December 17, 2002

The jury in the trial of ElcomSoft in a federal court in San Jose, California, are continuing their deliberations today. They are asked to determine whether the Russian software development firm has knowingly and intentionally violated the much decried 1998 Digital Millennium Copyright Act (DMCA). They have heard testimonies from Dmitry Sklyarov, the Russian programmer whose arrest last year at the DefCon hackers' conference in Las Vegas led to the proceedings and from Vladimir Katalov, ElcomSoft's general director.

The firm is accused of having sold a software application to circumvent the flawed copy protection provided by Adobe. Copyright holders often define what can and cannot be done with their work using such "rights management" systems. Bypassing a weak protection means that the intellectual property - e-books in this case - can be freely copied and disseminated without compensation, a practice known as "piracy".

At Adobe's behest, Sklyarov was incarcerated for more than 3 weeks and spent four additional months on bail in the United States. He then struck a deal with the prosecution to testify and was set free to return to Russia. The arrest provoked a hail of protests, demonstrations and debates both physical and virtual, on numerous Web sites and discussion boards. Sklyarov became, reluctantly, a cause celebre.

The case deserves all the attention it got and more so. It involves the most fundamental issues of the digital age: What constitutes intellectual property? Should the dual freedoms of speech and research be constrained by commercial interests? Is innovation fostered by securing the creators' economic benefits from their creations?

Is the Internet covered by national law - an American statute, for instance - and can such edicts apply extraterritorially? What if two jurisprudential systems disagree - which one prevails? Should easily reproducible digital content enjoy enhanced legal protections, ignoring previous practices pertaining to other types of intellectual assets?

Inevitably, the case acquired geopolitical dimensions. Despite advanced legislation and repeated raids of underground factories, Russia is still perceived by US corporations as a center of rampant piracy. Russians thought to be at the forefront of computer crime, including identity theft, cracking, the authoring of worms and viruses and other illicit exploits.

Russian law is more lenient and less responsive to commercial vested interests than its American counterpart. Sklyarov's contentious brain child, for instance, may be legal in Russia. Interior Ministry Spokesman, Dmitry Chepchugov, says that Sklyarov wasn't prosecuted hitherto simply because "no petitions or complaints about (him) have been filed in Russia on the part of the copyright owner." What Sklyarov did came "very close" to violating the Russian Penal Code, he admitted to Pravda.ru. - though in later statements to various news agencies, he reversed himself by insisting that "no crime has been committed".

Nor is ElcomSoft a hacking outfit. Its products are sold worldwide. In the United States, the FBI, district attorneys, police departments, the military, the majority of Fortune 500 companies and leading accounting firms are amongst its clients. It was established in 1990 and is a member of the Russian Cryptology Association (RCA), the Computer Security Institute, and the Association of Shareware Professionals (ASP). It is also a Microsoft Independent Software Vendor (ISV) partner. Its software products consistently win awards and plaudits and have been sold in more than 80 countries. Its online guestbook is overflowing with compliments and expressions of unmitigated support and commiseration.

The case is not without its curious twists and turns. Though Adobe has withdrawn its complaint, the government has decided to doggedly proceed. The defense has accused the prosecution of releasing "misleading" statements regarding the deal with Sklyarov. ElcomSoft's behavior has been exemplary: it has withdrawn the product days after it was contacted by Adobe.

This is fertile ground for Russian paranoia. The Federation's foreign ministry urged Russian computer and software "specialists" to exercise caution when on US territory. Accustomed to ill-founded charges based on flimsy or forged "evidence", Russians believe that the accusations against Sklyarov are not merely wrong - but "false" or "trumped up".

Conspiracy theories, a staple of Russian existence, abound. "Many observers are inclined to believe that Americans intend to prosecute the Russian top-class expert with his subsequent recruitment and use of his knowledge." - writes Pravda.ru. The Community of Russian On-Line Periodicals "EZHE" can't resist a triumphant jab at ostensible American technological prowess: "In order to expose the childishly simple encryption used on a e-book reader made by the Adobe Corporation (not much more difficult than pig Latin), (Sklyarov) wrote a program used to decrypt e-books encrypted with Adobe's program."

Russia's Kafkaesque judicial landscape - where might is right and people can still vanish mysteriously - permeates the reactions. Russians project onto America their own nightmarish system. Adobe orders the FBI around and Sklyarov has disappeared without a trace. The FBI failed to inform even the Russian embassy:

"All this programming was done in Russia, where the DMCA does not apply. Mr. Sklyarov then came to the USA, to discuss his work at a convention in Las Vegas. Adobe, aware he would be coming to the U.S., ordered the FBI to arrest him. He is now being held in an undisclosed location, awaiting arraignment." - continues EZHE.

Tribuna, a Russian weekly, spotted a pattern:

"This is not the first arrest of a Russian programmer. Not long ago, the FBI enticed two hackers from Chelyabinsk to the US, where they were arrested in November 2000. When they were arrested their Russian computers were hacked. These arrests look conspicuous against the general background of the FBI's combating hackers. There have been no reports about the FBI's detention of a hacker from China or an Arabian country."

Other, more Luddite, outlets accused Sklyarov of breaking Russian laws as well. NTV, an important TV station, for instance, reported that Sklyarov's apartment has been ransacked by the police in a successful search of incriminating evidence. NTV was later forced to retract the story as utterly unfounded. Interfax, quoted by CompuLenta, an online resource covering the Russian and global computer industry, said last year that Sklyarov "may be contemplating" lawsuits against these media.

Russian programmers enjoy high salaries, frequently travel abroad, are "cosmopolitan" and "intellectual" and, thus, resented as suspicious and "elitist" by lesser beings in destitute Russia. Sklyarov simply had it coming for haughtily acting as though he is above the law (and for associating with foreigners, goes the subtext).

Coverage of the case in the Russian press has abated following the initial surge of xenophobic indignation in July last year. But the indigenous media - both print and electronic - failed the tests of maturity, balanced reporting and adherence to reality. They could have transformed their coverage into a tour de force of the "poor east" against the "rich west", freedom of speech versus stifling multinationals, digital versus print copyright, noble principles contrasted with grubby money. They could have garnered the support of liberal intellectuals and free thinking folks the world over. Instead, they defaulted into their usual mode of wild speculation combined with injured grandiosity. This is the real tragedy underlying this unfolding farce.