| The following is a response to Adobe's ElcomSoft
FAQ, which can be found on their web site at:
http://www.adobe.com/aboutadobe/pressroom/pressreleases/200108/elcomsoftqa.html The original document is in black and comments are in green. While I have attempted to summarize issues in a way that should be understandable to everyone, there are some legal details involved. Be advised that the author is not a lawyer, and nothing here should be taken as legal advice. If there are any errors or omissions, they can be sent to tneu@visi.com. At this time, this document is considered a draft, so some things in it might change. Despite it's draft status, you may find it interesting reading. For readers that may not be familiar with the debate surrounding this problem, you may want to know that "DMCA" stands for the Digital Millennium Copyright Act. a law passed in 1998 which makes it a crime to provide a way of descrambling information in certain cases. I'll also note that ElcomSoft and Adobe are both welcome to clarify their positions on any of these questions, and I will make an effort to make sure any responses sent to me get added to this document. This FAQ was written by Tim Neu <tneu@visi.com>, with help from members of the OpenLaw dvd-discuss mailing list. The OpenLaw DVD web site can be viewed at http://www.openlaw.org/opendvd.
Adobe FAQ: ElcomSoft legal background |
|||||||||||||
| INTRODUCTION |
|
||||||||||||
| Adobe's cooperation with the U.S. government in its investigation of ElcomSoft, a Russian software maker, has generated a significant amount of public interest. Both our role in this case and our views on the enforcement of copyright law have been extensively covered by the media and hotly debated among people who care about these issues. Unfortunately, many of the facts surrounding this case have been misrepresented, and Adobe's point of view has not been adequately heard. This document is intended to serve as an information source to help the media, our customers, and our stockholders gain a better understanding of Adobe's position on issues related to this case, as well as the enforcement of copyright protections in general. | |||||||||||||
| OVERVIEW | |||||||||||||
| Earlier this year, Adobe discovered that a Russian software
company called ElcomSoft was illegally...
Stop right there. Legality depends upon what country one is in. In this case, local laws in force would be those of Russia - which do not have a law against marketing security products. Adobe is attempting to paint the situation in their favor by calling the companies actions "illegal" when the situation is far more complex than that. Indeed, in Russia, Adobe's eBook format would be illegal because it does not allow the user to make a backup copy. In any case, the legality or illegality is for the COURT to decide, and not what Adobe believes or desires. Furthermore, why are actions being taken against an employee of the company rather than the company itself? While Dimitri may be the holder of the copyright for the software, the publishers of works have traditionally been accountable for copyright infringement, but NOT the creators of infringing works. Even if the jurisdiction is found to be the US, and Dimitry is found to be the true party of interest in this case, that still does not necessarily make his software program illegal. The DMCA only outlaws circumvention devices that do not have a significant commercial purpose other than circumvention. Since ElcomSoft's e-book reader has been marketed
for several uses other than circumvention, it may not be illegal even under
the DMCA.
...marketing a product that could be used to circumvent security protections built into the Adobe® Acrobat® eBook Reader[tm]. So, what has Elcomsoft done? They've created a tool that converts eBooks to standard PDF files which can be opened in any computer. A software program is a tool - like any other. A crowbar, for example, can be used in remodeling houses, but also for breaking into them. Does that mean that crowbars should be banned? Any inanimate object can be turned to evil uses. Banning tools because of what they "might" do is very bad public policy - and would eventually end up with everything being banned. It should be noted that ElcomSoft's software is capable of many useful legal activities, such as media shifting an ebook from one computer to another, or removing restrictions from texts which are in the public domain. Indeed, Adobe distributes many "free" eBooks of
works in the public domain, but also charges a small fee for others.
Because these works are in the public domain, Adobe or the eBook publishers
themselves have no right to restrict access to them. This common
law has been continually reaffirmed by the courts for centuries.
