Dmitry Sklyarov Gains High-Profile Defense Lawyer

Diesel Dave writes: "There's an article on Law.com about Dmitry Sklyarov's new Lawyer. Renowned San Francisco defense attorney John Keker has agreed to represent the Russian programmer pro bono. Keker is quoted as saying: "I think he is being unjustly accused and that's the kind of case I like to do." and "[The Government is] always welcome to dismiss the case, but we didn't come in to make a plea deal." This gives me the impression he has full intensions of fighting this to the end. Good."

I never thought I'd hear myself say this...

... but that lawyer is COOL!

I guess there are a few decent people working as lawyers out there after all...

Re:I never thought I'd hear myself say this...

Okay, so we don't kill all the lawyers.

Interesting decisions given recent events...

Given the current anti-tech rage being promoted in the US media this is a brave decision which should be applauded. While it is quite clear that this is a ridiculous case these are rapidly becomming ridiculous times.

"Ex-Commie tries to undermine US companies" is an all to easy headline to imagine. Its excellent that he has this defence lawyer, that should drive him into freedom, but the fact remains that the Don't Mind Capitulating Act is liable to get stronger rather than weaker... will Bush make this the one case where there isn't a back door to cryptography... probably.

This sort of thing is part of the reason why the US is now in recession, the driving of large corporations at the expense on innovation.

Great news - Keker is top notch

It's important that prescident setting cases of this sort are tried by the best available trial atourneys, such that the prescident that will be set can be looked upon as binding, regardless of which way the case goes. I'm suprised that more nationally renowned defense atourneys weren't all over this case from the start. It's nice to have good news in this case once in a while

--CTH

Re:Great news - Keker is top notch

Why is the U.S. such a big believer in precedents? No other country determines case outcomes based on precedent as strongly as the U.S. If we can get over our precedents maybe we wouldn't have to worry so much about the future. Things can be decided on a case-by-case basis.

That way cases like Bowen v. AHA (courts allowed Down's Syndrome patient to die from an easily curable gastric obstruction because the parents asked the doc not to operate *wink, wink*) won't really matter in the future.

There will always be cases that make bad precedents for the future. The AHA had a good lawyer (probably Keker caliber) and they successfully defended themselves. Who's to say which is the "right" precedent to establish in a case. Maybe if we didn't hold on so strongly to precedents...

Re:Great news - Keker is top notch

No other country determines case outcomes based on precedent as strongly as the U.S.

How about the UK, Canada, Australia, New Zealand and any other common law based country? Their entire system of law is based around the body of prior court decisions.

Precedent is powerful. It demonstrates what the higher courts decided was meant by the law, because they let the decisions stand...

Jason Pollock

Yay!

This is some of the best news I've heard in some time.

Thank you, Mr. Keker.

Bravo!

This is really good news. I really hope that Dmitry Skylarov can go home to Russia soon.

On a side note, this case has gotten much more attention in international circles than it has in the US.

At my university I've met a woman from Ukraine who claims that for a while, atleast, there was daily coverage of the Skylarov predicament in the Ukrainian newspapers. Much like our terrorist coverage continues to dominate the news here in the land of the home, and the free of the brave.

For a moderately non-technical person, she seemed to have a very good grasp of the issues, albeit with a touch of (IMHO justified) "the US is doing this because they can" spin.

Well, I digress. Congrats, Dmitry. I hope you make it back to Russia before I visit there this winter.

-Peter

Dmitri, PLEASE Go Home! :)

I really hope that Dmitry Skylarov can go home to Russia soon.

Yes! Go home! Quick, Dmitri, go back to Russia! Your presense here is showing Americans how stupid our legal system is and our people can't possibly remain ignorant for much longer! Shoo! Shoo!

Oh dear, a mistake!

"I think he is being unjustly accused and that's the kind of case I like to do."

Tut tut that was an obvious error, what he really said was:
"I think this is a well-known case that I can use to increase my public profile, and therefore my rate of pay for other, subsequent clients, and that's the kind of case I like to do."

