Caught up in the DMCA Whirlwind

Trouble in transit, got through the roadblock,
we blended in with the crowd.
We got computer, we're tapping phone lines,
I know that ain’t allowed.
We dress like students, we dress like housewives,
or in a suit and a tie.
I changed my hairstyle, so many times now,
I don't know what I look like!
You make me shiver, I feel so tender,
we make a pretty good team.
Don't get exhausted, I'll do some driving,
you ought to get some sleep.
Get your instructions, follow directions,
then you should change your address.
Maybe tomorrow, maybe the next day,
whatever you think is best.
Burned all my notebooks, what good are
notebooks? They won't help me survive
My chest is aching, burns like a furnace,
the burning keeps me alive.
Try to stay healthy, physical fitness,
don't want to catch no disease.
Try to be careful, don't take no chances,
you better watch what you say.

Life During Wartime, Talking Heads



Times are really crazy right now. I’ve found myself in the middle of this hurricane of activity having to do with the Digital Millennium Copyright Act as I ready for the close of FutureNet, my book that’s due relatively soon. It was about three weeks ago when I found myself at an SF meeting of the Software Development Forum, www.sdforum.com, in a packed room with programmers and no air conditioning. I love these types of meetings – these are the meetings where you meet cool people behind all of those cool programs you use. These are the people who are mixing the technology alchemy of tomorrow.

Phil Zimmermann, founder of Pretty Good Privacy, www.philzimmermann.com, was giving a talk that turned to the recent arrest of Dmitry Sklyarov. This is also where I also found myself standing next to Alexander Katalov, CEO of ElcomSoft, www.ElcomSoft.com. Earlier in the week his employee, Sklyarov , was arrested by the FBI after giving a talk at DefCon, a place usually flooded by undercover Feds, but has been sacred ground up to now. He was arrested July 26 on his way to catch a plane back home and sent to Oklahoma. I mean it’s bad enough to be arrested…but to be arrested AND sent to Oklahoma is kind of adding insult to injury. Are there enough programmers to rally for a small protest in Oklahoma?

Well, after meeting Alex and talking with Zimmermann for a few hours about his own dealings with the Feds and Pretty Good Privacy. It’s an interesting thing being involved with a controversy filled with international intrigue – it took me out of the shell I’ve been working in to get FutureNet done and threw me into a real life situation of the turmoil surrounding the Internet.

Basically Sklyarov was arrested because he was giving a paper on ElcomSoft’s software at DefCon and because of software he allegedly wrote. ElcomSoft created the Advanced eBook Processor (AEBPR) and according to its website, the application allows eBook owners to translate from Adobe's secure eBook format into a more flexible format. As I am told, ElcomSoft’s software works on legitimately purchased eBooks, and has been used by blind people to process through text to voice applications, and by people who want to move an eBook from one computer to another (similar to someone moving a personal copy of a music CD from the office computer to a portable). Adobe had brought the Feds in and there was an outcry from the programming community, including Adobe’s own programmers who felt it was the wrong thing to do. Sites such as www.FreeDmitry.com and www.BoycottAdobe.com went up.

Still, Dmitry sat in prison in Oklahoma waiting for a transfer to San Jose. I met with his legal team; his immigration attorney Marina Serebryanaya, and part of his Duane Morris & Heckscher, www.DuaneMorris.com team, Stephen Sutro and the legendary Joseph Burton (who handled part of Phil Zimmerman’s PGP case against the Feds). I sat in their Spear Street office overlooking the beautiful San Francisco Bay and wondered what daytime network TV show Dmitry was sitting in front of in his bright orange jail fatigues. I thought the federal prison in Oklahoma might provide his first exposure to the Jerry Springer show. Joseph and his team talked for a few hours and I thought if anyone had a chance of getting this kid out of jail, it would probably be these guys. Unlike most people, I tend to like attorneys, have even dated a few and had the greatest media law professor in the country (at least in my opinion), Jeremy Cohen, who was one of the primary reasons I studied there. So, yeah, I’m partial to attorneys and these guys seemed to know what they were doing.

