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When misguided plans go from bad to worse

CNET News.com's Evan Hansen says legislation to close copyright loopholes chills inventiveness and curiosity, weakening the very industry that hoped to gain the most from it.

I was thrown in jail once thanks to a bachelor party, when a dozen of us spilled out of a restaurant past the wrong paddy wagon in San Francisco's North Beach district. My crime? Protesting too loudly at the violent handcuffing of the groom-to-be's brother, who admittedly had had a few too many and tried to cross against the yellow.

Maybe I'd had a few too many too. The light was strangely brittle when I was later released on my own recognizance to ponder, among other things, how the police might misplace $50 cash I'd been asked to stow in a sealed manila envelope along with my belt.

That may not be the worst injustice you've heard of, especially if you've heard anything about David McOwen or Dmitry Sklyarov.

Both have become causes celebres over alleged criminal acts call attention to some poorly thought-out laws. Their stories have touched a nerve in tech circles, where challenging nasty, brutish authority is often a short path to fame, and knee-jerk anarchy rules the day probably more than it should.

Neither deserves what he is getting, although both clearly helped create the messes they're in.

McOwen's case is the less well-known of the two. He's been the target of an 18-month investigation for violating a state computer-systems protection statute. At issue is a distributed computing program he installed on hundreds of computers two years ago while adding a Y2K patch at DeKalb Technical College in Georgia. The program tapped into unused CPU cycles to crack an encryption code as part of a $1,000 contest offered by Distributed.net.

Georgia state prosecutors confirmed the investigation last week. Although no charges have been filed, McOwen's life has been turned upside down.

McOwen resigned from his job at DeKalb a year and half ago when school administrators first accused him of the installation. Now he faces 30 years in prison and tens of thousands of dollars in fines for computer resources.

He's faced nearly a month of apprehension over the threatened impaneling of a grand jury to indict him. And last week, he lost his job at wireless phone service Cingular after news of the investigation was published on CNET News.com. The likelihood of a coincidence seems remote.

The case has been heralded as an unwarranted attack on technology that threatens anyone who's downloaded an instant messaging client, or any other program off the Net--claims that seem overblown, to say the least.

Even though McOwen was wrong to install the program, he does deserve a break.

Prosecutors have not publicly alleged that his actions caused any damage--other than the inconvenience of uninstalling the program. In addition, many schools allow distributed computing programs on their systems, viewing it as academic research.

That brings us to Sklyarov, a 26-year-old Russian programmer who was arrested while visiting the United States for allegedly violating the Digital Millennium Copyright Act. After weeks in jail, he was released Monday on $50,000 bail.

As the first criminal prosecution planned under the DMCA's ban on circumventing anti-copying technology, Sklyarov's plight has been closely followed, with repeated calls among the software developer community for his release and a rewrite of the DMCA, which many legal experts say is unconstitutional.

Even Adobe Systems, the company that ratted him out to the feds in the first place, has stepped forward with a plea to drop the charges--although, like me, they're probably convinced the feds won't budge.

Sklyarov's case underscores much of what is wrong with attempts to restrain copyright pirates by whatever means necessary. Taking down software developers with the sledgehammer of prison time chills inventiveness and curiosity and ultimately weakens the very industry that hopes to gain the most from it.

By the same token, Sklyarov is not blameless. Rhetoric aside, Sklyarov and company are not in business to help Russian consumers access eBooks for the blind, as the Electronic Frontier Foundation implied in a press release before his bail hearing. They're into cracking code.

The big question is whether that should be a criminal activity, and whether the DMCA criminalizes that activity without violating the Constitution.

Congress intentionally took aim at some big copyright loopholes that big media companies wanted to close--loopholes that made possible the VCR and portable MP3 players. That plan never looked more misguided than now, when prosecutors want to close those loopholes around a man's neck.