Throwing The E-Book At Him

By Chris Taylor/San Francisco

Unlike most tourists in the mid-July Nevada heat, Dmitri Sklyarov did not come to Las Vegas for the casinos. He hates the noise, and besides, as a computer scientist he knows how low the odds are of winning. "I use my head and my hands to make money, not waiting for luck," Sklyarov explains in broken English. So there were really only two highlights of his visit: the part where he spoke at the Def Con computer-security conference, and the part at the end where he got handcuffed and led away by the FBI.

The reason for his arrest, say federal investigators, was in the suitcase he was carrying. Not bombs or secret government documents, but software to make other kinds of documents--electronic books--less than secret. Working for Moscow-based ElcomSoft while finishing his Ph.D., Sklyarov had used his head and hands to write code that cracks the security on an e-book reader sold by software giant Adobe. What Sklyarov did is perfectly legal in the rest of the world, and it was legal here until last year. "I was in the wrong place at the wrong time," Sklyarov told TIME in his first interview since being released on bail.

His arrest has sparked a firestorm of controversy over the as-yet-untested Digital Millennium Copyright Act (DMCA)--and over how far law enforcement should go to protect intellectual property like e-books. The case has provoked the first big showdown between two camps: the programmers who want to bypass security restrictions and the publishers who want to protect the words they sell.

As a rule, computer geeks might best be described as laid-back libertarians--they don't like laws encroaching on their territory, but they're usually too busy to care. Sklyarov's arrest changed all that. Since the DMCA makes it a criminal offense merely to make the tools that some hacker might use to crack security on a copyrighted document, hundreds of programmers suddenly feared they might also fall afoul of it. "I've been a programmer for 10 years, and this is the kind of thing you have to do all the time," says Evan Prodromou, one of the organizers of the Free Sklyarov campaign. "Interoperability, reverse engineering--this is our bread and butter."

But publishers are terrified of any software that makes e-books as free and easy to copy as digital music was with Napster. And there is some justification for this. Consider companies like FileOpen Systems, a tiny New York firm that sells extra e-book security for scientific journals and financial newsletters--small publishers that really need paying customers. Last year ElcomSoft produced a piece of software that cracked FileOpen's code--potentially driving it out of business. CEO Sanford Bingham spent hours on the phone to Moscow in vain. "If they were doing this with credit cards, nobody would have any qualms about seeing this guy in jail," he says. "Ultimately there has to be a legal sanction."

But even Bingham admits the DMCA may have "trampled on" a very important part of copyright law: fair use. You have the right to lend or copy parts of any paper-and-glue book you own, but you can't do the same with an e-book without the express permission of the publisher. This is one reason, e-book veterans say, that the industry has been slow to take off. Reading on a screen is a hassle anyway; why put up with all the extra legal barriers?

Now some activists want the law changed--not because they don't believe in copyright protection, but because too much of it is bad for business. "This is not the make-everything-free crowd pushing this," says Brad Templeton, chairman of the Electronic Frontier Foundation and one of the earliest e-book publishers. "I made every dime I ever had from selling copyrighted material. The question is, Which do you make illegal: breaking and entering, or the locksmith's tool?"

After protests outside its San Jose headquarters and a vigorous "boycott Adobe" campaign, the company released a statement that said prosecuting Sklyarov was "not in the best interests" of the industry. Now Adobe says it did not ask the feds to arrest Sklyarov in the first place, but made a more general complaint against ElcomSoft. The U.S. Attorney's office will not comment on Adobe's role. Sklyarov's attorney believes the company has the outcome it wanted all along: to send a signal to ElcomSoft but end the protests.

Indeed, the boycott is over. While Sklyarov will be arraigned on Aug. 23, most legal experts say the federal case against him will be tough to prove without Adobe's help. The charge filed by the government against Sklyarov is confusing enough: it is for "trafficking" software prohibited by the DMCA. This does not mean he went around selling it himself, but rather that Adobe was able to buy it through a third party--and his name was listed on that software's copyright page. Yes, that is as tenuous as it sounds. "I hope the government knows something we don't," says former U.S. Attorney John Gibbons, "because it looks like they haven't done their homework."

For Sklyarov, the three weeks until his bail hearing last Monday were a whirl of jails: federal detention centers in Nevada, Oklahoma and California. Though separated from his wife, two-year-old son and four-month-old daughter back in Moscow, Sklyarov was typically upbeat about his imprisonment. He read mystery and romance novels to improve his English and felt he was learning a lot about U.S. society: "When you watch American movies, you see the policeman arrest somebody and read him his rights and that's all, but it's very interesting what happens after."

If he returns to jail, e-book publishers will have free rein to use Adobe's security restrictions on what little e-book market there is. If he returns to Moscow, Silicon Valley will breathe easy and more of us may end up reading e-books on our computers. Whether we will have paid for them is another question entirely.