Programmer Arrested in E-Book Case

A Russian computer programmer was arrested Monday in Las Vegas for allegedly distributing software that could be used to make copies of electronic books in violation of tough U.S. anti-piracy laws.

Dmitry Sklyarov was detained by FBI agents Monday after the Def Con hacker convention for allegedly distributing his company’s software that cracks the encryption used on some electronic books. The encryption lets publishers limit what consumers can do with an electronic book that they buy, such as make copies to read on multiple computers.

The case underscores the looming battle between copyright holders and consumers in the digital era. Though Sklyarov, who works for Moscow-based ElcomSoft Co., is not accused of duplicating copyrighted material, the distribution of copying tools violates the Digital Millennium Copyright Act.

Sklyarov is believed to be the first person arrested under the act for distributing a computer program as content providers push federal authorities to crack down on those who might duplicate copyrighted material. Mass copying becomes easier as everything from music to movies moves to digital formats.

But critics complain the 1998 law limits rights guaranteed by generations of court rulings--such as copying a CD onto a tape or recording a TV show on the VCR. Protests from consumer groups, scientists, researchers and librarians have led some in Congress to call for revisions in the law.

“There is growing concern about the overreach of the Digital Millennium Copyright Act,” said Rep. Rick Boucher (D-Va.). “I think it is inevitable that we will modify it.”

Sklyarov meanwhile remained in the custody of U.S. marshals Tuesday, awaiting extradition to California. He was indicted in California on charges of trafficking in a product designed to circumvent copyright-protection measures. If convicted, he faces as much as five years in prison and a $500,000 fine. He was being held without bail.

Sklyarov’s program breaks the encryption on books in Adobe Acrobat format. Executives at Adobe Systems Inc., the San Jose company that asked government officials to investigate ElcomSoft’s activities, said they were pleased at the arrest. “Adobe will do whatever it takes to cooperate with the investigation,” said Susan Altman Prescott, vice president, cross media publishing.

ElcomSoft was founded in 1990 and makes more than two dozen software products, including a package designed to recover passwords that have been lost or destroyed. Company President Alexander Katalov was also in Las Vegas when Sklyarov was arrested. He said the company developed the program to allow users to copy electronic books they had bought onto multiple computers--a desktop for home and a laptop for the road, for instance.

“Dmitry was one of three programmers who worked on this,” Katalov said. “The corporation holds the copyright. I am very surprised that he was arrested.”

Katalov said he brought 500 CDs into the country containing trial versions of the company’s various software products, including the program that can break the Adobe encryption. He said the trial version on the disc would unlock only about 25% of the electronic book.

“And it only works if you buy the book first,” he said.

Attempts to reach the Russian consulate in San Francisco were unsuccessful.

Legal experts said if Sklyarov did personally distribute the software in this country, he may have run afoul of the law.

“It’s like if you go to Europe and buy some codeine and then try and distribute that in the United States, where it’s only available with a prescription, you shouldn’t be surprised if you get arrested here,” said James X. Dempsey, deputy director for the Center for Democracy and Technology.

Although Sklyarov may have violated the law, critics charge that the Digital Millennium Copyright Act gives total control of intellectual property to copyright holders and disregards several Supreme Court rulings that grant consumers the right to do things such as make copies of works they own.

Much of what the public hears, reads and talks about is technically someone else’s property, but nobody has to pay a nickel to sing a song in the shower. The concept is called fair use, and courts have ruled that consumers have a right to make limited use of copyrighted songs, books, pictures and movies.

In the 19th century, copyright holders went to court to fight public libraries, arguing that lending books amounts to theft of revenue from lost sales. The legal system traditionally has prevented enforcement of such a strict interpretation of intellectual property law. But today, digital technologies allow intellectual property owners to enforce their own rules on use.

For instance, an electronic version of “Alice in Wonderland” in the Adobe Acrobat format does not permit the reader to print out a copy, a condition enforced through technology. The technology does not yet exist to prevent other restrictions that the publisher insists are valid--including a prohibition on reading the work aloud.

What’s particularly disturbing to critics of the technology is that the copyright on “Alice in Wonderland” has expired. It’s in the public domain and legally can have no restrictions placed upon it.

“This is all leading us toward the end of fair use, which is going to have a devastating effect on our society as the ability of all of us to examine and exchange information is steadily whittled away,” said Lee Tien, senior staff attorney with the Electronic Frontier Foundation.

“What makes the DMCA unique is that it outlaws the tools that can be used to perform unlawful acts, ignoring the fact that there are lots of lawful, legitimate and protected uses for those tools,” Tien said.

Even so, some publishers were encouraged by Sklyarov’s arrest.

“The only purpose for the ElcomSoft product is as a tool for piracy,” said Sanford Bingham, president of FileOpen Systems Inc., which makes an encrypted reader program compatible with Adobe’s product.

Bingham acknowledged arguments made by ElcomSoft executives that their program allows consumers to perform perfectly legal functions. But he said electronic tools such as ElcomSoft’s program in the Internet age make it too easy for pirates to distribute millions of copies instantly. If such tools are allowed to exist, he said, consumers ultimately will pay the price.

“Publishers want to produce high-quality products, and consumers want high-quality products,” Bingham said. “But companies can’t stay in business producing high-quality products if somebody can just steal it and give it away to everybody.”