Sklyarov Case Opens Today 318
weakethics writes "The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."
That idiot is a lawyer (Score:5, Insightful)
Due process, and speedy trial (Score:4, Insightful)
Where CYA is the name of the game... (Score:5, Insightful)
The reason there haven't been any cases is because none of the small-time developers who have run afoul of the DMCA so far have had deep enough pockets to hire lawyers with enough intestinal fortitude to take it on and get it shot down. One good failure of the DMCA in case law would be all it takes, but (IMO) unless you've got the financial resources of Microsoft, Sun, Oracle et al you ain't gonna get the job done. So rather than fight the good (but expensive) fight, developers get that nasty letter which threatens to invoke DMCA and they knuckle under.
'Nuff said.
One case, sure (Score:2, Insightful)
So what exactly is the point...? (Score:4, Insightful)
This is not deep-linking, they *did* break the copy protection. As wrong as DMCA might be, it is a law at the moment.
Re: Sklyarov Case Opens Today (Score:5, Insightful)
Re:That idiot is a lawyer (Score:3, Insightful)
This makes me sick. This guy doesn't care if a blind person can read an ebook, he probably could afford to hire someone to read it to him!
I truly pray justice prevails in this case. Though considering the current political and legal climate in the US, I don't have much hope...
criminal cases (Score:5, Insightful)
The whole reason (Score:4, Insightful)
Perhaps one day soon, congress will realize what a mammoth beast this thing is and kill it. Perhaps they will realize that they should make enforcable legislation. Nah, just pipe dreams.
Appeals (Score:5, Insightful)
In Soviet Russia... (Score:2, Insightful)
Re:So what exactly is the point...? (Score:3, Insightful)
cases where the DMCA is upheld.
Point 2: Many people feel the DMCA is a law "bought" by the entertainment industry. They feel the DMCA is another example of how our government is representing big business rather than the voters.
Point 3: Many companies HAVE used threats of DMCA action as a weapon against would-be competition or a challenge to their control of the market. Even if the party the threat is against has not actually violated the DMCA, the cost of going up against a huge corporation in court is enough to scare a lot of people.
Point 4: Elcomsoft and Sklyarov made their software in RUSSIA. Some people feel that the Sklyarov, at least, should not be punished for doing something in Russia that was against a US law.
Re:Adobe Is Dead (Score:5, Insightful)
Joe user doesn't have the money for Adobe products, however, Joe Company does. And they do pay for it, and they 'do' use it. Adobe controls the market on both Mac's and PC's --- and before you give me the LInux aspect, remember that it aint used like the other OS's for desktop publishing. Adobe is also a crucial instrument into the Postscript that everyone plus grandma uses.
acrobat and pdf are only a portion of the pie that they eat.
so, before you start the elimination rounds early, get your facts straight.
disclaimer: i dont agree with their decision about Elcomsoft, i am merely looking at this from a desktop publishing environment (from which i am gainfully employed.) so, in essence, adobe will survive long past this silly dmca bs.
Quick trial? (Score:5, Insightful)
ElcomSoft was doing this for profit, if that makes any moral difference. Selling locksmithing tools to a burglar is not particularly savory or legal, and this aspect will make the jury less sympathetic (notice that ElcomSoft wanted a jury). If the skirmishes over the statute did not extricate them, I don't know what chance they have unless there is a juicy factual dispute about who-did-what-where. Yet they haven't pleaded out, assuming a plea agreement was even offered in the test case... Hmm. Need details. Speculation overload.
It is intriguing that no cases have been brought. Yes the law has been used for intimidation, but the prosecutors have no obligation to let anyone off with a warning -- they can prosecute the first infraction. It would be interesting to know why the law apparently has been given low priority.
BTW, I agree the treatment of Dimitry Sklyarov (sp?) was shameful. I don't think Kevin Mitnick is a good analogy, however. Their actions and alleged crimes were of very different natures. Yes, there were problems in the Mitnick prosecution as well, but Sklyarov's no Mitnick.
Here [eff.org] is the EFF's somewhat dated FAQ on the case, more detailed certainly that the Chronicle.
Re:Selling to USA residents (Score:5, Insightful)
Re:Using the DCMA against itself (Score:5, Insightful)
They would then just use their 'we can hack P2P to find bad stuff' attitude to break it, and the government would let them. As I said a few posts ago, the government is not representative of the people as a whole, but representative of those with money. This isn't the way it should be, but it's the way it is.
