Free Dmitri? DMCA vs. 1st Amendment

Great Debates
1

Any thoughts on Dmitri Sklyarov, the Russian programmer who was recently arrested in Las Vegas for giving a talk about a program he wrote to allow the backing up and/or viewing of Adobe eBooks on alternate platforms?

He was arrested and jailed for violating the DMCA by creating/publicizing a method to circumvent an “effective” copyright measure. Nevermind that his program is legal in the country in which it was written, whereas the DMCA appears to be trampling the spirit of the 1st amendment (which admittedly doesn’t apply to poor Dmitri).

To me, this just goes too far. The patent/copyright system was set in place for the public good, not to stymie innovation and give corporations a stranglehold on copy-protection technologies. In what other sphere of law (besides national defense) are you not even allowed to TALK about a technology you’ve created.

To draw a reasonable comparison, does this mean that the American who invents and publishes a breakthrough factorization algorithm (likely winning a Nobel prize) could be prosecuted on the behalf of a company like Verisign for circumventing its certificate copy protection?

I cry foul!

(Note that I’m not advocating that Adobe can’t or shouldn’t use whatever license it prefers, including one that prohibits licensees from reverse engineering or perhaps even discussing their copyright technologies. However, breach of such a license is a matter for civil courts, and in this particular case is unenforceable due to differences of Russian vs. American copyright law. Having allowed its product to be exported, Adobe’s only recourse at this point should be to prosecute any known licensee who uses Dmitri’s program to break the terms of their agreement. They should NOT be allowed to – and currently do not even wish to – prosecute someone who is merely speaking of it!)

2

I thought we were talking about DMT, and the elves were wondering what it had to do with the first amendment.

Well, since the first amendment doesn’t apply to him I suess there isn’t much to say. I do think he should have been able to talk about it, provided he didn’t reveal how he managed to do something that would-- in this country-- involve breaking the law.

And really even that doesn’t matter, I suppose.

I second the foul.

3

Two questions:

  1. Why do you assume the 1st amendment doesn’t apply to Dmitri? He was in the U.S. when he made the speech; I’ve never heard that the Bill of Rights only protects U.S. citizens. It’s a limitation on the government (“Congress shall make no law, etc.”)

  2. Why does the fact that the program is lawful in Russia make a toss? The question is whether what he was doing was lawful in the U.S.

[Note: I don’t know anything about the law that he’s alleged to have broken, so can’t comment on the merits of the arrest.]

4

Mea culpa… you’re right. The 1st amendment applies equally to citizens and non-citizens

My only point there was to establish that he was arrested for speaking about doing something which was legal where he did it (similar to a 19-year-old Canadian immigrant discussing his native drinking habits, or a Dutchman talking up his past exploits with prostitutes).

His talk cannot be construed as a confession of a crime (since the creation/distribution of the program was not illegal in the jurisdiction in which it occurred), and thus I do not see how it can possibly be grounds for constitutionally appropriate arrest, since it easily falls within the realm of free speech.

5

I don’t think constitutional rights apply to non-citizens. I can’t see why they would; its an agreement between citizens and the citizen’s government. Doesn’t apply to the rest of 'em. There was a thread semi-recently in the Pit I think about the hassle some people have gone through in either visiting or immigrating to the US.

6

I also wanted to mention that though it isn’t illegal for a person to provide most information for informational purposes, it could be that the guy was “enticing” people to break the law, which I’m sure the paranoids have a law against, especially when its a lousy foreigner :rolleyes: :wink:

7

I’ll happily defer to a constitutional expert, but the quick bit of web research I just conducted suggested that at least the 1st Amendment is commonly interpreted to apply to non-citizens as well as citizens (and in fact the original authors considered it a basic human right… just not for black humans… or women… or… )

8

Constitutional protections most certainly do apply to non-citizens. All people within U.S. borders receive basic protection of their fundamental rights. The government could not pass a law forbidding non-citizens from practicing their religion, nor could they toss non-citizens in jail for life without a trial.

