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When Congress rewrote the nation's copyright laws in 1998, civil liberties advocates predicted the law's overly broad language would outlaw many activities that were formerly legal. Three years later, their dire forecast appears to be coming true.

Officially known as the Digital Millennium Copyright Act, the law makes it illegal to make or "offer to the public a device" to circumvent technological protections in order to gain unauthorized access to any copyright work. The device can be hardware, software, or some other means.

But opponents say the law is eroding the cherished concept of "fair use," an extension of First Amendment protections for free speech, which allow the copying of copyright works for such purposes as teaching, researching, library archiving, news reporting, and criticism.

"Activities that have been lawful and legal are now under threat," said Robin Gross, an intellectual property and fair use attorney with the civil liberties group Electronic Frontier Foundation.

The group has critized the arrest of Russian programmer Dimitry Sklyarov. Last Tuesday, the FBI arrested Sklyarov after he gave a lecture on electronic book security during the hacker convention Def Con in Las Vegas.

Arrested for fair use

Sklyarov is accused of distributing a product designed to circumvent copyright protection measures on Adobe's eBook reader program -- a violation of the DMCA. Known as the Advanced eBook Processor software, the program lets e-book owners bypass restrictions on how they read, print, back up, and store data.

According to a complaint used by the FBI in the Sklyarov's arrest, Adobe requested that the Justice Department take action against the programmer.

But the EFF says Russian law actually requires that software sold within the country allow users to make at least one backup copy of their data. Sklyarov was one member of the programming team that developed the software for the Moscow-based company ElcomSoft.

"The US government for the first time is prosecuting a programmer for building a tool that may be used for many purposes, including those that legitimate purchasers need in order to exercise their fair use rights," the EFF's Gross said.

On Friday, the EFF sent a letter to Attorney General John Ashcroft in which the group accused the Justice Department of detaining Sklyarov unlawfully.

"Not only are Dmitry Sklyarov's human and civil rights being abused, the inability of programmers to distribute fair use tools infringes on the free speech rights of all of citizens who legitimately need them," the EFF's letter read.

"Although the Constitution mandates that copyrighted works pass into the public domain, the DMCA has outlawed all tools necessary to gain access to the works, even after those works rightfully belong to the public."

A string of sympathetic victims

The Sklyarov case is the latest in a string of recent high-profile cases involving the DMCA, although it is the first time the law has been invoked in a criminal prosecution.

In April, Princeton researcher Edward Felten decided not to present a scientific paper describing how to circumvent a music-encryption technology after the record industry threatened to slap him and his research colleagues with a lawsuit.

Backed by the EFF, in June Felten filed a lawsuit that would allow him to present his paper at the USENIX conference next month. The suit targets the Secure Digital Music Initiative, the Recording Industry Association of America, and Verance, one of the companies that created the technology Felten plans to discuss.

Although the groups sent Felten a threatening letter last spring, they now claim they have no intention of preventing him from presenting his findings. EFF attorneys say they will continue the suit to clear the way for other researchers to present papers about controversial technology.

Last August, the Motion Picture Association of America used the DMCA to bar Web journalist Eric Corley from publishing links to DeCSS, a program that bypasses some DVD encryption technologies to allow Linux users to watch movies on their computers.

Corley's lawyers argued that the code enabled consumers to take advantage of the fair use right to watch a movie they'd legally paid for. But the judge in the case sided with the MPAA, which said the code would promote the online piracy of films. A federal appeals court is currently reviewing that ruling.

"If the ruling holds up, the implications for free speech are huge," said Jessica Litman, a law professor at Wayne State University and author of the new book "Digital Copyright." "We're going to have to get used to a whole new set of rules in the free exchange of information."

Could consumers be next?

Litman is one of many legal experts who argue that law enforcement officials are interpreting the DMCA's anti-circumvention provisions too broadly. If the trend continues, critics argue, consumers could soon wind up in jail for engaging in activities that would normally fall under fair use.

For example, while consumers can legally loan a friend a CD they've paid for, it would be illegal to share a legitimately obtained MP3 file if it were password protected.

DVD viewing might also take a hit, legal experts note. Entertainment companies such as Disney, an MPAA member, are beginning to use encryption technology to prevent DVD viewers from skipping past commercials that precede movies. Under the DMCA, it is illegal to fiddle with the code to avoid the ads and just enjoy the show.

Jennifer Granick, clinical director of Stanford Law School's Center for Internet and Society, thinks the law has tipped the scales too far in favor of copyright holders.

"The DMCA says that companies can use technology to take away fair use," she said, "but programmers can't use technology to take fair use back."

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Oh and Seph the potential implications are huge. Spying on you will become widespread(even bigger than now), programmers will be prosecuted up the wazoo, and fair use will be gone.

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The US government for the first time is prosecuting a programmer for building a tool that may be used for many purposes

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The US government for the first time is prosecuting a programmer for building a tool that may be used for many purposes
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That tool's name is none other than Jesse Jackson.

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