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[P]
Victory in Adobe vs. Sklyarov... or is it?

By rusty in News
Tue Jul 24, 2001 at 05:31:44 AM EST
Tags: Freedom (all tags)
Freedom

In Boston, they dressed all in black, and carried a black coffin. In San Jose, as many as 90 protesters marched in front of Adobe headquarters, waving Russian flags and chanting anti-DMCA slogans. Meanwhile inside, representatives of the Electronic Frontier Foundation met with Adobe honchos, and eventually hammered out a joint press release, recommending that the US District Attorney drop the case post-haste. Victory was proclaimed far and wide... but was it actually a win?


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.

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Related Links
o black coffin
o Adobe
o Electronic Frontier Foundation
o arrested in Las Vegas by the FBI
o affadavit in support of the arrest warrant
o Elcomsoft
o here on K5
o Cluebot
o The Register
o boycott of Adobe products
o joint press release
o Boycott Adobe
o Senate confirmation hearings
o speaking out in favor of the DMCA
o Also by rusty


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Victory in Adobe vs. Sklyarov... or is it? | 49 comments (38 topical, 11 editorial, 0 hidden)
Social conscience and the DMCA (4.00 / 4) (#11)
by crankie on Tue Jul 24, 2001 at 06:23:20 AM EST

So basically,
  • Adobe have the guy arrested by showing his violation of the DMCA
  • Adobe are pressured into backing down on this particular case, but only after the damage is done and all they can do is make suggestions
  • Adobe still support the DMCA, but have semi-acknoledged that it's not perfect, thus regaining some sort of standing with the public.

    So how would it look if Adobe's support of the DMCA was making life nasty for the disabled? Admittedly I picked this up second hand and can't verify it, but it does sound like the sort of thing the DMCA would prevent. It also sounds like the sort of thing that people might rally around without the need for a scapegoat like Dmitry.

    ~~~
    "The great thing about hardcore socialists is the silence they emit once they start earning a decent wage." - tombuck
  • Not really... (4.60 / 5) (#13)
    by rusty on Tue Jul 24, 2001 at 06:40:14 AM EST

    Adobe still support the DMCA, but have semi-acknoledged that it's not perfect, thus regaining some sort of standing with the public.

    No, they haven't acknowledged that at all. They've said that in this case, they don't believe its to anyone's benefit to proceed with the prosecution. That is, it's not to their benefit to suffer a whole case worth of bad publicity after they've already won, and it's not to Dmitry's benefit to rot in jail. Well, I guess by American corporate standards, the second point is something of a concession. Many would insist that he's better off in jail, for the greater copyright protection of us all. But I digress.

    About your link, I wouldn't be surprised, though I don't have any information on that either. The overall scheme of eBook is... well, let me try a comparison. Imagine if every book you bought had a great big horking anchor attached to it, that was too large to fit out of any aperture in your house. This anchor is called "Secure Copy Protection" and is intended to ensure that you can only read your book in the confines of the house you owned at the time of purchase.

    The anchor, it turns out, is only tied on to the book with a piece of string, but that doesn't matter, because legislation was recently passed to make any device capacle of cutting that string illegal to make or sell.

    So "Abode Bookware", makers of the "Secure aBook" can simply chuck all the scissor manufacturers in prison, if any of them dare to mention that their product can make your aBook portable, so you can, say, read it on a bus.

    You probably understand this already, but there seems to be a comprehension gap in the general public, so I'm trying out simple metaphors that don't use scary acronyms like "PDF." Let me know how that one fares. Yes it's way too late at night for me to be writing comments.

    ____
    Not the real rusty
    [ Parent ]

    Nice metaphor (4.25 / 4) (#16)
    by BernardoGui on Tue Jul 24, 2001 at 07:14:13 AM EST

    I think your metaphor is pretty good except in that it especially emphasizes the fact that people are unknowledgeable about technological items they purchase : nobody would ever buy a book attached to an anchor but people are willing to buy an eBook which restricts their fair use of it.

    However, the scissor part looks a bit exagerated as it gives the feeling that the DMCA would outlaw a previously widespread item.

    I think it would be better to portray the anchor attached to the book with a lock, and the legislation would turn out making illegal any keys designed to open that lock.



    [ Parent ]

    How about a knot in the string? (4.00 / 4) (#19)
    by ZanThrax on Tue Jul 24, 2001 at 07:47:42 AM EST

    Using a lock for the metaphor makes it sound like there is a key available legally, and that its hard to break. Plus lockpicking is something most people are perfectly happy to consider "bad" - but what's the harm in untying a string, or following some helpful instructions on how to untie the string? Especially if you just want to read the damned book on the bus.