The product ElcomSoft was selling enabled users to compromise digital content that is protected under U.S. copyright laws. First of all, by mentioning US copyright protections, Adobe tries to make the reader infer that this lawsuit is about copyright infringement, when no copyright infringement is even alleged. They do this to cause the reader to assume improper activities on the part of ElcomSoft. Protection of US copyright laws are NOT absolute. Adobe conveniently ignores this fact, when it suits them. For example, under US copyright law, a user of a work, can without permission of the copyright holder: 1. Read the book
There are other rights under the "Fair Use" doctrine in US Copyright law. The point is, Adobe's security software prevents you from doing these actions, in direct conflict with established copyright law. This means a program like ElcomSoft's e-book reader, only reclaims rights afforded to the public under copyright law. Thus, in many ways, Adobe's software attempts to take with technology what has been denied them by the courts for ages - the ability to completely control every item after it is sold. It would be highly unusual if the Supreme Court didn't have something to say about this, since the use of technology in this way by content providers goes directly against centuries of established copyright law. Stay Tuned! - Several lawsuits are already in
process challenging the constitutionality of this radical interpretation
of copyright law.
Adobe sent letters to ElcomSoft, its U.S. Internet service provider, and its U.S. credit card clearinghouse asking the companies to cease and desist the for-profit sale of these digital burglary tools. Here Adobe is, once again, sacrificing accuracy for shock value. It is amazing, how far companies will twist an analogy, hoping for a knee-jerk "guilty" connotation. First of all, intellectual property and real property are completely different - with completely different laws, rules, and regulations. The analogy of digital burglary tools is false since burglary involves real property. One wonders if Adobe might not be so happy about blurring these two, if they had to pay property taxes on every PDF file, or had their software subject to capture by an abandonment clause, as real property can be! Even if these differences were ignored, the analogy is still inaccurate. In this case, the software program only has the ability to be used on a purchased e-book! So, even accepting Adobe's analogy, the burglar tools would be used by you on property YOU ALREADY OWN INSIDE YOUR OWN HOUSE! Adobe would just like you to read that sentence
quickly, accepting it without question. But once you realize how
deceptive it is, the fallacy of Adobe's half truths and arguments that
follow them become even more clear.
Adobe's goal was to stop the sale of ElcomSoft's program in the United States. When ElcomSoft failed to respond and/or cease and desist, Adobe forwarded the matter to the U.S. Attorney's Office. Adobe sent Elcomsoft a cease and desist letter on June 26, which was received June 27 because of the time difference between the USA and Russia. In this letter, Adobe stated that Elcomsoft should "stop selling this program in 5 business days, otherwise they would pursue Elcomsoft aggressively". On June 29, two days after receiving the cease and decist letter, Elcomsoft stopped selling their software. Adobe, however, never had any intention of waiting to see what Elcomsoft would do, nor did they intend to wait 5 business days as their letter dictated. The day Adobe sent the cease and decist letter, June 26, they contacted Elcomsoft's internet provider and requested that Elcomsoft's web site be shut down. The ISP complied, shutting down 12 other web sites which were hosted on the same computer. The day they sent the cease and decist letter, June 26, the criminal complaint with the FBI was filed. Adobe didn't even wait for ElcomSoft to respond. This behavior alone is highly improper, but it gets worse. Rather than follow what is fair business practices
in such a dispute, Adobe chose to elevate this dispute from a civil one
involving two businesses to a criminal one involving an employee of the
other business. This is a new form of coercion created by Adobe's
legal staff (who, apparently, are far more busy then their programming
staff!).
Based on the information gathered in the investigation about ElcomSoft's commercial activities (see affidavit), the Department of Justice made the decision to arrest ElcomSoft programmer Dmitry Sklyarov during a visit to Las Vegas, Nevada, in July. Which is a very troubling development to be sure! A man was arrested for something his company did in a country where there are no laws against what was done! Is the next step to arrest citizens of the Netherlands
entering the USA for marijuana consumption even though it is legal there?