Re:Appeals (Score:3, Insightful)
Re:Where CYA is the name of the game... (Score:5, Insightful)
The DCMA has criminal and civil provisions. THIS IS THE ONLY CRIMINAL DCMA CASE THAT HAS EVER BEEN PRESENTED, period. You're talking about the civil provisions of the DCMA (which are admittedly terrible, nasty , awful, misused, all of that stuff). The Justice Department simply doesn't go around sending out cease and desist letters.
From a tactical standpoint, I'm hoping that Elcomsoft gets convicted, since I'm betting that the criminal provisions of the law will be deemed overbroad and vague on appeal. Then, by implication, thoose arguments will become more available to defendants in civil DCMA cases.
It's not even Conservative vs. Liberal (Score:3, Insightful)
Intellectual Property Rights vs. Innovation Rights
In this case it can be argued that Dmitry Sklyarov is a hacker who hacked together and conspired to traffic a digital crowbar that disables the lock Adobe's eBook.
- OR -
Dmitry Sklyarov is just a mere employee who wrote software for his employer to enable the user to convert THIER personal eBooks to other formats.
The irony this dichotomy is: THERE IS NO DICHOTOMY. Both Statements are correct.
The real question is: Should ElcomSoft be criminally convicted for writing a very legitimate software? It's legitmate in Russia. It was a legitimate and common type of software in the US not too long ago. It only allows the user to convert THIER personal eBooks to other formats. It has many valid uses.
Nope... Doesn't seem like a Conservative vs. Liberal Issue to me...
The Irony of History (Score:5, Insightful)
11 years after the Fall of the Soviet Union, Russian citizens fight a federal law that is more intimidation than jurisprudence... in the USA.
Building a police state (Score:4, Insightful)
This adds up to that everyone is a criminal and can be put in jail at will by The Authorities, should they ever feel that need. And that is not a free society.
Re:Say it with me now... (Score:3, Insightful)
So in the future, admins could you please try to just report the news without shallow, short-sighted remarks and let us form our own opinions about the story? It would go a long way with me.
litigation is about intimidation (Score:4, Insightful)
In today's legal world, litigation em about intimidation. Let's say you have a private plane that fails because a spark plug breaks (fairly unlikely I know, spark plugs don't actually break that often), and you crash-land it in a mall.
Now, everyone sues everyone. The mall sues you, your insurance company, the spark plug company, the airport in which you store your plane, and the maker of the plane. The maker of the plane sues the spark plug company. The spark plug company sues the company that sold them the clays for the ceramic.
This is also why most insurance policies contain a clause which you must agree to in order to get insured which says that if anyone sues you and the insurance covers the suit, you have to basically agree that you are in the wrong, and they will settle. So suing people has actually become the science of settlements; How much are they likely to settle with me for? How much can we settle for and have it still be cheaper than going to court? Etc.
Obviously the DMCA and related are solely intended to intimidate the masses via persecution of the few, but don't try to play it up like it's unusual. The courts are used for intimidation and extortion every day. It's just a matter of course.
Re:Selling to USA residents (Score:4, Insightful)
You also seemed to have missed the point that Sklyarov was initially charged with this crime and spent a few weeks in jail for it, I hope he gets some sort of compensation.
Re:Appeals (Score:3, Insightful)
It's not "taking one for the team". I think it's probably a reasonable legal strategy when you've been convicted of a dubious law that has not been tested in court.
Re:So what exactly is the point...? (Score:3, Insightful)
Elcomsoft does business in the US. They can be tried in US courts as long as they would like to continue doing business here. The only charge against Dmitri that would have flown is due to his presentation here in the US. The DMCA makes it illegal to tell other people how to circumvent encryption on copyright material. He did that. Of course that is a much clearer free speech issue, so I think they got a little scared.
Re:I don't get it (Score:5, Insightful)
But Adobe wrote and has patented the technology that encrypts the contents of the eBook. The DMCA specifically prohibits the circumvention of such security devices and Adobe, who uses this particular device, feels that they may face a substantial loss of revenue if their technology is cracked.
Analogously, if a lock manufacturer has their technology circumvented (i.e. someone creates a universal key) is it the responsibility of the users of the locks (whose stuff might get stolen) to pursue the keymaker, or is it the responsibility of the lock manufacturer? Arguably, in a case such as this, both the responsibility and the financial incentive reside with the lock manufacturer to pursue the keymaker.
OTOH, Skylarov's tool essentially restores fair-use rights that Adobe has stolen from eBook consumers.
I create copyrighted material. I prefer that my material is protected from plagiarizing. But if some kid likes my music well enough to download MP3's of it (not that that's an even remotely plausible scenario), I'm not going to lose any sleep thinking that I've lost that $0.03 royalty. Far better IMO to view it as free advertising. And if the kid's parents hear it enough, maybe they'll buy him the CD and then I'll get the whole $0.38.
