Locking up the lock-pickers
A young Russian's arrest has raised questions about an experiment in protecting copyright online, says Patti Waldmeir
Published: September 5 2001 18:13 | Last Updated: September 5 2001 18:20

The story of Dmitri Sklyarovreads like the perfect internet morality tale: feckless young Russian computer geek jailed for violating evil American copyright law. The internet age has its martyr.

Internet civil libertarians have eagerly seized on the case of Mr Sklyarov, who was arrested in Las Vegas in July and held for 21 days on charges of selling technology designed to circumvent a 1998 US copyright protection law.

Last week he became the first person to be criminally indicted under the law. He faces 25 years in jail and has been charged with trafficking in illegal technology and conspiracy. He and his employer, ElcomSoft, are accused of having written and sold a computer program that allows readers of electronic books to get around copyright protection erected by the publishers.

It is easy to romanticise his case: the 26-year-old Mr Sklyarov (who looks like a Slavic version of Hugh Grant) seems genuinely baffled by his predicament. Seven short weeks ago, he left a young wife, toddler son and infant daughter in Moscow for an innocent jaunt to a software hacker convention in Las Vegas. Once in the land of the free, he was promptly arrested for thought-crimes.

Luckily for the cause of internet civil liberties, Mr Sklyarov has played his role well. He has left all the shrieking to the high-technology civil rights activists who have demonstrated against his arrest. He seems to have remained sanguine throughout, reflecting philosophically that jail in Russia would have been worse - and that the food in American jails is certainly better than that of the Russian military.

Meanwhile, the internet civil rights community has seized on the image of the shackled Russian ingenu to publicise the shortcomings of the new digital copyright law. They are outraged on many counts. What Mr Sklyarov did - write a program that exposes the security lapses of the Adobe e-book reader - was not illegal in Russia; he never personally violated any law because he never sold the program to anyone (though his company did); his company never violated anyone's copyright (though it potentially permitted others to do so); and the law was unconstitutional anyway.

Once again, the temptation to romanticise is strong: Professor Lawrence Lessig, by far the brainiest of internet thinkers, has pointed out that Mr Sklyarov's program could be used by a blind reader to listen to an e-book. Similarly, as others have argued, the program could be used to print out or read aloud an electronic copy of Alice in Wonderland (which, surely, ought to be legal since Alice has long since lost her copyright protection).

By inference, indicting Mr Sklyarov means the US government has criminalised the act of helping the blind and rendered electronic Alice illegitimate. It is small wonder the civil liberties community is incensed.

But are Mr Sklyarov and his company really so guiltless? They wrote and marketed software that, when not being used by the blind or the Lewis Carroll Society, could be used to pirate and distribute e-books illegally. They sold that program on an English-language website hosted in Chicago and solicited payment to a billing agent in the state of Washington. They were repeatedly warned that doing so violated US law.

So, though internet jurisdiction issues are never simple, this seems a clear case where American law should apply. Mr Sklyarov may have dreamt up his software concept in a cramped Moscow apartment (where he says he worked most of the time, taking breaks only to play with the children). But the internet made it global; and once that happened, Russian law could no longer independently govern.

But the fact that Russian law is impotent does not render US law legitimate in the matter. As Prof Lessig points out, the law in question, the Digital Millennium Copyright Act (DMCA), experiments with a revolutionary way to protect copyright by banning technological tools that could be used to crack copyright protection rather than targeting copyright violations themselves. That is why Mr Sklyarov is in trouble: for trafficking in software that circumvents the digital locking technologies that, increasingly, are being used to protect copyright in a Napsterised world where one digital copy can be distributed endlessly worldwide.

Mr Sklyarov and his employers insist their software has entirely benign uses: to make backups of e-books or read them on more than one computer. They say their technology merely restores the balance inherent in traditional copyright law including the right of "fair use", or limited copying for private purposes (rendered impossible by current e-book technology).

Supporters say criminalising Mr Sklyarov's software would be like outlawing the photocopier because it could be used to pirate books, or the video cassette recorder because it could be used to pirate videos. Or, to pick a closer analogy, outlawing lock-picking tools, which can be used either legally or illegally, depending on the user.

There are many problems with Mr Sklyarov's prosecution, not least the fact that it is unclear whether he did anything other than write the software (which would not be illegal). But the bigger question is this: is the new law right to target the tool rather than the user?

Are lawmakers right to delegate the law enforcement function to technology, hoping that software can succeed where the law has failed to protect copyright online?

Critics point out that, left to itself, technology binds copyright far more tightly than the law could ever do: protecting Alice, for example, long after she has entered the public domain legally; and practically preventing the fair uses that decades of copyright law have guaranteed.

The prosecution of Dmitri Sklyarov is the wrong venue for deciding these questions. He is a foreigner with no apparent commercial ambitions who may have had no role in marketing illegal software. He is neither clearly innocent, nor clearly guilty; neither villain nor victim.

Federal law enforcers should choose another target, and civil liberties advocates another champion. Mr Sklyarov will serve neither of their purposes. Prosecuting him will only confuse the issue.

Patti Wladmeir Quentin Peel

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