Do European countries arrest citizens who visit firing ranges while visiting
the USA upon their return?
More troubling, can a single employee be expected to be responsible for all of the actions of a company? Precedents like this will require every person to become an expert in every country's laws, in order to safely publish a web page. Obviously, this is impossible, and the laws of the least free countries would become binding on the entire internet. Remember, not every country has a First Amendment like the USA. This is not clear thinking by anyone involved. Of course, Adobe is far too interested in making an example of Dimitry to stop and consider what the effect of this precedent will be. Hopefully, Dimity's judge will see through this.
Subsequently, Adobe withdrew its support for the U.S. government's criminal complaint against Dimity Sklyarov. In a July 23, 2001, press release, Adobe stated that "the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry.'" Having sworn out a criminal complaint against an individual, Adobe now claims that it was not in their best interest. Once should have considered that before swearing out a complaint. Furthermore, it is a crime to swear out a false complaint. It is likely that Adobe's withdrawal of support was an act done primarily to dodge responsibility for their involvement, and focus the outrage at this situation elsewhere. Adobe has not (to my knowledge) volunteered to pay for Dimitri's defense, and their stance on the DMCA, the law that makes this outrage possible, has not changed. On August 30, 2001, both Dmitry Sklyarov and ElcomSoft were arraigned in U.S. Federal Court on five counts each of violating the Digital Millennium Copyright Act (DMCA). Both pleaded not guilty and a trial date was set for November 8, 2001. Contrary to some reports, Adobe did not alert the U.S. government that
an expert was exposing security weaknesses in its products. In fact, Adobe
encourages its customers and the software community, including "White Hat"
security experts, to provide feedback on the performance of its software
in order to make improvements. In this case, ElcomSoft made no attempt
to alert Adobe that it had discovered a security weakness in the Acrobat
eBook Reader software.
When a company is selling "Snake Oil", sometimes it is better to tell would-be buyers first, rather than those who already know what they are selling! ElcomSoft is not under any legal obligation to share this information with Adobe. ElcomSoft did, however, feel an obligation to inform the security community that Adobe's claims of security were greatly deceptive. While it may have been courteous to inform Adobe about the problem, doing so would only have been a formality, as Adobe undoubtedly knows how poorly the security in their products were built. After all, they did make them! In any case, that ElcomSoft did not inform Adobe directly of this vulnerability has no bearing on their status as security experts. Also, the use of technology to deny the owner
of a copyrighted work their ability to exercise their traditional rights
with that work is a very controversial activity that has not been reviewed
in the US court system yet. Even if Adobe's security system
were perfect, that doesn't necessarily mean that Adobe has the right to
block access to the work in the first place. An informed court
may decide that the US government will not help those who help themselves,
and may deny copyright status when technology is used to prevent "Fair
Use" activities from happening.
Instead, ElcomSoft began selling its "digital lock pick"... Here we go again with the lock pick analogy. Remember, this program only allows you to pick your OWN locks! ...online so that others could also compromise the copyrighted works of authors, artists, developers, and publishers. This is why Adobe alerted the U.S. Attorney's Office. There may be no way today to prevent copyright infringement of e-books. If that spells the death of Adobe's Reader, is that the fault of the people who point out the problems, or is Adobe's fault for pretending otherwise? There is also a deep philosophical problem here, as publishers are using Adobe's products to gain complete control over their works, even after they are sold. This directly contradicts established copyright
law. It remains to be see whether or not this "scheme"
will survive a courts scrutiny. An informed court might well
decide that copyright law should not help companies who are already helping
themselves.
