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The "Chilling Effect" 
on Digital Development: 
US vs. ElcomSoft
 

The "Chilling Effect" 
on Digital Development: 
US vs. ElcomSoft

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  • Dmitry Sklyarov, a 27-year-old programmer for Elcomsoft Co. Ltd., was arrested after giving a speech at DEFCon, a major annual technical conference. He was arrested for trafficking software, which could circumvent the technological protection on eBooks in Adobe's eBook format. He was charged with five criminal offensives, all of these counts involved copyright laws or protection of government interests. With his arrest came the first criminal challenge to the Digital Millennium Copyright Act (DMCA). The DMCA is an act is intended to help bring United States copyright laws into the modern age (University of Arizona, N.D.). This presentation will sthow why he was charged and later acquitted. It will also show how “fair use” has been defined in the terms of the DMCA. Mainly, it will observe the failures in the DMCA. This paper will also show the effect that the DMCA, according to several experts in the field of software, has had on current research in the field of digital media. \nSklyarov was in Las Vegas to do a lecture at DEFCon. His Ph.D. work in cryptanalysis, which is the study of electronic security, also included the weaknesses of the Adobe eBook program (EFF, 2002B). He noted a critical flaw with the eBook program. He reported was how Adobe products do not check the code integrity of protected materials. What he means is a hacker could manage to find a codeword in order to unlock the book without the hacker actually purchasing the book. The eBook has no way of verifying the purchase was never made (Sklyarov, 2001). Finding this fault would seem to be a benefit for Adobe because someone discovered a problem and it could be fixed with an upgrade to the software. It was deemed a problem because of where the information was presented. DEFCon is notorious for the hackers that speak at and attend the conference. Some of the topic categories for the convention include “Agents, Trojans & Viruses,” “Web & Database Hacking” and “Physical Security” (DEFCon, N.D.). Sklyarov felt that his presentation would serve as a wake-up call to Adobe to fix the weak encryption system that it was using. \n
  • Sklyarov’s main project for Elcomsoft was the “Advanced eBook Inscriber” or simply known as AEBIN. eBook allowed a user to download and “read” electronic books from the Internet. AEBIN was designed to convert “sealed” files into “inscribed” files (Elcomsoft, N.D.). What that means is that a person could unlock the protected information that is found on those files and allow any program access to the information. One use of this program is allowing a blind person to hear the story through a translator program. Another use that has been described for this program would allow for the transfer of files between computers (EFF, 2002A). Under Russian law, developing and distributing of this program is legal. \n
  • Adobe, the company that developed the eBook, felt Mr. Sklyarov & Elcomsoft were victimizing it. Adobe told the Federal Bureau of Investigation, “Elcomsoft is distributing a key over the Internet in the form of a software program that illegally unlocks copyright protections on the e-Book files” (U.S. v Sklyarov, 2001). The complaint Adobe also gave the FBI was that AEBIN could break down the coding on Adobe’s Portable Document Format or PDF and turn the file “naked” or readable without the protection that was encoded on the file. The FBI decided to pursue the complaint to the Northern California’s District Court in July of 2001 \n
  • This case used the DMCA as the anchor point for the prosecution’s case. The DMCA is an act created by Congress to address copywriting newer digital media. It was shaped in part by the Recording Industry Association of America (RIAA). The RIAA were seeking measures that would criminalizes production and dissemination of technology that can circumvent copyright protection measures. Any piece of hardware or software that removes the protective measures on copywritten work would be deemed illegal (http://www.riaa.com/issues/copyright/laws.asp#millen). It also seek stricter penalties for those who had pirated materials made or copy on their computer. The DMCA deals mainly with music and video products and not text-based materials.\n
  • U.S. v Elcomsoft is significant for five reasons. The first being that it was the first direct challenge to the Digital Millennium Copyright Act. A few cases before this one challenged aspects of the case (e.g. Fenton v RIAA, which challenged the RIAA ability to use the DMCA to prevent research), but none challenged the act in whole. This case also challenged the constitutionality of the act under the first and fifth amendments. Second, this case calls into question the accessibility of end-products, with regards to the flexibility of manipulation of the end-product. This is especially relevant to handicap accessibility (Section 508 laws) and direct ownership of end-products. Third, U.S. v Elcomsoft was originally Adobe v Elcomsoft. The U.S. government took over the role as plaintiff after Adobe withdrew from the case. Adobe wanted to drop the case, but the U.S. government refused this request. Therefore, this case calls into question the role of the creator of intelligential products in criminal and civil actions, and who can supercede those legal rights of the creator. \n
