Opinion | Jail Time in the Digital Age (original) (raw)
Opinion|Jail Time in the Digital Age
https://www.nytimes.com/2001/07/30/opinion/jail-time-in-the-digital-age.html
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- July 30, 2001
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July 30, 2001
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Dmitri Sklyarov is a Russian programmer who, until recently, lived and worked in Moscow. He wrote a program that was legal in Russia, and in most of the world, a program his employer, ElcomSoft, then sold on the Internet. Adobe Corporation bought a copy and complained to the Federal Bureau of Investigation that the program violated American law and that, by the way, Mr. Sklyarov was about to give a lecture in Las Vegas describing the weaknesses in Adobe's electronic book software. Two weeks ago, the F.B.I. arrested Mr. Sklyarov. He still sits in a Las Vegas jail.
Something is going terribly wrong with copyright law in America. Mr. Sklyarov himself did not violate any law, and his employer did not violate anyone's copyright. What his program did was to enable the user of an Adobe eBook Reader to disable restrictions that the publisher of a particular electronic book formatted for Adobe's reader might have imposed. Adobe's eBook Reader, for example, has a read-aloud function. With it, the computer will read out loud an appropriately formatted eBook text. A publisher can disable that function for a particular eBook. Mr. Sklyarov's program would enable the purchaser of such a disabled eBook to overcome the restriction. A blind person, for example, could use ElcomSoft's program to listen to a book.
The problem from Adobe's perspective, however, is that the same software could enable a pirate to copy an electronic book otherwise readable only with Adobe's reader technology -- then sell that copy to others without the publisher's permission. That would be a copyright violation, and it is that possibility that led Congress to enact the statute that has now landed Mr. Sklyarov in jail -- the Digital Millennium Copyright Act.
The D.M.C.A. outlaws technologies designed to circumvent other technologies that protect copyrighted material. It is law protecting software code protecting copyright. The trouble, however, is that technologies that protect copyrighted material are never as subtle as the law of copyright. Copyright law permits fair use of copyrighted material; technologies that protect copyrighted material need not. Copyright law protects for a limited time; technologies have no such limit.
Thus when the D.M.C.A. protects technology that in turn protects copyrighted material, it often protects much more broadly than copyright law does. It makes criminal what copyright law would forgive.
Using software code to enforce law is controversial enough. Making it a crime to crack that technology, whether or not the use of that ability would be a copyright violation, is to delegate lawmaking to code writers. Yet that is precisely what the D.M.C.A. does. The relevant protection for copyrighted material becomes as the technology says, not as copyright law requires.
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