Copyright Law Pits Disability Access against Intellectual Property Rights
By Judy Wilkinson (jwilkins@panix.com)
All materials relating to this case (including the full text of the three press releases cited in this article) may be found on the web site for the Electronic Frontier Foundation: http://www.eff.org.
As a result of writing a software program that allows Adobe Ebooks to be copied, Russian software programmer Dmitry Sklyarov was charged with violating the U.S.'s Digital Millenium Copyright Act of 1998. On December 12, 2001, charges were dropped in return for his agreement to cooperate with the U.S. government in its prosecution of his Russia-based employer Elcomsoft. The case has become a cause celebre pitting civil liberties advocates against proponents of an expanded definition of intellectual property rights under copyright law. The outcome of this case could have profound implications for the technology access rights for people with disabilities throughout the world.
Background
According to a press release from the Electronic Frontier Foundation, wile delivering a paper describing his software at a computer conference in Las Vegas, Nevada, "The 27-year-old programmer was arrested on July 16 and held in jail until August 6, when he was released on $50,000 bail on condition he remain in California."
A different press release, from the US Attorney of Northern District of California states, "Mr. Sklyarov, 27, of Moscow, Russia, was indicted by a federal Grand Jury on August 28, 2001. He was charged with one count of conspiracy in violation of Title 18, United States Code, Section 371, and two counts of trafficking for gain in technology primarily designed to circumvent technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A), and two counts of trafficking for gain in technology marketed for use in circumventing technology that protects a right of a copyright owner in violation of Title 17, United States Code, Section 1201(b)(1)(A).
On December 12, 2001, Mr. Sklyarov entered an agreement with the U.S. government resolving criminal charges including conspiracy to traffic in technology that violates the property rights of copywright holders. As a condition for dropping the charges, he has agreed to cooperate with the U.S. Department Of Justice in its continuing efforts to prosecute his employer Elcomsoft.
What Did Sklyarov Do?
The EFF press release states that Sklyarov is accused of "distributing software that permits electronic book owners to convert the Adobe e-book format so they can make use of e-books without access restrictions." Normally the Adobe Ebook format contains features that prevent Ebooks from being copied into other formats. Unfortunately, the Adobe Ebook format is not readily accessible to computer users using screen readers or potentially, to other persons using assistive technology for computer access.
Background material on the website www.freedmitrysklyarov.org states, "According to the company's[Elcomsoft's] website, the software permits eBook owners to translate from Adobe's secure eBook format into the more common Portable Document Format (PDF). The software only works on legitimately purchased eBooks. It has been used by blind people to read otherwise-inaccessible PDF user's manuals, and by people who want to move an eBook from one computer to another (just like anyone can move a music CD from the home player to a portable or car)."
Why is this new legal ground?
Mr. Sklyarov's case broke new legal ground and has been controversial for several reasons. Among these reasons are its potentially profound implications for those writing access software for use by people with disabilities.
EFF Intellectual Property Attorney Robin Gross states, "Dmitry programmed a format converter which has many legitimate uses, including enabling the blind to hear e-books,. . . The idea that he faced prison for this is outrageous."
Many ebooks including those created in Adobe's proprietary format are not readily accessible and hence cannot be read by screen readers or other specialized software used by people with disabilities to access computer output. While there is no indication in the court record that Mr. Sklyarov was primarily motivated by a desire to enhance information access for people with disabilities, his program did have that result because it allowed Adobe ebooks to be copied into formats which are more accessible and more user friendly to assistive technology users.
Mr. Sklyarov was prosecuted under the Digital Millennium Copyright Act of 1998 which at least as applied by the U.S. Department of Justice in this case, dramatically broadens the scope of legal protections for intellectual property, such as computer operating systems, and increases the role of the criminal law in copyright enforcement.
In a sense, all accessibility software involves some manipulation of data or operating systems. What accessibility advocates now fear (even those whose efforts are not undertaken for proffit) based on the precedent of this case, is that developers of screen readers or other access software who find ways to access data may face prosecution themselves if the methods they use or the access they provide is deemed to constitute an infringement of the intellectual property rights of the companies that develop and own major operating systems.
Put another way, the danger now seems all too real that unless a developer of access software gets permission from the owner of the application being accessed, such a developer could potentially face criminal prosecution for trafficking or conspiracy to traffic in technology that interferes with the rights of copyright owners.
Thus far, the Department of Justice has given no indication of concern or awareness regarding the implications for accessibility of its interpretation of the DMCA. What would happen for example if a developer proposed a workaround to Adobe for making other of its products more accessible by allowing them to be copied into formats that older screen readers and less powerful computers of the kind widely in use un much of the world could use? Up until now, the developer could distribute that program (as Elcomsoft did on its web site) and people could utilize it if it worked. Adobe itself provided plug-ins to facilitate accessibility in its Acrobat Reader 4.0 of just this type. In fact according to the EFF press release, "EFF weakened the case against Sklyarov by negotiating with Adobe representatives on July 20, 2001, resulting in a statement from Adobe saying that the company no longer wished to pursue any case against Sklyarov."
U.S. Law Applied to those from other Countries
The Justice Department's interpretation of the law is not limited to American companies or products. Although Mr. Sklyarov is not a U.S. resident, and did not do his work in this country, he was arrested when he came here to deliver a talk. Extending U.S. criminal law to foreign nationals in this way is also a matter of concern because it may inhibit the development of innovative access strategies in other countries.
Adobe is not unique. More and more companies are placing restrictions on when and how their products can be used including limitations on copying, restriction to a single registered computer (as in the new Microsoft XP operating system) and others. With the power of U.S. criminal law behind them, such limitations and restrictions (regarded as part of the intellectual property of the manufacturer) are likely to grow in number and impact. This does not bode well for the disability community, particularly in countries where the latest and most sophisticated technology is unaffordable.
What Lies Ahead?
According to the Northern California District Attorney's press release, "Elcomsoft, remains charged in the case, and the Court in that matter has set hearings for various motions on March 4,2002, and April 1, 2002."
In its own press release from the Sklyarov/ElcomSoft Legal Team, Joe Burton, lead attorney for ElcomSoft states, "The company knows that neither Dmitry nor they committed any criminal acts and believes that in the end, they will be found innocent of any and all charges the U.S. Government is bringing against them as well."
Implications for Disabled People around the World
This case brings access and copyright protection into conflict on a scale never before seen. Efforts to develop access strategies particularly through software lend themselves to an international approach since programmers and companies in any country can develop software for use around the world. But if the US chooses to interpret the DMCA in ways that restrict such development, and if the US further chooses to apply its domestic law to the citizens of other nations, the effect on such development could be chilling and pervasive; could intimidate programmers throughout the world and effectively prevent them from working on either broad-based or disability-specific access strategies for fear of criminal prosecution.
Further Information
According to its website, the Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world at: http://www.eff.org
Contact:
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
1 415-637-5310
Shari Steele, EFF Executive Director
ssteele@eff.org
1 415-436-9333 x103.
http://www.freedmitrysklyarov.org
This website provides extensive information on this case and solicits contributions to assist in Mr. Sklyarov's defense.
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