FC: Feds refuse to "Free Dmitry"; ACM letter to publishers

From: Declan McCullagh (declanat_private)
Date: Fri Jul 27 2001 - 12:09:10 PDT

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    The Association for Computing Machinery is a member of the Association of 
    American Publishers. AAP has applauded Dmitry Sklyarov's arrest 
    (http://www.politechbot.com/p-02288.html). ACM is not happy. (Keep reading.)
    Politech archive on U.S. v. Sklyarov:
    Electronic Frontier Foundation
    For Immediate Release: July 27, 2001
    EFF Rejoins Protests After Meeting with US Attorney's Office
    San Francisco, CA - Representatives of the Electronic
    Frontier Foundation (EFF) met with representatives of the
    U.S. Attorney's office in San Francisco today. There was a
    productive dialog, however the U.S. Attorney's office gave
    no indication of dropping the prosecution against Russian
    programmer Dmitry Sklyarov.
    "The people from the U.S. Attorney's office heard our
    concerns and asked probing questions about the Digital
    Millennium Copyright Act," explained EFF's Executive
    Director Shari Steele. "However, they did not give any
    indication of their plans for Dmitry, so we encourage
    everyone to keep up the pressure and join the protests."
    Having explored good faith negotiations, the Electronic
    Frontier Foundation rejoins the call for nonviolent
    protests worldwide to secure the immediate release
    of Dmitry Sklyarov and drop all criminal charges against
    A protest is already scheduled in San Francisco for
    11:30am this Monday, July 30, at the Federal Courthouse
    at 450 Golden Gate Ave. Additional July 30th protests
    are scheduled in Los Angeles, Boston, Chicago, and
    Minneapolis, and future protests will likely occur
    in 25 or more cities worldwide in coming weeks.
    Date: Fri, 27 Jul 2001 11:57:21 -0700
    From: Barbara Simons <simonsat_private>
    To: Declan McCullagh <declanat_private>
    USACM, the public policy committee of ACM, just sent a the
    following letter to the AAP expressing concern over the AAP's
    support for the DMCA in general and the arrest of Russian
    cryptographer Dmitry Sklyarov in particular.
    (ACM is a member of AAP).
    Links to the letter, the AAP, and USACM statements on
    the DMCA and other intellectual property issues can be
    found under Recent Activities and News at
    July 26, 2001
    The Honorable Patricia S. Schroeder
    President & CEO
    Association of American Publishers
    50 F Street, N.W., 4th Floor
    Washington, D.C.  20001
    Dear Ms. Schroeder:
    As you know, the Association for Computing Machinery (ACM) is a member of
    the Association of American Publishers (AAP).  As the Co-Chairs of the U.S.
    Public Policy Committee of ACM, we are concerned by the APP statement
    released on July 19, 2001, which hailed the U.S. Department of Justice's
    recent arrest of a Russian cryptographer for allegedly violating the
    anti-circumvention provisions of the Digital Millenium Copyright Act
    (DMCA).  We would like for the AAP to be aware that ACM has consistently
    opposed the anti-circumvention provisions of the DMCA.  In our view, the
    overly-broad provisions impede the progress of research in cryptography and
    other computer security areas by criminalizing multi-use technologies
    rather than narrowly penalizing infringing behavior.
    ACM has been shifting its publication operations from paper-only to
    electronic distribution and we understand the importance of reasonable
    copyright protections.  ACM is an educational and scientific computing
    society comprising computing professionals from all areas of industry,
    academia, and government.  As such, we strongly support the freedom of
    computer scientists to engage in research, and to exchange ideas and
    information fundamental to the progress of innovation.  The need for free
    communication and fair-use of information are vital to the processes of
    education and research.
    During consideration of the DMCA by the U.S. Congress and the subsequent
    rulemaking process, ACM recommended that the anti-circumvention provisions
    of the legislation be revised to restrict only circumvention directly
    involved in infringement.  We further elucidated other flaws of the Act,
    * failure to permit circumvention for "fair-use" purposes is inconsistent
    with the fundamentals of copyright law and deters individuals from
    conducting bona fide forms of science and technology research that is
    fundamental to innovation;
    * exempting encryption research from the anti-circumvention provisions is
    too limited as the majority of computer security research does not involve
    * permitting reverse engineering for the sole purpose of interoperability
    may criminalize development of software engineering tools and technology
    with other uses; and,
    * anti-circumvention exemptions that permit circumvention to obtain
    authorized access to a work are meaningless if access mechanisms and tools
    cannot be used to do so.
    Unfortunately, our concerns were not satisfactorily addressed as the DMCA
    was enacted or as the implementation rules were promulgated.  As a result,
    scientists are now finding themselves in a position where they must consult
    attorneys to determine if their previously legitimate research might be in
    violation of the DMCA.  In some instances, the threat of legal action under
    the DMCA has deterred scientists from publishing scholarly work or even
    publicly discussing their research.  Certain foreign scientists and
    international members of ACM have indicated they will not attend
    conferences in the U.S. while the law is in force.  We are clearly seeing
    evidence that the anti-circumvention provisions of the DMCA have proven to
    have a chilling effect on U.S. scientific and research enterprise.