Article's Text

Russian Programmer Dmitry Sklyarov Gains High-Profile Defense Lawyer

Substitution adds twist to cyber-cause celèbre

Shannon Lafferty
The Recorder
October 1, 2001

Renowned San Francisco defense attorney John Keker has agreed to represent indicted Russian computer programmer Dmitry Sklyarov on a pro bono basis.

Keker's decision to represent Sklyarov, believed to be one of the first to be criminally charged under the Digital Millennium Copyright Act, could put an end to speculation that a plea deal is in the works.

Keker of Keker & Van Nest won't say whether any plea offers are on the table but said he wasn't brought aboard to cut a deal.

"They are always welcome to dismiss the case, but we didn't come in to make a plea deal," Keker said Thursday. "We are here to deal with the defense of the case and to win it."

Sklyarov, 26, is accused of writing a program for his Russian employer ElcomSoft that allows people using Adobe Systems Inc. eBook software to copy and print digital books, transfer them to other computers and have the text read aloud by the computer.

Keker, whose past cases include the prosecution of Lt. Col. Oliver North in the Iran-Contra scandal, said he was approached to take Sklyarov's case but did not elaborate further. Keker said he took the case pro bono because he felt Sklyarov was unfairly targeted.

"I think he is being unjustly accused and that's the kind of case I like to do," Keker said Thursday.

Defense attorney Joseph Burton was initially retained to represent Sklyarov but is withdrawing to represent co-defendant ElcomSoft.

Since Sklyarov was arrested in July at a convention in Las Vegas, programmers and technology companies have publicly criticized the prosecution. The alleged victim, San Jose, Calif.-based Adobe Systems, which initially reported Sklyarov and his Russian employer to the U.S. Attorney's office, has said it no longer supports prosecution.

Both sides are currently conducting discovery. Keker said he and his team will be working "to understand Adobe's role and determine whether or not it's proper."

Colleen Pouliot, Adobe senior vice president and general counsel, did not return calls.

Former prosecutors have said that Adobe's decision to distance itself from the case makes it tougher for the U.S. Attorney's office.

"Unlike traditional crimes, where you have an individual or an institution as the victim, tech crimes enter into a new area because all the government has to rely on is the expertise of the company," said Stephen Freccero, a former prosecutor now with Morrison & Foerster's San Francisco office. "Generally, they are the kinds of cases the government wouldn't even know about if they hadn't been contacted by the victim," Freccero added in a recent interview.

Groups like the Electronic Frontier Foundation, which promotes cyber-rights, have been critical of the prosecution from the start, saying the DMCA wasn't intended to criminalize software like Sklyarov's.

Meanwhile, observers have said Adobe's about-face has put the U.S. Attorney's office in a tough situation. If it drops the charges, the office may seem ill-equipped to handle the high-tech, white-collar crimes it has vowed to go after. If it goes ahead with an unpopular prosecution, it could alienate high-tech companies whose assistance it needs to develop other cases.

Sklyarov, who is out on bail, will appear in San Jose federal court Nov. 26 for a pretrial hearing. If convicted, he could face five years in prison and a $500,000 fine.

Symbiotic Relationship

Not that I find fault with it, but Mr. Keker has just as much to gain from representing Dmitri as Dmitri himself. Keker will gain a great deal of press and attention, whether or not he wins the case. Dmitri on the otherhand, now has a fighting chance at getting off clean from this injustice.

Hopefully, this is the kind of trend we can expect. As the open source and free speech movements (funny you have to think of it in those terms these days - thought we already had that one down) become more and more publicized, we may see more and more lawyers jump into the fray on our behalf for their benefit.

Again, not a bad thing, but we don't want to be misguided into thinking that these lawyers working pro bono support our causes. They just as soon would take a $1M check from Microsoft.

Re:Symbiotic Relationship

Actually, he's already high-profile enough that he doesn't need the advertising. He can already pretty much name his fee.

Sure, maybe he can charge a couple more bucks-- but that'll hardly balance out with what he would've made charging a different client during the hours he spends on this case. And sure, maybe he enjoys being in the papers; and maybe his clients expect that from him.

