Adobe FAQ: ElcomSoft legal background
INTRODUCTION

Adobe's cooperation with the U.S. government in its investigation of ElcomSoft, a Russian software maker, has generated a significant amount of public interest. Both our role in this case and our views on the enforcement of copyright law have been extensively covered by the media and hotly debated among people who care about these issues. Unfortunately, many of the facts surrounding this case have been misrepresented, and Adobe's point of view has not been adequately heard. This document is intended to serve as an information source to help the media, our customers, and our stockholders gain a better understanding of Adobe's position on issues related to this case, as well as the enforcement of copyright protections in general.

OVERVIEW
Earlier this year, Adobe discovered that a Russian software company called ElcomSoft was illegally marketing a product that could be used to circumvent security protections built into the Adobe® Acrobat® eBook Reader™. The product ElcomSoft was selling enabled users to compromise digital content that is protected under U.S. copyright laws.

Adobe sent letters to ElcomSoft, its U.S. Internet service provider, and its U.S. credit card clearinghouse asking the companies to cease and desist the for-profit sale of these digital burglary tools. Adobe's goal was to stop the sale of ElcomSoft's program in the United States. When ElcomSoft failed to respond and/or cease and desist, Adobe forwarded the matter to the U.S. Attorney's Office. Based on the information gathered in the investigation about ElcomSoft's commercial activities, the Department of Justice made the decision to arrest ElcomSoft programmer Dmitry Sklyarov during a visit to Las Vegas, Nevada, in July.

Subsequently, Adobe withdrew its support for the U.S. government's criminal complaint against Dmitry Sklyarov. In a July 23, 2001, press release, Adobe stated that "the prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry."

On August 30, 2001, both Dmitry Sklyarov and ElcomSoft were arraigned in U.S. Federal Court on five counts each of violating the Digital Millennium Copyright Act (DMCA). Both pleaded not guilty and a trial date was set for November 8, 2001.

Contrary to some reports, Adobe did not alert the U.S. government that an expert was exposing security weaknesses in its products. In fact, Adobe encourages its customers and the software community, including "White Hat" security experts, to provide feedback on the performance of its software in order to make improvements. In this case, ElcomSoft made no attempt to alert Adobe that it had discovered a security weakness in the Acrobat eBook Reader software. Instead, ElcomSoft began selling its "digital lock pick" online so that others could also compromise the copyrighted works of authors, artists, developers, and publishers. This is why Adobe alerted the U.S. Attorney's Office.

ADOBE'S GOALS

Adobe has two goals in this case:

  • To ensure that ElcomSoft stops distributing its illegal "digital lock pick" and is held accountable for its past conduct
  • To help protect the copyrighted works of authors, artists, developers, and publishers

QUESTIONS AND ANSWERS

General questions

Q: What's the latest development in this case?

A: Elcomsoft's final two motions were denied by the court May 8,2002 on first amendment and due process grounds. Elcomsoft's first two, related, motions were previously denied.

Q: Has Adobe changed its position regarding the joint statement issued with the Electronic Frontier Foundation (EFF) on July 23, 2001?

A: No. The press release of July 23, 2001, is still the Adobe position.

Q: What is Adobe's reaction to the news that the U.S. government intends to prosecute Dmitry Sklyarov and/or ElcomSoft on the grand jury's charges?

A: Although 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.

Q: What did ElcomSoft do?

A: The company developed a tool that circumvents the copyright protections in Adobe's Acrobat eBook Reader, and then sold it in the United States. By doing this, the government believes that ElcomSoft violated U.S. copyright law (Digital Millennium Copyright Act - summary PDF, 18 pages / 84 KB; complete document PDF, 59 pages / 320 KB), harming the rights of authors, artists, developers, and publishers.

Q: ElcomSoft claims that its software provided a service to Adobe and publishers by uncovering a security weakness. What is Adobe's position?

A: Adobe is not aware of any attempts by ElcomSoft to provide feedback on the security of the Acrobat eBook Reader. Contrary to some reports, Adobe did not alert the U.S. government that an expert was exposing security weaknesses. In fact, Adobe encourages its customers and the software community, including "White Hat" security experts, to provide feedback on the performance of its software in order to make improvements. When "White Hat" security experts notify us of possible weaknesses in security, we work with them to fix the problems as soon as possible. In the ElcomSoft case, Adobe's concern was that a "digital lock pick" was being distributed for profit that would enable others to compromise the copyrighted works of authors, artists, developers, and publishers. This is why Adobe alerted the U.S. Attorney's Office.

Q: Then why was Dmitry Sklyarov arrested after he presented at the DefCon-9 conference in Las Vegas? Isn't that a violation of free speech?

A: Sklyarov was not arrested for anything he said or for presenting a scholarly paper. According to the press release issued by the U.S. Attorney's Office, Dmitry Sklyarov was arrested as the copyright holder of the "Advanced eBook Processor," a product distributed by his employer, ElcomSoft. He was arrested and charged with a "single count of trafficking in a product designed to circumvent copyright protection measures in violation of Title 17, United States Code, Section 1201(b)(1)(A). This is one of the first prosecutions in the United States under this statute, the Digital Millennium Copyright Act (DMCA)."

Q: What has happened since the arrest?

A: Sklyarov has been out of jail on bail since August 6, 2001. On August 28, 2001, ElcomSoft and Sklyarov were both indicted by a federal grand jury on five counts each of violating the DMCA. Both parties entered pleas of not guilty, at an arraignment August 30, 2001, and a trial date was set for November 8, 2001. Adobe intends to cooperate fully with the government in this matter as required by law.

Q: What is the EFF and what is Adobe's relationship with this organization?

