Things went from bad to worse for recently freed Russian programmer Dmitry Sklyarov Tuesday night when a San Jose, California grand jury indicted him and his employer, Moscow's ElcomSoft Co. Ltd., of trafficking in and conspiracy to traffic in copy control circumvention technology. Sklyarov, who had been facing a US$500,000 fine and up to five years in jail, can now be imprisoned for up to 25 years and be hit with a fine of up to $2.25 million. ElcomSoft, if convicted, would get off relatively lightly, with a fine of $2.5 million.
Skylarov was arrested in mid-July after the conclusion of the Def Con conference in Las Vegas. At the conference, Skylarov gave a presentation on e-book security and ways to defeat it. Included in that talk was a discussion of the weaknesses of Adobe Systems Inc.'s eBook Reader format. Sklyarov had written a program, Advanced eBook Processor, which removed the encryption from Adobe e-books and allowed them to be copied, printed and resold, all options that the Adobe e-books do not normally offer. He was later arrested at Adobe's behest for violating the terms of the 1998 U.S. Digital Millennium Copyright Act (DMCA), which makes it a crime to traffic in information or software designed to circumvent copyright control technology. Adobe did not return repeated calls requesting comment for this article.
Sklyarov's case has sparked protests worldwide -- with more scheduled for Thursday -- and will also enter its next phase, his arraignment, on Thursday. Tuesday's indictment has turned the spotlight back on a case that had faded from the headlines behind the Code Red worm and has led to further questions about the wisdom of the prosecution, about who has jurisdiction in the matter and about the legality of the DMCA.
Sklyarov's indictment "certainly seems excessive," as his actions are fairly far removed from the actual offense of making unauthorized copies, said Wendy Seltzer, a fellow at Harvard University Law School's Berkman Center for Internet and Society.
But it's no surprise that the grand jury handed up an indictment, as a grand jury requires a very low standard of proof, she said.
"There's an old saying that a prosecutor could indict a ham sandwich," she said, adding that the main function of such a proceeding is to show that the charges are not entirely false or groundless.
There had been hope that the U.S. Attorney's Office for the Northern District of California, the agency prosecuting Sklyarov, would drop the charges against him, according to a statement released Tuesday by Sklyarov's attorney Joseph M. Burton. It could be that the charges were not dropped because the government was hoping to make an example out of Sklyarov, said Berkman's Seltzer.
The U.S. Department of Justice's (DOJ) press release "certainly had that tone to it," she said, adding that it's "as though they (DOJ) were trying to tell the publishers that this is a law (the DMCA) we'll use in the future." The DOJ senses that this is a high-profile case, and that this is an opportunity to show its willingness to enforce the law, she said.
James Youll also thinks the government is trying to make an example of Sklyarov. Youll, a researcher at the Massachusetts Institute of Technology and one-time photojournalist, runs the FreeSklyarov.org Web site that has served as one of the focal points of the movement to protest the arrest.
The conclusion that the DOJ is targeting Sklyarov especially is "hard to avoid," Youll wrote in an e-mail Wednesday. "He was a fairly vulnerable target, maybe thought to not be sympathetic, and their insulting conduct in calling him, repeatedly, a 'Russian hacker' certainly suggests there is more afoot here than the dispassionate handling of a routine case," he wrote.
Though the indictment raises questions about how and why the DOJ is pursuing Sklyarov, it also raises legal questions, according to Berkman's Seltzer.
The case "raises all sorts of jurisdictional questions as to whose laws apply," she said.
The situation is particularly confused because Advanced eBook Processor, an application which may be illegal in the U.S., is legal in Russia. It is technically possible to be indicted for something that it is not a crime in your country but is in another, if your actions are targeted at the country where the act is a crime, Seltzer said.
However, there was no clear intent on ElcomSoft's part to sell to U.S. customers, she said, as it seems that the company's only contact with the U.S. was that the payment-processing system it used was located in the U.S.
When a foreign company is indicted by a U.S. grand jury, typically that company's U.S.-based assets are seized or frozen as damages, Seltzer said. Whether this will happen to ElcomSoft is dependent on how the company is structured, she said.
Nevertheless, "the jurisdictional problems are very tangled here," she said.
One thing that Sklyarov's case has helped solidify, though, is the anti-DMCA movement, Seltzer said. Those who were opposed to the DMCA are now more committed and more active, she said.
Those pushing the repeal or tweaking of the DMCA, a coalition of open source, free software and consumer rights advocates, as well as academics and lawyers, have "become a civil disobedience movement" with mirrors of Sklyarov's Def Con presentation hosted on many Web sites, Seltzer said.
The anti-DMCA forces charge that the DMCA is unconstitutional, abridges freedom of speech and puts an end to the Fair Use doctrine which allows traditional consumer rights such as limited quotations from texts, the ability to lend and borrow copyrighted works and more.
FreeSklyarov.org's James Youll, who describes the prospect of Sklyarov serving 25 years in jail as "terrifying," agrees that the case has broadened the appeal of anti-DMCA work.
"The case helps the movement by showing every citizen that the law will allow publishers to take away their Fair Use rights - something that is universally recognized by all but a very few publishers as important to freedom," he wrote. "Fair Use is vital for creating and maintaining a society of smart, educated, engaged citizens, young and old alike."
Anti-DMCA work may help to repeal or amend the law, but two cases making their ways through the U.S. court system could play an even bigger role in aiding Dmitry Sklyarov. The cases of 2600 Magazine and Princeton professor Ed Felten are the two immediate predecessors to the Sklyarov case. The 2600 case involved DeCSS, a software tool used to decrypt DVDs (digital versatile discs) and view them in Linux. 2600 was sued by the film industry trade group the Motion Picture Association of America and lost last summer.
Felten was threatened with a lawsuit by the Recording Industry Association of America Inc., a music industry body, when he was to present his findings about flaws in the encryption scheme used by the Secure Digital Music Initiative (SDMI) to create secure digital music.
The DeCSS ruling has been appealed and is awaiting a decision, which could come at any time. The questions that the appeals court asked during the case were encouraging for DMCA opponents, Berkman's Seltzer said.
"They were at least struggling with the important questions and they didn't dismiss them out of hand," she said.
The Felten case has yet to go to trial, but developments in either of those cases could impact the DMCA and the Sklyarov prosecution, she said.
"I'm still hopeful that one of those challenges will succeed," she said.
FreeSklyarov.org's Youll is hopeful as well, but he would rather see market forces solve the problem.
"I do hope that market pressures will eventually fix this mess. As consumers learn that proprietary, locked-up, restricted e-books, and locked-up music and video, are not particularly useful," he wrote in the e-mail, "they will reject them in favor of open standards. Nobody likes to be called a thief -- yet that seems to be what Adobe and some others are saying -- that free-thinking adult consumers are so dishonest that they'd rather steal a book than buy it."
That matter is likely to be decided another day, however, after the case of Dmitry Sklyarov has been resolved.
"There are still a lot of obstacles to the (Sklyarov) prosecution," Berkman's Wendy Seltzer said.
One of those obstacles, and what this case underscores, she said, is that the "DMCA is a seriously flawed piece of legislation."