Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Eric Killian
Ron Orrungroj
Mayoor Savla
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
1) Introduction
2) The Battle in the Courts
3) Fair Use?
4) Question of Jurisdiction
5) Is the DMCA a Fair Law?
6) Ethical Dilemmas
7) Social Issues
8) Conclusion
9) References
The E-book
• Allows users to download the text of a book onto a
computer via the Internet.
Advantages: Disadvantages:
• Cheaper to publish and • Large number of format
distribute. incompatibility issues
• Instant worldwide distribution • Can be duplicated easily,
over the Internet hard to prevent.
• Many books now available in
a smaller volume
• Added function features
Adobe’s Ebook
• Has digital rights management (DRM)
• Less restrictive than most other readers in the
market with permissions
June 22, 2001: Advanced eBook
Processor (AEPBR) Released
• Elcomsoft announces its new software
which removes password encryptions and
usage restrictions from eBooks.
• The software was reverse engineered by
employee Dmitry Sklyarov
• Available for download from a web-server Dmitry Sklyarov
located in Chicago, Illinois
• Sold at RegNow website located in
Issaquah, Washington.
Advanced eBook Processor (AEBPR)
Windows program that allows you to remove both
password encryption and usage restrictions from Adobe
Acrobat PDF files and eBooks.
• lost and destroyed passwords
• unable to edit and print password-protected PDF files
• backup copies of eBooks that are protected with various
protection schemes enabling them to be readable with any
PDF viewer (such as on another OS)
• Loadable onto small, portable devices.
Airplanes
Hotels
… The Plot Thickens
• About a week after the initial announcement, Adobe updated its eBook
software to prevent the Advanced eBook Processor from working, but
ElcomSoft updated its own software on the same day to be functional with
the Adobe software once again.
• One week later, Adobe requests that ElcomSoft stop selling the Advanced
eBook Processor with a threat of legal action citing the Digital Millennium
Copyright Act (DMCA).
• Elcomsoft complies with the request and its website is disabled and its US
distributor stopped the sale of the AEBPR based on a similar request from
Adobe.
• Elcomsoft claims that PDF is an "absolutely insecure" format for eBooks,
at least in cases where the protection of the content is a primary concern.
However, it continues to distribute a free demonstration version.
July 16, 2001: Dmitry is arrested
After speaking at the DEF CON
9 convention about eBook
security, Dmitry was arrested by
FBI officials as he was preparing
to leave his hotel.
Charged With:
Trafficking in and offering to the public, a software program
that could circumvent technological protections on copyrighted
material, under section 1201(b)(1)(A) of the U.S. Copyright
Act.
Aiding and abetting his employer, ElcomSoft Co. Ltd.
Episode IV: A New Hope
July 23, 2001
• After much public outcry over
the arrest and detainment, Adobe
meets with the Electronic
Frontier Foundation (EFF) and
reverses its position by
requesting Sklyarov's release.
August 6, 2001
• After being in jail for about three weeks,
Sklyarov is released on bail of $50,000 and
relinquishes his passport.
Episode V: DMCA Strikes Back
August 28th, 2001
• Sklyarov and ElcomSoft
were indicted by a U.S.
Grand Jury on five counts
of violating the DMCA.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
The Charges (1)
Dmitry Sklyarov and
ElcomSoft face:
• Four counts of
circumvention offenses,
and aiding and abetting
circumvention offenses,
under section 1201 of the
DMCA, and
• One charge of conspiracy.
The Charges (2)
• Dmitry Sklyarov and ElcomSoft are NOT accused of
infringing any copyrights. ElcomSoft claims that its
AEBPR software cannot be used by anyone except for
people who have already lawfully purchased the right to
view the e-Books from e-Book retailers.
• Dmitry and ElcomSoft were charged with distributing
software that can read encrypted Adobe e-books in a
manner not intended by the publishers.
• Charges are filed by the U.S. government, consequently
this is a criminal prosecution. The government must prove
that Dmitry and ElcomSoft acted willfully and for the
purposes of commercial advantage or private financial
gain.
The DMCA
Digital Millennium Copyright Act – 1998
• Prevents circumventing “measures that prevent unauthorized
access to a copyrighted work” but does not forbid
circumventing “measures that prevent unauthorized copying of
a copyrighted work”.
• Does not address copyright violation, but rather the distribution
of tools and software or information that can be used for
copyright infringement as well as for legitimate non-infringing
uses, such as fair use.
• Section 1201 divides technological measures into two
categories:
– Measures that prevent unauthorized access to a copyrighted work
– Measures that prevent unauthorized copying of a copyrighted work
The law prevents circumventing the first category of technological measure
but not the second.
Are Dmitry and Elcomsoft Guilty?