ADOBE'S GOALS Adobe has two goals in this case:
Well, we all have to start somewhere, don't we! It is interesting to note that Adobe claims their goal is to make "ElcomSoft stop...". Yet they swear out a criminal complaint against an employee of the company. From this example it is apparent that Adobe would much rather confuse these issues, since it is easier for them than defending their behavior. As to Adobe's first goal - it would seem that this goal was accomplished immediately after they contacted ElcomSoft, and the entire arrest of Dimitri was quite unwarranted, given ElcomSoft's cooperation. According to a company statement at planetebook.com ElcomSoft did stop selling the software in question on July 3, 2001, the same day that the Adobe request was received, and 13 days before Dimitry was arrested. Adobe was already working with the FBI before they even contacted ElcomSoft. As to the second, if Adobe were to preserve every "Fair Use" found in US Copyright law, I would be in complete support of their position. However, that is not what Adobe (and other publishers) are doing. Preserving all fair use rights would require making the entire content available to the user - which would negate the very need of their protective technology. They are using technology to take away rights which the constitution grants to users of a copyrighted work, according to Supreme Court precedent. So far, given the newness of the DMCA, no court
has given much scrutiny to this situation - but it cannot be ignored forever.
Already groups all over the US are mobilizing to try to inform citizens
about this situation, and lobby to get it corrected.
QUESTIONS AND ANSWERS General questions Q: Has Adobe changed its position regarding the joint statement issued with the Electronic Frontier Foundation (EFF) on July 23, 2001? A: No. The press release of July 23, 2001, is still the Adobe position. Q: What is Adobe's reaction to the news that the U.S. government intends to prosecute Dmitry Sklyarov and/or ElcomSoft on the grand jury's charges? A: Although Adobe withdrew its support for the criminal complaint against
Dmitry Sklyarov, we respect the grand jury's and federal government's role
in prosecuting this case. However, we are in complete agreement with the
government's decision to prosecute the company, ElcomSoft and, as a law-abiding
corporate citizen, Adobe intends to cooperate fully with the government
as required by law. The indictment returned in this case clearly reflects
the grand jury's agreement with the U.S. government that a criminal prosecution
is warranted in this case.
As with any law-abiding citizen, is Adobe willing to accept the punishment for swearing out a false criminal complaint? Q: What did ElcomSoft do? A: The company developed a tool that circumvents the copyright protections
in Adobe's Acrobat eBook Reader, and then sold it in the United States.
Actually, the software was made available to the internet. Usually, the purchaser of an item is responsible for ensuring that an item is legal in their jurisdiction. By this common sense thinking, ElcomSoft has done nothing wrong. This is generally the established law, as well. As an example, Adobe's eBooks, by not allowing
a backup copy to be made, run afoul of Russian copyright laws.
This does not mean that Adobe can be arrested for putting their eBooks
on the internet - even though they may be accessible from Russia.
By doing this, the government believes that ElcomSoft violated U.S. copyright law (Digital Millennium Copyright Act - summary PDF, 18 pages / 84 KB; complete document PDF, 59 pages / 320 KB), harming the rights of authors, artists, developers, and publishers. Exactly which rights of authors, developers, and/or publishers have been harmed? US law does not give these groups complete control over their works, especially after they have been sold. Even the DMCA itself only outlaws decryption without the authority of the copyright holder. It is generally understood that this authority is granted to the user of a copyrighted work by their purchase! Thus, the law shouldn't even apply in this case.
We're anxiously awaiting the opportunity for a judge to take a real good
look at this law.
Q: ElcomSoft claims that its software provided a service to Adobe and publishers by uncovering a security weakness. What is Adobe's position? A: Adobe is not aware of any attempts by ElcomSoft to provide feedback
on the security of the Acrobat eBook Reader. Contrary to some reports,
Adobe did not alert the U.S. government that an expert was exposing security
weaknesses. In fact, Adobe encourages its customers and the software community,
including "White Hat" security experts, to provide feedback on the performance
of its software in order to make improvements. When "White Hat" security
experts notify us of possible weaknesses in security, we work with them
to fix the problems as soon as possible. In the ElcomSoft case, Adobe's
concern was that a "digital lock pick" was being distributed for profit
that would enable others to compromise the copyrighted works of authors,
artists, developers, and publishers. This is why Adobe alerted the U.S.
