Arrest may spark review of copyright law

The plight of Russian programmer Dmitry Sklyarov, who was arrested last week, is again shining the spotlight on a controversial law designed to expand copyright protections into the digital age.
Written by Lisa M. Bowman, Contributor
He's an unlikely poster child for a movement to change a major US law. But the plight of Russian programmer Dmitry Sklyarov, who was arrested last week, is again shining the spotlight on a controversial law designed to expand copyright protections into the digital age.

Federal agents nabbed Sklyarov at the Def Con hacker conference in Las Vegas after he talked about a program that can crack Adobe Systems' e-book encryption. Prosecutors have filed criminal charges against him because they say the program violates the Digital Millennium Copyright Act, a law designed to protect copyrights in the digital age.

The arrest has prompted protesters to march on Adobe headquarters and free-speech groups to swoop in and take his case. The Electronic Frontier Foundation met Friday with federal prosecutors in an attempt to get them to drop the charges, but the group did not succeed. And some lawmakers are taking a new look at the DMCA.

The most controversial portion of the 1998 law, section 1201, makes it illegal to circumvent technology designed to protect copyrights--even if someone is doing research or reverse engineering.

And while at least one Congress member is promising to modify the DMCA to ensure it doesn't trample on consumer rights as technology advances, others say there's not enough criticism of it to justify any meaningful changes to the law.

Rep Rick Boucher, D-Va, long a critic of the law, has said he plans to introduce legislation that would soften the 1201 clause by adding wording that would make it clear that circumvention would be illegal only if the primary purpose were to violate copyrights.

In the spotlight
Broucher said public support in favor of trimming the law is growing, particularly as news of the Russian programmer's arrest spreads.

"We now have seen the law being misused," he said, pointing out that Sklyarov's technology could be used for legitimate purposes such as copying an e-book to another digital device for personal use. "This law went too far. It's time to restore balance."

Meanwhile, copyright holders are praising the DMCA. After all, representatives from the music, movie, and now the publishing and software industries have gone after people they see as a threat to control of their products.

"The DMCA is pretty standard and clear, and so far the courts have interpreted the DMCA exactly the way it was meant to be interpreted--it's working as it intended to work," said Fritz Attaway, executive vice president for governmental affairs at the Motion Picture Association of America. The MPAA so far is on the winning side of a suit against hacker publication 2600 for linking to code that can be used to crack DVD security. A judge ruled 2600's actions violated the DMCA, but the case is on appeal.

Attaway said his group isn't actively lobbying for expansions of the law, but that could change. "There are those in the hacker community who would like to see the DMCA overturned, and we certainly would oppose anything along those lines," he said, characterizing Boucher's efforts as an attempt to "repeal" the law.

Officials in the House Judiciary Committee--which would oversee any initial changes in the law--say that they haven't heard anything substantial from either side lately. Those who want to change it have come across as "hacker extremists" while copyright holders seem pleased, one official said. What's more, the entertainment industry is a major contributor to many lawmakers, meaning it would be a challenge to change their minds.

Even Boucher admits new legislation could be a long time in coming, either next year or even the year after that. "I'm not going to tell you I have the votes today to pass a section 1201 change, but I will," he said. "This issue is emerging into the popular culture, and I think that's going to continue to happen."

For now, any alterations to the law probably will be hammered out in the courts instead of in Congress. Like any new law, the DMCA is being tested and stretched in a variety of cases, and the number is growing every month.

The most advanced of these is the DeCSS case. The federal government has jumped in on the case as an intervenor in an attempt to defend the law. Because the case is in an appeals court, any ruling would be the first precedent-setting decision related to the law.

But as copyright holders have brandished the law more frequently, they've treaded into increasingly murky ground. In April, entertainment industry groups threatened Princeton professor Edward Felten, telling him he risked violating the DMCA for giving a speech on his research into hacking security technology designed to protect digital music. In turn, Felten sued, asking for the right to present his research at a later date.

Although copyright holders now say Felten can give his speech, he's continuing with the case, asking the federal judge to declare parts of the law unconstitutional.

And in the Sklyarov case, his supporters are hoping that the arrest will cause policy-makers to look more broadly at the ramifications of arresting a programmer. After all, they argue, if a programmer can be arrested after talking about the technology he created--technology that exploits weaknesses in another company's products--it could threaten innovation.

The latest cases may represent vindication for some who complained during the DMCA's cantankerous formation that the law could be misapplied. As it was being hammered out in Congress, the law attracted criticism from a wide variety of parties. Internet service providers worried they would be forced to police their networks for illegal activity; programmers worried about a crackdown on research and reverse engineering; consumer-electronics manufacturers feared copyright holders would get to dictate the design of their products; and librarians warned it could threaten free speech.

Out of this world?
At the time, most of those fears were written off as too "sci-fi" to justify major changes--although ISPs did manage to get an exemption from having to constantly monitor their systems and instead must only remove material after copyright holders notify them.

But some of the warnings have come true. For example, in a round of testimony filed with the US Copyright Office in 1999 as it was trying to clarify the law, one cryptographer warned that companies could hide behind the law to prevent problems in their security technology from becoming public.

And in another eerily prophetic warning that mirrors the Felten case in many ways--but deals with video instead of music--Peter Harter, then vice president at online song-sharing company EMusic, predicted a scenario in which a group of entertainment companies would create a standard for protecting content distribution: A critic wants to show the technology is flawed, works on cracking it, and is later accused of violating the DMCA.

"If the industry association were to prevail...the message would be clear: Proponents of industry standards can use (the DMCA) to squelch legitimate criticism and analysis of those standards, including criticism and analysis that is not in the least bit motivated by a desire to gain unauthorized access to copyrighted works," Harter wrote.

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