The Forbidden Art - Copy Protection Cracking Criminalized
Charles Carreon
The DMCA also gave new weapons for software and content distributors to use against software crackers. By operation of new § 1201 of the Copyright Act, it became unlawful to “circumvent a technological measure that effectively controls access to copyrighted works.” The practical effect of the law is to entirely kill the market for software that will remove copy protection from CDs and DVDs. Given that the provisions of § 1201 are backed up by criminal remedies in § 1204, any attempt to exploit technologies that have the effect of defeating software-based copyright protection systems are effectively outlaw ventures.
When Congress made it a new criminal offense to create or distribute copy-cracking software, it extended copyright law beyond protection of copyrighted works, to protecting mechanisms used to protect the works. Since copyright protection software can easily incorporate onerous and restrictive terms for the use of licensed material, there is a well-grounded fear that content and software dealers will use software locks to block access to works that are not copyrighted, or have become part of the “public domain.” Since copy-protection cracking software is now illegal, consumers will be powerless against such industry over-reaching.
Any question about whether the U.S. Department of Justice would enforce the anti-cracking restrictions on the law were removed when Dmitry Sklyarov was arrested at the July, 2001 DefCon Hacker Show in Las Vegas. Sklyarov and his employer, Moscow-based Elcom Soft Co., Ltd., were charged with violating what are officially called the “anti-circumvention provisions” of the DMCA. Sklyarov's boss, Elcom Soft president Alex Katalov had sent Sklyarov into the lion's mouth without apparently doing any legal research on whether Sklyarov's trip would be a good idea. Shortly after the arrest, he stated in an email “going to the U.S. , our employees had no idea that we might be accused of any American law violation. We were not aware that our actions could somehow be put within the ambit of U.S. jurisdiction.” Surprisingly, after a trial that lasted two weeks, Elcom Soft was acquitted just before Christmas, 2002, by a jury sitting in San Jose Federal Court. Jurors said Elcom Soft lacked intent, leaving prosecutors scratching their heads and free speech advocates elated. One thing is sure, this isn't the last we've heard about copy-protection cracking. Stay tuned for further legal developments.
The DMCA also gave new weapons for software and content distributors to use against software crackers. By operation of new § 1201 of the Copyright Act, it became unlawful to “circumvent a technological measure that effectively controls access to copyrighted works.” The practical effect of the law is to entirely kill the market for software that will remove copy protection from CDs and DVDs. Given that the provisions of § 1201 are backed up by criminal remedies in § 1204, any attempt to exploit technologies that have the effect of defeating software-based copyright protection systems are effectively outlaw ventures.
When Congress made it a new criminal offense to create or distribute copy-cracking software, it extended copyright law beyond protection of copyrighted works, to protecting mechanisms used to protect the works. Since copyright protection software can easily incorporate onerous and restrictive terms for the use of licensed material, there is a well-grounded fear that content and software dealers will use software locks to block access to works that are not copyrighted, or have become part of the “public domain.” Since copy-protection cracking software is now illegal, consumers will be powerless against such industry over-reaching.
Any question about whether the U.S. Department of Justice would enforce the anti-cracking restrictions on the law were removed when Dmitry Sklyarov was arrested at the July, 2001 DefCon Hacker Show in Las Vegas. Sklyarov and his employer, Moscow-based Elcom Soft Co., Ltd., were charged with violating what are officially called the “anti-circumvention provisions” of the DMCA. Sklyarov's boss, Elcom Soft president Alex Katalov had sent Sklyarov into the lion's mouth without apparently doing any legal research on whether Sklyarov's trip would be a good idea. Shortly after the arrest, he stated in an email “going to the U.S. , our employees had no idea that we might be accused of any American law violation. We were not aware that our actions could somehow be put within the ambit of U.S. jurisdiction.” Surprisingly, after a trial that lasted two weeks, Elcom Soft was acquitted just before Christmas, 2002, by a jury sitting in San Jose Federal Court. Jurors said Elcom Soft lacked intent, leaving prosecutors scratching their heads and free speech advocates elated. One thing is sure, this isn't the last we've heard about copy-protection cracking. Stay tuned for further legal developments.