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Robert Lemos of ZDNet News reports that supporters backing Dmitry Sklyarov, the Russian programmer charged with five counts of copyright infringement, "declared war on the Digital Millennium Copyright Act at a fund-raiser for Sklyarov's legal defense on Wednesday."

Lemos quotes Lawrence Lessig, director of Stanford University's Center for Internet and Society and author of Code and Other Laws of Cyberspace, commenting:

"This is a war being waged by copyright interests who see each opportunity on the Internet as an opportunity to change the meaning of copyright law.

"For 200 years, copyright law has been a small limited monopoly granted from the government to the people. It has never been understood as a permanent property protection giving them absolute control of their work."

Dmitry Sklyarov, 26, a married father with two small children, and his Russian employer ElcomSoft were named in a five-count indictment filed in San Jose federal district court this week, charged with selling and conspiracy to sell technology designed to circumvent the DMCA, which bans the sale of technology that can allow people to thwart copyright protections in computer and electronic programs.

ElcomSoft sold a $99 computer program, called Advanced eBook Processor, on its Web site for about a month before pulling it in June after Adobe complained. The company claims the program is legal in Russia.

"We have been hearing from many people about lawful uses of Elcomsoft's computer program," commented Cindy Cohn, Electronic Frontier Foundation Legal Director. "It's outrageous that the unconstitutional Digital Millennium Copyright Act (DMCA) could put this young man away for much of the rest of his life."

The DMCA, passed in 1998, prohibits people from possessing or trafficking in devices that can be used to circumvent copyright--even if they don't plan illegal action once they've broken the code. Dmitry Skylarov is the first person ever to be charged under the DMCA, and if convicted he faces up to $2,500,000 in fines and up to 25 years in prison. Sklyarov and Alexander Katalov, president of Elcomsoft, both pleaded not guilty to the charges

"Why lock this guy up for 25 years? That's 25 years!" Lessig reportedly told the crowd at the San Francisco protest /fundraiser. "This has got to be a wake-up call about how distorted this system has become."

Indeed. I wonder if the Bush administration has a clue at all about how venal and idiotic this vindictive prosecution of Dmitri Skylarov is making them look outside the US (as well as to many US citizens)? The scariest possibility is that they do know and don't care. What they are doing to Skylarov is evil and unjust, which seems to be readily apparent to most people once the particulars are explained to them.

Protest marches in support of Sklyarov were planned for 11 cities worldwide yesterday, including San Francisco, Moscow, London, Boston and Hollywood.

Lawrence Lessig declared in San Francisco that the firestorm of protest against the U.S. Government's disgraceful and shameful treatment of Dmitry Skylarov marks "the beginning of a revolution."

I hope so. Copyright law needs to be radically overhauled and democratized, and bad, repressive laws like the DMCA repealed entirely.

Article 1, Section 8 of the U.S. Constitution reads:

"Congress shall have power to...... promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The key phrase there is "limited times," which originally meant something like 14 years of limited, temporary monopoly to a specific publisher. The notion of copyright as an absolute "property right" was foreign to the intentions of the Founders, and it turns the original intention of copyright protection on its head. Current US copyright law in 2001 protects works created today for life of the author plus 70 years, or for a flat 95 years in the case of corporate "works for hire." which amounts to a preposterous distortion and adulteration of copyright legislation's original intent.

Part of the intent of copyright, as it was originally conceived and codified, largely by James Madison, was a guarantee that all works would enter the public domain once the copyright term expired, and that "fair use" would encompass limited copying for education or research. After the "first sale" of a copyrighted commodity, the buyer would be do whatever he wished with the item, except for distributing unauthorized copies for profit.

This indeed corroborates what I perceive as the common sense intuition of many of the millions of folks who shared music via Napster, and still do via Gnutella and Hotline, et al., that there is something very wonky about the notion that something they paid 20 bucks for at the record store is still the "property" of someone else, and why the assertion that unauthorized non-commercial copying of copyrighted material is equivalent to "theft" of real property doesn't logically hold water.

Copyright was originally conceived as an incentive to creation and not a residual reward or property right.

Interestingly, Thomas Jefferson apparently had misgivings about Madison's copyright ideas, and suggested that an explicit prohibition against monopolies, including those limited and granted by the Constitution: patents and copyright, be incorporated into the legislation. Jefferson, fearing that potential monopolists could use state-granted rights to control the flow of ideas wrote, "the benefit of even limited monopolies is too doubtful, to be opposed to that of their general suppression." He was a prophet as well as a thinker.

Jefferson suggested that a clause be appended to copyright legislation stipulating that "Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding [unspecified] years, but for no longer term, and no other purpose.”

In 1918, eminent US Justice Louis Brandeis wrote: “The general rule of law is, that noblest of human productions-knowledge, truths ascertained, conceptions and ideas — become, after voluntary communication to others, free as the air to common use."

Jefferson and Brandeis had it right. Bill Clinton had it all wrong when he signed the Digital Millennium Copyright Act into law in 1998 (we can't rightfully blame the DMCA fiasco on the Bush Republicans alone, although their enthusiasm in hammering Dmitry Skylarov with it is reprehensible). The DMCA is even worse than regular copyright laws, because it mandates no exporation of protection at all, even after an excessive 95 years. It is very arguably unconstitutional.

It's surely time for a revolution. Some might argue that it's already happening, what with the Napster phenomenon and more recently Gnutella. But it would be far better to overturn the current heavily biased and unfair copyright structure through the political process by demanding that copyright legislation be restored to its original, much more limited scope and intent. And that depends on you getting involved.

You can read Robert Lemos' report here.

For an excellent commentary on the historical background of this issue, check out Siva Vaidhyanathan's "Why Thomas Jefferson would love Napster"

Also see: "A Copyright Fable" by Marc Zeedar

Background on the Sklyarov case:
http://www.eff.org/IP/DMCA/US_v_Sklyarov/

Calendar of protests related to the Sklyarov case:
http://freesklyarov.org/calendar/

Charles W. Moore

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