    If there's nothing you'd die for, then what do you have to live for?


    [ Parent ]
    Mixed bag (4.57 / 7) (#12)
    by CaptainZapp on Tue Jul 24, 2001 at 06:31:07 AM EST

    I'm really sort of torn on the issue. The thing that disturbs me most is

    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."

    Suddenly the EFF and Adobe appear to be the best of chums. Well, Adobes behavior isn't very chummy in the first place. Actually it was more in the line of corporate thugs and a bad case at that.

    The EFF is certainly not a naive organization, composed by a bunch of dolts and they are experienced in litigation. I read posts on a a competing board suggesting that within negotiations you never give in an inch, until your goals are reached. I'm really not sure what to make of that "joint press release".

    Although I assume, that the EFF has Dmitrys best interest and his immediate release in mind, and concluded this to be the best way to achieve this, I have a bad feeling. You have a DA, who might think, that making an example is a good carreer move. You have Mr. Ashcroft who intends to get "tough on cybercrime" and an "evil russian hacker" might make a fine example. Of course, public opinion stands against that, but nevertheless Dmitry could rot for a long time in jail, just for the purpose of carreer advancements of a few bureaucrats. Ultimately they won't have a case (I think), but Dmitry and hist family could suffer for a long time until this mess clears up.

    And it is Adobe, and only Adobe that is responsible for that (yes, I know, congress bad laws blahblah, but ultimately this case is Adobes direct responsibility). They wanted the guy in jail and pulled every possible string. Even if they retract few days later, this atrocity is and remains their ultimate responsibility, period.

    Adobe displayed a mindset, which triggers my desire to not use any of ther products, if ever possible. I will advise my clients to alternatives, if this is not against their interests, if I ever get into a position to hurt their bottom line, I will do this (as long it's not directed against my clients interests).

    This rant is not directed towards Adobes employees. I'm sure that a lot of them are sick by the thought of how their management acted and I can perfectly understand that as an employee you don't fire an e-mail to your CEO, or the vice president of legal, accusing them of being scumbags with low morals, if you want (have) to keep your job. So no accusations into this direction.

    But Adobe as a company, acted irresponsible, not to say criminal. I'm not willing to just forget that.

    Yes (4.20 / 5) (#14)
    by rusty on Tue Jul 24, 2001 at 06:52:19 AM EST

    Although I assume, that the EFF has Dmitrys best interest and his immediate release in mind

    They absolutely do. No question at all.

    I have a bad feeling.

    Me too. I think the EFF folded too hard here. Yes, I sort of suggested it in the article, but dammit, I tried my best to get the facts right, and be relatively objective. But we're in comment-land now.

    The EFF and Adobe walked into the negotiating room, and walked out with a press release that contains a recommendation from Adobe that holds exactly zero legal weight, and a lot of praise of a company that should be getting absolutely skewered for throwing a foreign national in prison under a law that is unconstitutional.

    Key words in the previous sentence: Foreign National, Prison, Unconstitutional. Just making sure.

    Adobe has got off scot-free. Elcomsoft has been either paid or threatened into silence, and the EFF has declared them "Good Corporate Citizens". They win on both counts.

    We'll see if Dmitry actually is released. If so, then the EFF should be credited with that, and that's a good thing. But Adobe should be getting blasted with both barrels, either way, and instead we appear to be kissing their ass. This is why the software freedom community keeps losing these fights. When push comes to shove, we're sissies. This has to change, and the protests today were at least noticed by someone (they were on the local news here, and I suspect elsewhere) which is a step in the right direction. But you would never see the ACLU cave like this on an issue. If the EFF wants to be taken seriously by anyone but the people who are going to get trampled (i.e. us) they have got to figure out where they stand, and then stick to their position.

    Today taught every other company out there with an investment in intellectual property that the EFF is an underfunded lightweight who can be placated with a doe-eyed "We're so sowwy." Good luck getting anywhere next time around.

    ____
    Not the real rusty
    [ Parent ]

    Nationality shouldn't matter (4.00 / 4) (#18)
    by CaptainZapp on Tue Jul 24, 2001 at 07:45:49 AM EST

    I agree with just about any word of your comment, with one tiny difference:

    Key words in the previous sentence: Foreign National, Prison, Unconstitutional. Just making sure.

    Nobody, not a foreign national, nor an American, absolutely nobody should be jailed for cracking a totally crappy protection scheme. By an implementation-on-the-cheap Adobe was asking for trouble. Of course you have the added ingredience, that the guy didn't break any laws, while an American might have.

    My hopes are in the Felten (SDMI) case; that guy seems to be really smart and the content industry will have a mighty hard time to demonize him as either evil, or a hacker (or Russian, for all it matters).

