Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Eric Killian Ron Orrungroj Mayoor Savla

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft 1) Introduction 2) The Battle in the Courts 3) Fair Use? 4) Question of Jurisdiction 5) Is the DMCA a Fair Law? 6) Ethical Dilemmas 7) Social Issues 8) Conclusion 9) References

The E-book Advantages: Cheaper to publish and distribute. Instant worldwide distribution over the Internet Many books now available in a smaller volume Added function features Disadvantages: Large number of format incompatibility issues Can be duplicated easily, hard to prevent. Allows users to download the text of a book onto a computer via the Internet.

Adobe’s Ebook Has digital rights management (DRM) Less restrictive than most other readers in the market with permissions

June 22, 2001: Advanced eBook Processor (AEPBR) Released Elcomsoft announces its new software which removes password encryptions and usage restrictions from eBooks. Available for download from a web-server located in Chicago, Illinois Sold at RegNow website located in Issaquah, Washington. Dmitry Sklyarov The software was reverse engineered by employee Dmitry Sklyarov

Advanced eBook Processor (AEBPR) Windows program that allows you to remove both password encryption and usage restrictions from Adobe Acrobat PDF files and eBooks. lost and destroyed passwords unable to edit and print password-protected PDF files backup copies of eBooks that are protected with various protection schemes enabling them to be readable with any PDF viewer (such as on another OS) Loadable onto small, portable devices.  Airplanes  Hotels

… The Plot Thickens About a week after the initial announcement, Adobe updated its eBook software to prevent the Advanced eBook Processor from working, but ElcomSoft updated its own software on the same day to be functional with the Adobe software once again. One week later, Adobe requests that ElcomSoft stop selling the Advanced eBook Processor with a threat of legal action citing the Digital Millennium Copyright Act (DMCA). Elcomsoft complies with the request and its website is disabled and its US distributor stopped the sale of the AEBPR based on a similar request from Adobe. Elcomsoft claims that PDF is an "absolutely insecure" format for eBooks, at least in cases where the protection of the content is a primary concern. However, it continues to distribute a free demonstration version.

 Trafficking in and offering to the public, a software program that could circumvent technological protections on copyrighted material, under section 1201(b)(1)(A) of the U.S. Copyright Act.  Aiding and abetting his employer, ElcomSoft Co. Ltd. July 16, 2001: Dmitry is arrested Charged With: After speaking at the DEF CON 9 convention about eBook security, Dmitry was arrested by FBI officials as he was preparing to leave his hotel.

Episode IV: A New Hope July 23, 2001 After much public outcry over the arrest and detainment, Adobe meets with the Electronic Frontier Foundation (EFF) and reverses its position by requesting Sklyarov's release. August 6, 2001 After being in jail for about three weeks, Sklyarov is released on bail of $50,000 and relinquishes his passport.

Episode V: DMCA Strikes Back August 28th, 2001 Sklyarov and ElcomSoft were indicted by a U.S. Grand Jury on five counts of violating the DMCA.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts

The Charges (1) Dmitry Sklyarov and ElcomSoft face: Four counts of circumvention offenses, and aiding and abetting circumvention offenses, under section 1201 of the DMCA, and One charge of conspiracy.

The Charges (2) Dmitry Sklyarov and ElcomSoft are NOT accused of infringing any copyrights. ElcomSoft claims that its AEBPR software cannot be used by anyone except for people who have already lawfully purchased the right to view the e-Books from e-Book retailers. Dmitry and ElcomSoft were charged with distributing software that can read encrypted Adobe e-books in a manner not intended by the publishers. Charges are filed by the U.S. government, consequently this is a criminal prosecution. The government must prove that Dmitry and ElcomSoft acted willfully and for the purposes of commercial advantage or private financial gain.

The DMCA Digital Millennium Copyright Act – 1998 Prevents circumventing “measures that prevent unauthorized access to a copyrighted work” but does not forbid circumventing “measures that prevent unauthorized copying of a copyrighted work”. Does not address copyright violation, but rather the distribution of tools and software or information that can be used for copyright infringement as well as for legitimate non-infringing uses, such as fair use. Section 1201 divides technological measures into two categories: –Measures that prevent unauthorized access to a copyrighted work –Measures that prevent unauthorized copying of a copyrighted work The law prevents circumventing the first category of technological measure but not the second.