  • Fourth, it attempts to defend the idea that computer programs are a form of language. This question came from this discussion of if a computer program is a “perfect work”, that is the program can not be edited or looked at because the language used to create the program is protected. This is different for the idea the functionality of the program as the protected entity. If the programming code is treated as a language, then interested third parties should be allowed to read it and analyze it to make the program better. The last, and perhaps broadest argument for the relevance for this case is the impact of the DMCA on international media law. Many of these laws were created before the advent of the Internet and digital distribution. How will the DMCA influence and affect other countries’ media laws or the cooperation between countries? \n
  • U.S. v ElcomSoft was influenced by another case that occurred eariler. In Felten v Recording Industry Association of America (RIAA). Edward Felten and his research team against RIAA, the Secure Digital Music Initiative Foundation (SDMI) and Attorney General John Ashcroft filed this case. Plaintiffs competed in the “Hack-the-SMDI” contest. This contest was designed to test the security feature of several watermark technologies that were designed to encode digital music. Felten’s research team successfully cracked five of the six formats. One of the formats was found to be defective but the team attempted to hack it and thought they were successful. The team chose not to receive the $10,000 prize for each of the formats hacked but instead decided to write a paper on the weaknesses of the security measure of the watermark formats. After the paper was submitted for the Usenix Security Conference, attorneys representing SDMI and RIAA wrote Dr. Felten a letter stating that the research team had to make some changes to the paper before it could be published. Their claim was the paper exposed key copy written security features. Felten then filed the lawsuit stating that the threats issued by the SDMI and RIAA would constitute a “chilling effect” on research in the field of digital media (Barber, 2001). Dr. Felten’s lawsuit was dismissed in November 2000. This grouping of lawsuits was the legal environment that leads into U.S. v Elcomsoft. \n
  • The case was broken into two parts. The first part was the direct criminal case between Adobe and ElcomSoft. \nHowever, on the second day of the trial, Adobe engineer Thomas Diaz said there is no evidence of any books being illegally copied by people using Russian firm Elcomsoft's Advanced eBook Processor program (http://management.silicon.com/government/0,39024677,11036691,00.htm).\n\nhad pulled most versions of the software from the web after receiving letters from Adobe saying the program was illegal, some eight days after it was first made available online.\n
  • The case was broken into two parts. The first part was the direct criminal case between Adobe and ElcomSoft. \nHowever, on the second day of the trial, Adobe engineer Thomas Diaz said there is no evidence of any books being illegally copied by people using Russian firm Elcomsoft's Advanced eBook Processor program (http://management.silicon.com/government/0,39024677,11036691,00.htm).\n\nhad pulled most versions of the software from the web after receiving letters from Adobe saying the program was illegal, some eight days after it was first made available online.\n
  • The department of justice took over the role of plaintiff, as the case presented threat to U.S. e-commerance and could present future intellgential property issues. ElcomSoft attempted to argue for the benign uses of the software, such as to allow visually impaired readers to transfer Adobe eBooks to reading devices for the blind. Judge Ronald Whyte refused to allow that line of defense. ElcomSoft President Alexander Katalov testified that he never believed the software contravened the law. "I still believe this program is legal," Katalov said.\nBefore the presentation closing arguments to the jury on Thursday morning, Judge Whyte had to work with both sets of lawyers to create the instructions to the jury. "There isn't any law in this area," Assistant US Attorney Scott Frewing told Judge Whyte two weeks before the case began in court. Termonology and intention \n\nThe case is being closely watched by legal scholars, digital publishers and programmers because it is the first major test of the criminal provisions of the DMCA. The law, passed in 1998, makes it illegal to crack protections on copyrighted material.\n\nThe DMCA is particularly tricky, legal experts say, because it outlaws such cracking - or offering products that do so - even if the person breaking the code plans to use the content for purposes that have traditionally been legal, such as for reverse engineering or making a backup copy.