    Might be, that they (the scientists) planned this from the beginning, might be that he has grasped the chance when it came along. One could even argue it is a troll, with the goal to overturn an outrageous law. If so, they bit and the whole mess might ultimately be cleaned up by the mother of all trolls.

    [ Parent ]

    Adobe Not Evil (2.66 / 3) (#27)
    by Merk00 on Tue Jul 24, 2001 at 09:12:10 AM EST

    First of all, let's look at this from Adobe's perspective. Someone has a method of circumventing the protections on their ebooks. This invalidates an entire product line for them. There are significant losses that will be incurred for this. There is also a law that can be used to prevent this from happening (it's Constitutionality is not Adobe's issue nor should it be -- that's for the Federal Courts). Adobe's employees have a responsibility to attempt to prevent this loss. Otherwise, they can be liable to shareholder lawsuits. Adobe was trying to legally protect their business model. The fault for this lies with the US Congress for passing this law and the President for signing it. Don't blame Adobe for what they legally ahd to do.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Respectful disagreement (3.66 / 3) (#35)
    by CaptainZapp on Tue Jul 24, 2001 at 09:56:46 AM EST

    Someone has a method of circumventing the protections on their ebooks.

    Agreed that this pisses them off mightily. It would annoy me to no ends. However, it was in no way illegal to write such software and even sell it, as long this is done in Russia. Neither the guy, nor the company broke any laws, not in Russia at least.

    This invalidates an entire product line for them.

    Absolutely, and who's to be blamed ? Adobe aparrently utilized an encryption scheme (rot13), which was used to masquerade potentially offensive Usenet posts. This encryption is the equivalent of a decoder ring coming in a pack of cornflakes, for christs sake.

    There are significant losses that will be incurred for this. There is also a law that can be used to prevent this from happening

    Not in Russia, there isn't. Do you imply that US laws should be applied world wide? If so, we can cut the discussion right here.

    Adobe's employees have a responsibility to attempt to prevent this loss. Otherwise, they can be liable to shareholder lawsuits.

    Of course they have to prevent losses. But you don't do that by setting up some smoke screen encryption, which can be hacked in no time. What I would damn well fear in Adobes shoes is to get sued out of their pants by a publisher, whom they sold their super secure encryption scheme. In my book this is lying and deception.

    Adobe was trying to legally protect their business model. The fault for this lies with the US Congress for passing this law and the President for signing it. Don't blame Adobe for what they legally ahd to do.

    Is that so ? Then I strongly feel that they applied the wrong method. Doing business (I own and run a business, albeit a small one) has to do with good governance and doing the honest and right thing. This is especially important in an environment related to IT and the net. Remeber the infamous eToys battle against etoy (the artists) ? Yeah, they tried to protect their bottom line with every dirty trick in the book. My, how this backfired. Arguably, that was the most expensive art performance ever.

    So, if Adobe relies on bad and possibly unconstitional laws instead of actually coming up with a good product and has innocent people (whatever you say, he did not break US laws) arrested, the management of such a company is rotten to the core. I will not support them.

    [ Parent ]

    Adobe Still Not Evil (3.66 / 3) (#38)
    by Merk00 on Tue Jul 24, 2001 at 10:19:43 AM EST

    First of all, I believe the issue was that he was aiding and abedding the importation of an illegal device into the US. Basically, he helped Adobe to get the software in the first place. This is illegal according to US law and he did break it. This is perfectly acceptable according to international law (it's the same idea as smuggling). Second, Adobe wasn't the ones with the "ROT-13 encryption." That was a separate company that isn't part of this complaint. They merely modified a sample Adobe encryption plug-in that used ROT-13 as the example. Therefore, Adobe acted within the law. Also, Adobe had a legal responsibility to persue this case. The executives could have been liable to the company and shareholders if they did not. Now that there was significant public outcry, they can use that as a reason that it was not economically feasible to persue the case. Before they had no such reason and could be sued.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Adobes roll in all this (4.50 / 8) (#15)
    by adrien on Tue Jul 24, 2001 at 06:57:19 AM EST

    Adobes role in all this still seems somwhat shakey, vague and very very open to misinterpretation.

    I personally don't feel that I have a clear enough and full enough set of facts to either condone or priase Adobe in all of this.

    There is a difference between:
    - being concerned about a company publishing a software to crack your secure media distribution system (independently of the technical or moral strength of such a system)
    - being concerned about a company doing this for profit and wanting them to stop
    - being concerned about a company doing this, althought they do have some very legitimate excuses, motives, reasons and methods for doing so and seem to be morally in the clear.
    - asking the FBI to help
    - asking the FBI to start arresting people
    - asking the FBI to start arresting foreigners
    - asking the FBI to start arresting foreigners (who are only somwhat/partially/indirectly responsible for the whole thing) after giving a speach about why and how they are doing this.
    - using the DMCA as an intimidation tool
    - all of the above and then putting a really smooth PR spin on the whole things, whitewash and coverup and lies about their role in the story.

