While the People For Internet Responsibility (PFIR) formal statement on the Digital Millennium Copyright Act (DMCA) has yet to be released, events surrounding the recent arrest and criminal prosecution of Russian national Dmitry Sklyarov here in the U.S. demand immediate comment. (The details of the case have been widely reported and will not be repeated herein.)
The ease and speed with which valuable digital materials can be duplicated and distributed internationally have created a substantive change in the structure of intellectual property rights and controls. While the legitimate concerns of content providers need to be understood and addressed, proper balance needs to be present to ensure that inappropriate pressures are not asserted that trample on the legal fair-use and free-speech rights of both individuals and organizations.
When the DMCA was enacted in the United States, many observers expressed concerns that the law did not represent an appropriate balance, and that it would have profoundly negative consequences, including but not limited to international complications, inappropriate prosecutions, and the stifling of security-related research and publications. It was also feared (and recent history seems to confirm) that the DMCA would tend to encourage the implementation of technically weak, risky, and highly-vulnerable systems -- favoring the threats of lawsuits and prosecutions over the development and deployment of more robust systems.
Up until now, the most widely-known DMCA-related cases have involved (1) DVD copy-protection issues, and (2) the free-speech concerns of Edward Felten, a Princeton professor who wished to publish a paper detailing flaws in digital music "anti-piracy watermarking" systems.
While these cases involved actual civil lawsuits or the perceived risk of such suits, the Dmitry Sklyarov arrest and criminal prosecution has escalated DMCA enforcement to a new, and in this instance at least, highly inappropriate and alarming level. It is difficult in the extreme to postulate a reasonable rationale for Sklyarov's continued treatment in this situation. This is particularly true given that Adobe Systems (whose e-book copy-protection system is at the heart of this case) has now evidently concluded that proceeding with Sklyarov's prosecution is inappropriate (though his treatment would still be unsupportable even in the absence of such a sentiment on the part of Adobe Systems).
It is imperative that both the civil and criminal provisions of the DMCA be subjected to nonpartisan and rigorous new scrutiny to help ensure that a sense of balance is restored regarding these important and controversial areas, and that the rights of everyone involved be preserved. At an absolute minimum, it is crucial that criminal sanctions not be applied to disputes that rightly belong within the sphere of civil law.
In the meantime, the continued detention and criminal prosecution of Dmitry Sklyarov as relates to the current case cannot be justified. His treatment has created a chilling and draconian reality to the previously theoretical concerns that the DMCA would lead to academics and scientists being led away in handcuffs and shackles for newly-created criminal offenses of highly arguable validity. Ironically for Russian programmer Dmitry, it is probably not the kind of treatment he was expecting in the land of the free, and the home of the brave.
- - - - -
Peter G. Neumann