E-Book Software Writer Indicted
A grand jury Tuesday returned a surprisingly aggressive indictment against a Russian programmer, setting the stage for a significant battle over the nature of copyright law and free speech in the digital age.
Dmitry Sklyarov, a 26-year-old graduate student, was charged with four counts of trafficking and marketing in technology designed to circumvent the rights of a copyright owner, and one count of conspiracy.
Sklyarov’s employer, the Moscow-based software firm ElcomSoft Co., was charged on five similar counts.
The technology at issue is a $99 computer program, only a handful of which have been sold in this country. It allows e-book users to print out a passage or copy it to another computer file, to move an e-book to another computer or to send it to a friend. Lending, moving and copying are timeworn activities with traditional texts, but are restricted by e-book publishers, who fear large-scale piracy and loss of revenue.
The high-profile case marks the first time charges have been brought under the Digital Millennium Copyright Act of 1998, according to the U.S. attorney’s office for the Northern District of California, which is handling the case.
The indictments crushed widespread expectations in the technology community that the unusual case, which has sparked demonstrations and international attention, would be quickly resolved with a plea agreement.
The maximum penalty for each trafficking charge is five years in prison and $500,000 in penalties. For the conspiracy charge, the penalty is five years in prison and a $250,000 fine. For ElcomSoft, the maximum penalty is $500,000 on each charge.
While it’s unlikely Sklyarov would end up serving 25 years in jail for writing a computer program that was legal in his native Russia, the case has navigated uncharted territory from the beginning.
Sklyarov was arrested July 16 after giving a talk on electronic book security at a Las Vegas hackers’ convention. At ElcomSoft, Sklyarov played a key role in developing software to crack the encryption on Adobe Systems’ popular e-book program.
Using ElcomSoft’s product, someone reading a novel on an Adobe-equipped computer could, for instance, print out a chapter or transfer the whole thing to another computer. Creating the tools to break such encryption is a crime under the Digital Millennium Copyright Act. Adobe’s complaint to the FBI lead directly to Sklyarov’s arrest.
“A lot of our users are really going to want this guy behind bars,” said Don Fluckinger, an editor at PDFzone.com, a Web site for electronic text developers. “They want him to be made an example of.”
But Fluckinger said Sklyarov is probably the wrong example. “I would not put my chips on this case. He’s a programmer. He didn’t make any money off it. He’s got two kids back in Moscow. He came to talk about it, to take a bow in the hacker spotlight. Shame on him for breaking Adobe’s security code, but shame on Adobe for writing programs that can be cracked so easily.”
Critics of the digital copyright act--which include a growing number of academics and programmers--say that the act criminalizes basic research and destroys long-held notions of fair use. It’s as if, they say, photocopiers were made illegal merely because you could reproduce entire books on them.
Sklyarov’s supporters said they were angered by the latest development.
Jeanne A.E. DeVoto, a computer programmer, noted that Sklyarov’s wife, Oksana, had hesitated to come to this country to see her husband when he was in jail because she was afraid she, too, would be arrested.
“I thought at the time, ‘That’s the way they did things in Soviet Russia, not here,’ ” DeVoto said.
Sklyarov’s attorney, Joseph M. Burton of Duane Morris law firm in San Francisco, said: “It’s a pretty determined indictment. They could have charged one count instead of five.”
Copyright experts said they were puzzled by the government’s intentions. “I certainly thought the government would find a way out of this,” said Stanford Law School professor Lawrence Lessig. “From the beginning I thought this was the wrong case to bring to test the [digital copyright act].”
He speculated that the government was pursuing the case partly because of Adobe’s withdrawal from it, something that occurred after the e-book software company became the subject of a boycott movement. Adobe’s withdrawal initially was seen by Sklyarov’s supporters as helping him.
“The government got backed into a corner,” Lessig said. “They first acted because of Adobe, and now that Adobe has backed off, the FBI doesn’t want to appear like the tool of corporations. So it has to go forward.”
Chuck Jackson, a member of the Federal Communications Commission’s technology advisory council, said, “There are a lot of difficult risks for the prosecution here. I would think you’d want to pick a better fight.”
Arresting a Russian for creating software that is legal in his country but illegal in the United States sets a bad precedent, Jackson said. “It seems to me an awful lot of Americans are going to be at risk in a lot of the world if we set that up as a standard.”
Sklyarov spent three weeks in jail in Las Vegas, Oklahoma and San Jose. On Aug. 6, he was released on $50,000 bail and ordered to stay in Northern California. He will be arraigned in federal court in San Jose on Thursday.
Sklyarov originally was scheduled to be arraigned last week. His lawyers and government prosecutors asked for a week’s delay as they continued to negotiate, giving rise to the expectations of a deal.
Asked why the negotiations fell apart, Burton, the lawyer, responded: “You’re asking me? You have to ask them.” A government spokesman declined to comment.
Now the possibility of a deal is remote. “Our focus has to be on defending and defeating the case,” Burton said. He said his client was disappointed.
