Criminalizing Copyright

Richard J. Greenstone

Dmitry Sklyarov, a mild-mannered father of two, Ph.D. student researching cryptoanalysis, and an employee of ElcomSoft Co., Ltd. (which happens to do contract work for agencies of the United States Government) was arrested while attending Def Con, a technical conference attended by computer programmers, cryptographers, scholars and other security experts. Mr. Sklyarov was arrested under the provisions of section 1201 (b)(1)(A) of the DMCA as incorporated into the Copyright Act, for trafficking in software used to circumvent copy protection for E-books, specifically those in the Adobe E-book format, and for aiding and abetting under 18 U.S.C. § 2 which provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The program at issue is ElcomSoft’s Adobe eBook Processor (“AEBPR”) program which allows the user to take an E-book, which must be viewed with Adobe’s software, and view

Unknown Soldier, Gettysburg by Richard Greenstone, 2005

Unknown Soldier, Gettysburg
by Richard Greenstone, 2005

the E-book with other software and platforms.

        “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” California Penal Code § 187. Crystal clear (at least to attorneys not practicing criminal law).

1(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

1(B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

17 U.S.C. § 1201(a) (the “Digital Millennium Copyright Act” or “DMCA”). What does “effectively controls access” mean? Ditto to the entirety of subsection 1(B)? If access is not effectively controlled due to the skill of the programmer, does that mean the DMCA is inapplicable as to that programmer?

        And now it gets interesting: “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any…[pregnant pause here, will it be copyrights or something harder, like cocaine?]…technology, product, service, device, component, or part thereof, that….” 17 U.S.C. § 1201(b). Let’s cut to the rough stuff in 17 U.S.C. § 1204:

(a) Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain-

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

Comparing a statute prohibiting murder with the DMCA may seem unfair; malum in seversus malum prohibitum. But it highlights the slippery slope that our society now travels from the punishment of real crimes to the punishment of thought crimes. Nineteen-eighty-four.

        The DMCA takes square aim at research. And the Department of Justice concurs. It has already initiated the prosecution of one computer scientist. Adobe Systems Incorporated complained, the FBI investigated, and the United States Attorney prosecuted. Even after protests from the computer and Internet communities, with Adobe backing down in the face of a public relations disaster (another corporation showing an amazing display of backbone), the United States Attorney continues to prosecute a hapless Russian programmer.

        Dimitry Sklyarov’s prosecution is not the first under the DMCA, but it is the first criminal prosecution. Two civil lawsuits underway concern DVD protection (Content Scramble System or “CSS”) and the publication of code to descramble DVD protection (“DeCSS”) in order to play movies on computer platforms that run operating systems besides Apple Macintosh OS and Microsoft Windows, and a case concerning SDMI and copy protection for music.

The issues raised by these cases, and indeed by the use of encryption and technology, boil down neatly to whether users should have the right to unlimited access to copies of works legitimately purchased for personal use. In the article “The Limits of Licensing” in the January 2001 issue of The Licensing Journal (Volume 21, No. 1, page 27), I cited the instance of a dental textbook that “times out” and is no longer accessible by the user after a certain period of time, let’s say one semester, unless the user pays a second licensing fee. As we begin the long and painful task of moving from the long-used media of print on paper (to name just one type), to delivery and access through electronic devices, a policy decision must be made that allows the user to make copies of works purchased whether for archiving (like on a shelf in a library) or use-daily or sporadic-on a number of different platforms that happen to be convenient to the user.

        Two paths now seem clear: Shall our society take the path that leads to respect for copyrights but allows legitimate users to access purchased works throughout their lifetimes and on any type of device? Or shall our society take the path that leads to scarce content available only to the few, where fear accompanies access, and where lines of inquiry and research lead to prison? Copyright policy recognizes that authors perform their best work when compensated for their work. But authors also know that their work is supported by the underpinnings of other authors, and that without access to a civilization’s books, music, and audio-visual works in a multitude of forms, authors cannot effectively produce their work. It becomes a vicious circle, and an ever tightening one, where the lack of source material leads to fewer works of authorship. Our society cannot afford scarce content; it cannot afford to criminalize copyright.

This article first appeared in The Licensing Journal, November/December 2001.