AEBPR software-
Pros:
• Printing eBooks protected with passwords
• reading them on other operating systems
• text to speech translation software
Cons:
• make illegal copies of the copyright protected
eBook and distribute them.
The intent of the software was only for legal copies of
Ebooks, so should ElcomSoft be penalized for
distribution of a tool that can be used for both
legitimate and infringing purposes?
Should an individual be charged
when working for a company?
• Can an employer and an employee conspire
for financial gains?
• Electronic Frontier Foundation (EFF)
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Fair Use
• Allows people to make copies of a work for
personal use, education, criticism, socially
beneficial use.
• Fair use provides the breathing space to avoid an
irreconcilable conflict between copyright law and
the first amendment’s guarantee of free speech.
Does the AEBPR follow the
“Fair Use” doctrine?
• ElcomSoft’s AEBPR software allows users who
have bought an eBook more fair rights uses.
• However, ElcomSoft made commercial gains of
their AEBPR software.
• Though the AEBPR could be misused, it was
intended for fair use.
Does Adobe’s E-book restrict
“Fair Use”?
• Adobe and the publishers used DRM
schemes to protect their intellectual
property, but in doing so restricted fair
use of the e-book.
• Though copyright law may allow for “fair
use”, media companies and publishers
may use code in order to protect their
content. And, presently there are no laws
governing code that prevents “fair use”.
Fair Use cont.
• Was ElcomSoft justified in creating the AEBPR
software in order to provide “fair use”?
• Currently unable to adequately and accurately
differentiate between copies made in good faith
and in accordance with the fair use doctrine vs.
file replication conducted to make money.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Question of Jurisdiction
Both Sides of Jurisdiction
• No other country has copyright laws as restrictive as the DMCA.
• International copyright law has always taken into account the
individual’s rights to make use of materials purchased in a fair and
reasonable way.
• In Russia it is illegal to design a scheme that prevents private citizens
from making copies of media for their own use.
• So, Legally, what Elcomsoft did was not wrong in Russia, but was
being illegally distributed here.
• According to the indictment, Sklyarov and ElcomSoft are on trial for
importing their product into the U.S. and selling it in the U.S. for
commercial gain.
Questions of Jurisdiction
• Where does the extent of U.S. law begin, and Russian law end with
regards to software available on the Internet?
• Can the U.S. have jurisdiction?
• Do the Russians need to oblige by U.S. law?
• Would the U.S. Government be able to charge ElcomSoft under the
DMCA, if their servers were located in England and their payments
were processed through German based credit card companies?
• How would regulation change under such a scenario?
• i.e. Lessig’s Gambling Server Example.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Question of Jurisdiction
Is the DMCA a Fair Law?
DMCA - A Fair Law? (1)
• Case – Judicial test of the DMCA. Movie studios
and record labels are leaning on DMCA to protect
their copyrights.
• Code (encryption) restricts various uses of digital
works and DMCA enforces those restrictions.
• Copyright Law designed to grant limited control
to authors – DMCA provisions override this
principle – and erode public’s right to freedom.
DMCA - A Fair Law? (2)
• DMCA has not addressed the issue of “fair use” in a digital
environment
– Cannot distinguish between copies made in good faith vs.file
replication conducted to make money.
• Examples:
– Regular Books vs. e-books
– Guns vs. AEBPR
• An Internet generation has transpired since the passing of
the DMCA –
– Need to address copyright issues in cyberspace balancing between
the need to protect intellectual property vs. protecting academic
inquiry.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Question of Jurisdiction
Is the DMCA a Fair Law?
Ethical Dilemmas
Ethical Issues | Elcomsoft
• Failed to notify Adobe about their efforts to exploit the security flaw in
Adobe’s PDF reader software.
- Did Elcomsoft have an Ethical obligation to inform Adobe?
• meant to provide “fair use” of the digital content in the eBook reader
but their software would hurt the commercial interests of Adobe.
- Was ElcomSoft in the wrong for exploiting Adobe’s software, or was
Adobe unethical in limiting its users “fair use” rights with their reader?
Ethical Issues | Elcomsoft
• Should ElcomSoft have released the software as shareware and
allowed everyone to use it?
• Does ElcomSoft ethically deserves financial compensation for this
product?
• Is ElcomSoft wrong because this product could potentially be misused
by someone who is corrupt?
• Was ElcomSoft wrong for creating the software, or for merely
distributing it in an area where the law does not allow the software
because of its DMCA violating nature?
• Did Dmitry have an ethical obligation to the Programmers Code of
Ethics to not exploit the flaws in a product?
Ethical Issues | Adobe
• Just because Adobe is shielded under the watchful arms of
the DMCA, does that give the right to control how it's
users can view their books?
