Unfair use

The infamous Digital Millennium Copyright Act is back. And this time, it’s taking prisoners.

Don’t believe me? Imagine yourself in this unfortunate situation:

You’re a 20-something computer programmer from Russia. Flushed with the democratic spirit of high-tech innovation, you write a cool computer program. The program enables people to copy the electronic books they own — so they can read them on multiple computers (such as their PC at work, or even a Palm Pilot).

The little program is a success. So successful, you’re invited to speak at a programmer’s convention in Las Vegas. You fly to America. You give your speech. But before you can fly back to the motherland, the FBI arrests you for “trafficking in a product designed to circumvent copyright protection.”

It’s a true story. Maybe you heard about it last week on CNN. Or NPR.

If not, well … the programmer’s name is Dmitry Sklyarov. He’s in jail now — facing up to a $500,000 fine and five years in prison. And that quote about trafficking? It’s from a Department of Justice press release.

But Sklyarov isn’t an American citizen. So why does any of this matter?

Here’s why: Sklyarov’s case is the second real test of the Digital Millennium Copyright Act (or DMCA). Quietly passed in 1998, the DMCA made it illegal to build a product that bypasses copy protection. The DMCA’s first legal challenge occurred last year, when the motion picture industry successfully stopped an American Web site from distributing code that could defeat the copy protection of DVDs.

Even more troubling is that Sklyarov’s incarceration wasn’t the end result of a criminal investigation. Instead, his arrest came in direct response to a complaint filed by software developer Adobe Systems. “Adobe, seeking to protect electronic property rights at any cost, has apparently pushed the U.S. Department of Justice into an ill-advised arrest,” said Shari Steele of the Electronic Frontier Foundation, the leading technology-focused civil-liberties organization.

It’s no surprise, really. Adobe provides companies including amazon.com and Barnes & Noble with software to sell electronic books (or eBooks) online. Adobe’s software encrypts those eBooks with copy protection. And Sklyarov’s little program — Advanced eBook Processor — removes that protection.

However, the reason the DMCA is so important to companies such as Adobe is far less obvious. Here’s the truth: Making a copy of something you’ve bought — such as a CD or an eBook— is not necessarily illegal. According to U.S. copyright law’s “fair use” section, you have a right to duplicate a copyrighted work in several situations. Those situations include producing a personal backup copy, or even making copies for educational purposes.

It’s true that people can use copying tools like Sklyarov’s software to make illegal copies. But they can also use them to produce copies they’re legally allowed to make. The government can’t know for sure … and that’s why the DMCA is such a bad law.

Unfortunately, the DMCA was successfully marketed to lawmakers (mostly by the movie industry) with the promise of stopping piracy. It was a very clever ruse. Today, “fair use” rights technically still apply to copy-protected works. But the general public is quickly losing access to the tools necessary to exercise those rights.

It’s a shame that most mainstream coverage of this story has missed this crucial point. Instead, Sklyarov is often depicted as a lawless renegade. CNN repeatedly called the Russian programmer a “hacker” — even though his program can be used for entirely legal purposes.

Even worse, by arresting someone who isn’t American, our government is making a pretty sinister statement about democracy. After all, here’s this Russian guy doing the most “American” thing imaginable — ensuring the rights of the individual — and we’ve thrown him in the clink.

Thankfully, a growing number of Web-savvy citizens appreciate these dangerous implications. At Web sites including boycottadobe.com a backlash movement is afoot — at press time, nationwide protests were planned. Perhaps in reaction to this, Adobe agreed to meet with the Electronic Frontier Foundation to discuss the case.

But as more companies introduce proprietary file formats, the public’s fair-use rights will continue to shrink. For example, the soon-to-launch Napster pay service will feature its own copy-protected song files instead of unprotected MP3s. And unless the DMCA is repealed, it’s just a matter of time before the public’s own right to copy disappears completely

How fair is that?

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Hammacher Schlemmer’s latest toy will set you back well over $20,000 (plus an extra $650 for “white glove” hand delivery). I can’t afford one. But I’d be happy to try one out.

If the company honors my request for a review unit, I’ll let you know.