Are Dmitry and Elcomsoft Guilty? AEBPR software- Pros: Printing eBooks protected with passwords reading them on other operating systems text to speech translation software Cons: make illegal copies of the copyright protected eBook and distribute them. The intent of the software was only for legal copies of Ebooks, so should ElcomSoft be penalized for distribution of a tool that can be used for both legitimate and infringing purposes?

Should an individual be charged when working for a company? Can an employer and an employee conspire for financial gains? Electronic Frontier Foundation (EFF)

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use?

Fair Use Allows people to make copies of a work for personal use, education, criticism, socially beneficial use. Fair use provides the breathing space to avoid an irreconcilable conflict between copyright law and the first amendment’s guarantee of free speech.

Does the AEBPR follow the “Fair Use” doctrine? ElcomSoft’s AEBPR software allows users who have bought an eBook more fair rights uses. However, ElcomSoft made commercial gains of their AEBPR software. Though the AEBPR could be misused, it was intended for fair use.

Does Adobe’s E-book restrict “Fair Use”? Adobe and the publishers used DRM schemes to protect their intellectual property, but in doing so restricted fair use of the e-book. Though copyright law may allow for “fair use”, media companies and publishers may use code in order to protect their content. And, presently there are no laws governing code that prevents “fair use”.

Fair Use cont. Was ElcomSoft justified in creating the AEBPR software in order to provide “fair use”? Currently unable to adequately and accurately differentiate between copies made in good faith and in accordance with the fair use doctrine vs. file replication conducted to make money.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use? Question of Jurisdiction

Both Sides of Jurisdiction No other country has copyright laws as restrictive as the DMCA. International copyright law has always taken into account the individual’s rights to make use of materials purchased in a fair and reasonable way. In Russia it is illegal to design a scheme that prevents private citizens from making copies of media for their own use. So, Legally, what Elcomsoft did was not wrong in Russia, but was being illegally distributed here. According to the indictment, Sklyarov and ElcomSoft are on trial for importing their product into the U.S. and selling it in the U.S. for commercial gain.

Questions of Jurisdiction Where does the extent of U.S. law begin, and Russian law end with regards to software available on the Internet? Can the U.S. have jurisdiction? Do the Russians need to oblige by U.S. law? Would the U.S. Government be able to charge ElcomSoft under the DMCA, if their servers were located in England and their payments were processed through German based credit card companies? How would regulation change under such a scenario? i.e. Lessig’s Gambling Server Example.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use? Question of Jurisdiction Is the DMCA a Fair Law?

DMCA - A Fair Law? (1) Case – Judicial test of the DMCA. Movie studios and record labels are leaning on DMCA to protect their copyrights. Code (encryption) restricts various uses of digital works and DMCA enforces those restrictions. Copyright Law designed to grant limited control to authors – DMCA provisions override this principle – and erode public’s right to freedom.

DMCA - A Fair Law? (2) DMCA has not addressed the issue of “fair use” in a digital environment –Cannot distinguish between copies made in good faith vs.file replication conducted to make money. Examples: –Regular Books vs. e-books –Guns vs. AEBPR An Internet generation has transpired since the passing of the DMCA – –Need to address copyright issues in cyberspace balancing between the need to protect intellectual property vs. protecting academic inquiry.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use? Question of Jurisdiction Is the DMCA a Fair Law? Ethical Dilemmas

Ethical Issues | Elcomsoft Failed to notify Adobe about their efforts to exploit the security flaw in Adobe’s PDF reader software. - Did Elcomsoft have an Ethical obligation to inform Adobe? meant to provide “fair use” of the digital content in the eBook reader but their software would hurt the commercial interests of Adobe. - Was ElcomSoft in the wrong for exploiting Adobe’s software, or was Adobe unethical in limiting its users “fair use” rights with their reader?

Ethical Issues | Elcomsoft Should ElcomSoft have released the software as shareware and allowed everyone to use it? Does ElcomSoft ethically deserves financial compensation for this product? Is ElcomSoft wrong because this product could potentially be misused by someone who is corrupt? Was ElcomSoft wrong for creating the software, or for merely distributing it in an area where the law does not allow the software because of its DMCA violating nature? Did Dmitry have an ethical obligation to the Programmers Code of Ethics to not exploit the flaws in a product?

