Week of 07/30/2001

Adobe: Using A Government Sledgehammer
- by David Matthews 2

"The genuine creator creates something that has a life of its own, something that can exist and function without him. This is true not only of the writer, artist and scientist, but of creators in other fields... With the noncreative it is the other way around: in whatever they do, they arrange things so that they themselves become indispensable." - Eric Hoffer

When we were kids and we were caught doing something bad, we sometimes tried to lessen the punishment by saying "I didn’t mean to". We usually said it with tears running down our faces with that puppy-dog look as if everything could be cured by a hug and a bowl of soup.

No matter how heinous the act, we always try to lessen the impact by saying "I didn’t mean to". "I didn’t mean to cause harm." "I didn’t mean to cause damage." "I didn’t mean to create so much trouble." A teenager in Florida managed to worm his way out of a life sentence for killing his teacher in the hallway simply because "he didn’t mean" to kill the man. And nine times out of ten, the only "I didn’t mean to" we are really sincere about is "I didn’t mean to get caught."

That image certainly comes to mind concerning Adobe Systems and a certain programmer named Dmitry Sklyarov.

You see, not too long, long ago, in a corporate office not too far, far away, some corporate people from Adobe Systems discovered that there was this device called the Advanced eBook Processor that translated Adobe’s electronic book from the obscure eBook format to Adobe’s more successful Portable Document Format.

Nice little device with one little flaw… it wasn’t made by Adobe.

"Say it ain’t so!" exclaimed the people at Adobe. How could there be a device that allows users of Adobe’s eBook to translate the software into another Adobe format and NOT be invented by Adobe? The answer was pretty obvious: a software pirate must be behind this!

So the holy lawyers of Adobe were summoned to find this so-called "pirate" and stop this apparent sacrilege of Adobe software. The lawyers did a little digging and found out that the man who created this device was an Elcomsoft programmer named Dmitry Sklyarov. But there was this little problem: Dmitry is Russian. Adobe’s holy lawyers could not pummel Elcomsoft with the righteous array of civil lawsuits because the company was outside of the country.

Thus Adobe turned to the Federal Bureau of Investigations. They found out that Dmitry was scheduled to come to America to speak at Defcon-9, the annual hacker’s convention, on the security of electronic books. And so, on July 16^th, FBI agents stormed over to Las Vegas, forgoing the complimentary slot tokens, and cashed in with the arrest of the Russian programmer for violating the Digital Millennium Copyright Act.

So Adobe is happy, the heretic programmer has been vanquished, the Feds have their man, and all is right with the world…

Or so they thought.

It turns out Dmitry’s arrest sparked a little outrage amongst programmers. Not only were they mad that one of their own was being arrested simply for being innovative, but they were mad at Adobe for turning to the FBI and having criminal charges filed. The Electronic Frontier Foundation, one of the premiere free-speech advocates on the Internet, immediately took up the cause as yet another instance of government out of control. They also urged the immediate world-wide condemnation of Adobe Systems for using the government to solve what many see as a civil matter, not a criminal one.

Following a protest outside of Adobe’s corporate headquarters in California – and a threatened boycott by the electronic community – the corporate execs seemed to have a change of heart. They had not only dropped their criminal complaint, but were also asking that all charges be dropped against Dmitry, saying they "didn’t mean" to have him arrested. Besides, they already have what they wanted… the program they deemed to be "criminal" was no longer being sold by Elcomsoft.

Well, you know what? I don’t buy Adobe’s sincerity in the least. "We didn’t mean to.." they said. What a Clinton-esque piece of trailer-park crap that is!

What the hell were the Adobe execs thinking, huh? Were they thinking that the FBI would simply "have a talk" with the programmer? Maybe slap him on the wrist and let him off with a warning? HELL NO! They were going to storm in like gangbusters and drag this father of two out in shackles right in front of the media, not just because it is their nature, but because they NEEDED to!

The FBI has really been kicked in the nuts of late. They had a Russian spy in their ranks for almost two decades. Their mismanagement of 4000 records could have very well cost them the execution – if not the conviction – of Tim McVeigh. It has already jeopardized the conviction of McVeigh’s associate, Terry Nichols. They have been accused of being either incompetent, malicious, and/or corrupt. And on top of it all, they just realized that hundreds of laptop computers and several firearms were missing from their inventories. Do you REALLY think that they would be lenient with a Russian nationalist accused of violating a federal law? I don’t think so! They needed a PR win, and Adobe gave them one.