Attorney's Office.
Adobe is either ignorant of how computer security is performed, or duplicitous in claiming that "white hat" security experts notify them of security flaws. Flaws are presented in public for review, rather than in some forum of collusion. The reader is reminded that:
2. The digital lock pick is YOURS and is
only being used on things YOU own. (in this case, one copy of an
e-book).
Q: Then why was Dmitry Sklyarov arrested after he presented at the DefCon-9 conference in Las Vegas? Isn't that a violation of free speech? A: Sklyarov was not arrested for anything he said or for presenting
a scholarly paper. According to the press
release issued by the U.S. Attorney's Office, Dmitry Sklyarov was arrested
as the copyright holder of the "Advanced eBook Processor," a product distributed
by his employer, ElcomSoft. He was arrested and charged with a "single
count of trafficking in a product designed to circumvent copyright protection
measures in violation of Title 17, United States Code, Section 1201(b)(1)(A).
This is one of the first prosecutions in the United States under this statute,
the Digital Millennium Copyright Act (DMCA)."
Adobe seems to misunderstand the difference between holding a copyright and publishing. As one of the creators of the software, Dimitri may have filed for the copyright, but his company was the entity setting prices for licensing, deciding on a target market, and actually publishing the software. Thus the company, not the copyright holder, should be the one responsible any disputes about selling or publishing EclomSoft's eBook reader. The DMCA, through liberal interpretations of the
word "device" in law, has been used to suppress information in many forms.
It is doubtful that Adobe's actions would have been different if ElcomSoft
had only published instructions for descrambling Adobe ebooks.
Q: What has happened since the arrest? A: Sklyarov has been out of jail on bail since August 6, 2001. On August
28, 2001, ElcomSoft and Sklyarov were both indicted by a federal grand
jury on five counts each of violating the DMCA. Both parties entered pleas
of not guilty, at an arraignment August 30, 2001, and a trial date was
set for November 8, 2001. Adobe intends to cooperate fully with the government
in this matter as required by law.
As with any law-abiding citizen, is Adobe willing to accept the punishment for swearing out a false criminal complaint? Q: What is the EFF and what is Adobe's relationship with this organization? A: The Electronic Frontier Foundation (EFF) is an electronic civil liberties organization. When the EFF came to the defense of Dmitry Sklyarov, Adobe agreed to meet with EFF representatives to address the situation. After a frank discussion of the issues surrounding this case, Adobe and the EFF issued a joint statement on July 23, 2001, (see press release) in which Adobe withdrew its support for the criminal complaint, stating that "the prosecution of this individual is not conducive to the best interests of any of the parties involved or the industry." Q: Why did Adobe drop its complaint in this case? A: It didn't. The criminal complaint in this case is the U.S. government's,
not Adobe's. Adobe's statement in the joint announcement with the EFF (see
press
release) was that it was "withdrawing its support for the criminal
complaint against Dmitry Sklyarov," stating that "the prosecution of this
individual is not conducive to the best interests of any of the parties
involved or the industry." However, Adobe continues to support the DMCA
and the enforcement of copyright protection of digital content.
Supporting the DMCA is supporting the repeal of the first amendment, plain and simple. Scientists are unable to publish their research due to fears that the DMCA may criminalize their research. The DMCA is being used to take down individual web sites by companies without the web site owner ever having their day in court. The DMCA is being used as a weapon to prevent competition and enhance the profits of powerful cartels. It's just not worth it. The authors are protected by copyright law, but the DMCA only protects rich and the powerful companies. Any company that actively supports it is threatening the freedoms which are the foundation of our country, and thus the stability of society as a whole . It is very short-sighted to allow special interests, using the DMCA, this much power over individuals. Q: How have Adobe's customers, the publishing community, responded to this issue? A: Our customers are strongly concerned about piracy and the protection
of digital content. The intellectual property community has rallied strongly
around the DMCA and the government's actions. Those speaking out include
the Association of American Publishers, the Business Software Alliance,
the Interactive Digital Software Association, the Motion Picture Association
of America, and the Recording Industry Association of America. The U.S.
