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August 13, 2001

NEW ECONOMY

Software Double Bind

By AMY HARMON

Thor Swift for The New York Times
Dmitri Sklyarov was arrested last month at a conference for hackers.

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U.S. Arrests Russian Cryptographer as Copyright Violator (July 18, 2001)

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Call it the digital copyright equivalent of having your cake but not being able to eat it. The case of Dmitri Sklyarov, a Russian computer programmer arrested last month in Las Vegas, is drawing attention to a double bind in the Digital Millennium Copyright Act, a 1998 law that some legal experts say extends rights to consumers even as it effectively prevents them from exercising those rights.

The law of which Mr. Sklyarov ran afoul makes it illegal to manufacture or distribute a device designed to bypass technology that protects copyright material. His offense was to develop software that can disable the safeguards that are supposed to prevent electronic books from being distributed en masse over the Internet.

The law also makes it illegal for individuals to use such a program even to make a back-up copy of a book or movie or song for themselves, the type of copies traditionally allowed under copyright law. That is where the double bind comes in. Actually making such copies for personal use is not illegal. But it is against the law to break through the copy-protection measure to make the legal copies.

If this seems confusing, it confuses others, including Representative Rick Boucher, a Virginia Democrat and longtime critic of the law. Mr. Boucher has said he plans to introduce legislation that would eliminate the double bind.

Even under the law, there is an explicit exception to the rules. Congress, concerned about the negative effect that the Digital Millennium Copyright Act might have on consumers' ability to make legal copies, asked the Library of Congress to make regular reports on the law's effect. Last fall, Congress adopted the library's recommendation that when the copyright safeguards malfunction on "literary works, including computer programs and databases," that an individual has legally purchased, the person be allowed to use technology like the software Mr. Sklyarov developed to regain reading access to the work.

The Library of Congress is now considering whether to recommend other exceptions to the law. Many libraries and other educational institutions want an exception that would let individuals circumvent a copy- control technology in order to copy portions of a work for use in parody, scholarship or criticism purposes protected under the "fair use" doctrine of traditional copyright law.

In the same spirit, Mr. Boucher's legislation would make circumvention illegal only if the primary purpose was to violate copyrights.

A question, of course, is how anyone would ever be able to obtain and use the tools that would legally allow them to circumvent copy-protection technology if the people that make and distribute them are thrown in jail or prosecuted in civil trials.

"If you can't go out and buy a device like this, it makes the ability to exercise your rights under the exception very, very difficult," said Laura Gasaway, director of the Law Library at the University of North Carolina. Ms. Gasaway's experience with a faulty access-control measure on a CD-ROM database helped persuade the Library of Congress to recommend the exception for malfunctioning technology.

While some users of digital media have wrestled with the 1998 copyright law's seeming contradictions, it is the Sklyarov case the first criminal prosecution under the law that is exposing the Digital Millennium Copyright Act to greater public scrutiny.

Marybeth Peters, the chief of the United States Copyright Office, said that the exception was still meaningful, even without a market for anti- circumvention devices, because it allowed individuals to figure out for themselves how to go around a technological control measure.

"Many of the people I know can come up with a program to do it themselves, without being in the business of doing it," Ms. Peters said.

But Roger Sperberg, an e-book enthusiast, said that he could not determine how to regain access to several electronic books he had bought after a virus swept through his PC. The e- book software allows him to "activate" the books on only two computers. But he had already used one, on his desktop computer. If he activates the books again on this same computer as the virus has made necessary he says he will not be able to reactivate them for use on his hand- held e-book device.

"I hate being treated like I'm a professional thief," said Mr. Sperberg, who wrote a column about his situation for Ebookweb, a site devoted to discussion of electronic books. "I'm allowed to figure it out on my own, but no one is allowed to sell me a program? Why?"

Allan Adler, vice president for legal and governmental affairs at the Association of American Publishers, has an explanation. "There is no device that can distinguish between a fair use and a non-fair use," Mr. Adler said. "So unfortunately we're still stuck with a situation where people feel they've been given the go-ahead to circumvent the access controls, but they don't have the means to do it."

ElcomSoft, the company in Moscow for which Mr. Sklyarov works, sold its e-book circumvention software over the Internet for $99. The company said the product was aimed at consumers who wanted to make backups or to read books on several computers.

But ElcomSoft withdrew the product after being threatened with legal action by Adobe Systems (news/quote), whose encryption technology is compromised by the program. Adobe complained to the Justice Department, which led to Mr. Sklyarov's arrest at a hackers' conference in Las Vegas. Released on bail last week in San Jose, Calif., Mr. Sklyarov is awaiting an arraignment hearing on Aug. 23.

Given the fledgling market for e- books, the number of consumers who have had occasion to legally circumvent flawed access controls is no doubt tiny. And those who would have paid $99 for the privilege may be tinier still. But there is certainly no shortage of malfunctioning technology when it comes to digital media.

Shoshana Samole, 29, of San Francisco, would have appreciated the right to find and use an anti-circumvention device during the 20 hours or so she recently spent tinkering with rental DVD movies, trying to get them to play in her computer's DVD drive.

Ms. Samole has often watched movies on the same computer. But "Fight Club" would not play. Nor would "Boogie Nights." The video store could not help her. Her computer maker wanted $25 for a technical support call. And she could find no fixes on the Internet perhaps because in a civil trial last year, a federal judge found that distributing an anti-circumvention program for DVD's violated the 1998 law.

Ms. Samole said she ended up downloading a pirated version of "Fight Club," which is how she intends to obtain her movies in the future. "I'm completely alienated," she said. "I'm never going to rent a DVD again."

Some copyright experts maintain that even without additional amendments or exceptions, there is a broader right implicit in the 1998 law consumers' traditional right to make limited uses of movies, books and music without the copyright holder's permission. Since, they argue, that right is based on First Amendment freedoms, these experts contend that the government may have some obligation to make sure that people can exercise it and not just the most technically savvy.

"The inequity is of greatest concern to the law where there's a constitutional interest at stake," said Pamela Samuelson, co-director of the Center for Law and Technology at the University of California at Berkeley. "If there is a constitutional-based interest in fair use, it shouldn't just be someone with a Ph.D. in computer science who can circumvent an access control just like you can't say people who own property can vote, but poor people can't."



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