But basically, he's already got plenty of money, and his practice is plenty successful. If he were just in it for the money, he wouldn't take this case. You'll find that a lot of defense attorneys (and prosecutors) really care about what happens to their client. Sure, Keker's probably not some anti-DMCA zealot, but he wouldn't have taken this case if he didn't think Sklyarov's prosecution was unjust.

Yes, cynicism is good, and with lawyers, it's doubly important. :) But contrary to popular belief, most of them are not soulless, money grubbing ambulance chasers.

pro bono

In case you didn't know...

From dictionary.com:

pro bono
adj.

Done without compensation for the public good: a lawyer's pro bono work.

Press Release

&gt John Keker has agreed to represent the Russian programmer pro bono

AP - Moscow: In a briew interview with the lead singer of U2, Bono denies allegations with regards to involvement in writing software that is used to break copy protection schemes. Although Bono admits to using similar software to pirate his own music, He believes that he should be able to write whatever code he likes. Bono refused futher requests for an interview.

Other sources?

Does somebody have another source for this? Law.com is requiring cookies, and I know this sounds whiny, but I'm just a little too cagey right now to go waltzing onto a commerical site with Junkbuster disabled...

--
This domestic terrorism [geekculture.com] has got to stop.

Wish Them Good Luck

This is going to be a tough battle but i truly wish them good luck. I hope this trial brings out how unjustifiable the DMCA is and maybe the government get a move to change things a bit.
Just Hoping...

Nonsensical.

"Generally, they are the kinds of cases the government wouldn't even know about if they hadn't been contacted by the victim,"

They say this as this is specific to hi-tech crimes. Most property crime, extortion, rapes, battery, assualts, only only known by the government when the victim makes a complaint.

I am suprised that Dmitry didn't bring a lawsuit against Adobe and the government for retaliation under the ADA. He was aiding others in making a reasonable accomodation by breaking the software to allow it to be converted to speech for the blind.

Pro Sonny Bono?

Renowned San Francisco defense attorney John Keker has agreed to represent the Russian programmer pro bono.

Pro Bono? Aren't we supposed to be against the Sonny Bono Copyright Term Extension Act [everything2.com]?

More people like John Keker.

"I think he is being unjustly accused and that's the kind of case I like to do," Keker said Thursday.

Bravo.

As programmers write code to further the cause of opensource software, we need skilled Lawyers to protect our rights. Its war, and the battle will take place in the courts.

Ashcroft tells it all [democrats.com] - Political Cartoons at Political Strikes [politicalstrikes.com]

They should sue Adobe

The release doesn't mention whether Skylarov will press for damages if acquitted, seeing as he is pitted against the US government. But I think, Keker must file a simultaneous petition to seek damages from Adobe. That should teach them to stop acting like idiots. One moment they are crying foul to mamma, then they see there's nothing in it for them, and then sheepishly wanting to opt out. Show them how the jungle law of the West works, Keker!

Some bio info

is available here. http://www.kvn.com/attyjwk.html

This is very good. With the recent events in NYC further stigmatizing the public's view of technology, Keker taking the case is an excellent move to bring Dimitri's case into proper perspective.

DMCA - future prospects

If this guy is any good, I hope they take it to the supreme court and get the DMCA ruled unconsitutional.

This would be very satisfying.

On the hand, if they win, the government might not appeal since they would not want to have the DMCA so ruled.

In any case, it would be ironic for the whole thing to be thrown out because it was an action in a foreign land by a foreign national.

It's sad that this matters

While I'm very happy for Dmitri Sklyarov, it's rather a sad indictment on the judicial system that having the one of the best lawyers seems to matter so much.

Surely any competent lawyer should be sufficient to point out the facts of the case, and allow a reasonably impartial judge and jury to judge the case accordingly.

Sadly, this doesn't appear to be the case.