    I think the best thing that Adobe could do right now to clear their name is to make a really really fat donation to the EFF, fund Dimitri's legal defense fund (with the best lawers available), and work on a reasonable negotiation with Elcomsoft to work with them to make their ebook reader a technologically and morally reasonable system which fairly balances the rights of publishers, copyright holders as well as end users with fair use rights, the disabled, and those with the capacity for rational thought.

    Even if Adobe ends up in the courts as a witness for the prosecution, while giving massive amounts of cash to fund the defense, this is the only reasonable thing they can do to appear to back their PR up with action.


    -adrien
    just to clarify... (4.00 / 2) (#17)
    by adrien on Tue Jul 24, 2001 at 07:17:42 AM EST

    I'm not suggesting that Adobe did all of the above.

    I am stating that we need to know exactly where Adobes role in all of this was before pointing fingers.

    I was not at those meetings with the EFF and Adobe, so I cannot say that the EFF caved in or not. I would like to know what exact arguments they gave to convince the EFF that they are not the Big Bad Mean People they might appear to be

    I would also like to have a clear explination of the different roles of the different parties which are lumped together as "Adobe". Was this the work of Adobes managment? Their internal legal department? Did Adobe outsource their legal work to a lawfirm and not keep them on a short enough leash? Was this some BSA pooled jackboot leagal team acting "on Adobe's behalf" without their complete consent?

    I still stand by my statement, though, that they are going to have to do more than issue a press release with the EFF to convince me of their warm-fuzziness. Again, a donation to the EFF, funding Dimitri's defense, and a collaboration with Elcomsoft to improve the eBook software and make it truly secure (which, as stated by Elcomsoft is clearly in the interest of Adobe and their clients), as well as compliant with fair use rights, etc.

    The facts and details of their actions are only half the story, they also need to make an active (financial and substantial) effort to correct a wrong of which they are a part of. Actions will speak louder then words.


    -adrien
    [ Parent ]
    Adobe's role (4.33 / 3) (#20)
    by marimba on Tue Jul 24, 2001 at 07:58:57 AM EST

    "I am stating that we need to know exactly where Adobes role in all of this was before pointing fingers."

    From wired.com:

    "We did bring the case to the attention of the FBI, but it was the U.S. government that investigated and acted upon what was found," said Susan Altman Prescott, marketing vice president at Adobe.

    In short, Adobe started the whole thing.



    [ Parent ]
    Some more (3.66 / 3) (#23)
    by rusty on Tue Jul 24, 2001 at 08:58:17 AM EST

    I know there are a lot of links, but the one to the affadavit filed by FBI special agent O'Connell is among the most interesting, to me, and very much worth reading.

    It contains the whole start of the case, from O'Connell's meetings with Adobe personnel, to his own investigation into Elcomsoft. Particularly of note are the sections under "Independent Investigation" which detail the actions Adobe took against Elcomsoft before the FBI was involved. This story used to be featured prominently on Elcomsoft's website, but has now mysteriously disappeared. Look at point 14.

    Also look at point 19, which reads:

    19. On July 5, 2001, I spoke via telephone with Tom Diaz, Senior Engineering Manager for the eBook Development Group of Adobe. In response to my question, Diaz affirmed that he believes the Elcomsoft Software program, coupled with the Elcomsoft unlocking key, circumvents protection afforded by a technological measure developed by Adobe for its Acrobat eBook Reader either by avoiding, bypassing, removing, deactiviating, or otherwise impairing the technological measure.
    Now, do you think Diaz knew, when he was answering those questions, that he was in fact authorizing the FBI to go ahead with a DMCA case? Would any reasonably informed technical person not clue in to the last sentence?

    It's easy for Adobe to say that they didn't intend for any of this to happen, but read the documents and decide for yourself.

    ____
    Not the real rusty
    [ Parent ]

    yeah, i read that, too. (4.50 / 2) (#36)
    by adrien on Tue Jul 24, 2001 at 10:07:14 AM EST

    The affadavit is an interesting document. It does say a lot, but after reading that and other documents, I have decided that I cannot decide for myself.