A: The Electronic Frontier Foundation (EFF) is an electronic civil liberties organization. When the EFF came to the defense of Dmitry Sklyarov, Adobe agreed to meet with EFF representatives to address the situation. After a frank discussion of the issues surrounding this case, Adobe and the EFF issued a joint statement on July 23, 2001, (see press release) in which Adobe withdrew its support for the criminal complaint, stating that "the prosecution of this individual is not conducive to the best interests of any of the parties involved or the industry."

Q: Why did Adobe drop its complaint in this case?

A: It didn't. The criminal complaint in this case is the U.S. government's, not Adobe's. Adobe's statement in the joint announcement with the EFF (see press release) was that it was "withdrawing its support for the criminal complaint against Dmitry Sklyarov," stating that "the prosecution of this individual is not conducive to the best interests of any of the parties involved or the industry." However, Adobe continues to support the DMCA and the enforcement of copyright protection of digital content.

Q: How have Adobe's customers, the publishing community, responded to this issue?

A: Our customers are strongly concerned about piracy and the protection of digital content. The intellectual property community has rallied strongly around the DMCA and the government's actions. Those speaking out include the Association of American Publishers, the Business Software Alliance, the Interactive Digital Software Association, the Motion Picture Association of America, and the Recording Industry Association of America. The U.S. Constitution has guaranteed copyright protection for more than 200 years. Clearly, the laws that enforce the protection of digital media are based on the same principles as those that protect traditional media – to protect the copyrights of authors, artists, developers, and publishers while balancing the right to fair use.

Q: As a result of this case, what is Adobe doing to strengthen the security of its products?

A: Security is an ongoing effort. We are committed to strengthening the security of our products by using sophisticated, industry-standard levels of software encryption and working with the software community, including "White Hat" security experts, to incorporate features to advance the quality of our products.

Product questions

Q: ElcomSoft claims that eBooks in Adobe PDF are insecure and that the encryption is weak, including ROT-13, which is notorious for its lack of security. Are those claims true?

A: Adobe has never sold ROT-13 as a security product. Adobe incorporates sophisticated, industry-standard levels of software encryption to make our products difficult to compromise. However, no software is 100 percent secure from a determined, illegal attack. When used legally and in its intended fashion, the Acrobat eBook Reader secures eBooks purchased by locking the eBook to the hardware for which it was purchased. The ElcomSoft software circumvents that security, compromising the protection of copyrighted works.

Q: ElcomSoft claims that it developed its software in order to let users copy the eBooks they purchased onto multiple computers. Doesn't the Acrobat eBook Reader violate copyright fair use?

A: Adobe designed the Acrobat eBook Reader for Windows to allow users to exchange eBooks like printed books. The Acrobat eBook Reader does allow customers to move the eBooks they purchase between computers through its lending and giving features. If the publishers enable these features, the buyer of an eBook can loan or transfer to another Acrobat eBook Reader on the network. To the best of Adobe's knowledge, the Acrobat eBook Reader is the only product that allows for the lending and giving of eBooks. In addition, the Acrobat eBook Reader allows for eBook printing and copying. Finally, the Acrobat eBook Reader includes a text-to-speech feature (or the "Read Aloud" feature) that runs on Microsoft® Windows® 2000 and the Macintosh.

Lending, printing, copying, giving, and text-to-speech are permissions enabled by the publisher. The ElcomSoft software product violates the permissions set by the publisher to protect the copyrighted works of artists, authors, and publishers, making the copyrighted content available for unlimited duplication and distribution. Keep in mind that the eBook market is an emerging one. Adobe and its partners are always exploring new ways to protect copyrights and allow for fair use.

Q: What if I want to carry my eBook on a handheld device? What solution does Adobe provide?

A: Today, the Acrobat eBook Reader is available only for Windows and Macintosh desktop and laptop computers. Adobe is working with standards organizations and device manufacturers on a Digital Rights Management (DRM) scheme that allows for the transfer of copyrighted materials from desktops and laptops to handheld devices.

Legal questions

Q: When did Adobe become aware of the ElcomSoft violation?

A: In June. We learned that ElcomSoft had developed a "digital lock pick" specifically designed to decrypt our customers' copyrighted eBooks and that it was being marketed and sold online in the U.S.

Q: Did Adobe instigate the U.S. government's investigation of ElcomSoft?

A: Yes. Adobe alerted the U.S. government of ElcomSoft's possible illegal distribution of its "Advanced eBook Processor." Based on the information gathered in the investigation, the U.S. government chose to take legal action.

Q: Did Adobe order the arrest?

A: Adobe did not order the arrest. That was the decision of the U.S. government based on the information gathered in its investigation.

Q: Why was a criminal (vs. civil) action pursued?

A: The U.S. government decided to pursue a criminal complaint based on its judgment that ElcomSoft's activities violated U.S. law. Despite Adobe's efforts to get ElcomSoft to cease and desist the for-profit sale of these tools, ElcomSoft did not, so Adobe forwarded the information to the U.S. government.

Q: Why are Dmitry Sklyarov and ElcomSoft being tried in the United States for something that is perfectly legal in Russia?

A: Although the Internet is universal and crosses national boundaries, cyberspace is not a law-free zone. The defendants in this criminal case are not being prosecuted for any programming they did in Russia. According to the indictment, Sklyarov and ElcomSoft are to go on trial for importing their product into the U.S. and selling it in the U.S. for commercial gain. ElcomSoft conducted business from an English-language Web site, used a U.S. dot-com domain name, employed a U.S.-based Internet service provider as a Web host, and processed payments through a U.S. credit card company. The facts of the case make clear the U.S. jurisdiction and ElcomSoft's intended customers.

Additional copyright background

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