IIRC, some protections like free-speech are slightly abridged, so that non-citizen residents may be expelled back to their home countries for involvement in or support of known terrorist organizations, even if nothing they did would warrant getting arrested. I’m a bit hazy on the details, but I think this is a big issue for the Muslim community who sees these “anti-terrorism laws” as tools of harrassment.

9

I think there are some basic misconceptions going around about this case.
Dmitry was not arrested for writing software in Russia, he was arrested for giving a speech inside the US on copy protection circumvention. This IS against the DCMA, and the FBI had every legal right to bust him. If you don’t like that, then you better work on changing the law.
But more to the point, Dmitry is not a poster-boy for net freedom. His company, Elcomsoft, makes basically 2 products: Spamware and cracking software. These are not hackers, these are scumbag capitalists making money any way they can, even if it means helping spammers destroy the internet. They have no cred. I hope Dmitry spends a long time in jail. Call it karmic retribution.

10

I know nothing about this issue at all. However, my friend Ian would like to say a few words about it.

11

Not knowing much at all about this case, I’m not prepared to take a side just yet. But I will say that I don’t believe meara’s analogies were entirely, well, analogous.

Talking about what is legal in another country is perfectly legal here, even if the activity itself is illegal. But Dmitri wasn’t talking about the fact that he did create a program, he was explaining how a program worked. He wasn’t telling people how he broke the US’s law in another country, he was explaining how to do it right here in the US.
So there’s a difference between explaining that you smoked marijuana in Amsterdam and explaining a step by step process for growing the plants in your backyard in Kansas.

12

matt, channeling his friend Ian, is correct. Mr. Sklyarov’s talk in Las Vegas had nothing to do with his arrest.

Here is the gist of the story, as reported by The Economist:

Two thoughts - normally speaking, that fact that Mr. Sklyarov engaged in his conduct in Russia, where it is legal, would have little bearing on whether or not he could be arrested in the U.S. Say that Columbia decided to legalize the production and sale of cocaine. That would not immunize a drug smuggler from arrest in the U.S.
However, in this case, Mr. Sklyarov took no action to affect the U.S. market. ElcomSoft, not Dimitry, sold the product in the U.S.
Second, the DMCA sounds like a bad law. It imputes to the creator of the software the potential future criminal conduct of the purchasers of the software. Were this applied across the board, manufacturers of guns, knives, cassette tapes, etc., could all be held criminally liable because their products may potentially be used in criminal activity. Not a good result.

Sua

13

Ah, that’s what threw me. In the borders of the US. People coming in from abroad aren’t in the US until they pass through customs. Thanks for the correction.

14

When I first looked at this case I was somewhat outraged. This program is legal in the country it was written in so there appears to be no grounds for him being arrested (if I remember from business law at uni, copyrights are only effective in the country for which they are granted anyhow, so there would appear to be no grounds for any patent/copyright related arrest, if I"m wrong about this please correct me).

He was giving his speach about this program in the United States which is another issue - but it’s been established that the constitution applies to non-citizens, thus negating said issue.

Where I can see their being a legitimate issue is if he were doing a demonstration of this program during his speach. If he WAS doing a demonstration then he would be performing an illegal act. I must state that I do not know one way or the other if he was doing a demonstration, it’s just the only thing I can think of.

15

The Constitution is NOT an agreement between citizens and government. It is the definition and the limit of the government’s powers, and the Bill of Rights most certainly applies to anybody who deals with the US government, including non-citizens.

The definition of the word “constitution” according to Merriam-Webster:
1 : an established law or custom : ORDINANCE
2 a : the physical makeup of the individual comprising inherited qualities modified by environment b : the structure, composition, physical makeup, or nature of something
Usage 2 is the source of usage 1, because the Constitution is the makeup of the government.

