ADOBE'S REVERSAL OF ITS POSITION ON THE "HACKER" THAT CRACKED ITS E-BOOKS: Proof That The Digital Millenium Copyright Act Needs To Change

By LAURA HODES

Thursday, Aug. 02, 2001

Something's rotten in D.C. — and it's the Digital Millenium Copyright Act. The DMCA, enacted in 1998 at the behest of the media industries, is aimed at toughening copyright enforcement on the Internet.

But while its goal may be laudable, the means, and actual result, are not: instead of regulating behavior which infringes copyright, the DMCA prohibits technologies designed to circumvent technological protection of copyrighted material and infringes upon consumers' fair use rights under copyright law.

Yet Congress refuses to budge, and insists the DMCA is a good law. Recent events, however, have increasingly shown the DMCA for what it is: an overly harsh measure with serious costs to freedom.

Consider, for example, the case of Russian computer programmer Dmitry Sklyarov, arrested two weeks ago under the DMCA. First, Adobe wanted to prosecute Sklyarov under the DMCA for cracking its e-Book software. Now, after public protest, the company has announced that it does not want to prosecute and supports Sklyarov's release from prison. The government, however, is still set to prosecute Sklyarov. Adobe's reversal of position, and prosecutors and Congress' pigheadedness on the topic of Sklyarov illustrate the fundamental problems with the DMCA.

Adobe sells the Acrobat e-Book Reader, software that allows e-books to be downloaded, with a number of restrictions designed to protect them from being pirated. For instance, the e-book can only be read on one computer or device and no back-up copy of the e-book can be made. If the publisher of the e-book chooses to do so, Adobe can restrict the computer's ability to read the text of the e-book aloud, even if the user wants to activate that function. The DMCA protects the ability of Adobe to make these restrictions even though they violate the fair use rights of the user.

The Moscow firm ElcomSoft — Sklyarov's employer — sells the Advanced e-Book processor, software that allows its users to avoid restrictions like those Adobe imposes. The product is legal in Russia but the DMCA makes the trafficking in such devices a criminal offense. Adobe brought ElcomSoft's product to the attention of the F.B.I and alerted them that Sklyarov would be in the U.S. at a convention.

On July 16, at the DefCon hackers convention in Las Vegas, Sklyarov gave a presentation on flaws in encryption software like Adobe's. After he spoke, Sklyarov was arrested and charged, under the DMCA, with trafficking in devices, such as software, that circumvent the technological protection of copyrighted works.

Circumventing Control, and Its Consequences

Section 1201 of the DMCA states, "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Control is the key word here. Copyright experts and organizations such as the Electronic Frontier Foundation (EFF) have criticized the DMCA for granting copyright owners too much control over consumers and infringing the "fair use" rights consumers still possess.

The theory of Sklyarov's prosecution under Section 1201 is this: E-books, since they are copyrighted, are works protected by the DMCA. The restrictions by which Adobe's Acrobat e-Book Reader prevents e-books from being copied even for fair use purposes are "technological measure[s]" that "control access" to the e-books.

Section 1201 had been used as a scare tactic before. In April, record labels had invoked the Section to dissuade Princeton professor Edward Felten from presenting a paper explaining how he cracked the code used by the labels in their encryption of digital music files. Subsequently, Felten did publish the paper and is now a plaintiff in a suit against the labels seeking a declaration that the DMCA violates the First Amendment.

Protest Convinces Adobe to Back Down — But Doesn't Convince Publishers

Last Monday, hundreds of open-source activists (that is, proponents of allowing the public to have full, free access to code), programmers, and hackers protested Sklyarov's arrest.

Spurred by the protests, Adobe changed its mind. On the same day as the protests Adobe issued a joint statement with the Electronic Frontier Foundation, a leading Internet free speech group, declaring that Sklyarov should be released from prison and withdrawing its support for criminal charges.

"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," Adobe's General Counsel said. But other copyright owners — such as the Association of American Publishers, one of the forces behind the DMCA — disagreed, supporting Sklyarov's arrest. Moreover, the U.S. Attorney's office has announced it is proceeding with its case against Sklyarov.