Constitution has guaranteed copyright protection for more than 200 years.
Clearly, the laws that enforce the protection of digital media are based
on the same principles as those that protect traditional media - to protect
the copyrights of authors, artists, developers, and publishers while balancing
the right to fair use.
Rallied strongly indeed! The DMCA is in fact, the best legislation money can buy. That does not make it just, fair, or compatible with the First Amendment. Adobe claims the DMCA is based on similar principles as those that protect traditional media. Yet, no one has yet been arrested for teaching people literacy! The DMCA, though it may be based on some of the same concepts of copyright, effectively re-writes all copyright rules in favor of copyright holders. The delicate balance of the copyright bargain has been tampered with, and the system now bears no resemblance to what the founders intended. In practice, the DMCA has already proven its potential for abuse. It's only natural that the organizations which are profiting most from this abuse would speak out in favor of the DMCA. In case there is any doubt remaining about how
far the DMCA goes in destroying traditional copyright law, here is a comparison
of rights which the user has for a book - both traditional and electronic.
I would encourage you to boycott the member companies
of all of these organizations.
Q: As a result of this case, what is Adobe doing to strengthen the security of its products? A: Security is an ongoing effort. We are committed to strengthening
the security of our products by using sophisticated, industry-standard
levels of software encryption and working with the software community,
including "White Hat" security experts, to incorporate features to advance
the quality of our products.
The improvement of the security used makes the use of encryption in published works to begin with even more controversial. If in the future the Supreme Court decides that the DMCA is unconstitutional, but by that time Adobe's security is improved so as to be unbreakable, then the courts have to consider whether copyright status should even be provided to companies which are not abiding by their side of the copyright bargain (allowing fair use, etc). At least while the security is weak, people can
still make fair uses of eBooks using programs like ElcomSoft's.
Product questions Q: ElcomSoft claims that eBooks in Adobe PDF are insecure and that the encryption is weak, including ROT-13, which is notorious for its lack of security. Are those claims true? A: Adobe has never sold ROT-13 as a security product. Adobe incorporates
sophisticated, industry-standard levels of software encryption to make
our products difficult to compromise. However, no software is 100 percent
secure from a determined, illegal attack. When used legally and in its
intended fashion, the Acrobat eBook Reader secures eBooks purchased by
locking the eBook to the hardware for which it was purchased. The ElcomSoft
software circumvents that security, compromising the protection of copyrighted
works.
ROT-13 is not really encryption. It is a simple substitution cipher - similar to those used by children to pass sensitive notes in class. Rest assured - the teacher will be able to discover the message with very little effort! Adobe may be the best judge of whether or not any ROT-13 technology was used in their products - at least until someone can demonstrate otherwise. However, although no software is 100% secure, there is a difference between a legitimate security system failing and gross negligence in designing the security system. If Adobe did use ROT-13 for any of it's encryption,
that would definitely fall into the second category.
