Home, but Not Home Free

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Every cause needs a poster child and every new law a test case. For electronic freedom and the Digital Millennium Copyright Act, the all-in-one package was Dmitry Sklyarov. The FBI arrested the Russian programmer at a Las Vegas conference last July, filing charges against him and ElcomSoft, his Moscow-based employer, for selling the Advanced eBook Processor, a program designed to disable copyright protection on Adobe eBooks.

The arrest set the "Free Dmitry" band-wagon rolling. Even Adobe hopped on; perhaps compelled by a boycott called on its products, it dropped its support of Sklyarov's prosecution (though not ElcomSoft's). Heartening as the show of cyber-community spirit may have been, it was Sklyarov who secured his own freedom by agreeing to testify against his company when the first DMCA criminal trial begins on Aug. 26.

Sklyarov's "victory" probably won't be followed by one for his employer. All of its requests to dismiss the case have been denied. ElcomSoft CEO Alex Katalov's gripe that the U.S. is applying the DMCA "to the whole world" falls flat; the company sold its program in the U.S. So does an argument that the program helped users exercise fair-use rights by enabling them, for example, to make backup copies. Noble but irrelevant, says copyright expert Thomas Vinje. He points to precedent suggesting that even "where technology measures prevent fair use, circumventing those measures is nonetheless a violation of the law."

"Programmers sometimes have little or no control over what other people do with their creations," says Sklyarov. But they do have control over what they create and sell. In ElcomSoft's case, it was a tool for circumvention of copyright protection, and that makes it a DMCA dud.