\n\nDuring the trial, Judge Whyte denied most of ElcomSoft's attempts to present evidence about what customers did with the Advanced eBook Processor software they purchased. After the prosecution objected, the judge quashed emails presented by the defence that appeared to be from customers and cut off some lines of questioning about why people were purchasing the software.\n\nJefferson Scher, an attorney with the law firm Carr & Ferrell, said he would be surprised if the jury doesn't convict ElcomSoft. "The law says thou shalt not sell, and it's very hard to find loopholes in the law," Scher said. He believes most of the "juicy issues" - such as how free-speech protections square with the DMCA and how much authority Congress has in enforcing copyright law - will come up on appeal.\n\nThe DMCA already is affecting some programmers who worry their work could put them on the wrong side of the law -fears that could be exacerbated by a guilty decision against ElcomSoft. "In a would really slow down innovation if all engineers had to think about copyright law all day long," Scher said.(http://management.silicon.com/government/0,39024677,11036751,00.htm). http://management.silicon.com/government/0,39024677,11036751,00.htm\n
  • The EFF posted an amicus brief supporting Elcomsoft. One of the key arguments that the EFF made was that this case was removing the First Amendment rights of the end-user of the Abode eBook program. Cindy Cohn, the legal director of the EFF, when she said, “If Elcomsoft is convicted under the DMCA, it will be illegal for competitors to write software or build digital entertainment devices that compete with those from the established media companies” (EFF, 2002), reinforced this point. If Elcomsoft were to lose this case, it would also be a defeat for other companies trying to make electronic books accessible to people. \nOne last motion that lawyers representing Elcomsoft used to try to dismiss the case was on constitutional grounds. DMCA, according to the motion filed, is overly broad and “burdens more speech than is necessary to serve the government’s interest” (ibid). First Amendment rights should also extend to computer code. The code is not just base information that a programmer uses to input ones and zero to a piece of hardware. The code can provide a deeper meaning. All computer language, more or less, is readable by humans. The level of interpretation may vary between the languages. It does have a level of expression. Computer code can be considered a language and therefore be entitled to the same protection under the law, as any other form of speech would be (EFF, 2002C). Perhaps the biggest point is that the DMCA removes the “fair use” doctrine. It would put an “almost unlimited power in the hands of copyright holders to control information, including information that is not even protected by copyright” (ibid). The determination of “fair use” fall under four factors; the purpose and nature of the use, the nature of the copyrighted work, the nature and substantiality of the material used, and the effect of use on the potential market for or value of the work (Landau, 2002). Under the DMCA, all of these factors would cease to exist because all challenges to copyright would be turned down. One of the most accepted examples of fair use is the ability of the purchaser of a product to make a fair use copy. DMCA states that any attempt to break the copyright protection would be considered illegal. The argument, by extension, is that by making the tools to make copying illegal makes fair use copy illegal, which nullifies fair use. The motion goes further to state that there is precedent for the court to reject “‘back door’ regulations of speech” (ibid). \n
  • \n
  • One of the major by-products of the ruling and the DMCA was a series of communications security legislation that passed in Pennsylvania, Maryland, Delaware, Virginia, Illinois and Michigan. The Super DMCA legislation was created by “a broad-based coalition of communication service providers as well as content owners that use those services have stressed the value of the legislation as protecting e-commerce for the benefit of consumers, businesses and state and local governments.” (http://www.eff.org/IP/DMCA/states/mpaa2_1apr.pdf). It’s main purpose was to create laws that would prevent the copying of materials from one medium to another.\nRick Boucher, a congressional representative from Southwestern Virginia, has proposed some new measures to protect fair use rights against DMCA. They include an extension of copyright exemption for Internet use in education. The proposal also include measures to insure the purchase on-line enjoy the same fair use protection as purchases done in brick-and-mortar stores. Internet shops should have the right to store music purchases and allow the users to access their material from any computer (Boucher, N.D.). The Digital Media Consumers’ Right Act was designed to protect the consumer’s “fair use” access to the \n

The "Chilling Effect" 
on Digital Development: 
US vs. ElcomSoft The "Chilling Effect" 
on Digital Development: 
US vs. ElcomSoft Presentation Transcript

  • The "Chilling Effect" on Digital Development: US vs. ElcomSoft 2006 AEJMC Midwinter Conference 25 February 2006Bowling Green State University Bowling Green, Ohio. 
