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Russia: Arrest Of Programmer Puts Spotlight On U.S. Copyright Law

Russian computer programmer Dmitry Sklyarov was released on bail in the United States this week but could still face trial after being arrested last month on charges of violating electronic copyright laws. The Sklyarov case has attracted attention and controversy, as the Russian software engineer has become one of the first people to run afoul of the 1998 U.S. Digital Millennium Copyright Act. RFE/RL correspondent Jeremy Bransten reports.

Prague, 10 August 2001 (RFE/RL) --- The arrest of Dmitry Sklyarov last month on charges of violating the three-year-old Digital Millennium Copyright Act, or DMCA, has sparked protests among software programmers and free-speech advocates.

FBI agents arrested the 26-year-old programmer -- who works for Moscow's ElcomSoft Company -- in Las Vegas on 16 July at the urging of Adobe Systems, a leading U.S. software manufacturer and a maker of software that allows people to read books on their computers.

Sklyarov had just spoken to a conference about software he had designed for his Russian company that enables such electronic books, or "e-books" as they are called, to be copied by their users onto other computers -- without getting the publisher's prior permission. Sklyarov says the software only works on legitimately purchased e-books and can be used by people who want to move an e-book from one computer to another, for convenience's sake, just as anyone can move a music CD from their home stereo to a portable player or car. But the FBI says he violated the law.

Sklyarov was released Monday (6 August) on $50,000 bail by a California court and was ordered to remain in the state pending trial. His arraignment is scheduled for 23 August, pending the return of an indictment by a grand jury.

The Association of American Publishers, whose members include over 300 commercial and university publishing houses, applauded the action for protecting authors' intellectual property. But civil liberties organizations have condemned criminal prosecution of Sklyarov as a violation of free speech.

Jessica Litman, a professor of law at Wayne State University in Detroit, is a leading authority on copyright law in the United States and its application in the Internet age. She tells RFE/RL that the DMCA marks a major departure from previous copyright statutes, which acknowledge so-called "fair use" rights. This means that individuals are allowed to photocopy books and articles for their own use or even to distribute to friends. The same holds true for making copies of music tapes or CDs. It is only if someone attempts to make mass copies for public sale and distribution that they can be prosecuted for copyright infringement.

But electronic publishers and software manufacturers, claiming "fair use" criteria could not be applied in the Internet age, got Congress to pass a law in 1998 which makes it illegal to make any kind of unauthorized copies -- no matter what the reason. Litman explains:

"The concern was that in a digital era, individuals could commit infringement and share an unauthorized copy with 60 million of their closest friends and that copyright-owner interests didn't want to go sue consumers on the one hand. They also wanted to prevent infringement rather than avenging it, which is the traditional copyright approach."

Electronic copyright infringement thus became defined by the act of copying, whereas in print form, it is defined by what you do with those copies. Litman continues:

"That means that if I want to gain unauthorized access for a reason that's legal, or if my copy of an electronic book malfunctions and I need to defeat the technological protection in order to regain the access which I have paid for -- that is illegal. It doesn't matter why."

Sklyarov's case could prove an important litmus test for the three-year-old DMCA. Litman believes the government will have a difficult case to prove if it decides to indict Sklyarov, primarily because of the principle of extra-territoriality.

"If the government indicts him, then I think it's a huge test case. Most importantly, although I don't read Russian, my understanding of Russian copyright law from people who do, is that everything he is accused of was completely legal in Russia, as it is in most of the other countries of the world. The United States is one of the very few countries that's adopted any sort of anti-circumvention provision. It is normally our assumption that copyright laws have no extraterritorial effect -- that is, the copyright of the U.S. governs in the U.S., the copyright law of France governs in France, and the copyright law in Russia governs in Russia. So, one of the questions that a court would have to answer is: Where does the U.S. get off prosecuting someone for doing something that was completely legal in his country where he was doing it?"

Litman notes that every technological advance has brought challenges to copyright laws. The advent of the Xerox machine and the VCR both set off a number of lawsuits, in which publishers and movie studios tried to prevent consumers from making unauthorized copies of their products. Ultimately, the doctrine of "fair use" has always won out. Computer programmers and users in the U.S. are waiting to see how this latest battle will play out.