new computer. It does not work with eBooks sold to another user. Since under Russian law, such backups are mandatory for data sellers, Adobe eBooks contravene the law and AEBPR is legal in Russia, as well as in Germany and Scandinavia, and other countries. Its use in the U.S. is not permitted under the DMCA, the Digital Millennium Copyright Act.

The Electronic Publishers Coalition was founded by a group of publishers committed to furthering the growth of the e-book community. It is the largest trade association of electronic publishers in the world. A primary role of the EPC is to follow through on its commitment to develop a healthy marketplace for digital content as well as to take a leadership role in setting minimum standards in order to encourage quality within our industry. The EPC is located on the web at:
http://www.epccentral.org/

Linux Community Joint Statement Against DMCA:

Digital Millennium Copyright Act Threatens Researchers

Free Speech, Free Sklyarov

A Community Declaration:

Dmitry Sklyarov, a Russian academic, has been imprisoned after presenting a scientific paper at the DEF CON computer security conference. His talk covered the restriction mechanisms used to prevent people from reading electronic books. He was formally charged with distributing software that could be used to circumvent copy protection.
[See press coverage]

The Digital Millennium Copyright Act attacks freedom of speech and assembly and damages the economic health of the United States.

Sklyarov was arrested by the FBI outside his hotel as he prepared to go to the airport. The arrest was instigated by Adobe Systems Corporation.

It is ironic that a Russian national is being held without bail in the US for what is essentially a thoughtcrime. Through the passage of the DMCA we have criminalized speech and scientific research about the structure of computer programs as well as other simple acts such as reading of books and other media.

The DMCA goes far beyond the need to protect from illegal copies of books and other media. Since it criminalizes not only the act of copying but even development and possession of programs which are capable of reading these media for legitimate use. For example, the DMCA criminalizes used book stores, in that the DMCA helps publishers lock up books so tight that the electronic analog of a used book store would be impossible.

This is not the first time that DMCA has been used as a weapon against legitimate scientific research. The Electronic Frontier Foundation has brought suit on behalf of USENIX and Princeton Professor Edward Felten after the Professor and his research team were threatened with DMCA prosecution by the RIAA (Recording Industry Association of America). This threat was delivered after it became known that Professor Felten was presenting a paper showing the insecurity of a method of protecting music, just as Sklyarov was arrested after presenting a similar paper about electronic books.

The DMCA, in spite of its supposed exception, punishes reverse engineering. Bans on reverse engineering in the 70s would have made the PC revolution (and companies like Compaq, Phoenix and Dell) illegal.

The extremism of the DMCA provisions prohibiting research, development and publication of tools for distributing and displaying copyrighted works must be eliminated. These provisions drop an Iron Curtain on the United States of America. It should never be illegal to make or discuss such tools.

Please note that all of the Press Contacts will be available for discussion at the O'Reilly Open Source Conference the week of the 22nd of July.

EFF's Music Share-In in Golden Gate Park

Supporting our Open Audio License

The Electronic Frontier Foundation (EFF) would like to invite you to participate in an open air concert event for everyone who loves music. EFF Unplugged will feature musicians from around the Bay Area performing acoustically in Golden Gate Park. Artists participating in this event will permit recording of their performances by those in attendance in support of EFF's Open Audio License (OAL).

The OAL was developed to help artists share their work with others without giving up the recognition they deserve for creating the art. Based on the open source and free software initiatives for software development, the open audio license encourages artists to share with one another and their fans and to build upon the works of others.

Adoption of the OAL does not mean that an artist does not get compensated for his or her work. On the contrary--the OAL permits artists to share single tracks or performances, with recognition, that could lead to sales of additional music. EFF is extremely sensitive to supporting new models of music distribution in the digital world that see more money going to the artists themselves. One of the great qualities of the Internet is that packaging and distributing music, which is where most of the money is currently spent by record companies, is trivial. EFF is committed to developing tools that empower artists to take control over their own art and to be compensated appropriately for their works.

EFF believes that many of the laws and technologies being developed today to protect intellectual property actually harm the public's First Amendment and fair use rights and make criminals of people doing perfectly legitimate things. We are striving to help artists realize the full potential of the Internet for reaching their fans by challenging restrictive laws in courtrooms and through public education events, like this one.

In addition to several stages of acoustical music, the Share-In will showcase numerous artist booths, where musicians can sell their music and merchandise to the public. In addition, there will be booths hosted by EFF and outside sponsors, including artists' rights organizations and independent labels.

EFF is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges everyone to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at:
http://www.eff.org/

For more information about participating in EFF's Music Share-In, contact:
Katina Bishop, EFF Director of Education and Offline Activism,
+1 415-436-9333 x101,
katina@eff.org

Join EFF in Fundraising Dinner with Ed Felten

Washington, D.C., Aug. 15.

Join the Electronic Frontier Foundation in celebration of the presentation of Professor Ed Felten's Reading Between the Lines: Lessons from the SDMI Challenge at the USENIX Security Symposium on August 15th, 2001! Come and meet Professor Felten, his research team, and legal team, and support EFF's legal battle to get this paper presented. We will be dining at the prestigious Red Sage restaurant after the panel discussion on SDMI/DMCA, which runs from 6:30 - 7:00 on the evening of August 15th.

The Red Sage is just around the block from the J.W. Marriott Hotel. We will be gathering in the Continental room at 7:30, and dinner will begin at 8:00.

Come support the Electronic Frontier Foundation (EFF) in defending our rights to think, speak, and share our ideas, thoughts, and needs using new technologies!

Based in San Francisco, EFF is a donor-supported membership organization working to protect our fundamental rights regardless of technology; to educate the press, policymakers and the general public about civil liberties issues related to technology; and to act as a defender of those liberties. Among our various activities, EFF opposes misguided legislation, initiates and defends court cases preserving individuals' rights, launches global public campaigns, introduces leading edge proposals and papers, hosts frequent educational events, engages the press regularly, and publishes a comprehensive archive of digital civil liberties information at one of the most linked-to websites in the world: http://www.eff.org.

There are only 50 spots, so sign up early! Contact Katie by email at katie@eff.org or by phone at +1 415-436-9333 x104 to reserve a spot. The price of admission to the celebration with the Electronic Frontier Foundation, Ed Felten, his research team, and the legal team is $250, which includes dinner and wine at the legendary Red Sage restaurant.

Administrivia

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Editors:
Katina Bishop, EFF Education & Offline Activism Director
Stanton McCandlish, EFF Technical Director/Webmaster
editors@eff.org

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