  • Dmitry Sklyarov• 27-year-old Russian computer programmer for ElcomSoft Co. Ltd.• Ph.D. doctoral student in cryptanalysis, which is the study of electronic security.
  • Advanced eBook Inscriber (AEBIN)• eBook allowed a user to download and “read” electronic books from the Internet.• AEBIN was designed to convert “sealed” files into “inscribed” files (Elcomsoft, N.D.).• Another use that has been described for this program would allow for the transfer of files between computers (EFF, 2002A).• Under Russian law, developing and distributing of this program is legal.
  • Adobe Response to AEBIN• Adobe noted that the threaten the protective nature of the eBook format.• AEBIN could also have allowed illegal copy of protected materials.• AEBIN could be used in the peer-to-peer transfer of unprotected files.
  • Digital Millennium Copyright Act• A bill designed to bring copyright law up to date with digital media.• Criminalizes production and dissemination of technology that can circumvent copyright protection measures.• Heightens the penalties for copyright infringement on the Internet.
  • What is the significance of U.S. v Elcomsoft?• It was the first direct challenge to the Digital Millennium Copyright Act.• It questioned the need for accessibility to produced goods.• It examined who could ask for the right for protection under copyright laws (government control v corporate interest).
  • What is the significance of U.S. v Elcomsoft?• It brought in the concept of computer programs being a “language”.• It called into question the impact and affect of the DMCA on international copyright and media law.
  • The "Chilling Effect" on Digital Development• The DMCA could prevent “fair use” through the criminalization of copying software.• It also prevent the analysis of software and hardware for academic purposes.• It could lead to the suppression of academic security research through the jailing security researchers.
  • Weaknesses of DMCA• DMCA contains no provision for Fair Use.• You can no longer "buy" any kind of intellectual property.• The cost of licensing the DRM technology is prohibitive for "independents".
  • Adobe v ElcomSoft• Adobe could not prove that the AEBIN was used for illegal activities.• ElcomSoft pulled all of the AEBIN software off of their website and prevent further sale.• Adobe removes themselves as the plaintiff from the case after ElcomSoft …then
  • U.S. v ElcomSoft• The Department of Justice takes over as the plaintiff.• “There isnt any law in this area” - Assistant US Attorney Scott Frewing• ElcomSoft felt that the broad protection of the DMCA could prevent future research on security and other digital matters.
  • During the Trial• There were First Amendment issues with DMCA.• DMCA, according to the motion filed, is overly broad and “burdens more speech than is necessary to serve the government’s interest” (EFF, 2002).• The Department of Justice argued that DMCA does not remove fair use, but it does put limitations on digital transferability.
  • Verdict of the Trial• On December 17, 2002, the jury returned a verdict of not guilty on all counts.• The jurors agreed ElcomSofts product was illegal but acquitted the company because they believed the company didnt mean to violate the law.• The panel found the DMCA itself confusing, making it easy for jurors to believe that executives from Russia might not fully understand it.
  • By-Products of the DMCA• "Super DMCA" (S-DMCA) legislation passed in Pennsylvania, Maryland, Delaware, Virginia, Illinois and Michigan.• The Digital Media Consumers’ Rights Act (DMCRA) seeks to protect the rights of the consumer.• The Consumer Broadband and Digital Television Promotion Act (CBDTPA) which is more restrictive than the DMCA.