And Justice for Adobe
Last week, Dmitry Sklyarov was arrested and held without bail for allegedly "hacking" Adobe Systems' ebook reader and committing violations of the DCMA (Digital Millineum Copyright Act).
The events leading up to the arrest are rather confusing, so I've put together this weblog of the facts based on the complaint that was filed to try and help explain the situation and its legal implications.
In my opinion, the most important issue this situation brings to light is the unfair way in which Sklyarov has been treated by the authorities, who didn't seem to adequately investigate the details of his case before they arrested him and held him without bail for what has now been over a week.
(Editor's note: Dmitry has since been released on bail since this weblog was originally published. See my follow-up weblog for the details.).
A few important facts about this case:
Although, at the time of this writing, Adobe has backed down from its original accusations (see the Wired News article Release the Russian, Adobe Says), the fact that the situation was allowed to occur raises serious questions about copyright law enforcement and the potential for the civil rights of individuals to be compromised as a result.
I don't know about you, but when one meeting and a phone call with an individual's corporate accusers is all that seems to be required to get picked up by the Feds and held without bail, I start to get a little nervous.
Imagine, if you will, that you are a 26 year-old father of two, working on your Ph.D. at Stanford University. You are considered an expert programmer in your field of study, and are planning a trip to Russia to speak at one of the World's most prestigious security conferences.
About two weeks before you leave, your company receives an unverified (not digitally signed) e-mail from the Anti-Piracy division of a foreign software company alleging that one of your company's products infriges upon its copyright.
The e-mail states that your employer is in violation of foreign copyright law and asks that your company respond to the accusations within five (5) working days. The e-mail does not mention you personally by name and makes no claims regarding your personal liability in the matter.
Less than 24 hours later, your employer receives an e-mail from its ISP that it has been intimidated by the foreign accuser enough to dislodge your employer's web site on the basis that the site is somehow involved in the illegal distribution of its software.
Since your employer's company is under fire, and not you personally, it deals with the technical and legal logistics involved in switching to another ISP and protecting its own corporate interests.
You travel to Russia, as planned, where you publicly disseminate what you feel is vital information regarding the ease in which secure document formats can be compromised. Your presentation is well-received by your peers and your ethical conduct in making the information public is duly noted by both your contemporaries and the popular press.
The next morning, you are apprehended in your hotel room, detained by government authorities and not allowed to return home. You are incarcerated without bail and without being allowed to contact a lawyer, your employer, friends or family.
You are told that you are one of the first to be prosecuted for the willful violation of a newly instated statute that is the subject of much controversy, and that you are going to be extradited to Siberia to be processed with the other prisoners before going before a Judge who will decide your fate.
The penalties for the crime you are being accused of committing are $500,000, 5 years in jail or both, for each separate offense. Since you are being charged with two separate counts (one count of "trafficking in software to circumvent copyrightable materials" and one count of "aiding and abetting" such trafficking) you could be sentenced to 10 years in jail, $1,000,000, or both.
You may or may not realize at this point that you are being held personally responsible for your employer's alleged copyright violations because your name appears on the splash screen of the software application in question.
The affidavit filed with the formal complaint against you reveals that you are being prosecuted as the result of a two-day "Independent Investigation" of a single KGB Special Agent based on the heresay of several officers of the Russian-based corporation that accused your company of copyright violations and that no other evidence or legal or technical expertise was obtained before the complaint was filed in criminal court.
But it doesn't end there. After several days of being held in custody, the Russian government criminal justice system loses track of you. Not even an approximation of your whereabouts is provided to anyone, even the American consulate. After five days, you are still not allowed to contact anyone, obtain legal counsel or exercise any of the rights or freedoms you have grown accustomed to as a United States citizen.
The events described above are not being overexaggerated for dramatic effect. They are real events taking place this very instant. In fact, the only difference between this mock scenario and its real life equivalent is that the questionable legal practices and blatant civil rights violations are not being committed by a non-democratic country against an American citizen. They are being commited right here, in the democratic United States, to a Russian citizen.
US vs. Dmitry Sklyarov: Reality Check
Dmitry Sklyarov is a graduate student and father of two young children currently working on his Ph.D at Moscow State Technical University.
Dmitry became the target of an Adobe witch hunt because his name appears on the copyright splash screen of his employer's Advanced eBook Processor software. Although Dmitry is only one of a team of programmers that worked on the software program in question (not the sole author), and despite the fact that he has literally nothing to do with his employer's software distribution practices, he became a worthy target in the eyes of his corporate accusers due to his being in the wrong place at the wrong time: he dared to visit the United States and exercise his right to "free speech" in a public forum.
Dmitry's employer is Elcomsoft, a developer and publisher of productivity tools. Currently, Adobe's eBook reader is only available on Macintosh and Windows, and most ebooks are not allowed to be printed, viewed on another device, or duplicated for any purpose - even for the purposes of creating a backup copy for the rightful owner in case of hard disk failure. The software in question, Advanced eBook Processor, was created as a utility for enabling legally-obtained ebooks to be viewed on devices and platforms other than the machine used for their initial purchase.
The letters sent to Elcomsoft and RegisterNow! from Adobe that clearly do not name Dmitry Sklyarov personally, but rather the company of Elcomsoft, in their cease and dissest request. That would be like arresting a Chevron employee for publicly speaking out about its employer's oil spills, etc.
There appears to be some confusion on the part of Adobe regarding how Elcomsoft's Advanced eBook Processor product actually operates. The product acts upon the documents themselves to remove editing and printing restrictions. The program does not modify any of Adobe's software applications or compromise the integrity of its encryption mechanisms in the process. As evidenced by a white paper written by Certified Adobe PDF Expert Bryan Guignard. Guignard also posted several comments on a PDF-related message board that detailed the fallacy of Adobe's accusations.
Fair use vs. copyright protections
"Fair Use" under Russian copyright law requires that at least one back up copy be allowed. Elcomsoft's software enabled that copy to be achieved.
Can a man become a criminal for speaking in the United States about his experiences that took place while under the employ of a Russian company operating legally under Russian Law? Surely, any pending civil disputes between American and Russian businesses do not instantly turn the Russian company's employees into criminals.
The goal of Elcomsoft's software product is to allow ebooks purchased legally to be viewed on platforms other than Mac and Windows (the only two platforms that the ebook reader is currently available.) A legally-entitled owner might also wish to make a copy of their work, under fair use, so that it can be viewed on their another device. (Who really only uses only one device these days for all of their digital services?)
Contrary to popular belief, the Advanced eBook processor does not "unlock" Adobe's "eBook Reader". The reader decrypts the files itself. Elcomsoft's software simply saves a version of the file without any permissions, once it is already encrypted. If the user has not already paid the required legal copyright fee and obtained a password from doing so, Elcomsoft's product will not work. (Here's a white paper where Adobe Certified Expert Bryan Guignard explains the details.)
An EFF media release issued on July 17 quotes Jennifer Granick, Clinical Director at the Stanford Law School Center for Internet and Society, on the subject:
"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."
The timeline below was compiled from the complaint and Elcomsoft's own accounts -- (The two sets of dates match up without question, for the most part).
Below is a messageboard comment from an Elcomsoft company representative immediately after Sklyarov had been apprehended:
Posted By: Vladimir Katalov Web Page: Advanced eBook Processor
(LA Times)Company President Alexander Katalov was also in Las Vegas when Sklyarov was arrested. He said the company developed the program to allow users to copy electronic books they had bought onto multiple computers--a desktop for home and a laptop for the road, for instance.