he FBI's arrest of a Russian software developer this week has intensified efforts by civil liberties groups to overhaul a controversial copyright law.
On Monday, federal agents nabbed Dmitry Sklyarov in Las Vegas where he was attending a convention of computer hackers. He was charged with trafficking software designed to circumvent copyright protection technology, specifically, software that decrypts security measures on Adobe Systems Inc.'s eBook Reader.
An assistant U.S. attorney in San Francisco said this is either the first or second time that someone has been arrested for violating the Digital Millennium Copyright Act. The 1998 law prohibits anyone from overriding a technological device that controls access to a copyrighted work.
"I think this could be a rallying cry to get the DMCA overturned or repealed from this level of über copyright protection," said Robin Gross, staff attorney at the Electronic Frontier Foundation. The San Francisco-based civil liberties group said it would be willing to represent Sklyarov and assist whatever criminal attorney Sklyarov selects.
"I wouldn't be surprised if there were constitutional challenges to these criminal provisions" of the copyright law, added Bradford Lewis, a partner at Fenwick & West.
A former federal prosecutor, Lewis said the arrest is extraordinary. "It's not that often the U.S. government prosecutes a foreign nation, especially a Russian national," Lewis said. And it's "unusual to arrest someone for a copyright violation. It doesn't happen that often."
The 1998 law was intended to set parameters for copyright protection in the digital realm. After a two-year battle, content owners reached a compromise with various other interest groups, including libraries, universities, Internet service providers, computer electronic manufacturers and broadcasters. But the measure, particularly the anti-circumvention provision, has been highly contentious.
The EFF is involved in two suits challenging the law. In one case, motion picture studios sued the founder of a computer hackers' magazine for publishing DVD decryption software. Last year, a federal court ruled that the magazine violated the 1998 copyright law, and an appeal is pending with the Second Circuit U.S. Court of Appeals in New York.
In June, the EFF filed suit against the recording industry on behalf of Princeton University professor Edward Felton and his colleagues. The suit seeks a ruling that the scholars can publish their research on how to crack barricades on digital music.
Several legal scholars, computer professors, libraries and journalists are critical of the copyright law. They submitted amicus curiae briefs in opposition to the federal court's ruling in the DVD decryption case.
Despite such opposition, the U.S. Copyright Office said it's too soon to say whether the law should be modified.
"We're going on very limited experience with the law in actual practice," said Jesse Feder, acting associate register for policy and international affairs. "We'd need more information before we could take a position on whether changes are appropriate."
But the controversy has caught the attention of some in Congress. Rep. Rick Boucher, D-Va., has said he intends to introduce legislation to modify the law. His office did not return phone calls seeking comment. But Gross said Boucher has talked about making it legal to circumvent blocking devices when one owns the material that is being blocked.
Such a provision might be helpful in Sklyarov's case. The software programmer works for Moscow-based Elcomsoft Co. Ltd. which sells a program called Advanced eBook Processor that converts documents from Acrobat eBook format into plain Acrobat Portable Document Format. Elcomsoft says the program only works with eBooks that the user of the program already owns.
But Adobe contends that Elcomsoft's program strips away protections on its software product - which enables consumers to purchase a book in electronic format - allowing people to read an eBook without paying the fee to the bookseller.
Colleen Pouliot, Adobe's senior vice president and general counsel, said Adobe turned to the FBI when Elcomsoft failed to respond to cease and desist letters. Adobe pursued federal intervention instead of a civil suit because "we didn't believe we could get a Russian company to comply with any judgment," Pouliot said.
A special agent from the bureau's high-tech unit in San Jose met with Adobe officials on June 26. In an affidavit attached to the complaint against Sklyarov, the agent describes Adobe's allegations against the Russian programmer.
The big question is why the FBI targeted Sklyarov rather than the company itself. The FBI said Elcomsoft's software identifies Sklyarov as the copyright holder. But Elcomsoft president Vladimir Katalov said in an e-mail message that Sklyarov only developed the algorithms that the program is based on.
"But the actual reason is: It is much simpler to press an individual than a Russian company," Katalov said. He added that the FBI and police have not allowed Sklyarov to talk to his family or to meet with the Russian Consulate. Nor, he said, have they answered "official requests and protests from the Consulate."
The Elcomsoft employee also happened to be accessible. He gave a speech on electronic book security at the Defcon hackers conference in Las Vegas July 15. The following day the FBI arrested him. A magistrate judge in Las Vegas ordered that he be held without bail and transferred to the Northern District of California where he is to appear before a San Jose magistrate judge. A hearing has not yet been scheduled.
The criminal complaint, U.S. v. Sklyarov, 5-01-257, says he faces the maximum statutory penalty under the copyright law: five years imprisonment and a $500,000 fine.
Justice Department officials could not say why the programmer was subject to arrest rather than a civil suit.
"I can't comment on why the case was charged the way it was," said assistant U.S. attorney Matthew Jacobs.
He said this is the first or second time that the federal government had prosecuted someone for violating the copyright statute. "There's rumored to be another case in Seattle," he said. He did not have information about that case, and the U.S. attorney's office in Seattle did not return a phone call on Thursday.
Jacobs also said he did not know what arguments were made against Sklyarov receiving bail. But, he added, "the issue will probably be revisited when the defendant gets to San Jose."
The Electronic Frontier Foundation has called for a demonstration at Adobe's San Jose headquarters on Monday to protest the software maker's role in Sklyarov's arrest.