    I'm not crying out for more information, I don't think any information given by any parties will really be an unbiased account. So, basically, nothing will satisfy my doubt -- and so I don't want to make Adobe out to be a big bad guy when I don't know what happened (on that token, nor do I want to martyrize Dimitri, either. Elcomsoft was provoking Adobe, and making a profit from it as well. If I were Adobe, I would be pissed, too. Were I Adobe, I would have done by best to handle the situation in a more rational, elightened manner (such as working directly with Elcomsoft to improve the eBook software, etc)

    Your point about Diaz is interesting as well. It does point towards a rather close collaboration between the Feds and Adobe. But answering a few questions is different from asking the FBI to arrest somebody.
    It is quite easy to look at this fact and fill in the elipsis with the notion that Adobe orchestrated the whole thing, but it is still an assumption.

    Thus my reasoning when I say that Adobe now needs to prove their good faith in the matter by spending a lot of money on good lawers to get D off the hook quckly. A big donation to the EFF would help, too.


    -adrien
    [ Parent ]
    I know, (3.00 / 2) (#33)
    by adrien on Tue Jul 24, 2001 at 09:49:22 AM EST

    I did read that. It still doesn't help. In that phrase you can read Adobes level of participation anywhere in the spectrum I provided earlier. "Bringing attention to" is very vague. It could place them in a relatively minor role which was amplified by the FBI to further their own goals, or suggest the masterminded the whole thing and used the FBI as a PR scapegoat to whitewash their involvement.

    When I say facts, I mean a little more than a PR job...


    -adrien
    [ Parent ]
    How long can the DoJ go on without Adobe? (2.75 / 4) (#21)
    by redelm on Tue Jul 24, 2001 at 08:07:08 AM EST

    Strange things happen under law, but if Adobe withdraws it's complaint, how long can the US Department of [in]Justice continue to persue the case? It's going to be real hard to convict Dmitry if Adobe says on the stand "No, of course Rot13 is not encryption. We mistakenly thought so at one time, but the computing community rather dramatically pointed out our error."

    AFAIK, UK law allows prosecutions to proceed in the face of reluctant or hostile complaintants. US law is far more complaint dependant.



    As Long As Necessary (3.00 / 2) (#25)
    by Merk00 on Tue Jul 24, 2001 at 09:06:51 AM EST

    The investigation can carry on in perpetuity (or until the statute of limitations on DMCA violations expires). The complaint merely informs the Department of Justice that there is a possible violation. It is then up to the District Attorney (and not the FBI) to determine if there is an offense that can be prosecuted. There is no need for an official complaint to investigate or try someone. It will make the case more difficult given that Adobe has backed out but there is still nothing to keep the District Attorney from pursuing the case further.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Statute of limitations (4.00 / 1) (#34)
    by marimba on Tue Jul 24, 2001 at 09:54:03 AM EST

    Re: ". . . or until the statute of limitations on DMCA violations expires . . ."

    I think the clock on the statute of limitations stops once charges are preferred, so that aspect is moot.



    [ Parent ]
    Indefinitely (3.50 / 2) (#26)
    by rusty on Tue Jul 24, 2001 at 09:08:14 AM EST

    It is not up to Adobe. They've already given the DoJ what it needs to prosecute. If the US Attorney General decides to go ahead with the case, he can compel Adobe to testify, even if they actually don't want to (as if that were the case). If they suddenly decide they were "mistaken" the first time... well, they won't. They'll plead that they have to co-operate with the authorities.

    It's all just icing on the cake for Adobe from now on.

    ____
    Not the real rusty
    [ Parent ]

    Foreign National? (3.00 / 3) (#22)
    by mold on Tue Jul 24, 2001 at 08:50:26 AM EST

    Excuse me on this one issue, but I'm still not understanding it. I'll use my age as an exuse; apparently it's valid for every company/bank in the world to deny me something, but that's another matter. ;-P

    How did the United States government arrest a Foreign National without his government getting involved? I'm sure if this happened to an American over in Russia, our government would be pissed and do what they could to get them back. My understanding was that you sent them home, kind of like a neighbor taking a kid home yelling with instructions on what the parents should do to the kid (beat/ground/imprison, etc.), and if you were on good terms, they'd probably take you up on some of that advise.

    I know my parents would have freaked when I was younger if a neighbor had suddenly decided that I should be punished and beat me, and I had assumed (my fault, I suppose) that most governments acted in this fashion. (Excepting certain countries that I won't name, of course.)

