At this time last year, Joseph Burton, a lawyer with Duane Morris LLP and Affiliates, was in Las Vegas consulting with his newest client, a Russian programmer arrested for violating the 1998 Digital Millennium Copyright Act (DMCA) by allegedly trafficking in tools designed to circumvent digital copyright protections.
A year later, the prosecution against that Russian programmer, Dmitry Sklyarov, has been deferred pending certain conditions, though the government is continuing to pursue action against his employer, Moscow-based Elcomsoft Co. Ltd. That trial, in which Elcomsoft is charged with the same crimes as Sklyarov was, is set to start at the end of August, Burton said.
Despite a series of unfavourable rulings for Elcomsoft, when the trial does start Burton expects that not only will he win, but that in doing so he will curtail the reach of the DMCA.
“Given the existence of the DMCA, we need a standard for legitimate conduct, need to know that you can do some things legally,” he said Saturday at the Def Con convention held earlier this month in Las Vegas. “Right now, given the DMCA, we don’t know what that standard is.”
“The Elcomsoft case gives us the opportunity to try to set that standard,” he said.
The DMCA has been decried as overbroad and draconian by computer experts, cyber-rights advocates and other groups since its passage. The law makes it a crime to create tools designed primarily to circumvent copyright control measures such as digital rights management, as well as to provide information about how to crack such schemes.
Besides the Elcomsoft case, the law has been used to intimidate Princeton University professor Edward Felten into not presenting his research on the weaknesses in the SDMI (Secure Digital Music Initiative) digital rights management system. A number of Def Con attendees cautioned that the DMCA will continue to be used to stifle legitimate security research unless it is changed.
Though Burton doesn’t think the DMCA itself is a bad law, he disagrees with how it has been interpreted and used. Since previous legal challenges to the DMCA have failed, there are two options left to deal with the law, he said.
First, efforts could be made to repeal the law, but “that’s not likely to happen,” he said. “The only other way is to try to erode it away” with cases such as the Elcomsoft case.
The DMCA has been challenged in court before, most notably in the DeCSS (De-Contents Scramble System) case, which concerned software that removed copyright protections on DVDs (Digital Versatile Discs) and made them viewable on Linux PCs. The anti-DMCA forces lost in that case and have since dropped their appeal.
The Elcomsoft case is not the only DMCA-related working its way though the courts. In late July, the American Civil Liberties Union (ACLU) filed an anti-DMCA suit seeking to allow researchers to examine the URL (Uniform Resource Locator) blocking lists used in Web content filtering applications.