As far as I'm concerned, the DMCA is bad law. I hope it gets struck down resoundingly and that Michael Eisner gets so angry about its defeat that his ulcer explodes and drowns him in gastric acid (or the non-violent equivalent, if you prefer--whatever that is).
Re:I don't get it (Score:4, Insightful)
Re:I don't understand... (Score:2, Insightful)
In a nutshell: Copyright law boils down to an exclusive right (granted by Congress, granted to an author, granted for a limited time) to "speak" certain works. If you write a book, then for the period of time during which your copy right exists, I am not free to also write the same book. My speech is infringed. Copyright is fundamentally in conflict with free speech. The Framers justified this by saying the benefit to society gained by having you share your writing was worth more than the cost of prohibiting me (and others) from writing the same thing during the copy right period. Again, this is "in a nutshell".
DMCA, so the argument goes, runs afowl of at least the spirit of copyright (and free speech) in several respects. For one, the copy right protection period granted by a technological mechanism is esssentially "forever", and not a limited time. Additionally, Dimitri/Elcomsoft did not publish anything infringing anothers copy right, but rather published a tool which could allow (some would say "was designed to allow") it's purchasers an opportunity to violate another's copy right.
Free speech can be restricted in cases where the government can show a "compelling interest". Your "fire in a theatre" example is one of these; clearly the harm from such speech outweighs the societal benefit of hearing your rendition of "Fire!".
One thing which can be drawn from the result of this trial (whatever it should be) is whether the goverment finds a more compelling interest in promoting technological advancement or in protecting the bottom line of some major campaign contributors.
Making the argument that publishing an eBook extractor is a malicious act seems akin to accusing a man of being a thief because he posesses hands with which to steal. Even within the letter of the DMCA, there are certain circumstances under which using an eBook extractor to access the content of an encrypted eBook would be undeniably legal.
a single criminal case because... (Score:4, Insightful)
Maybe because the beneficiaries of this remarkably stupid legislation are afraid to death that litigation will turn on the DMCA's unconstitionality, rendering it null and void.
Re:No argument... (Score:2, Insightful)
Re:Name the incident... (Score:4, Insightful)
I'm probably not being accurate by saying the DoJ. In the Felton case, it was the SDMI consortium and RIAA that threatened him. My reply was just a bit hasty.
That isn't the point though. These cases never come to light because those who are challenged can't even begin to mount a legal defense, and therefore, fold like Superman on laundry day. The mere threat of invoking the DMCA has most definitely had a chilling effect. I'm sure you're aware of this though, and that was the point I was trying to make.
Inertia is Interesting... (Score:3, Insightful)
In the Macintosh graphic design field, where Adobe has their most rabid supporters, there is a severe issue because QuarkXpress isn't supported on OS X. The problem is, Quark is the premiere desktop publishing tool and even Adobe hasn't been able to take that away.
You would think, since Adobe has cornered the market on just about every other graphic design aspect, that people would immediately switch to their equivalent page layout product. After all, inter-program functionality should be more fluid. Still, even with compatibility issues, there are a lot of people running multiple OS or multiple machine configurations just to use both Quark and OS X. That's inertia... in a big way.
It took Microsoft years to kill off Netscape (or eclipse, for those who still hold out some hope of their resurrection) and that was long before the Web became what it is today. People still aren't as attached to their web browsers as they are to tools like Photoshop, Illustrator, and Quark. Microsoft has a long way to go before they reverse Adobe's inertia in graphic design, PC or Mac.
A Little History on yelling "Fire" and much more!! (Score:3, Insightful)
As long as we're talking about Justice Oliver Wendell Holmes's classic example of unprotected speech, let's learn a little about the context, especially considering it's been invoked by so many people in so many contexts.
The analogy came from the Schneck v. United States in which Schneck was being prosecuted for causing subordination among soldiers who had been drafted in WWI. He and others had circulated leaflets asking draftees to not "submit to intimidation". The leaflets did not encourage draftees to break the law, rather it encourage them to consider their rights.
Justice Holmes opinion was that the constitution protects these leaflets during peace time, and that wartime deserved special circumstances.
In order to support his special circumstances opinion, he illustrated his opinion with the famous "Fire in a Theatre" analogy.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Justice Holmes upheld his convictions that the leaflets presented "A Clear and Present Danger"
Of course, when the founder father drafted the Bill of Rights, they must of forgot about their own "Clear and Present Danger" that they presented to His Majesty's Empire.