And no, this isn't intended just to be an attack on the US justice system. I'm sure other countries are as bad (even if some of our laws aren't as bad in this regard - at least, not yet).

high-profile == expensive

Poor Dmitry,

A foreigner, trying to escape America for Russia and freedom, fighting against an unjust system, being forced to spend all his money on a legal battle that should never have happened.

I wonder how his wife and kid are doing through all this.

US laws do not apply outside US

I hope, that the outcome will be the obvious:
Every country has its own laws, and laws of one country are not applicable on what happened inside another country.

• Brits drive on the left, that's legal in UK, but not in France. Will a Brit be arrested, when he visits France, telling everyone that at home he drives on the left? Obviously not.
  
• In Netherland light drugs are legal, but in Italy not. Will someone from Amsterdam be arrested, when going on holidays to Italy? Obviously not.
  
• Sklyarov wrote the software while in Russia, he is a Russian citizen, and in Russia it is legal to write this kind of software. Why should USA be allowed to arrest Sklyarov? On what basis?

Does the US legal system really think its laws are "universally" applicable? Is this the US-arrogance, that makes USA so hatred?

ms

South Park

He'll whip out the Chewbacca Defense and win the case hands down:

"Dear ladies and gentleman of this supposed jury I have one final thing I want you to consider: this is Chewbacca.."

Who is going to pay the bill?

Much of the injustice today is that good lawyers are hard to come by and the few that exist charge outrageous fees. If you have big pockets you can accuse someone or defend yourself and always win. IT doesn't matter if you or they are truly guilty. A lawyer can lie, stretch the truth, or use FUD and make doubts on all the witnesses to practically throw out all evidence. We need to change our system and put some penalties on dishonest layers or make some new rules in court procedures. However the BAR association likes our current system and will not make any recommendations to change it.

Anyway not to go offtopic, good lawyers are expensive and how is this Russian who makes probably dirt pay afford him? Is the EFF paying for him? The EFF would like to fight Hollywood themselves and have a limited 2 million dollar budget to do it. Anyway I thought it would be cool if he could somehow afford Johnny Cochran. I love the South Park episode where Capitalist records sued the chef for copyright infringement supposedly for a song the chef wrote 20 years ago because it sounds to close to a newer song that is out.

"Capitalist records CEO: I AM ABOVE THE LAW!"

should get Johnnie Cochran

If the bit's not flipped you must acquit!

Sign the Petition to get rid of the DMCA

Sign the Petition to Abolish the DMCA. [petitiononline.com]

Forward it on to people you know who oppose the DMCA.

Let's not forget...

From the Article:
If convicted, he could face five years in prison and a $500,000 fine.

This is assuming the ATA doesn't pass. Otherwise it should read Lifetime in prison with no chance of parole. [securityfocus.com]

Funny...

Funny how it's square-jawed normals like Bruce Willis who play heroes in our movies. People like this, who will stand up for their rights and fight this fascism, are true heroes. There should be heroic movies about THIS sort of thing, with heart-rending patriotic movies and the libertarian hackers getting the chicks at the end. =)

-Kasreyn

This case will be dismissed.

I still believe that this case will ultimately be dismissed in time.

I suspect this because I believe that the corporations and the government know they got away with one this time and they don't want this law overturned, which it might be by a high court.

They will wait an appropriate amount of time to let Skyarlov know that "they really meant it," slap his wrist, and send him home.

Rich...

As good as this news is for Dmitry...

While it's a very good thing that he'll have excellent representation, I still say that Adobe should be paying full price for his defense.

That mealy-mouthed "oh, we're sorry we called in the thugs" business doesn't begin to atone for what they've done.

-jcr

Dmitry made a martyr of the Anti-Terrorism Act?

If this has already been posted then I guess I'm dead in the water.
If you don't know about the ATA(see above) go to www.eff.com [eff.com]. Read everything you can and write your representatives!

1. I pray for two things
2. That the horrible civil violations proposed in this act are not made into laws.
3. That Dmitry does not become the St.Steven of the ATA.

With a heightened public fear of words like encryption and the h-word it's going to be hard to find a good jury.