I went to the arraignment when Dmitry was shipped over to San Jose. I left my home early that morning, ice-cold Jolt in hand chased with a Vivarin, to get to San Jose. It was 7 or so, but the freeway tar was starting to warm and I could tell it was going to be a hot one. I hit some traffic near Shallow Alto, but it is pretty much clear sailing, kind of nice outcome (other than the financial ramifications) about the layoffs and people going back from whence they came so I can drive more than 10 miles an hour. Call me selfish, but I wanted to start reclaiming the place where I was born, somewhat raised, left and came back to.

I had been tracking the Sklyarov sites and seen the support this guy was getting. I mean, did The Feds go in and pluck a programmer who had been working on the Napster software out of the company and drop him in a Federal prison while the DoJ worked up a case? Not. Did Shawn Fanning get arrested? Not.

That week before Dmitry’s bail arraignment was heard I asked some people if they had heard of him, and the answers would always start the same, “Oh, the Russian hacker.” Yeah, there were definitely two sides of the fence — the programmers and the rest of the world who thought Dmitry was a hacker. Not the PhD student, father of two (a two-year-old and a three-month-old) who had aged three weeks while their dad had gone away for a few days to give a talk. I did some surfing and found a picture of Dmitry and his wife and children sitting on their sofa on a day at home. That was what stuck in my mind. Not hacker, not cracker. Just a guy trying to make a living. A programmer.

Sklyarov had been working on ElcomSoft’s software as part of his PhD. Pretty soon scientists and programmers won’t deliver papers or work with any kind of encryption or work of any great worth that could be described as covered by government jurisdiction. There are already talks about relocated encryption conferences to other countries because scientists feel there has been a Cold War raged against them.

Well, there I was in Downtown San Jose at the DoJ Courthouse. I was skulking around wondering which side of the building I should enter into and saw Marina who was rushing to find a copy machine. She let me know which room the case would be heard in. It was still early, I stopped by the courthouse café downstairs to grab an egg sandwich and a cup of coffee. I saw Stephen Sutro prepping for the case, I shook his hand, woofed down breakfast and went upstairs to sit and write in my notebook, which I’m referring to now. I was the only one in the room, I felt a bit nauseous, the room was rather church-like with its pews and silence. Being a recovering Catholic (that ended when I was 8) I fought the response to jenuflex when I slid into the courtroom pew.

Finally, a woman came into the room, her long hair tethered back and took a seat within the control center in front of the judge’s bench. Two women walked in and brought their business cards up to the woman to make note they were there. Then they sat directly behind me, one of them was really pregnant and the other looked like she was going to take the lead, she looked like she could have walked off of the Ally McBeal set. I wondered if she would be disappointed in the separate-sex bathrooms there at the DoJ. They were gossiping their heads off, I leaned back and listened harder. They were the attorneys for Silicon Image, a case that was being heard before Sklyarov’s. The women behind me noticed I was taking copious notes and decided to stop talking. My pen became still.

A suave, tall guy in a suit walked in, smile on his face, blinding light coming off of his teeth. I envied his what must have been his caffeine intake. He greeted the woman in the Control Center by name and asked her how she was. The guy had cufflinks and wingtips. And his cologne gently wafted off of him as he walked by and nodded at me. He smelled really good. He was about 50, refined and confident. The judge came in, he didn’t leave too much of an impression on me, he was very matter of fact and straight-up in his answers. The plaintiff (Silicon Image) was trying to get the case dismissed because of a technicality in the paperwork (one that Suave Man had made). The reason I’m even mentioning this case is that the case had been heard before ICANN, and I’ll be writing about ICANN, ICANN.org , in FutureNet. I attended the meeting at Verisign recently that would help determine who would be voting in future ICANN elections. Whew! Talk about a room divided. Back to the DoJ event at hand...Silicon Image claims the owners of SiliconImage.com are squatting on their site. The gals from Silicon Image threw in that ICANN had heard the case and ruled for them. The judge didn’t even acknowledge this, which tells me something about the future of ICANN arbitration if this is how a Federal judge looks at things. Then again, maybe it just wasn’t pertinent at this point of this particular hearing. Well, the judge called Suave Man on the carpet, told him that the language he used hadn’t been used in quite a few years in the court’s paperwork and for him to change some things and the trial would go ahead as planned. He also admonished the Silicon Image gals for being petty about the paperwork. I swear to god, the Ally McBeal woman pouted. This was not going to get thrown out of court on a technicality.

