Fishing in the Catch & Release Zone of the DMCA

By Sandra Morgan
August 13, 2001

Copyright 2001 Fiction Forest and EPC. Reprinted with permission.

Recent developments in the ePublishing industry may require thought on the part of publishers leveraging new technology to monetize intellectual property. The July 16, 2001 arrest of Elcomsoft's Dmitry Sklyarov for alleged violations of US Copyright Law according to the Digital Millenium Copyright Act (DMCA) by the Justice Department may establish a number of precedents which strip away consumers' traditional "fair use" rights.

Adobe alleges Sklyarov is guilty of aiding and abetting criminals who infringe on copyrights. Perhaps, but it is more probable that the 26 year old Russian national is one of the architects of a tool that protects consumer's from the erosion of 'fair use' rights. Regardless Adobe and members of the US Justice Department would have us believe Sklyarov is a hardened criminal who should be imprisoned and fined for his innovation.

Sklyarov didn't distribute pirated copies of Adobe products. So why did the Justice Department allow Adobe to make allegations pertaining to other publishers' intellectual properties? If Dmitry Sklyarov is guilty of anything it is exposing security flaws in the Adobe DRM system and prompting content producers to re-evaluate their choice of format. Since Adobe sought protection under the DMCA even though Elcomsoft withdrew its software from the US market two weeks prior to Sklyarov's arrest this action should considered retaliation.

According to news reports Sklyarov didn't encourange individuals to actually pirate any copies of copyrighted works. So, when does an individual become guilty of aiding nd abetting in acts which violate the DMCA? Discussions with technologists and other "experts" all seem to bear the same theme: simply talking about how to "circumvent security measures" is a criminal act in the United States. If that is correct then our freedom of speech provided by the US Bill of Rights has been seriously damaged.

Whether Sklyarov is guilty or not, a substantive precedent set by this case may be who bears the responsibility for protection of copyright. Traditionally this has been the responsibility of publishers while the government's responsibility was to maintain a registry for proof of copyright. With Sklyarov facing criminal charges no matter what Adobe does in this case, the US Justice Department may decide to pursue the charges in the interest of testing a new law. Ironically this early case tried under the DMCA not only erodes individual "fair use rights" but also places a greater portion of the financial burden for the protection private industry's intellectual properties on the taxpayer.

On October 27, 2000 the Librarian of Congress issued a recommendation on "exemptions from prohibition on circumvention of technological measures that control access to copyrighted works". (The legality of these exemptions is provided for by the DMCA and according to the law will remain in effect from October 28, 2000 until October 28, 2003. The two classes of works provided exemption included, "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence."

Close examination of the statement of exemption issued by the Librarian of Congress leads to a thought provoking by Gregory Rohde of NTIA (National Telecommunications and Information Administration) urging the Librarian to consider the significance of the digital divide as she pondered her recommendations. Rohde reminds that the House of Representatives' Commerce Committee altered the original DMCA bill out of concern that it's rhetoric would "diminish existing fair use applications." Mr. Rohde also included this footnote:

"The Commerce Committee was concerned that many private and public interests considered H.R. 2281, as reported by the Committee on the Judiciary, as undermining Congress' long-standing commitment to the concept of fair use. These concerns were so important that the Commerce Committee included in its report the following excerpt from a letter it had received from a representative of the fair use community:

'These newly created rights will dramatically diminish public access to information, reducingthe ability of researchers, authors, critics, scholars, teachers, students, and consumers to find, to quote for publication and otherwise make fair use of them. It would be ironic if the great popularization of access to information, which is the promise of the electronic age, will be short-changed by legislation that purports to promote this promise, but in reality puts a monopoly stranglehold on information.' H.R. Rep. No. 105-551, pt. 2, at 26(1998)."

Later in the letter, Rohde states,"...the 'right' against anticircumvention must be qualified in order to maintain a balance between the interests of content creators and information users. To this end, NTIA believes that implementation of far-reaching access control technologies without carefully drawn exemptions would not only invert 200 years of judicial interpretation regarding the scope of protections given to copyright holders, but also eviscerate individual scholarship and the notion of free inquiry. NTIA's greatest immediate concern is the very one envisioned by the Commerce Committee when it warned of the development of a legal framework that would 'inexorably create a pay-per-use society'.

"NTIA strongly urges the Register of Copyrights to follow the thoughtful guidance of the House Commerce Committee, preserve the principle of fair use in all of its applications, and allow it to inform her determination in this proceeding. To do otherwise would, in effect, reinforce and extend a licensing basis and transactional model for the electronic information market - the very outcome that the Commerce Committee labored to avoid and Congress ultimately rejected by authorizing the Librarian to exempt certain classes of works from anticircumvention prohibition."

In an early report Vladimir Katalov, managing director of Elcomsoft, advised that in Russia it is illegal to distribute "software" minus the capability and permission to make a back up copy of the product. Certainly permission to make a back up copy of any software product appears to be "fair use." Are American publishers who sell Russians eBooks minus the permission to make a back up copy violating Russian law? Will the Russian government lie in wait for unsuspecting American publishers to arrest?

DMCA complicates international trade, inhibits traditional fair use, and weakens the efforts of public and private entities to bridge the digital divide. Certainly the actions of Congress have indicated a high level of concern pertaining to DMCA's capability to create an atmosphere conducive to monopolistic practices that would place a "strangle hold on information".

Finally if the DMCA provides for exemptions, why doesn't it provide for the legal distribution of software that provide the average user with the capability to take advantage of those exemptions?

According to the Universal Declaration of Human Rights, "Everyone has the right to seek, receive and impart information and ideas regardless of frontiers."

All things considered, prudent jurists may want free Dmitry Sklyarov and toss the DMCA fish back.