• Should software companies be allowed to govern fair use,
or should that control lie in the government?
• Security Technology: Is Adobe wrong in telling its
customers that e-Books provide them sufficient security or
did ElcomSoft manage to break a strong security
protection?
Ethical conclusion
Should people have the right to freely view and move around
their eBooks, or should that power lie hands of the Publisher?
Yes to people?
Adobe should be allowing them to do this and therefore,
Adobe would be acting unethically by limiting the eBook
purchasers rights and not allowing them the choice of
having strong password protection and encryption.
Yes to publisher?
ElcomSoft should not be selling this product without
Adobe’s knowledge since it exploits their software, and the
eBook viewers would be breaking certain understood
responsibilities they have to Adobe in the use of their
software.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Question of Jurisdiction
Is the DMCA a Fair Law?
Ethical Dilemmas
Social Issues
Effects on Research Community (1)
• The U.S. has been a major hub for research.
Researchers and scientists at universities and
commercial institutes have always been able to
pursue new ideas since they have the freedom of
speech.
• Dmitry’s arrest in Las Vegas, has made scientists
and researchers question their ability to be able to
freely present their knowledge. The research
community is skeptical of traveling to the U.S. to
present their findings.
Effects on Research Community (2)
• The rise of the Internet has allowed for instant
dissemination which the publishers and authors would like
to exploit.
– Need to protect intellectual property in order for them to have any
incentive to promote various arts and sciences.
• Research in security and encryption technologies, depend
upon the right to crack and report.
• Software providers are similar to providers of anti-virus
software and firewalls – not a solution but a process of
constantly updating to stay ahead of the hackers.
Case Study:
Adobe (& U.S. Govt.) vs. ElcomSoft
Introduction
The Battle in the Courts
Fair Use?
Question of Jurisdiction
Is the DMCA a Fair Law?
Ethical Dilemmas
Social Issues
Conclusion
Status of the Case
• May 8th, 2002 - ElcomSoft’s request to dismiss the
criminal charges for violations of the DMCA was
denied.
– DMCA does not eliminate fair use or impair fair use rights of
anyone. Users may find it more difficult to engage in certain fair
uses with regard to e-books, but nevertheless, fair use is still
available.
– Despite acknowledging a lack of clarity in the congressional record
surrounding the adoption of the DMCA, the judge ruled that due
process was not violated. Plain meaning of the DMCA statute was
to ban circumvention tools completely because Congress had
assumed that "most uses" of the tools would be for unlawful
infringement rather than fair or non-infringing uses.
What Next?
• DMCA of 1998 needs is undergoing the judicial
process in the courts of law.
– Needs to re-address circumvention tools that can be used
for unlawful infringement as well as non-infringing purposes.
– Needs to strike a better balance
• Internet has brought the world a lot closer than we
were.
– Copyright laws are going to have to take into account ethical
and legal differences amongst nations in order to protect
intellectual property. International treaties and agreements
will play a much more significant role in controlling illegal use
of technology.
References
[1] Planet eBook: Index of ElcomSoft, Dmitry Sklyarov, Adobe, U.S.
Government and DMCA-related articles from around the Web
http://www.planetebook.com/mainpage.asp?webpageid=170
[2] EFF "Intellectual Property: Digital Millennium Copyright Act
(DMCA): U.S. v. Sklyarov" Archive
http://www.eff.org/IP/DMCA/US_v_ElcomSoft/
[3] Free Dmitry Sklyarov (this contains info about him, and his statements
to the courts) http://www.freesklyarov.org/
[4] Other useful links http://ezhe.ru/ElcomSoft/
[5] Commentary: Stealing is Stealing, No Matter How Noble the Cause,
by Gene Gable http://www.seyboldreports.com/ebooks/010816-
gene.html
[6] Adobe FAQ: ElcomSoft Legal Background
http://www.adobe.com/aboutadobe/pressroom/pressreleases/200108/El
comSoftqa.html
References Con’t
[7] The Digital Millennium Copyright Act of 1998, U.S. Copyright Office
Summary, Dec 1998.
[8] ElcomSoft Executive Responds to Federal Charges Against Dmitry
Sklyarov
http://ElcomSoft.com/statement0829.html
[9] Analysis of Sklyarov’s Indictment by Anton Chterenlikht
http://uk.eurorights.org/issues/sklyarov/innocent.shtml
[10] ElcomSoft supporters miss the point by Mike Letts
http://www.seyboldreports.com/ebooks/features/010724-
ElcomSoft.html
[11] The DMCA, Technological Enforcement and Dmitry Sklyarov by
Dave Amis, August 12, 2001
http://www.netfreedom.org/news.asp?item=166
[12] Code and Other Laws of Cyberspace by Lawrence Lessig