by Janet Langjahr © 2002
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There is just one thing I had absolutely never anticipated in my law practice before last summer: one of my high technology clients seeking legal advice because its officers and/or employees had been arrested by the FBI ... for illegal computer programming. Since last summer, however, it is something that I do anticipate may happen, thanks to the indictment of programmer Dmitry Sklyarov and his employer, Elcomsoft Ltd, under the still new Digital Millenium Copyright Act ("DMCA").
You may be wondering whether Mr. Sklyarov wrote and unleashed onto the internet some malicious virus. Or whether he hacked into a government computer. Actually, he didn't do anything of the kind.
Instead, both in support of his doctoral dissertation and for his programming job in Russia, Mr. Sklyarov wrote a computer program that converted Adobe E-Book files into Adobe Acrobat files. Adobe makes the program to read Acrobat files (but not e-Book files) available for free. Elcomsoft sold Mr. Sklyarov's conversion program over the internet via a web site hosted in the United States. Thereafter, Mr. Skylarov came to the US to speak at a conference about his encryption research. That's when he was arrested.
The DMCA, among other things, effectively makes it illegal merely to develop commercial software tools that COULD be wielded to illegally infringe copyrighted content - even if those tools, like Mr. Sklyarov's program, could also be used in other, perfectly legal ways. Conviction for a first offense carries a hefty penalty of up to 5 years in jail and up to $500,000 in fines. Mr. Sklyarov's and Elcomsoft's ultimate fates under their indictments still remain up in the air.
Granted, the DMCA is very unpopular in academic and technical circles, and many legal scholars believe the anti-circumvention provisions cannot withstand constitutional challenge. Regardless, at least for the moment, the DMCA is the law of the land and the consequences of its violation can be quite severe. No software developer (either an individual or a legal entity) can afford to ignore the DMCA or the Sklyarov case.
This is an especially harsh reality in the current recession, which is hitting the technology sector particularly hard. As a programmer refusing to run the risk of violating the DMCA, you could jeopardize your job. Ironically, in at least some at-will employment states, the law will not come to your aid - unless, of course, your employment agreement protects you against this situation.
Considering how commonly professional programmers are assigned the task of writing decryption programs, you might want to see to it that your employment agreement does protect you against this situation.