    ------------------------
    If I used any foul language in this post, then it means that I like the subject. Sorry if it bothers you :-)

    ---
    Beware of peanuts! There's a 0.00001% peanut fatality rate in the USA alone! You could be next!
    Nope (4.00 / 2) (#24)
    by Merk00 on Tue Jul 24, 2001 at 09:02:28 AM EST

    Foreign nationals can be tried in the US under US laws. In fact, people can be tried under US law for committing crimes outside of the US. This is true for many countries. What you may be thinking of is how diplomats are treated. Diplomats are immune from a host country's laws (unless that right is waved by the diplomat's country). If, because of their actions, they are unwanted in a country, they can be expelled by the host country.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    well, yep (4.33 / 3) (#29)
    by holgate on Tue Jul 24, 2001 at 09:18:22 AM EST

    While you're right to say that diplomatic immunity doesn't extend to ordinary foreign nationals, you're forgetting something: under the Vienna convention, all foreign nationals under detention have the right to consular access. And judging from what's been said by those liaising with Dimitry, he hasn't been given adequate opportunity of that since being arrested. Not that that's unusual: Amnesty ranks the US with the worst of them in the consistent denial of that right.

    [ Parent ]
    Geneva Convention (2.00 / 3) (#30)
    by Merk00 on Tue Jul 24, 2001 at 09:34:17 AM EST

    You're correct on both counts there but I wasn't addressing them. For the curious, the relevant section of the Geneva Convention is the following:
    (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
    I guess the most important part is whether or not Sklyarov has been informed of his rights and has requested that the Consulate be informed. In a trial of this publicity I would assume the US District Attorney's would comply with internation law simply because of the publicity. And also, as far as violations of this section of the Geneva Convention, I believe that most of those are commited by states and not the federal government. And, yes, it is something that needs to be remedied.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Vienna Convention (4.00 / 2) (#32)
    by Merk00 on Tue Jul 24, 2001 at 09:35:33 AM EST

    You're correct on both counts there but I wasn't addressing them. For the curious, the relevant section of the Vienna Convention is the following:
    (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

    (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

    I guess the most important part is whether or not Sklyarov has been informed of his rights and has requested that the Consulate be informed. In a trial of this publicity I would assume the US District Attorney's would comply with internation law simply because of the publicity. And also, as far as violations of this section of the Vienna Convention, I believe that most of those are commited by states and not the federal government. And, yes, it is something that needs to be remedied.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Okay... (3.50 / 2) (#31)
    by mold on Tue Jul 24, 2001 at 09:34:21 AM EST

    It makes sense, but if they are outside of the US, is in necessary for them to be US citizens? If not, why do we just sit around and complain about all of the hideous acts that go occur everyday in Africa? And I would still think that this would cause international issues if we just started arresting foreigners.

    I recall reading an article on slashdot not that long ago on a paper about international laws from RMS (patent and copyright enforcement, or something to that effect, if I remember correctly) but most of the thread complained that this would merely open Americans up to punishment from countries such as China. But if what you're saying is right, then why does it matter? We violate other countries laws all the time. American women, for example, don't need to be covered all the time, such as the women in the middle east.

    ------------------------
    If I used any foul language in this post, then it means that I like the subject. Sorry if it bothers you :-)

    ---
    Beware of peanuts! There's a 0.00001% peanut fatality rate in the USA alone! You could be next!
    [ Parent ]
    US Laws on Foreigners (4.33 / 3) (#37)
    by Merk00 on Tue Jul 24, 2001 at 10:11:30 AM EST

    US citizens (and corporations) have to abide by US laws at all times (no matter what country you are in) or you can be charged with violating them. There are some laws that the US can apply to foreigners who commit crimes in foreign countries. Namely, any terrorist attack on a US citizen is illegal according to US law and anyone committing such an act can be tried in a US court no matter where the act is committed (for examples look at those who bombed the Khomar Towers in Saudi Arabia or the embassy bombers in Kenya and Tanzania). There are probably some other activities that can be enforced on foreigners in foreign countries but I do believe they all involve US citizens. Belgium also has recently passed a law that allows someone to be tried for Crimes Against Humanity in a Belgian court no matter where the act took place.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission
    [ Parent ]

    Actually, the Russians DID arrest an American kid. (none / 0) (#42)
    by chazzzzy on Tue Jul 24, 2001 at 06:18:11 PM EST

    ..recently. And accused him of spying, and for having the equivalent of a roach worth of pot on him. What really happened, it appears, is that they tried to recruit him to spy for them, he rebuffed, they then arrested him, falsifying the charges.
    So people can be arrested no matter what.
    Maybe the US is planning on offering a trade?!!

    [ Parent ]
    Effect of Adobe's Pulling Out (3.50 / 2) (#28)
    by Merk00 on Tue Jul 24, 2001 at 09:14:35 AM EST

    Assuming that the prosecution of this case continues, the most likely outcome of Adobe's pulling out of the case would be that it will be very difficult for the prosecution to prove any damage to Adobe caused by the ebook cracking program. This will help to reduce the possiblity of a guilty verdict while also reducing any possible penalty if a guilty verdict is returned. So no matter whether or not the prosecution continues, this is good for Sklyarov.