Let’s get brutally honest here… government is FORCE! What is it that people do not understand about that fact? George Washington, our very first US President, knew that 200 years ago. "Government is not reason," he said, "it is force."

Government is the original ugly, bloated, 800-pound gorilla that breaks into your home, sits on your head, eats your food, craps on your bed, violates your spouse, and then tells you that you cannot do a thing about it and wonders why you’re so pissed off about it all. It is larger than Oprah, Microsoft, America Online, "Big Oil", the Teamsters Unions, HMO’s, and all of the Oliver Stone conspiracy movies combined.

Moralists, bible-thumpers, and other anti-freedom groups know that government is force. That’s why they’re so eager to exploit that force at every opportunity. If they tried themselves to force others to do their bidding, they’d get shot dead. Only the government can force you to do something against your will and truly get away with it.

And no doubt the folks at Adobe knew that as well, which is why they turned to the FBI in the first place.

In doing so, however, the corporate suits at Adobe stepped into a hornets nest of outrage amongst the very people they rely upon for their survival: programmers. And it highlights a very important battle between copyright law and fair use and free speech.

Although much of the Digital Millennium Copyright Act was done under good intentions, it was – like many of Congress’ creations – NOT written with any understanding about the digital world.

For instance, under the DMCA, it is illegal to have the tools that allow someone to circumvent copyright or trademarked materials. How many of you have an HTML editing program like Front Page or Front Page Express? Guess what, you’re violating the DMCA! How about common photo-editing devices like PhotoShop? Yeah, you’re a criminal too! Have a CD-R or CD-RW drive? Yeah, under the DCMA, you too are a criminal. Oh, and you thought the law only pertained to some complex "black bag" code-breaking tools like you see in spy movies? Please! Many so-called "pirates" use the same devices that are standard in the computers you or I use.

I’m sure it would come as a surprise to many members of Congress that by simply having a Notepad program in their computers, they too are in violation of the very law they passed. Not that any of them would actually have the knowledge to know HOW to use those devices, mind you. It takes a Congressional inquiry (and a junket trip to Barbados) for some of those old farts to figure out where the on/off button is!

But then again, whether or not you have the knowledge is irrelevant to the DCMA. The fact that you HAVE these programs capable of circumventing copyright materials makes you an instant criminal. You too could, at any time, be arrested by the FBI should some corporation like Adobe file a complaint.

And here’s another little fact… under the DCMA, only the PROGRAMMERS are held accountable for copyright violations, not the companies they work for! The executives at Elcomsoft have not and will never be charged with violating the DCMA, even thought they were the ones that produced, marketed, and distributed the Advanced eBook Processor without first getting permission from Adobe Systems. They could have very easily prevented this whole mess by either getting permission from Adobe, or to sell the program itself to the company. After all, the program in question simply converted data from one Adobe format to another.

The problem is that the DCMA was written by lawyers, for the benefit of lawyers. It was lobbied for by corporate executives who believe that copyrights should be absolute and eternal, so OBVIOUSLY the law was written without any concept of fair use on the part of the customers.

Here’s the ironic part… much of the success of the electronic world has come from ways that are now illegal thanks to the DCMA. Researchers and programmers who were asked by corporations to troubleshoot their programs are being forced under the DCMA to never talk about their work, or share the faults with others so that other programmers wouldn’t make the same mistakes. Even reverse engineering, which allowed companies like Compaq, Dell, Gateway, and Hewlett Packard to create IBM-compatible computers and thus opened up the personal computer market, is now illegal under the DCMA.

And now Adobe has turned copyright protection from a civil matter to a criminal one. Attorney General John Ashcroft is using this incident as the catalyst to unveil his new "rapid response" team of tech agents to make sure more people share Dmitry’s fate.

Nice going, Adobe. You just used a sledgehammer instead of a flyswatter.

Don’t get me wrong, there are serious needs for copyright protection. I know there are real software pirates out there who are making money off of the blood, sweat, tears, and talents of others. I’ve seen their work, and I know that they will continue to operate with impunity because the corporate attorneys would much rather go after more visible programmers like Dmitry.

Nobody ever said that going after software pirates is an easy task. It requires diligence and hard work. But trying to take short cuts like those spelled out in the DCMA only serve to stifle the very innovation and creativity that made the electronic world so successful.

The law itself has much potential, but it needs to be fine-tuned to allow creativity, innovation, and fair use. Without those things, the Internet, and the electronic world itself, is reduced to being nothing more than just another corporate tool.