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Digital Copyright: A Law Defanged?

By Alex Salkever In the summer of 2001, the tech slump wrenched Silicon Valley, but the geek masses had more to fret about than layoffs. Dmitry Sklyarov also had them spooked. On July 16 of that year, federal agents arrested the Russian programmer at the Defcon hacker confab in Las Vegas shortly after the waifish code jockey's well-attended lecture on the weaknesses in the copyright protection technology used to guard Adobe's eBook Reader (see BW Online, 7/25/01, "Don't Judge an eBook Case By Its Coverage").

Skylarov didn't know Adobe had alerted the G-men that he was the copyright holder of the Advanced eBook Processor, a piece of software designed to crack eBook copyright-protection mechanisms. The software, the feds alleged, violated a controversial provision of the 1998 Digital Millennium Copyright Act (DMCA), which allows the government to press criminal charges against any company or individual who "willfully" creates technology to circumvent copyright protection. In the government's view, the Advanced eBook Processor, sold for $99 at the time by Sklyarov's Russian employer, Elcomsoft, represented a criminal offense.

APPELLATE LEVEL. Now, it appears the anti-DMCA side has won this skirmish. On Dec. 17, in a U.S. District Court in San Jose, Calif., a jury acquitted Elcomsoft of all criminal charges. (Sklyarov himself was not on trial as he had cut a deal to testify against his former employer in exchange for immunity.) Cyberlibertarians rejoiced, proclaiming that the decision would make it much harder to prosecute criminal cases under the DMCA.

That's probably true, but the outlook is a little more complicated: To set a precedent and broadly affect how the DMCA is interpreted, a similar case will need to reach the appellate bench. So far, not a single criminal DMCA case has gone that far. Two have been settled, leaving the Sklyarov matter as the only one to make it to trial.

While the feds say the Sklyarov ruling won't stop them mounting further criminal cases, it may well make them think twice. "They got slapped around in the press, and then the jury acquitted. It doesn't get worse than that," says Orin S. Kerr, a professor at George Washington University. As Kerr and others point out, the burden of proof in the Sklyarov/Elcomsoft case was particularly difficult. Says Kerr: "This is a good reminder that the statute is more limited than people think."

When Congress inserts "willful" into the definition of a criminal charge, it raises the bar very high. The word means with full knowledge, and that obliged the Justice Dept. to prove that Elcomsoft built the Advanced eBook Processor as a conscious violation of U.S. law. That was hard to prove because the DMCA has no legal equivalent in Russia, where Elcomsoft is headquartered.

DIGITAL LOCK PICK. The government believed that Sklyarov and Elcomsoft made perfect examples of why the DMCA was needed: as a means to punish those attempting to profit by selling technology explicitly designed to circumvent copyright protection. Elcomsoft was offering what amounted to a digital lock pick, the feds argued, a virtual version of something that would be illegal in the physical world.

The feds had their hands full trying to convince a jury, as they might have expected had they been following surveys of Internet users. In 2000, for example, Reston (Va.) market-data outfit PC Data polled 1,560 Web surfers and found that 56% regarded unauthorized music downloads as "harmless."

Nor did it help that the case went to trial in the heart of Silcon Valley, where the chances of assembling a tech-hostile jury must be reckoned among the lowest in the country, and where the very idea that a guilty verdict might lead to a stretch behind bars must have struck many as Draconian. "Juries are much more comfortable finding against [the government] in a civil case as opposed to a criminal case," says Ian Ballon, a partner at Manatt, Phelps & Phillips in Palo Alto, Calif., and the author of E-commerce and Internet Law.

GUN-SHY? If the Justice Dept. becomes increasingly gun-shy about enforcing the DMCA, as Kerr and others predict, one beneficiary will be researchers, who will be able to go about their business with little fear of arrest. On the other hand, lots of problems could lie ahead, however, if copyright holders mount a sustained civil battle against companies like Elcomsoft, which they may perceive to be in violation of the law.

Still, the "Free Dmitry" campaign that became a cause célèbre among cyberlibertarians and technologists now appears victorious. Meanwhile, the DMCA seems far less fearsome than its detractors feared -- and less likely to have an impact on innovation. Salkever is Technology editor for BusinessWeek Online and covers computer security issues weekly in his Security Net column

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