John Keker

I did a search on google and came up with this page

Keker [kvn.com]

It has a piece about the attorney in question. He seems to be one of the best according to this.

Is there any way the prosecution can actually win

If Sklyarov's lawyer is working pro-bono, how can the prosecution possibly hope to win? IANAL, but my understanding of this kind of case is that the people who can stick it out in court longer will win. If Dmitry's not going to have to pay anything for his lawyer during this trial, then wouldn't the prosecution be throwing good money after bad to try and continue prosecuting? They'd need real-world proof of criminal intent in order to win. I don't think they're likely to get that.

Potential Threat to Lawyers

Lawyers, perhaps more than most of us, thrive or perish according to their ability to access information freely.
Since information is the capital with which lawyers can conduct their business, any sane lawyer could not help but feel threatened by any trend towards enforcing strict locks on information.

Imagine legal textbooks and other legal literature being published as e-Books with strict license agreements stipulating that the information contained can not be used in certain legal contexts (eg defending against DMCA prosecutions, or suing certain companies) - this is not dissimilar to Microsoft's EULA banning use of FrontPage with any website containing anti-Microsoft sentiments.

History is being made by this case.
It's not 'California v Dmitry Sklyarov', it's DMCA v the First Amendment'!

Good luck, Dmitry and Mr Keker! The freedom of the masses depends on you.

article unreadable

The article at law.com shows up as black text on a black background.

This is with Internet Exploder version 5 on the Mac.

Money where our mouth is...

Dimitry's case has been front page news here on the . for quite some time. I also remember several reply posts to various "freedom" articles suggesting that we organize politically.

Let's put our $ where our mouth is; start a fund to help with the legal expenses. Yes, I know that's apparently not necessary. But think of the message that would send. Each registered /. reader contributing even just $1 (that's less than a beer if your not buying the cheap shit) could make quite a dent.

How 'bout it, Taco? Anyone?

-E

Re:"High profile" to whom?

No name clown or not, this case has become high profile in tech circles because of the implications of its outcome. The DMCA has the potential to trully hinder the efforts of open source software developers, and by having a it held up in court by convicting Skylarov would give it all the more clout in convicting anyone else who would dare to try to compete with, circumvent, or emulate the product of a powerful coporation, simply based on the grounds that in some way shape or form it may violate the copyright that company holds. This case is ludicrous...but what could come from it is very serious.

uhh sorry folks otb is supposed to be read otj

on the job

Re:Just another Brian West. Quit bleeding hearts

You seem to be unaware that copyright law allows for a number of circumstances in which copying is permitted, for instance, here is a description [cornell.edu] of some forms of copying allowed WRT computer programs.

So, in the free world (i.e. places like Russia, where the DMCA is not law) you are entirely within your rights to write, and use such software, just as you were in the USA prior to the DMCA.

It strikes me that the USA are retroactively enforcing this law outside its jurisdiction.

From where I'm standing, this looks pretty similar to a totalitarian regime arresting foreign journalists for criticising the regime. The only difference is that the authorities are acting on behalf of totalitarian corporations, rather than a dictator.

Re:Just another Brian West. Quit bleeding hearts

This is the authors way of retaining a certain amount of right's to their property.

But what about the owners of the data in those protected files? Don't they have any rights in your mind? I've lost files because the format they were in was password protected. I've had to use password crackers in order to recover my property from being lost forever.

You're also ignoring the oft repeated fact that what he was doing in Russia was perfectly legal. In fact, Adobe was breaking the law in providing their reader software to Russia without a provision for creating a backup.

He was fiddlin where he wasn't supposed to be. I didn't need his programs to do my job.

How about the person down the street? Perhaps they do need this sort of program in order to do their job. Perhaps they went blind in an accident and are trying to get on with their life. Perhaps the hard drive on their computer crashed - the money they just spent on that e-book just went down the tubes because they can't make a backup copy. It's perfectly legal to copy a book to use and keep the original in a secure location - why should duplication for backup purposes be illegal just because the book is now digital?