On July 16th, Russian programmer Dmitry Sklyarov was arrested in Las Vegas by the FBI, who were acting on behalf of Adobe Systems, Inc, as described in FBI special agent Daniel J. O'Connell's affadavit in support of the arrest warrant. Sklyarov is the copyright holder of a program called "Advanced eBook Processor" which is sold by Russian software company Elcomsoft. Advanced eBook Processor is a program that converts Adobe's eBook file format into plain PDF format, which allows an eBook owner to make copies of books that she legitimately owns. Under the DMCA, however, this software is considered a "circumvention device" that breaks Adobe's encryption and therefore defeats Adobe's copyright protection. There is a lot of coverage about the arrest and charges against Dmitry, here on K5, on Cluebot (with many links), and The Register, among others.
An immediate backlash spread across the net, calling for a boycott of Adobe products, and organizing protests worldwide intended to shame Adobe into freeing Dmitry. Today, protesters marched not only at Adobe headquarters in San Jose California, but in Boston, New York, Austin, Denver, Chicago, and 16 other cities, including Moscow, Tel-Aviv, and Munich. The EFF originally supported the protests, but later reversed their view, when Adobe agreed to meet privately with them to discuss the case. The protests went ahead anyway, without the EFF's blessing.
"Our goal," said protest co-organizer Paul Holman, "was to get Dmitry out of jail by publically pressuring Adobe. We decided to help this guy and whip up as much publicity as possible." And in that, they certainly succeeded. Between the media pressure, the marchers, and the EFF, Adobe has apparently capitulated, recommending in a joint press release with the EFF that "the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry." EFF director Shari Steele plays nice, saying that "We are pleased to see that Adobe has lived up to the high standard of integrity that has made the company successful." The Boycott Adobe site proudly proclaims "WE WIN."
Certainly having Adobe come out against the case is a large step forward. But everywhere you look, new wrinkles appear. First and foremost is the question of whether Sklyarov will be released at all. Adobe can recommend that the charges be dropped, but the actual decision rests in the hands of US District Attorney Robert Mueller, President Bush's nominee for new head of the FBI, whose Senate confirmation hearings get underway in just one week. With Attorney General John Ashcroft recently speaking out in favor of the DMCA, and having just formed nine Department of Justice squads devoted solely to DMCA prosecution, some wonder if the case will be dropped at all.
"Wouldn't it be strange if the government didn't drop the case, after the original complainant recommended it?" asked the EFF's Doherty, who also said that the EFF has already contacted Mueller's office, seeking a meeting similar to their Adobe confab. "We are hopeful that US District Attorney Robert Mueller will understand that this is an ill-advised prosecution, and will drop the case against Sklyarov."
But Holman wasn't so sanguine. "We're cautiously optimistic, but we think there's a good chance the US District Attorney will not drop the case." He speculated that the newly formed DMCA stormtroops would need something to keep them busy, and that Mueller might see this as a prime opportunity to make some political hay during his hearings.
"If the case is not dropped, you can bet we'll be at the confirmation hearings," said Doherty.
And what about Adobe? They seem to be the heroes of the day, with the EFF praising their "high standards of integrity" and even the Boycott Adobe site saying "Adobe has done the right thing." Doherty characterized Adobe as "mainly concerned that Sklyarov was being held in jail, away from his home and family," a concern that apparently didn't rear it's head until after they had procured a warrant to get him clapped in jail facing up to five years imprisonment and a $500,000 fine.
As Senior Vice President and General Counsel for Adobe Colleen Pouliot points out in today's statement, "ElcomSoft's Advanced eBook Processor software is no longer available in the United States, and from that perspective the DMCA worked. Adobe will continue to protect its copyright interests and those of its customers." It's certainly not in Adobe's interest to endure five years of "Free Dmitry" bumper stickers, and they've got what they wanted. The DMCA remains a tool of intimidation, which can be wielded apparently without serious consequences to the company making the complaint.
So, as it stands, Sklyarov may or may not be released, but the arrest and imprisonment have served their purpose for Adobe anyway. "Politics works in strange ways," says Doherty. Asked whether he was satisfied with the EFF's compromise, Holman said that "the EFF wants to be the ACLU of the net, and they have to be reasonable and diplomatic and make the most of what they can do to be involved in these cases. Our attitude toward the EFF is, you guys get to be Martin Luther King, we'll be Malcolm X. They got Adobe to do everything they can do."
Not everyone agrees. As one San Jose protester put it, "We got one thing that we wanted, we didn't get the other. Getting a Russian national out of US prison for bullshit law is one issue, but the fact that [Adobe] is supporting a bullshit law is still a problem." In fact, Dmitry isn't out of jail, so I guess that means today's score is Adobe: 2, US Constitution: 0.