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When Dmitry Sklyarov arrived at the Def Con hacker show in Las Vegas last July he had no idea the conference would end with his highly publicized arrest. Nor did the then-26-year-old Russian programmer glean that his incarceration would stir the maelstrom of debate surrounding U.S. copyright law.

But that's just what happened.

For trafficking his company's software, which removes restrictions for files in Adobe EBooks format so that they can be moved to other platforms, Sklyarov and his employer, Moscow-based ElcomSoft, were charged with violating the anti-circumvention provisions of the 1998 Digital Millennium Copyright Act (DMCA). Later, the Justice Department dropped charges against Sklyarov in exchange for his testimony against his employer.

"Going to the U.S., our employees had no idea that we might be accused of any American law violation," ElcomSoft President Alex Katalov writes in an interview via e-mail.

Sklyarov's arrest and the wave of protests that followed underscore concern over the groundbreaking legislation, which is just beginning to show its teeth in a spate of recent court cases.

Outlawing Libraries?

Opponents of the law say its ironclad protections against copyright infringement threaten to douse the fires of innovation and artistic expression heralded by the Internet age, replacing them with expanded and unprecedented corporate control. They describe a world where consumers have little choice over how they use the intellectual property they own, where movies, music, and e-books can be played on only one device, and where copying and sharing works is forbidden--making libraries obsolete.

"The law basically says that if you crack a system meant to protect a copyright work, you go to jail; if you produce software for the purpose of cracking anti-circumvention measures, you go to jail," says Jonathan Zittrain, a Harvard Law School professor and cofounder of the university's Berkman Center for Internet and Society.

However, supporters of the legislation, mainly powerful copyright holders, consider the DMCA a necessity. For them, the digital age is not just a time of great opportunity, but also a time of new and previously unimaginable threats to their business. Today, music and movies, which require millions of dollars to produce and promote, are suddenly vulnerable to casual users who can make perfect digital copies for free.

The DMCA, among many other things, serves as a legal wall between digital copyright protection and those who seek to breach that protection. When Congress passed the DMCA, it was under heavy pressure from the entertainment industry, which was quickly realizing the extent of its vulnerabilities amid rapid technological advances.

Seeing that they needed to do something to protect their intellectual property, groups like the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) lobbied hard for new copyright law to protect them from digital interlopers.

"Our objective throughout was to provide a means for us to protect content in the digital environment knowing that more and more we would have to rely on technical protection measures," said Fritz Attaway, executive vice president of the MPAA.

Restrictions Debated

Congress heeded the call. The DMCA not only outlaws the circumvention of security measures, it also prohibits the trafficking of circumvention tools, and the dissemination of information on how to bypass copyright protection.

Opponents of the DMCA claim that Congress went too far.

"Congress was willing to set guard dogs--paid by the government--around anything that private industry could come up with to protect works, even if those protections were excessive," Zittrain says.

For ElcomSoft's Katalov, the law is both excessive and unclear.

"Reading the statute, it is not clear which kind of devices it intended to outlaw and which tools are permitted," he writes. "The persons concerned are often not able to foresee whether their conduct will be considered illegal or not."

Copyright holders, meanwhile, say they could not provide their content online without the DMCA's protection. The legislation is supposed to ensure incentive for artists to create works, which would then be safe in digital form, says Mitch Glazier, RIAA senior vice president of government relations and legislative counsel.

"[Anti-DMCA groups] have the point of view that in a digital environment there should be no rules and that people should be able to do whatever their equipment is capable of doing," Glazier says. "But in order for there to be a marketplace, there has to be rules of the road."

Hollywood on Warpath

It is probably no surprise that the entertainment industry is lobbying for such sweeping protections, given its decades of experience battling piracy. If the industry thought piracy was a formidable threat in the past, digital copying capabilities must be particularly alarming. After all, the threat of someone copying a cassette tape for a friend pales at the specter of millions of Napster users swapping perfect digital copies of copyrighted music.

"[Critics of the DMCA] don't view the Internet as a place for commerce, or as a marketplace. They see information as being free," Glazier said.

But DMCA foes say they don't necessarily want free content, but fair use of content. They say the problems with the DMCA's anti-circumvention provisions arise from its treatment of fair use exemptions. Fair use rights, such as being able to photocopy pages of a book or quote lyrics to a song, form the backbone of traditional copyright law.

