A letter to Senator Kennedy about the DMCA and Dmitry Skylarov

by Seth Finkelstein sethf@mit.edu

July 30, 2001

Dear Senator Kennedy:

I am writing to you concerning the Digital Millennium Copyright Act (DMCA), and the use of the DMCA to arrest and press criminal charges against Russian graduate student and programmer Dmitry Skylarov when he was in the United States for a conference. Because of the DMCA and a dispute between Mr. Skylarov's employer and a US company, he is currently being held in prison without bail and faces a possible jail term of many years.

I urge you to use your position on the Judiciary Committee to examine reforms to the Digital Millennium Copyright Act. The public should be able to exercise its traditional fair-use rights in copyright without fear of imprisonment. Please take the upcoming Senate confirmation hearings for U.S. Attorney Robert Mueller to be FBI Director as an opportunity to examine the conduct of the U.S. Attorney's Office in the case of Mr. Skylarov. Many organizations have called for the DMCA charges to be dropped against Mr. Skylarov so that he can be freed. Even the company which put the events in motion has now asked the prosecution be halted.

I write to you with special credentials and particular concern in this matter. Just this year I received the award of being named a 2001 Pioneer Of The Electronic Frontier by the Electronic Frontier Foundation. I was profiled in the New York Times on July 19. The award was for hundreds of hours of unpaid decryption work and investigation in the service of free-speech causes. I will not take the time to go into details, except to stress that it involved decryptions which could have subjected me to civil and perhaps criminal liability under the provisions of the DMCA. My work, along with others doing similar investigations, was responsible for obtaining a narrow exemption from the Library Of Congress under the DMCA for performing those investigations. However, even so, other provisions of the DMCA may still subject me and others to civil and even criminal penalties. Such concerns are still a major worry of mine. Seeing a corporation able to instigate the arrest of a programmer, and a US Attorney's Office continuing prosecution even after the corporation has decided to ask for the programmer's release, is an extremely chilling effect.

My own work provided vital evidence in support of litigation for a precedent-setting court case against censorship in libraries, a case which was argued in part by the American Civil Liberties Union. The extreme prohibitions and penalties of the DMCA will cause a widespread chill of technical research. We have already seen threats of lawsuits from industry lobbying groups against professors planning to present academic papers. Imprisoning programmers takes this potential suppression to a new and unprecedented level.

As one of the few Senators who voted against the Communications Decency Act (CDA) in 1996, your principled stance against censorship of the Internet is well-known. The case of Mr. Skylarov demonstrates how the Digital Millennium Copyright Act has become far removed from any legitimate interests of copyright. If publishers are able to set in motion arrests of programmers, as part of their copyright protections, this will have a profound negative influence on copyright debates, technical research, and the fair-use rights of everyone.


Seth Finkelstein

Seth Finkelstein was named a 2001 Pioneer Of The Electronic Frontier by the Electronic Frontier Foundation