    ------
    "At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
    - FIRST Mission

    Continued Pressure on Adobe is Pointless (4.00 / 1) (#40)
    by MisterBad on Tue Jul 24, 2001 at 03:15:14 PM EST

    But how the hell are we supposed to get a movement up to make this happen? "Change Adobe's Mind!" "Adobe Must Convert!" "Adobe: Promise Never Again." Nobody else is converting, why should Adobe? How the hell do you get a corporation to make a commitment to the future, counter to its own interests?

    Are you thinking practically, or are you just thinking morally? Who gives a shit about morals? "Adobe was bad, they must admit their badness and change their ways." Who cares? Adobe is not a person. We are not concerned with the soul of Adobe Systems. It is an animal of nebulous form, and all we should worry about is beating it with sticks to make it go where we want.

    We gave Adobe some explicit demands and then beat it with bad-publicity sticks until it met them. Now, it's getting some biscuits, although half-hearted, and the beatings have been halted. This is how we train animals. Skinner approves. Stimulus, response. The other animals in the corporate corral just might learn from Adobe's experience, too, and think twice about using the DMCA for criminal prosecution in the future.

    If we continue to beat it, we're not going to teach it anything. We can use the same technique to make it do something else, but we need to be specific.

    What do you WANT, Rus? What do you want Adobe to do, and how are you going to make that happen? How are you going to interest hundreds of geeks and non-geeks in this movement?

    There _are_ some possibilities, but you need to focus on them if you actually care. One idea that is often floated in anti-patent debates is that of forming a loose coalition of companies opposed to software patents, and encouraging companies to join it.

    A similar org could be formed around opposition to the DMCA. Along with getting our own companies to join (a good first test, eh?), we could put pressure on particularly egregious offenders, like Adobe, to change their ways and join the cause. Although there would be nothing stopping them from using the DMCA even within an organization, it's a bit more firm than just a vague promise.

    All said, it's important to realize that we have limited attention, funds, time, and people. Spending any time on making Adobe "pay" or making Adobe "repent" is foolhardy. We need to get Dmitry Sklyarov out of jail, and Adobe has conceded all we can get out of them to make that happen.

    What I want (4.00 / 1) (#41)
    by rusty on Tue Jul 24, 2001 at 04:37:30 PM EST

    What I WANT is for all the other companies out there watching this to understand that pursuing DMCA complaints is against their interest as a company. The standard argument is that Adobe had to pursue this because of the threat of shareholder lawsuits if they didn't. What I want is for Adobe to suffer so much, and so publically, that all the other companies who would consider using this law to prop up their shit products decide that a shareholder lawsuit is preferable to facing this kind of beating. This isn't about Adobe, it's about the future of the DMCA.

    If you want to start a movement, a really good place to start would be in putting the case to corproate America that we are out here waiting for them to throw some other programmer in jail for describing how to beat their shoddy security, and to consider whether it's in their corporate interest to use the DMCA, or to just fix their mistakes (and not found entire business plans on those mistakes).

    I think your anti-DMCA business coalition idea is a good one. One useful guideline would be not to do any business with a company that has attempted to use the DMCA themselves.

    Nevertheless, this beating is for everyone else, not Adobe, and I think it stopped too soon. I am glad the EFF got to step one of getting Dmitry out of jail and back home, though.

    ____
    Not the real rusty
    [ Parent ]

    Marching (4.00 / 1) (#43)
    by Signal 11 on Tue Jul 24, 2001 at 06:44:15 PM EST

    ... and in minneapolis, about 6 people showed up in front of the federal courthouse with homemade signs and a couple palm pilots.

    I don't suppose it matters now, but I went out and sat in front of the federal courthouse, where it was hot, and handed out fliers and waved my sign at the passing traffic. Some of us were wearing ties. A couple police officers dropped in briefly to say hi, get a flier, and ask how many of us there would be today. "This is it, officer." And with a slightly bemused look, they left without another word.


    I dunno whether it makes a difference that 90 protesters showed up, or 6. The media never showed up for our little event, but it was nice knowing that at least a few people in the Twin Cities could take a few hours off of their lunch break and show up to show their support... and in the end, I guess that's all that matters. It's enough to know that there are other people out there who would do more than just speak their mind, but actually back it up with action. I didn't think it was possible anymore...

    Cheers, ~ Signal 11
    (the guy with the "stop the dmca / free dimetry" sign)


    --
    Society needs therapy. It's having
    trouble accepting itself.