The DMCA provides some fair use exemptions, but critics argue they are so narrow, or implausible, that they may be unusable. Consider one exemption to the "you hack, you go to jail" rules meant as an olive branch to the libraries. That exception says an employee of a nonprofit organization, library, archive, or educational institution can legally circumvent the encryption of a copyright-protected work if no other identical copy of the work is reasonably available, and if they are hacking it solely for the good faith purpose of seeing whether they want to purchase a legal copy.

"This is a mockery of our laws. It's a complete joke," Zittrain says of the exemption. "The fact that Congress solemnly inserted this provision that will be used over the next 25 years exactly zero times ... makes me embarrassed to say that I am a law professor in the U.S."

Early Cases Watched

Sklyarov's case exemplifies concerns anti-DMCA groups have with the law's lack of fair use provisions. Their software, called the Advanced EBook Processor, circumvents the copy protection of files in Adobe's EBook format. Then, users can transfer the books from a PC to a notebook or a handheld, or print them, or convert them to other formats.

Because the DMCA limits users' capability to share and copy works, some opponents claim it is unconstitutional and threatens to unravel the entire copyright system.

"If somebody designs a system that doesn't even allow you to lend a work, like an e-book that can only be played on one computer, you can't lend it out as a library!" Zittrain said.

The DMCA draws other complaints. Some opponents contend its anti-circumvention measures stifle academic and scientific research. In another recent case, Edward Felten, a Princeton University professor, was threatened with a lawsuit if he presented results from a Secure Digital Music Initiative (SDMI) hacking challenge.

Felten's research team was one of two groups who claimed to have successfully broken SDMI's digital watermark technology, in a much-publicized hacking challenge. But when the team was scheduled to present its findings at a conference last April, Felten came under pressure from the SDMI and the RIAA. The organizations threatened to sue him for violating the DMCA's provisions against distributing information on how to bypass copyright-protection measures.

When privacy and free speech groups made a stink, the threats were recanted. Felten decided not to present the research, however, fearing charges under the DMCA. For critics of the law, the damage was already done and the message of the case was clear: The DMCA chills free speech and thwarts research.

"[With the DMCA] you have the sword of Damocles," Zittrain says. "And the threat there is that it hangs, not that it drops. In that case, you might have a lot of people whose behavior is altered by the law.

"To me, Congress would have been wise to say, 'If you build a system that approximates the balance of rights with copyright itself, we'll protect it. If you go overboard, you are on your own,'" Zittrain adds. "It would have been a harder act to create because it would have had a gray zone ... but that's what we pay legislators to do--to write subtle legislation."

Legislation Pending

Subtle doesn't seem to be the entertainment industry's game. It views the problem of copyright infringement in black-and-white terms.

"At the heart of unauthorized use ... is consumer use, and you can't station a copy policeman in everyone's living room, and any technical measure can be circumvented," says the MPAA's Attaway, urging anti-circumvention legislation.

But civil liberties groups, fearing the DMCA already polices too much, are organizing against the law in court and at a grassroots level.

Anti-DMCA groups have adopted Sklyarov's case as an example of what happens when a bunny gets caught in a bear trap. The Electronic Frontier Foundation and a handful of civil liberties groups are fighting the case on the grounds that the DMCA is unconstitutional, impinges on free speech, and stymies research.

Critics also hope to shoot down the DMCA's rules against distributing information on how to circumvent copyright protections, claiming it violates free speech rights.

Saber rattling is also taking place in Congress, where Rep. Rick Boucher, a Democrat from Virginia, is leading a charge against the DMCA's anti-circumvention provisions. Boucher and others want to retool the legislation so violations are based on copyright infringement rather than circumvention.

In a recent address to Congress, Boucher said several legislators tried to curb the DMCA's anti-circumvention provisions when the law was passed in 1998, but "the momentum to enact the measure essentially unamended was too strong, and our effort fell short."

Still others are attempting to build up the DMCA. Boucher's would-be foil, Sen. Fritz Hollings (D-South Carolina), has introduced legislation effectively expanding the DMCA's reach to include hardware by ordering that copy protection be embedded in almost all PCs and electronic consumer devices. The so-called Security Systems Standards and Certification Act has met fierce opposition from civil liberties groups due to its restrictions on how consumers use digital content.

For the entertainment industry, however, the more control, the better.

"We appreciate what Senator Hollings is doing," said the RIAA's Glazier. "At least he is out there, having people come to the table and negotiate." While Glazier said that privately adopted standards are preferable, if the government needs to step in to form a consensus, then the group is open to that, too.

"There will always be a piracy problem and there will also be people who don't care about the rights of other people," Glazier said.

And there's the rub. Opponents of the DMCA would most likely say the same thing about the entertainment industry's approach to users' rights.

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