Oh wait, If the founding fathers were hung up on this "Clear and Present Danger" exception, why didn't they write it down, but rather write the Second Amendment and Third Amendments instead?
Source Code - A Precise Mathematical Notation?
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Pornography, Video Games
They're all Intellectual Works protected by copyright law!!!
What do these things have in common?
Literature, Music, Paintings, Sculptures, WebPages, Movies, Arm Bands, Middle Fingers, Flag Diapers
They're all protected by the First Amendment!!!
What does Copyright Law Consider Expression?
According the US Copyright Office, in order for a work to be copyrighted, it must be a work that is a fixed in a tangible form of expression. Therefore, ALL copyrighted materials are tangible forms of expression!
What does the Law Say?
Title 17, Circular 92, Chapter 1, Section 102
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
Is Software Really a form of Expression?
I like working with extremes myself, so let's start with Video Games. They seem to be the most expressive form of all expression. A great Video Game mixes and blends all sorts of art, music, and literary work and combines it all with an intelligent engine, which is a mathematical art form in itself. If one wanted to be an artist that truly affects and influences people, wouldn't it be logical to blend many art forms into one cohesive form of immersive art?
What about Source Code
If you're going to describe what source code is to someone who's never seen it, it can be best describe as a very precise mathematical notation. A program is almost always a mathematical model representing real object or phenomenon. A Database is a mathematical model of an index filing system, while a Word Processor is a mathematical model of type setting machine. When these models are executed on a computer, they may behave just like the physical device, but it is still only a model of that device, expressed in a mathematical notation.
If it's copyrightable, it's expression. You can't have it both ways...
Re:I don't understand... (Score:3, Insightful)
Please allow me to fix your analogy. The DMCA isn't about yelling "fire" in a crowded theater, it's about keeping people from saying "This theater is a fire hazard." Doing so would require both reverse-engineering the theater (to see what the specific hazards are) and distributing the information to people who may not have bought a movie ticket (and therefore never having been in the theater themselves).
Those together are made illegal by the DMCA, because saying "This theater is a fire hazard" would seriously hamper the theater's sales and their "right" to make a profit.
Re:I don't get it (Score:4, Insightful)
In the case in question, Skylarov explained at a conference how bad Adobe's e-book encryption is and how incredebly simple it is to break it, and found himself soon arrested.
It's the equivilent of being thrown in jail because you publicised to consumers how bad Mr Smith's Lock Company is, and proved it by showing how you can break into any of Mr Smith's locks with a simple paperclip.
Re:Say it with me now... (Score:2, Insightful)
weakethics writes "The trial is...."
That's all. Would you rather they misquote weakethics in order to remove any hint of prejudice? Is that objective reporting to you?
I will admit that the editors are not always as objective as they should be, but I don't think you have a case this time. Even "objective" stories on television news stations will quote people who are anything but objective. This is not a new approach. You can blame Slashdot for not offering an opposing opinion, but that's the only argument you have.
*We* submit stories to Slashdot. If you want to blame anyone, blame weakethic for having an opinion.
Re:I agree (Score:4, Insightful)
If any of these things wasn't true, I think I'd have much more trouble keeping the program up. If my ISP took it down, as the safe harbor provisions of the DMCA make so tempting, what would I do? If I had money to lose or couldn't afford the court time because of job commitments or family, how could I risk going to court over something so silly? If I didn't realize that such mails are often just a bunch of hot air, how would I have reacted? I think that many more projects get taken down voluntarily precisely because hobbyists can't afford to provide defense, even if they are in the right.
I'd like to be hopeful but... (Score:2, Insightful)
Until politicians believe this is the issue that will make or break their campaign, they'll ignore it. That will only happen when a lot of money or a substantial block of votes is riding on it. Given that most of us have more pressing issues like war, abortion rights, etc, issues like that get pushed to the back burner.
Re:I don't get it (Score:3, Insightful)
To expand upon this: If I lock myself out of my apartment and I know how to use a credit card to gain access, I'm not violating the law. But if I go next door and use my credit card on my neighbor's lock, I have crossed the legal boundary and am now guilty of trespassing. The crime is not the method I used to gain access, but that I used that method inappropriately.
Further, if the concepts of the DMCA were applied in the real world, I could be arrested just for showing someone how to use a credit card to gain access to their own apartment.
--K.
P.S. The first one of you freaks that shows up at my door with a credit card will be the first to discover that I'm also a supporter of the 2nd Amendment: The right to keep and arm bears; my bear's name is Uber.