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So sorry Adobe urges more DMCA busts

Compassionate convictions?

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We erred on one important detail in our summary of the Elcomsoft verdict on Wednesday. We wrote that Adobe had urged the authorities not to prosecute Dmitry Sklyarov or his employer Elcomsoft for circumventing the encryption in its eBook software to allow fair use.

That's not true - and Adobe's FAQ about the prosecution sets this right.

Adobe constructs an elaborate formulation which extends sympathy to Sklyarov while expressing a determination to ensure that the law must be upheld. And as painful as it might be, the law must ensure programmers who breach the DMCA will be prosecuted.

We'll arrive at the rather obvious contradiction in this position in one moment.

The FAQ says:-

" Adobe withdrew its support for the criminal complaint against Dmitry Sklyarov, we respect the grand jury's and federal government's role in prosecuting this case. However, we are in complete agreement with the government's decision to prosecute the company, ElcomSoft and, as a law-abiding corporate citizen, Adobe intends to cooperate fully with the government as required by law. The indictment returned in this case clearly reflects the grand jury's agreement with the U.S. government that a criminal prosecution is warranted in this case…

Adobe continues to support the DMCA and the enforcement of copyright protection of digital content."

Although Sklyarov and his employer were prosecuted by the US Department of Justice and not Adobe, eBook creator Thomas Diaz played a key role as a trial witness [transcripts].

But puzzled by this plea for "compassionate convictions", we asked for an explanation from Adobe's director of corporate communications on Wednesday. This morning Holly Campbell replied:-

"Clearly we're disappointed that the jury did not feel the government met its burden of proof in this case. We continue to believe that Elcomsoft violated the DMCA by selling a tool designed to hack the Adobe eBook Reader and we stand behind our original decision to report Elcomsoft's activity to the U.S. Attorney's office."

We still want to know how can the company express sympathy with Sklyarov's plight while vowing to uphold a law that will ensnare future Sklyarovs?

Sklyarov faced a custodial sentence and his employer a $2,000,000 fine. Law enforcement officials are ethically obliged once presented with evidence of a material breach in the law to pursue the case. This is serious business, and to express regret at the severity of his punishment is a shade hypocritical. What can they mean?

By this logic, we suppose, perhaps Sklyarov could have been imprisoned… but in a really comfortable cell, one with cable TV and a hot tub? Or one fenced with cardboard bars, so he could escape really easily if he wanted a drink, sneaking back in for lockdown? Or maybe he could be "fined" - but only in Monopoly money, which isn't a recognized currency?

Unfortunately such whimsical nice guy exemptions aren't part of the DMCA, or any other law we know. If Adobe supports the DMCA and wants offenders to be punished, then it must accept that users and programmers indicted under the law be treated no differently from other criminal suspects.

Adobe is an amazing company, and one of very few that was founded on, and prospered on intellectual merit. (Thanks to Jorn Barger for unearthing this must-read Postscript history]. In the 1980s it was spoken of in the same reverence as Google is now.

Today, Adobe's commercial customers include many of the largest important copyright holders, and the company doesn't want to be seen to be compromising copyright owners' rights. But the Elcomsoft victory was a setback for them all, and what Adobe needs to come up with is not such self-imploding formulations as this, but instead, a leadership role in the publishing industry that balances fair use with remuneration for copyright owners. And this it has so far failed to do. ®

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