    While we recognize that the AAP works to protect the interests of book and
    journal publishers by advocating strong copyright protection in digital
    environments, we urge you to recognize the distinction between
    circumvention for the purpose of obtaining unauthorized access to a work
    and circumvention for the purpose of making a non-infringing use of a
    work.  In addition, we would hope you would agree that absent some clear
    criminal intent, technologists should not be penalized for conducting
    research that is crucial to developing and testing copyright protection
    systems, security software, and better software engineering tools.
    In light of your recent release indicating support for the
    anti-circumvention provisions of the DMCA, we respectfully inquire if the
    AAP shares the concerns that ACM and other professional societies and
    research leaders have expressed regarding the Act's chilling effect on
    research and scientific freedom?
    We look forward to your reply.  Please contact Jeff Grove, Director of the
    ACM Public Policy Office at (202) 659-9711, if you have any questions or
    wish to discuss our concerns.
    Barbara Simons, Ph.D.
    Eugene H. Spafford, Ph.D.
    U.S. ACM Public Policy Committee (USACM)
    Association for Computing Machinery
    Date: Wed, 25 Jul 2001 23:17:13 -0700 (PDT)
    From: PFIR - People For Internet Responsibility <pfirat_private>
    To: declanat_private
    Subject: PFIR Press Release: The DMCA and the Arrest of Dmitry Sklyarov
    Cc: laurenat_private, neumannat_private
             PFIR - People For Internet Responsibility - http://www.pfir.org
             PFIR Press Release: The DMCA and the Arrest of Dmitry Sklyarov
                                    July 26, 2001
    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.
    Lauren Weinstein
    (818) 225-2800
    Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
    Moderator, PRIVACY Forum - http://www.vortex.com
    Member, ACM Committee on Computers and Public Policy
    Peter G. Neumann
    (650) 859-2375
    Co-Founder, PFIR - People For Internet Responsibility - http://www.pfir.org
    Moderator, RISKS Forum - http://catless.ncl.ac.uk/Risks
    Chairman, ACM Committee on Computers and Public Policy
    ----------  Forwarded Message  ----------
    Subject: RE: Arrest of Dimitri Sklyarov
    Date: Tue, 24 Jul 2001 14:32:54 -0400
    From: Amy Gwiazdowski <amygat_private>
    To: "'Andrew Lawrence'" <ausage@smoke-and-mirrors.net>
    Dear Mr. Lawrence:
    AAP stands by its press release of July 22 supporting the anticircumvention
    provisions of the Digital Millennium Copyright Act (DMCA) and commending the
    Department of Justice for acting on its responsibility to enforce the DMCA
    in the matter of Dmitry Sklyarov.
    In response to those who attempt to justify circumventing, or trafficking in
    devices that circumvent, encryption and other technological measures that
    protect copyright in the digital environment, AAP urges them to carefully
    consider how their arguments would apply to precisely the same activities in
    connection with encryption and other technological measures used to protect
    privacy in that same environment.
    Amy Gwiazdowski
    -----Original Message-----
    From: Andrew Lawrence [mailto:ausage@smoke-and-mirrors.net]
    Sent: Saturday, July 21, 2001 2:42 AM
    To: amygat_private
    Subject: Arrest of Dimitri Sklyarov
    I have just read the Press Release on your web site concerning the arrest of
    Mr. Sklyarov. What Mr Sklyarov did was perfectly legal where I live and Iin
    most countries in the world I consider it to a circumvention of restrictions
    againts legimate and fair use, to quote Adobe "To prevent unauthorized
    reading..." (Readme.htm file included with v2.2 of Adobe Acrobat eBook
    Correctly me if I am wrong, but I was always under the impression that as
    purchaser of a book, I am the only person entitled to dermine who is
    "authorized to read it".  The last time I read the Canadian Copyright Act,
    and even the DMCA, reading was NOT one of the rights reserved to authors.
    If I were to purchase an Adobe eBook, I would require Mr Sklarov's program
    read it since my computer runs the Linux operating system and there is no
    eBook Reader for Linux.
    The bottom line.  I have already informed Adobe that my company will no
    longer purchase Adobe products.  Since you so strongly support Adobe in
    assault against fair use, neither myself, my family nor my company will
    purchase works. electronic or paper, where the intelectual property rights
    are owned or controlled by members of the AAP, and I will strongly urge
    others to follow my example.  This will be a considerable saving since my
    office budget is about $300/month for books and periodicals and my family
    budget about $50-100 for the same period.  Furthermore, every time one of my
    programmers requests to purchase a book, I inform the publisher, and author
    if possible, why I am denying the purchase request.
    Andrew Lawrence                      <ausage@smoke-and-mirrors.net>
    President, Smoke & Mirrors         http://www.smoke-and-mirrors.net
    134A Leslie Street, Toronto, Ont CANADA M4M 3C7
    Tel: +1 416 461 8708    Fax: +1 416 461 1758
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