FBI arrest of Russian hacker triggers copyright fight

By Tamasin Winram

The facts The FBI recently arrested a Russian software developer Dimitry Sklyarov who presented his work at a hacker’s convention in the United States, for developing a program which bypasses the encryption in Adobe’s e-book files. Essentially, the program uses security flaws in Adobe’s e-book encryption software used to prevent the piracy of electronic books. Sklyarov is among the first to be criminally charged under the US Digital Millennium Copyright Act  1998 (“DMCA”), which makes it a crime in the United States to traffic in devices such as software which circumvent digital encryption. Violations under the DMCA are punishable by as much as five years imprisonment and a $500,000 fine. Adobe software limits its users by prohibiting them from making a copy of an e-book to read on an additional computer or to use as a back-up or for criticism or review.

The program, for a cost of USD99, enables legitimate consumers of e-books to stretch these limits. The affidavit of a special agent of the FBI indicated that the advanced e book processor would allow any person to read an e-book on any computer without paying the fee to the book seller. The Moscow based company where Sklyarov was employed (Elcomsoft) denies that it is involved in facilitating copyright piracy as the program merely increases a purchaser’s control of legitimately purchased e-books. While the advanced e-book processor may make it easier to infringe copyright, it allows people to print, store and back-up electronic books which when used noncommercially may constitute fair use under US Copyright law.

Relevance for Australia

In Australia the use of Sklyarov’s program may constitute an offence under the amendments to the Copyright Act 1968 (Cth) introduced by the Digital Agenda Bill which provides civil remedies and criminal sanctions for anyone found to be manufacturing or commercially dealing in devices designed to circumvent copyright protection measures. For example, devices which circumvent encrypted material.


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