Adobe's new position is the correct one, and the U.S. Attorney's Office should drop its charges. The publishing industry, too, should change its mind, for business reasons: In supporting Sklyarov's prosecution, the industry is shooting itself in the foot.

The DMCA and the E-Book Market

The e-book market has not yet lifted off. Readers don't see the advantage of e-books, as compared to regular hardcover and relatively cheap paperback books. Technology has not yet made reading e-books a sufficiently pleasant or unique experience to draw many readers away from what they are accustomed to.

What might change the situation? Lifting the very restrictions that Adobe Acrobat's E-Book Reader imposes. Being able to read an e-book on different computers or devices would improve portability greatly. Being able to hear the computer read aloud would demonstrate a clear capability that e-books have and regular books lack.

Lifting these restrictions, in short, might convince enough readers to buy e-books to make the format take off — reaching the level of market saturation at which network externalities would give e-books some momentum, and help them break out of the market position where they currently languish. Conversely, continuing to limit what consumers can do with e-books will squelch the development of the e-book industry. In other words, the e-book industry sorely needs Napsterization, and the DMCA prevents that from taking place.

The DMCA: A Tool for Control

Traditional publishers, in contrast, apparently don't realize that e-book restrictions are damaging the e-book market. Or else, more ominously, publishers may actually want to squelch the e-book industry, viewing it as a threat to the traditional print publishing model that is their bread and butter. If so, the DMCA gives them a powerful tool to keep e-books in their current, limited niche.

Publishers' relying on their DMCA-created leverage to hurt the e-book market is one example of a general principle: Rather than just prohibiting behavior that violates copyright, the DMCA impedes the development of new technologies and limits consumers' access to copyrighted works in order to maintain the status quo. At its worst, the DMCA can be seen as a way for copyright owners to control the digitalization of their industries — impeding innovation and crushing upstart companies, all to the detriment of consumers.

 

Why the DMCA Should Be Amended, and Why It May Not Be

Congress needs to amend the DMCA. As amended, the Act should still prohibit circumvention of technological protection for the purpose of copyright infringement. (Thus, someone who bought Sklyarov's company's software and used it to pirate and resell e-books could still be prosecuted.) But it should allow for education and research even if they involve circumvention, or teaching about circumvention, of technological protections. (Thus, the theoretical lectures by Felten and Sklyarov about hacking methods would be protected.)

The DMCA should also be amended to ensure that "fair use" is fully protected. Consumers should be able to access a work more than one time, and on different computers or devices, without having to pay for each use — just as they can re-read a beloved book or play their favorite CD a hundred times. Consumers should also be able to deactivate restrictions such as the blocking of the read-aloud function; if the technology makes that possible, why should software that allows such a capability be illegal?

These amendments make sense and are the minimum necessary to protect teaching, research, and fair use. But don't count on their being enacted. Despite the efforts of lone Congressman Rick Boucher, House and Senate intellectual property subcommittee leaders have said that they will not consider any changes to the DMCA.

Moreover, right now the powerful political contributors are media industries — not e-consumers' groups. Indeed, as reported by Wired, two chief sponsors of the DMCA, Senators Feinstein and Coble, are, respectively, Congress' second largest recipient of movie industry donations, and its fifth highest recipient of music industry dollars.

If the crowds of programmers, open-source activists, libraries, e-book organizations, and other individuals and organizations who took to the streets last Monday grow large enough to make Congressmen worry that their votes are at risk, then maybe Congress will wake up and smell the sentiment and decide it makes sense to amend the DMCA.

Until then, expect prisons to fill up with the likes of dastardly evildoers like Sklyarov — who have the nefarious goal of wanting to make it easier for you to enjoy your e-book.


Laura Hodes, a 2000 graduate of the University of Chicago Law School, is an attorney and freelance writer living in Chicago. She works as an associate at Gordon & Glickson, an information technology law firm. In addition to writing for this site, she has published several articles on cyberlaw on The New Republic Online (www.tnr.com). She recently wrote a review of Jessica Litman's book Digital Copyright for this site.

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More