Sklyarov reflects on DMCA travails

SAN MATEO, Calif.--Russian programmer Dmitry Sklyarov thinks it was unfair of prosecutors to play his videotaped deposition at the ElcomSoft trial rather than calling him to the stand.

But after a legal saga that's included a surprise arrest outside his Las Vegas hotel room, three weeks in jail, and visa tangles that almost prevented him from coming back to the United States for trial, Sklyarov has decided not to worry about situations over which he has no control.

"During my life I'm trying not to spend too much time trying to find what means for me things I cannot change," Sklyarov, 27, said in his first interview since testifying in the criminal copyright case of ElcomSoft, his employer.

Speaking with the careful phrasing of someone communicating in a foreign language and still bound by an agreement to cooperate with the U.S. government, Sklyarov talked with CNET News.com about life after his arrest, his impression of the case, and his opinions about how the controversial Digital Millennium Copyright Act (DMCA) is affecting programmers.

The meeting took place here during a break in the trial at a restaurant across the street from the boxy, gray corporate apartment his company has kept since it became the target of U.S. prosecution 17 months ago. The interview was given with the understanding it would not run until the ElcomSoft trial ended and Sklyarov was no longer under the terms of the government agreement.

On Tuesday, a jury acquitted ElcomSoft of all counts against it in the first case to test the criminal provisions of the DMCA, a U.S. law aimed at updating intellectual property rules for the computer age. Although jurors agreed the product was illegal because it was designed to crack antipiracy technology controls, they declined to convict because they didn't believe ElcomSoft intended to break the law.

Anxiety over the DMCA
Sklyarov said many information security developers have been skittish since learning of his case, fearful that they, too, could face jail time for their work. "Nobody knows. Probably you'll do your work, and after that somebody comes for you to arrest you or something like that because the DMCA is very (broadly) written and many things can be linked with DMCA," he said.

Sklyarov catapulted to code-jockey fame in July 2001 when he was arrested after giving a speech about his company's Advanced eBook Processor, software designed to crack protections on Adobe Systems' eBooks. Prosecutors argued the product violated the DMCA, which outlaws offering software that can circumvent copyright protections.

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Sklyarov was jailed for three weeks, his case becoming a flashpoint for the battle between copyright owners seeking to maintain control over their material in the digital age and programmers working to highlight security flaws.

But after worldwide protests among programmers, Adobe backed away from its support of Sklyarov's prosecution, and government attorneys set aside charges against him in exchange for his testimony in the remaining case against his company.

Although Sklyarov returned to the United States specifically to testify as a government witness, prosecutors never called him to the stand. In a highly unusual move, the government decided to play an hour-long edited videotape of Sklyarov's deposition instead. Sklyarov said he didn't find out until the day before he was scheduled to appear as a government witness that he would not be called to the stand.

"It's unfair," Sklyarov said of the government's plan to play a tape of him. The "government could ask questions and show them on tape, but (the) defendant couldn't ask cross questions."

The defense later called Sklyarov as its own witness, and in a calm, cooperative manner, the boyish programmer testified that he never intended for the product to be used illegally--an assertion that played well with jurors interviewed after the case. He said the software was designed to allow people to make backup copies of eBooks they already own or transfer the material to a different computer. Earlier in the two-week long trial, the government had tried to use the videotaped deposition to characterize Sklyarov as a hacker affiliate who knew his program could be used for bad purposes but didn't care. The prosecution did not comment on its decision not to call him in person.

Electronic Frontier Foundation attorney Fred von Lohmann said he's not surprised that many jurors found Sklyarov sympathetic. "The jury saw this serious young man and not a copyright pirate," he said. "They must have said, 'Where's the bad guy here?'"

Battling copyright law
Von Lohmann said the arrest of the quiet, mild-mannered Sklyarov was critical in galvanizing programmers to fight heavy-handed use of the DMCA. "He is a classic programmer," von Lohmann said. "He looks like them; he talks like them; he cares about the issues they care about--and he went to jail."

Sklyarov is still working for ElcomSoft these days, in addition to teaching at a technical university in Moscow. He said the company treats him well, although he would think twice about working on any project that veers too close to the DMCA line. To this day, though, Sklyarov insists ElcomSoft's Advanced eBook Processor is legal. Echoing statements made by ElcomSoft attorney Joseph Burton during the trial, Sklyarov compared the Advanced eBook Processor to a lock pick, which could be used for both good and bad purposes.

He also likened the software to a gun. "It has legal applications; it could be used for many legal things, for good things," he said. "A weapon could be used for killing and for protecting myself, but in (the) United States (a) weapon is legal."

Sklyarov said he understood Adobe's eagerness to pursue him and his employer because they were pointing out flaws in the company's software. "Sure I can understand it because if somebody produces bad stuff, and someone proves that this stuff is real bad, nobody will like it." He said Adobe's PDF format is probably the best in the world for distributing documents, but it falls short when it comes to protecting them.

Sklyarov laments that he wasted a year and a half dealing with the legal wrangling surrounding the product he developed. But he's learned to take it in stride. He passed time in jail by reading books from the inmate library, including Ken Follett's "Night Over Water." And when he was not allowed to return to Russia for four months following his release from jail, Sklyarov wrote code for ElcomSoft from an apartment in the United States.

Sklyarov said he didn't have to give up anything significant to get the government to set aside the charges against him last year. He thinks prosecutors backed down because they didn't have a good case against him.

"Most probably they understand that they couldn't prove that I am violating the law, so for them it's much more safe to...release me, to let me return back to Russia," Sklyarov said.

Sklyarov left to return to Russia the day after the defense wrapped up its case. He said he plans to spend more time with his wife and two children when not teaching and working on ElcomSoft projects he described as too complicated to explain. Meanwhile, he hopes to concentrate on coding and leave arguments about the DMCA to lawyers.

He said if someone came to him with another project focused on cracking copyright protections, "I would ask you, if you're sure this is legal." If the answer is unclear, Sklyarov said he would suggest the person find a lawyer who could figure it out.