Ethical Issues | Adobe Just because Adobe is shielded under the watchful arms of the DMCA, does that give the right to control how it's users can view their books? Should software companies be allowed to govern fair use, or should that control lie in the government? Security Technology: Is Adobe wrong in telling its customers that e-Books provide them sufficient security or did ElcomSoft manage to break a strong security protection?

Ethical conclusion Should people have the right to freely view and move around their eBooks, or should that power lie hands of the Publisher? Yes to people? Adobe should be allowing them to do this and therefore, Adobe would be acting unethically by limiting the eBook purchasers rights and not allowing them the choice of having strong password protection and encryption. Yes to publisher? ElcomSoft should not be selling this product without Adobe’s knowledge since it exploits their software, and the eBook viewers would be breaking certain understood responsibilities they have to Adobe in the use of their software.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use? Question of Jurisdiction Is the DMCA a Fair Law? Ethical Dilemmas Social Issues

Effects on Research Community (1) The U.S. has been a major hub for research. Researchers and scientists at universities and commercial institutes have always been able to pursue new ideas since they have the freedom of speech. Dmitry’s arrest in Las Vegas, has made scientists and researchers question their ability to be able to freely present their knowledge. The research community is skeptical of traveling to the U.S. to present their findings.

Effects on Research Community (2) The rise of the Internet has allowed for instant dissemination which the publishers and authors would like to exploit. –Need to protect intellectual property in order for them to have any incentive to promote various arts and sciences. Research in security and encryption technologies, depend upon the right to crack and report. Software providers are similar to providers of anti-virus software and firewalls – not a solution but a process of constantly updating to stay ahead of the hackers.

Case Study: Adobe (& U.S. Govt.) vs. ElcomSoft Introduction The Battle in the Courts Fair Use? Question of Jurisdiction Is the DMCA a Fair Law? Ethical Dilemmas Social Issues Conclusion

Status of the Case May 8 th, ElcomSoft’s request to dismiss the criminal charges for violations of the DMCA was denied. –DMCA does not eliminate fair use or impair fair use rights of anyone. Users may find it more difficult to engage in certain fair uses with regard to e-books, but nevertheless, fair use is still available. –Despite acknowledging a lack of clarity in the congressional record surrounding the adoption of the DMCA, the judge ruled that due process was not violated. Plain meaning of the DMCA statute was to ban circumvention tools completely because Congress had assumed that "most uses" of the tools would be for unlawful infringement rather than fair or non-infringing uses.

What Next? DMCA of 1998 needs is undergoing the judicial process in the courts of law. – Needs to re-address circumvention tools that can be used for unlawful infringement as well as non-infringing purposes. – Needs to strike a better balance Internet has brought the world a lot closer than we were. – Copyright laws are going to have to take into account ethical and legal differences amongst nations in order to protect intellectual property. International treaties and agreements will play a much more significant role in controlling illegal use of technology.

References [1] Planet eBook: Index of ElcomSoft, Dmitry Sklyarov, Adobe, U.S. Government and DMCA-related articles from around the Web [2] EFF "Intellectual Property: Digital Millennium Copyright Act (DMCA): U.S. v. Sklyarov" Archive [3] Free Dmitry Sklyarov (this contains info about him, and his statements to the courts) [4] Other useful links [5] Commentary: Stealing is Stealing, No Matter How Noble the Cause, by Gene Gable gene.htmlhttp:// gene.html [6] Adobe FAQ: ElcomSoft Legal Background comSoftqa.html comSoftqa.html

References Con’t [7] The Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary, Dec [8] ElcomSoft Executive Responds to Federal Charges Against Dmitry Sklyarov [9] Analysis of Sklyarov’s Indictment by Anton Chterenlikht [10] ElcomSoft supporters miss the point by Mike Letts ElcomSoft.htmlhttp:// ElcomSoft.html [11] The DMCA, Technological Enforcement and Dmitry Sklyarov by Dave Amis, August 12, [12] Code and Other Laws of Cyberspace by Lawrence Lessig