COPYRIGHT "CRIMINALS": How The Sklyarov Case Exposes The Power Of The Copyright Lobby

By ANUPAM CHANDER

Tuesday, Aug. 21, 2001



Which one of these actions makes you a criminal?

(a) Manufacturing and selling a pistol used in a homicide
(b) Manufacturing and selling a VCR used to make illegal copies
(c) Refusing to hire a person because he is black or Latino
(d) Selling a device that allows people to copy an e-book

As the ongoing criminal prosecution of Russian programmer Dmitry Sklyarov shows, the answer is (d).

Sklyarov's "Crime"

The explanation begins in Moscow, where Sklyarov's company is based. Sklyarov wrote a clever little program for the company that allows people to copy an e-book, despite protections against copying built into the e-book by Adobe, an American company.

Sklyarov's company sells this software for $99 on the Internet, promoting it as a useful way to make copies for legitimate personal uses — such as making back-ups, and allowing nearly blind people to make copies to use on enlarged print machines.

Back in the United States, Adobe, however, worries that people will buy the software to pirate e-books. Adobe took its concern to the FBI, relying upon a new 1998 law called the Digital Millennium Copyright Act.

The DMCA criminalizes the distribution of any program (or, in the statute's language, "circumvention device") primarily designed to defeat a copy protection scheme in a copyrighted work. Sklyarov's program fit the bill, and the FBI went to work.

Despite its recent bungling in other matters, the FBI can still find a Russian when it wants. When Sklyarov arrived in Las Vegas to speak at a computer hacker conference in July, government agents nabbed him.

Note that the government is not prosecuting Sklyarov for actual piracy, but rather for selling a device that can be used by pirates. This is like prosecuting Xerox for selling a copying machine that allows copying, or Sony for selling a VCR that allows illegal taping, or Winchester for selling a pistol that allows people to kill.

Yet U.S. law, at least so far, has not declared Xerox, Sony, and Winchester criminals. Sklyarov, on the other hand, has already seen the inside of a U.S. jail cell.

What's the difference? From a practical standpoint, probably the most significant difference is the power of the lobby. Hollywood production companies had the influence in Washington to criminalize activity that threatened them, through the DMCA.

The choice of criminal penalties, rather than harsh civil penalties, is particularly striking. Criminal penalties are particularly problematic in the First Amendment area — in part because they exert a special "chilling effect" on constitutionally protected speech.

The immense power brought to bear by the copyright industries to get the legislation passed should lead us to wonder whether the DMCA strikes the right balance between protecting copyright holders and protecting legitimate public access to books, music, and art. Sklyarov's prosecution illustrates the imbalance: Software that is sold based on its ability to aid legitimate access is prosecuted based on the possibility it can be misused.

The prosecution raises an important question: Should the DMCA have been crafted to permit devices that, like Sklyarov's software, have substantial legitimate uses? Had ordinary readers, listeners, and viewers had as much sway as the copyright industries, it might well have been.

An Improper Poster Boy

The prosecution is also troubling for an entirely different reason. Why was this hapless Russian picked to be the poster-boy for a digital rights prosecution? Why did we choose a foreigner to serve as the test case for new criminal legislation?

Selling this sort of software is legal in Russia–and indeed, in most of the rest of the world. The aggressive enforcement of our controversial laws against foreigners will reduce respect for our laws abroad, and may lead to a feeling that aggressive enforcement of foreign laws against Americans is justified by a "turnabout is fair play" rationale.

This week, after a firestorm of protest, Mr. Sklyarov is out on bail. Faced with widespread resentment among denizens of the Internet, Adobe itself has withdrawn support for the prosecution. However, the prosecution continues, and the law under which Sklyarov is being prosecuted is still on the books. It is time to consider whether our copyright laws have gone too far.


Anupam Chander is an Acting Professor of Law at the University of California, Davis, School of Law. A graduate of Yale Law School, he specializes in cyberlaw and international law.

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