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Russia: Case Of Programmer May Test Scope Of U.S. Copyright Law

  • Nikola Krastev

The decision of the U.S. government to indict and possibly prosecute the Russian software developer Dmitry Sklyarov for alleged violations of the Digital Millennium Copyright Act of 1998 will most likely test the limits of this amendment to the U.S. copyright law. A number of scientists and computer experts say the act is too sweeping in its scope and violates the constitutional right of free expression. RFE/RL correspondent Nikola Krastev reports.

New York, 3 September 2001 (RFE/RL) -- Experts say the U.S. government's decision to indict a Russian computer programmer may set in motion a legal proceeding that could challenge the legitimacy of controversial three-year-old U.S. copyright law.

Sklyarov, who was freed on bail after being arrested 16 July in Las Vegas, pleaded innocent last week in a California court on charges he violated American copyright law by creating programs to read, copy, and manipulate electronic books without permission from publishers. The charges included one count of conspiracy and four counts of trafficking in technology for use in copyright circumvention.

If convicted, the 26-year-old software engineer faces up to five years in prison for each count and up to $250,000 in fines. ElcomSoft, the Moscow-based company he works for, could be fined up to $2.5 million if found guilty on the same charges.

Sklyarov's lawyer, Joseph Burton, says his client will not plea bargain, although observers say a settlement before the trial gets underway in November is still possible. A plea bargain is a negotiated agreement between the prosecution and the defense when charges may be reduced or sometimes dropped in exchange for cooperation or lenient sentence.

Stanton Lovenworth, who specializes in corporate law for the New York-based law firm Dewey Ballantine, LLP, tells RFE/RL that it is likely Sklyarov's case will not be brought to trial in part due to its international repercussions.

"I think, ultimately, it's not likely that he'll be tried here. He'll have some kind of plea bargain before it comes to that. Because a lot of people are very concerned that the message it sends in the age of the Internet, that a software developer in Moscow can be tried when he comes to the United States for conference, is fairly negative."

The 1998 copyright act seeks to enhance the protection of intellectual property in the digital age. Specifically, the act prohibits circumventing any protection measure designed to prevent unauthorized access to copyrighted material. Prompted by concerns from scientific and educational communities that the law could curtail traditional fair use of such material, the U.S. Congress has directed the Library of Congress to review the act every three years.

Experts say a controversial aspect of the law is that while it does not prohibit making legitimate copies of copyrighted material -- books for example -- for personal use, it does forbid the technology for circumvention of copyright protections.

This is exactly the type of computer software that Sklyarov and ElcomSoft develop in Russia and distribute commercially over the Internet. Sklyarov's program, which was briefly sold in the U.S., works on an electronic-book reader made by U.S.-based Adobe Systems. It allows copyrighted material to be transferred from computer to computer.

Sklyarov's supporters say his work merely restores the "fair use" privileges consumers have traditionally enjoyed under U.S. copyright law. But the U.S. government alleges that the company and the programmer conspired for "commercial advantage and private financial gain."

Some computer experts argue that to use Sklyarov's case as a warning against those developing encryption-breaking software will stifle innovation and scare legitimate users of copyrighted electronic material. A more reasonable approach, the critics say, is to prosecute those who misuse technology rather than those who create it.

Marc Rotenberg is executive director of the Electronic Privacy Information Center, a public interest research group based in Washington.

He tells RFE/RL that the new U.S. copyright act is destined to be challenged in the U.S. courts for its infringement on free expression.

"The law is controversial. This is a recent amendment adopted over the objections of many scientific and educational associations. And it is something that will be challenged in the courts because there is a sense that it would also violate constitutional principles of free expression to prosecute someone in law for this type of publication."

Rotenberg says that if Sklyarov goes to trial and he is convicted, the matter will likely be appealed to a higher court. On the appellate level, Rotenberg says, the law itself would be tested.

"In the trial court, it is simply a determination of whether the law was violated and government may succeed in making that case. But then on the appeal it would be appropriate to ask is the law itself permissible?"

Some scholars, such as Stanford Law School professor and technology expert Lawrence Lessig, say that copyright and patent laws, originally designed to protect innovation, have now become tools large companies can use to maintain their dominance and control.

Free speech advocates say the 1998 U.S. law gives publishers broader rights in the digital realm than they have in the real world. Supporters of the law contend that it is necessary to protect their copyrighted material from being easily pirated online.

Stanton Lovenworth says Sklyarov's case will become the testing ground for the constitutionality of the U.S. law.

"I think that there is a serious constitutional problem with it. In fact some people have brought suit to challenge the constitutionality of it. I suppose that it would be brought up at the appeal of Sklyarov's case if he were convicted. And that is that copyright, there is a concept of 'fair use' in copyright, where even if material is copyrighted, some of it can be used for certain purposes. And the copyright act makes that use unavailable because you can't even make the copy without dis-encryption devices. It effectively prevents 'fair use,' which was the way First Amendment [of the U.S. Constitution] is read into the copyright law."

Rotenberg says Sklyarov's case may lead to a clarification in the meaning of copyright protection after the worldwide spread of new electronic technologies that came along with the expansion of the Internet.

"It's a very important development in many ways. I think the U.S. legal system is trying to wrestle with these questions. How do we protect intellectual property in the new online environment without violating certain basic principles of free expression?"

Although Sklyarov's case is the most publicized one involving alleged DMCA violations, it is not the first one. Last year the New York-based online hacker magazine called "2600" was sued because it published a news article describing some of the tools for encryption code-breaking. And in April the Recording Industry Association of America threatened legal action against Princeton University professor Edward Felten to prevent his presentation at a seminar about weaknesses of the music industry's electronic copyright schemes.

(RFE/RL's Russian service contributed to this report.)

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