Busted by the Copyright Cops: How a Controversial Intellectual-Property Law Got a Russian Programmer Thrown in Jail

Article excerpt

When FBI agents arrested him in the parking lot of a Las Vegas hotel on July 16, Dmitry Sklyarov thought it must have been some mistake. These men would ask him who he was and he would tell them: a benign 26-year-old computer programmer who'd come from his native Russia to give a technical talk, a graduate student of his nation's top engineering school, a family man about to return to his wife and two small children. And then they would realize their error and let him go. But he was indeed their intended target. For the next three weeks, this slim, soft-spoken programmer was sucked into an American gulag. Eleven days in a Las Vegas jail, unable to contact his family. Then moved, in handcuffs and shackles, to an Oklahoma federal prison. Finally transported to San Jose, Calif., where he was given an opportunity to post $50,000 bail.

His alleged crime? Writing Advanced eBook Processor, a computer program sold by his Russian employer, ElcomSoft, that allows purchasers of Adobe e-books to make backup copies for themselves. Because the software circumvents the clearly less-than-bulletproof protections built into e-books by Adobe and potentially allows people to distribute pirated copies, Adobe believed the program violated the Digital Millennium Copyright Act--a controversial 1998 law that Congress passed to protect holders of intellectual property in the Internet age. The company called the Feds and tipped them off that Sklyarov would be speaking at the hacker-centric Def Con convention. After its own investigation the government had a very confused and very scared nerd in custody.

Meanwhile, the crimefighters at Adobe found themselves the focus of an angry high-tech civil-rights community, which turned out to include many of their customers. After a meeting with the Electronic Frontier Foundation, Adobe announced that it no longer thought it was a good idea to prosecute Sklyarov. Since the company also reaffirmed its support of the DMCA, the statement clearly came only because it was eager to avoid the consequences of its actions. Perversely, Adobe's change of heart can actually work against Sklyarov. After all, the Feds initiated the investigation because Adobe asked them. If they dropped the prosecution after Adobe's reversal, it would look as though private industry was calling the shots on criminal cases.

Actually, it was Congress that let private industry call the shots, particularly in certain passages of the DMCA that outlaw not only programs that circumvent copy protections, but dissemination of such information. When it comes to protecting the business plans of those who publish books and music, academic freedom and free speech are apparently expendable. When Prof. Edward Felton of Princeton University wanted to present a paper analyzing the system that encodes digital music, the Recording Industry Association of America notified him that he could be sued. …