The Supreme Court had this to say on the matter:

By that same reasoning, it is also unreasonable for the First Amendment not to apply.

Chas E’s comments notwithstanding, Dmitry’s arrest is wrong. The DMCA is an unjust law, taking massive freedom from us and giving unprecedented control to distributors, precluding Fair Use guaranteed by the Copyright Act, and even contradicting itself in places. DMCA is contrary to the First Amendment guarantee of Free Speech, and to the Copyright Act itself. It was pushed through Congress solely by corporate interest lobbyists. It embodies poor security policy from top to bottom, and encourages companies to use cheap, outdated, weak, and worthless (in many cases) schemes to protect data. This is because instead of being encouraged to EVOLVE good security by trying to outdo the people trying to crack them, they can now cry to the FBI. You can’t legislate security.

He was arrested for something that his company, not he, did. He is not responsible for Elcomsoft’s policies any more than I am responsible for the actions of the company I work for.

His only crime was pointing out that the “encryption” on several e-book systems are insecure, and demonstrating how insecure they really are (one purportedly secure system uses ROT-13 to “protect” its data).

[sub]pssst…Chas…the way you toe the industry line on every single issue, I think you would have fought on the British side if you had been alive in 1776. Just because it’s the law, that doesn’t make it right[/sub]

16

Hey, I hate the DMCA as much as anybody, but I know a scumbag capitalist when I see one. I don’t see much difference the RIAA/MPAA and Dmitry, they’re both trying to profit from the DMCA. I have no sympathy for Dmitry, it’s not like he’s an Ed Felten, he has nothing to contribute to the debate over technical encryption issues, the material he discussed at DEFCON was barely above the skript kiddee level. His only interest is in profiting from cracking ebooks. If you want a real case that might overturn the DMCA, join EFF and contribute to the Felten v. RIAA case.
Dmitry came to the US to promote and sell his cracks at DEFCON9. If you read the complaint, it specifically mentions how his software was sold through US websites. This means he was selling the software inside the US, and therefore under US jurisdiction. It may be legal to write this software in Russia, but it is illegal to sell it in the US.

17

You seem to be missing the point here, Dmitry IS Elcomsoft. Elcomsoft isn’t some huge corporation, it’s a couple of Russian hackers with a website.

18

Actually, you’re missing the point. I still don’t think he should be able to be arrested for official actions taken as a company/corporation/whatever, but I’m not lawyer, so I might be wrong. But the real point is that the sections of the DMCA under which he was arrested are unconstitutional, not to mention other moral problems.

If you want to fight the scumbag capitalists, well, who do you think wrote and pushed the DMCA through congress?? Regardless of his methods and your down-the-nose view of his technical abilities (I wonder if you’re even familiar with the presentation he made, beyond what you see on the news?), the law used to prosecute him is unjust and unconstitutional.

Anyway, his distribution of the program is outside US jurisdiction. He didn’t import it to the US. He exported it from Russia. Which is legal. The ones importing it are the purchasers. Maybe the people at Adobe who downloaded it before filing the complaint should be in the cell adjoining his…

Not as much as Sklyarov, I bet!

19

You may be right, may be wrong. Depends on the language of the DCMA and Sklyarov’s involvement in its sales operations.

This is incorrect. Say Joe Schmo lives in a country that hasn’t gotten around to criminalizing the sale of kiddie porn. Joe Schmo ships some kiddie porn from that country to the U.S. Joe Schmo has violated American laws.

Chas, you position makes no sense. You disagree with the law, but because you disapprove of Sklyarov, it’s OK to prosecute him?

Sua

20

The question, then, is whether the copy was shipped by Elcomsoft, or downloaded by the Adobe user. Do you know which it was? If it was downloaded, then it was imported by the recipient, not by the originator.

Or, at least, that’s what common sense dictates. God knows, common sense has nothing to do with law, so I suppose there’s a good chance I’m wrong…