WASHINGTON -- Even as the world's geeks march against the Digital Millennium Copyright Act, key legislators and lobbyists are dismissing concerns about the controversial law as hyperbole.
The law that led to the arrest of Russian programmer Dmitry Sklyarov last week and an immediate outcry among programmers continues to enjoy remarkably broad support on Capitol Hill. No bill has yet been introduced in Congress to amend the DMCA for one simple reason: Official Washington loves the law precisely as much as hackers and programmers despise it.
"The law is performing the way we hoped," said Rep. Howard Coble (R-North Carolina), chairman of the House Judiciary subcommittee on intellectual property.
The FBI arrested Sklyarov last week in Las Vegas for allegedly "trafficking" in software that circumvents the copy protection techniques that Adobe uses in its e-book format. Under the DMCA, selling such software is a federal felony punishable by up to five years in prison and a fine of $500,000.
"As far as I know there have been very few complaints from intellectual property holders," Coble, the chief sponsor of the DMCA, said in an interview Tuesday. "I am also encouraged by the Department of Justice's actions in this matter to enforce the law."
When Congress approved the DMCA in October 1998 after about a year's worth of little-noticed debate and negotiations, it was hardly a controversial bill. The Senate agreed to it unanimously, and a unanimous House approved it by voice vote, then bypassed a procedural step that would have delayed the DMCA's enactment.
Since the House procedure says attempts to rewrite copyright law must start in Coble's subcommittee, the odds of a DMCA rewrite in Congress' lower chamber seem remote.
Coble's counterpart in the Senate, California Democrat Dianne Feinstein, feels the same way.
"We need to protect copyrights and this law was designed to do that," said Howard Gantman, a spokesman for Feinstein, who chairs the Senate Judiciary subcommittee on technology. "She's not looking to change it."
In few other political areas is the sharp divide between the east coast and west coast establishments this apparent.
While Washingtonians obsessed over the summer scandal of missing intern Chandra Levy, hundreds of anti-DMCA protesters took to the streets on Monday around the country to condemn the law and demand the Justice Department drop charges against Sklyarov. One satirical article on LinuxPlanet.com is even titled: "The Digital Millennium Rape Act: What to Expect."
Matt Jacobs, an assistant U.S. attorney in the San Francisco office, said the government had not dropped charges and refused to say whether the protests would make that outcome more likely or not.
Mark Rasch, a former assistant U.S. Attorney now in private practice, says: "The U.S. Attorney's not going to back down. They arrested the guy. They can't change their mind or it'll look like a false arrest."
Even though Adobe officials bowed to protesters' demands this week and said they no longer believed Sklyarov should be prosecuted, Rasch predicted that won't change anything: "It's unlikely. Once they've sworn out an arrest warrant, it's unlikely they're going to back down."
The prospect of Sklyarov, a programmer at Elcomsoft who friends say is married and has two young children, spending the next half-decade in Club Fed has outraged programmers and open-source activists. They're now targeting Attorney General John Ashcroft and FBI Director-Designate Robert Mueller, who is currently the U.S. Attorney in San Francisco.
On the free-Sklyarov, mailing list, one activist wrote this week: "The next weakest link is Mueller. He will want to be confirmed with absolutely no controversy surrounding his position.... We must make this incident as embarrassing for him as possible -- so he will resolve it quickly and quietly."
But in the world of Washington politics, geektivists are woefully outnumbered by the natives who populate and influence confirmation hearings: Corporate, nonprofit and trade association lobbyists.
"We believe that a careful effort was made by Congress to balance the rights of intellectual property owners and the rights of intellectual property consumers," says Allan Adler, vice president at the Association of American Publishers, which applauded Sklyarov's arrest last week.
Adler dismissed concerns that civil liberties groups have raised about the impact of the DMCA on free speech. The Electronic Frontier Foundation has filed a lawsuit challenging the law's civil penalties on First Amendment grounds, and 2600 magazine has been fighting a losing court battle against Hollywood for distributing a DVD-descrambling utility.
"There has been a lot of discussion about circumvention and free speech," Adler said. "But I wonder if those same advocates would be as protective of a piece of technology that helps people obtain their personal information online."
The Business Software Alliance, which includes Adobe, Microsoft, Novell and Network Associates among its members and lobbied for the law, says the DMCA is a stellar act of Congress.
"We are very satisfied with how the DMCA was adopted and implemented," says BSA chief executive Robert Holleyman.
"That act was approved with considerable discussion and the members absolutely knew the balances they were advancing. The DMCA allowed the Internet to grow and by and large the act has worked," Holleyman said.
The Free-Dmitry movement argues that programmers should not be prosecuted for creating software that can circumvent copyright protection -- since such tools have many legitimate uses, such as reading an e-book on another computer, as well.
But DMCA aficionados say there are precedents for broad prohibitions on selling devices that can have both legitimate and illegitimate uses.
Current federal law makes it a felony to own, distribute or advertise for sale bugging or wiretapping devices that are "primary useful for the purpose of surreptitious interception of wire, oral or electronic communications." That applies even to parents who might want to monitor what their young children are doing, or to other commonplace uses.
You're also not allowed to possess hardware or software such as cell phone cloning devices that let you "obtain telecommunications service without authorization" -- even if your motives are pure.
One legislator who has questioned the DMCA is Rep. Rick Boucher (D-Virginia).
In a speech in March, Boucher said, "there are some today who believe that the legislation went too far." He said: "It is a crime to circumvent the password or other gateway, even for the purpose of exercising fair use rights. There is no requirement that the circumvention be for the purpose of infringing the copyrights."
When the DMCA was being debated, one of the few groups to raise objections to it was the Digital Future Coalition, a now-defunct umbrella organization that included librarians, EFF and some education groups.
They were, however, badly outclassed.
"This prosecution is an example of the problems the DFC tried to point out when the DMCA was being written, that the anti-circumvention clauses are very broadly worded and include a lot of neutral and positive conduct," says Peter Jaszi, a professor of law at American University and one of the DFC's former organizers.
Andrew Osterman contributed to this report.
