The Dmca Needs Fixing

The recent arrest of Dmitry Sklyarov, a Russian Ph.D. student and an ElcomSoft programmer [2] is a reminder to examine our copyright laws in general and the Digital Millennium Copyright Act in particular (see [3]). This case is a parallel to the 1996 Communications Decency Act or the Secret Service raid of Steve Jackson Games (see [4])—two landmarks in the development of civil liberties online.

Does the DMCA hinder free pursuit of knowledge and discovery? Is it too restrictive? Or is it a protector of rights of the inventors and creators in the online world?

Let us look at the two recent cases:

• Sklyarov’s arrest. Sklyarov was arrested under the DMCA bill that punishes anyone who distributes "any technology, product, service, device, component or part" that, like Sklyarov’s software, bypasses copy-protection mechanisms. ElcomSoft’s Advanced eBook Processor, a tool that circumvents copy-protection measures and allows Adobe Acrobat customers to read files on unauthorized computers sells for about $100. Sklyarov was in Las Vegas for the Def Con hacker convention to present a paper (a PowerPoint presentation) related to decryption of Adobe’s ebook format on computers other than for which the software was bought.
• The Felton case. A Princeton University computer-science professor’s publication of his group’s research on technology for protecting music files was stopped for possible violations under the DMCA [2].

Both of these items relate to work that is for research and educational purposes. In both cases the creators’ (Adobe Corporation and the Music industry’s watermarking technology) mechanisms were circumvented by knowledge and training. In both cases, one can argue that prohibiting the publication and sharing curbs research and free exchange of knowledge sharing.

According to section 1201 of the DMCA, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." So, any arbitrary access control for copyrighted materials of any sort is granted legal reinforcement, irrespective of whether the work is for educational, research, or just for recreational use. Of course there are exceptions provided (see the accompanying sidebar) in DMCA for governmental encryption research, and others, but these are limited in scope.

The DMCA, in its present form, could adversely affect research competitiveness in the U.S., and foreign scientists would shun the U.S. A case in point: the resignation of British programmer, Alan Cox, from the board of Usenix, who said in a letter: "It has become apparent that it is not safe for non-U.S. software engineers to visit the U.S. [2]. In addition, it will be a disincentive to conduct and publish research within the U.S. An example is the Felton case (see "Viewpoint," Oct. 2001).

The DMCA is necessary, but some modifications must be made. It is needed because it protects the intellectual works from copyright violations but it must be modified so new research in information security and assurance is encouraged and not curbed. The exceptions in DMCA are too limited. Perhaps DMCA should be modified to propose immunity from legal ramifications for work done in good faith and for research and educational purposes.

Let us not arrest intellectuals for their research work no matter what their field of inquiry; no law or bill should have provisions like this. This type of immunity is on the lines of immunity provided to diplomats.

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