After this case was heard, the courtroom began filling up. I had been on the www.FreeDmitry.com site the night before and the EFF had planned demonstrations and asked that if people wanted to be in the courtroom they should dress in suits and ties. For the most part, they were. Members of the Fourth Estate filed in the opposite front pew, I sat on the other side, an observer of the observers. Unfortunately, I happened to have the only guy with the stench of 3 dead cats sit next to me. I put my hand up to my face and leaned into the aisle so I wouldn’t have to breathe his air. He was well-dressed in a tie and everything, but I imagine he hadn’t used deodorant in quite some time – how could anyone have such bad BO at 11AM? Just when programmers are starting to get a good name as getting hip and happening, you have to throw one of these guys in the mix and he has to sit down next to me so I could make this trite observation.

Sklyarov’s attorneys filed in, although there was a blonde woman who was terribly underdressed kind of draped on the table. Perhaps she was the defendant’s translator? Although they did have some guy doing that. I don’t know how she played in the scheme of things, but she looked bored. The rest of his team looked sharp and were ready to go a round. They brought Sklyarov in with another fellow and although Sklyarov looked surprised at the turnout, the fellow who was in there for the next trial looked amazed (like he had done this before and great numbers had never shown up before). Sklyarov looked aware, but tired, I doubted if he had slept the night before, or even the weeks before the trial. I know I wouldn’t have. They were dressed in Cal-Trans orange pantsuits that read something about Federal Prisoner or something. They wore fluffy-looking, orange foam slippers, the kind that look like they’d be really comfortable. They were seated. The DoJ team came in – they looked sharp. When all was said and done Sklyarov was released on $50,000 bail put up by ElcomSoft and put in the custody of a fellow Russian countryman living in Cupertino. It was swift, it was done.

Now, several weeks later, charges were read against Sklyarov. He faces 25 years in prison and some incredible amount of money in Russian dollars. I met with him, he seems calm, but there’s always a calm before the storm. There is another date set for Judge Whyte (the judge who will hear the case, he has technical cases under his belt) to set dates and the rules of the trial. This will be this upcoming Tuesday. I will be covering this trial for FutureNet, an upcoming book on the DMCA and a series of articles for Wired. Last week I was on CNN Morning News commenting on the case, I did say that I felt this was a really bad case for the DoJ to be using as a test case, I feel they will lose miserably. (that was a strange segment...they wavered from my questions and I had a lot of hand motions; it was funny everyone is now commenting on my thumb ring!!! It was a small hole in the wall studio (great people running the equipment, though) I felt like a Prima Donna when I asked when my make-up/hair person would be there. They stifled a laugh. I stared into the black, lifeless lens as I answered my questions and listened to this disembodied guy named Leon ask "modified" questions. I was on for about four minutes and then I was on the cold, foggy streets of San Francisco. It was a very surreal experience.) Then again, the DMCA is an antiquated document enacted in 1998 and not updated since that time, there were also very few geeks (compared to the number of media conglomerates) asked to participate in creating the DMCA. When all is said and done, it will come down to this — this is my bet — that Sklyarov will be as guilty as the developer who made the Xerox machine.

I guest co-hosted CNET’s Alex Bennett’s show last week and we talked a great deal about the DMCA. And I was on Mark Kellner’s AdrenalineRadio’s show, too. Whew! This is exciting stuff and why you haven’t seen a column from me in a month. That and the fact I have a book due in a month. Well, time to go underground again.

In the meantime, the DMCA is being tested in many arenas, mostly with academics. Also, check out the cases being brought by movie studios against publishers of DVD copying technology. To see more check out the www.EFF.org site. There are some interesting things a brewing in this country as far as copyright. Now believe me, I’m all for copyright – I wouldn’t be able to make a living without it. But, I think this was the wrong case for the DoJ to bring to court. Like I said on CNN, it’s like taking a knife to a gunfight. Napster would have been a much better case if you consider the dollar amount of damages that could have been proven. Lots of cool stuff not in the news that will be in my Wired stories.

Stay tuned,
sally