Q: ElcomSoft claims that it developed its software in order to let users copy the eBooks they purchased onto multiple computers. Doesn't the Acrobat eBook Reader violate copyright fair use? A: Adobe designed the Acrobat eBook Reader for Windows to allow users
to exchange eBooks like printed books. The Acrobat eBook Reader does allow
customers to move the eBooks they purchase between computers through its
lending and giving features. If the publishers enable these features, the
buyer of an
It is difficult to resist a snide comment about Adobe's marketing staff getting a "plug" in for their ebooks in this FAQ. Adobe's marketing staff also missed the fact that many people don't run Microsoft Windows or Macintoshes, and thus are unable to exchange or read eBooks. Any user of another operating system (such as Linux) would only be able to read their purchased eBooks if they figure out how the information is scrambled - and this information is illegal to distribute under current judicial interpretations of the DMCA. One does not expect the marketing staff at Adobe to have a grounding in Constitutional law, but the idea that Adobe can dictate post sale which types of computers can access their eBooks is a bizarre legal notion. Adobe would also do well to address why works that are in the public domain require lending, printing, speaking, or reading restrictions, since they are by definition owned by the public. Allowing publishers to determine which "Fair Use" rights are available is in direct conflict with the entire notion of "Fair Use". The publisher does not have the right to prevent "Fair Use" activities from happening! Not now, not ever! Whether the publisher's actions are permissible or not, that does not save Adobe from the scrutiny of their actions. Given Adobe's stance and action, it is apparent that publishers, given a financial incentive in reselling public domain books, deliberately imposed restrictions on these works which are incompatible with copyright law. These restrictions are then enforced by Adobe.
Any way you look at it, the removal of restrictions is necessary to enable
fair use of the work. Any way you look at
it, the publishers have no right to do this in the first place.
Lending, printing, copying, giving, and text-to-speech are permissions enabled by the publisher. The ElcomSoft software product violates the permissions set by the publisher to protect the copyrighted works of artists, authors, and publishers, making the copyrighted content available for unlimited duplication and distribution. Keep in mind that the eBook market is an emerging one. Adobe and its partners are always exploring new ways to protect copyrights and allow for fair use. We've already established that the ElcomSoft software violates permissions that the publishers have no authority to deny in the first place. Adobe might well consider their actions in deciding why the market continues to be an "emerging one". Could it be that people do not want a restricted product? Would you buy a book that had it's cover locked shut? (especially if you had to ask the publisher for the key to open it each time you read?) No! These companies are under the fallacy that customers will take a toll booth when there is a freeway right next to it. Even if the toll booth were "free", who would want the inconvenience of stopping? Adobe's problem is, since "Fair Use" sometimes
allows the copying of an entire work, any "new ways" to allow fair use
to occur would negate the need to scramble the work in the first place.
Q: What if I want to carry my eBook on a handheld device? What solution does Adobe provide? A: Today, the Acrobat eBook Reader is available only for Windows and
Macintosh desktop and laptop computers. Adobe is working with standards
organizations and device manufacturers on a Digital Rights Management (DRM)
scheme that allows for the transfer of copyrighted materials from desktops
and laptops to handheld devices.
I sincerely hope Adobe will consider all possible "Fair Uses" of copyrighted material, in their new software. I also hope Adobe will enforce "Fair Use" concepts without the publisher's permission, if necessary. This may prevent publishers from abusing access control provisions, and may actually help Adobe's e-book sales. If their new DRM scheme is anything like every
other DRM scheme created since the DMCA was enacted, the end result will
only be a choice of shackles for the public to wear.
Legal questions Q: When did Adobe become aware of the ElcomSoft violation? A: In June. We learned that ElcomSoft had developed a "digital lock
pick" specifically designed to decrypt our customers' copyrighted eBooks
and that it was being marketed and sold online in the U.S.
Adobe's strategy seems to be, "When all else fails, repeat your arguments". The reader is reminded that the digital lock pick is YOURS and is only being used on things YOU own. (in this case, one copy of an e-book). Also note, not all books protected by Adobes system are copyrighted! Those which are not are (by definition) owned by the public, and can be used freely. The publishers, though, enforce the same restrictions on these works as they do copyrighted works. It's interesting that the publishers have such
little respect for the system that they say they like so much.
Q: Did Adobe instigate the U.S. government's investigation of ElcomSoft? A: Yes. Adobe alerted the U.S. government of ElcomSoft's possible illegal
distribution of its "Advanced eBook Processor." Based on the information
gathered in the investigation (see affidavit),
the U.S. government chose to take legal action.
