"THE ARREST by federal authorities of a Russian
computer programmer named Dmitry Sklyarov is not the first time the
so-called Digital Millennium Copyright Act has led to mischief. It
is, however, one of the most oppressive uses of the law to date --
one that shows the need to revisit the rules Congress created to
prevent the theft of intellectual property using electronic media.
Mr. Sklyarov, a graduate student in Moscow and an employee of a
company called ElcomSoft, helped write a program that disables copy
protections on the Adobe eBook Reader, a system designed to let
people read book-length texts comfortably on computers. Writing the
program did not violate Russian law, and ElcomSoft then made its
program available over the Internet, provoking a fight with Adobe.
The trouble for Mr. Sklyarov was that under the digital
millennium law, it is a crime in this country to distribute
programs designed to frustrate copy protection schemes. ElcomSoft
was attempting to sell the program over the Web in this country.
Adobe complained about the ElcomSoft program to the FBI and
mentioned that Mr. Sklyarov happened to be in Las Vegas giving a
talk at a conference of hackers on the vulnerabilities of Adobe's
systems. The bureau obligingly picked him up last month. He was
finally released on bail in California this month.
The digital millennium law is troubling, since the same programs
that can be used to pirate content commercially often have legal
uses as well. It does not offend someone's copyright to make what
is called "fair use" of proprietary material -- such as, for
example, quoting passages from texts or playing snippets of music.
Programs to break copy protection schemes can be used to facilitate
fair use, as well as infringing uses of copyrighted material.
Simply banning the dissemination of such programs, without
reference to the purpose of the dissemination, inhibits the use of
intellectual property far more broadly than does the copyright law