    I want a trial dammit! (5.00 / 1) (#44)
    by ryancooley on Wed Jul 25, 2001 at 04:21:23 AM EST

    I feel sorry for the defendant, but think of him as a martyr. If the trial does continue, it will get publicity. Perhaps some group with some clout and more backbone than the internet community will see what a flaming piece of crap the DMCA is. Don't get me wrong, I feel for Dmitry Sklyarov, but a) I don't think there's any possible way he would be convicted. b) It will not necessarily cause any financial strain on him, and he can do some good for an important cause.

    If the case is dropped, it continues the tradition of the DMCA to be used to push around smaller entities, while being pulled from the fight when it's legitamacy comes into question. This happens time and time again. Large companies often send intimidating letters to a small open-source sites' webmasters / ISPs, threating legal action. If the threats don't work (and are met with someone willing to fight), they are never heard from again. This happens over and over again, with many sites shut down over an invalid threat. This anti-competitive DMCA must be stopped first of all, and these tactics must be stopped as well. I feel the former is much more time-sensative than tha latter, and would do whatever I could to have it challenged. Unfortunate, most online activists (such as the ones on kuro5hin, shaldot, and the EFF) rarely have the guts to do what's right when they get the opportunity, and people like myself are threatened, and never given an opportunity.

    And on a different subject, Dmitry Sklyarov has one hell of a civil case against Adobe, but he likely doesn't know that fact.

    Bad test case (none / 0) (#45)
    by rusty on Wed Jul 25, 2001 at 03:34:56 PM EST

    Put yourself in Dmitry's shoes, though. This isn't his law. He's not even American! If he can get released, he can go back home and forget this craziness. It's not fair to make him test our crappy laws.

    ____
    Not the real rusty
    [ Parent ]
    I agree completely (none / 0) (#46)
    by ryancooley on Wed Jul 25, 2001 at 10:31:45 PM EST

    I agree that it's not his responsibility. But someone has to be the test case... Someone has to take the heat for awhile, and he seems to be in the perfect popular and political light to draw attention to a widely ignored issue. While I feel sorry for him as a person, I think it would be better for him to go to trial with the EFF and ACLU in his corner than for the USA to have one more Kevin Mitnick, etc. One other important issue is that (no matter if you like the USA or not) other countries with or without laws already in-place will mimic the USA's laws with only slight modifications in most cases. His importants may very well extend back to his own country in the future as well.

    I don't think I need to list names for you to realize that his situation as a reluctance political figure is not atypical. It's not about what a person wants, it's about how they deal with what they've been given.

    If he is not prosecuted, I hope in the future someone more like Ralph Nader gets into such a situation, while realizing the potential they have to influence the system. All our rights are up for grabs until either people that get into these situations grow some backbone, or people with backbone begin to get into these situations. Either way, if you do only what you think is imminently best for you, you will always end up putting the masses in jeopardy.

    Kamakazi pilots never thought that what they were doing was the best thing for themselves, they sacraficed themselves to server the greater good. Certainly Sklyarov isn't sacraficing this much, and is doing much more good at the same time. Again, this is provided that he siezes the opportunity.

    [ Parent ]
    Poor guy (5.00 / 1) (#47)
    by rusty on Thu Jul 26, 2001 at 01:14:09 AM EST

    It looks somewhat doubtful that the DoJ will drop the case. We'll find out after Friday, I guess (they're meeting with the EFF Friday). I hope they do, though. The man probably just wants to get back to his wife and kids. I agree that, if they don't drop the case, it is at least a decent one, in terms of political positioning. But I hope they do.

    I think you'll find no shortage of people who are willing and able to actually go sit in jail for the cause, if that becomes necessary. Maybe we could have a nationwide day of DMCA violation, as an organized act of civil disobedience...

    ____
    Not the real rusty
    [ Parent ]

    Right on.... (none / 0) (#48)
    by Kaki Nix Sain on Thu Jul 26, 2001 at 02:37:13 AM EST

    ... about that DMCA day of violation thing. If someone really wants this law gone, they should be willing to put themselves on the line. Not a guest to our country.



    [ Parent ]

    Indeed. (5.00 / 1) (#49)
    by error 404 on Thu Jul 26, 2001 at 04:27:59 PM EST

    Beyond the wrongness of the law in quesion, we have abused a guest. We have, in a very concrete way, said "Remember all that stuff we said during the Cold War? We didn't mean it."

    Feh. Guy comes over from the remnant of the Evil Empire, and the Land Of The Free locks him up for saying the wrong thing.


    ..................................
    Electrical banana is bound to be the very next phase
    - Donovan

    [ Parent ]

    Victory in Adobe vs. Sklyarov... or is it? | 49 comments (38 topical, 11 editorial, 0 hidden)
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