Since the DMCA is so new, the government in this case probably had no way of knowing if this was a valid DMCA violation or not, with no precedents to rely on.. Their only choice was to act on the complaint and let the courts figure it out. Q: Did Adobe order the arrest? A: Adobe did not order the arrest. That was the decision of the U.S.
government based on the information gathered in its investigation.
Adobe did swear out a criminal complaint against Dimitri. While this complaint was reviewed by authorities before making the arrest, it is hard to say that the arrest was NOT caused by Adobe. The authorities involved, due to the newness of the DMCA, had no precedent to advise them when the DMCA is in effect (and upon whom). They had little choice but to act on the complaint and let the courts figure it out. Adobe appears to be in the situation of a pit bull owner. Having pointed the dog at somebody standing on their sidewalk, kicked the dog, and yelled "go get-em", they now claim they are not responsible for the damages and that "the dog was out of control". Without Adobe's criminal complaint, the US government would not have acted. Adobe chooses the word "order" in that sentence
carefully. It is certainly true that Adobe caused the arrest,
though it may not be true that they "ordered" it.
Q: Why was a criminal (vs. civil) action pursued? A: The U.S. government decided to pursue a criminal complaint based
on its judgment that ElcomSoft's activities violated U.S. law. Despite
Adobe's efforts to get ElcomSoft to cease and desist the for-profit sale
of these tools, ElcomSoft did not, so Adobe forwarded the information to
the U.S. government.
Adobe sent a cease and decist letter to ElcomSoft on June 26. Adobe filed a criminal complaint with the FBI on June 26th. It's obvious that Adobe's "efforts" to get ElcomSoft to cease and decist did not include waiting to see if Elcomsoft would cooperate voluntarily - which they did within 48 hours.. Even though the letter to ElcomSoft told them that they had 5 business days to stop the sale of their products, Adobe immediately filed the criminal complaint, and asked Elcomsoft's internet provider to shut down their web site. All of this was done on June 26, without even waiting for any response from Elcomsoft. This is highly unethical behavior. Adobe's actions were reckless, showing a level of respect far below that which even rival companies reserve for one another. Adobe is trying to make it sound like they acted as responsible citizens. The truth is, their actions were completely out of line with normal business ethics, and indeed lacked even the decency that human beings normally grant to one another. They should be absolutely ashamed of themselves.
Q: Why are Dmitry Sklyarov and ElcomSoft being tried in the United States for something that is perfectly legal in Russia? A: Although the Internet is universal and crosses national boundaries,
cyberspace is not a law-free zone. The defendants in this criminal case
are not being prosecuted for any programming they did in Russia.
Based on the statement above, is it Adobe's allegation that the programming was done in the USA? According to the indictment, Sklyarov and ElcomSoft are to go on trial for importing their product into the U.S. and selling it in the U.S. for commercial gain. ElcomSoft conducted business from an English-language Web site, used a U.S. dot-com domain name, employed a U.S.-based Internet service provider as a Web host, and processed payments through a U.S. credit card company. The facts of the case make clear the U.S. jurisdiction and ElcomSoft's intended customers. Is Adobe alleging that Skylarov is importing the product, or ElcomSoft? If the latter than criminal proceedings against an individual are highly improper. Once again, Adobe tries to glance over the fact that Sklyarov is only an employee of the company. Also, the jurisdiction issue is far from conclusive. 1. English Language Web site - That narrows it down to a few hundred billion. 2. US Domain name - Adobe has most likely not even bothered to do research on ElcomSoft's domain name. In any case, Adobe's statement about ElcomSoft's domain name is incorrect. The elcomsoft.com domain is registered and maintained via GANDI (www.gandi.net), in France. Address:
3. Of all major ISP carriers, how many are NOT US based? MCI, Sprint, AT&T.. (clue: none) 4. Of all major credit card providers,
how many are NOT US based? Visa, MasterCard, Discover.
(clue: none)
|
|||||||||||||