SAN JOSE, California -- The few dozen activists who converged on the Federal Court here Monday morning came to say that Dmitry Sklyarov was an innocent man caught up in a web of bad laws, and that he should be set free. They held up signs proclaiming programmers' right to code freely, and they chanted "Free Dmitry! Now!"
And all of a sudden, that's what happened. Sklyarov -- a Russian computer programmer who was arrested in July for breaking American copyright law by writing a program to defeat Adobe Systems' E-Book copy-protection scheme -- was released on $50,000 bail. He is not allowed to leave the Northern California Federal District and he must remain under the custody of Sergei Osokine, a Russian-American software engineer who lives in nearby Cupertino.
The victory seemed to catch the protestors off guard, as many had expected that Sklyarov would be deemed a flight risk. But Joseph Burton, the defendant's attorney from the law firm Duane, Morris & Heckscher, said after the hearing that he had worked long to negotiate this bail agreement, and that negotiations with the government would continue. He said he's optimistic that Sklyarov, whose arraignment is scheduled for Aug. 23, will not be charged with anything.
"The government was wise to do this," whispered one reporter in the press box when Assistant U.S. Attorney Scott Frewing told the court that the government would not mind Sklyarov's release, provided that "reasonable measures" were in place to ensure that he didn't leave the country.
Immediately, there was speculation that given the Internet outcry on this matter, the government's stance in court was evidence that it was backing down on prosecuting Sklyarov.
"We packed this courthouse," said Robin Gross, a staff attorney for the Electronic Frontier Foundation, which opposes the Digital Millennium Copyright Act -- the law under which Sklyarov is being pursued -- on the grounds that it restricts programmers' freedom of speech.
"We made ourselves heard, so the fact that he was able to get himself free at least shows that the public's efforts worked," she said.
She added that Adobe's reversal in the matter, which was brokered by the EFF, might also have had something to do with the programmer's release.
The U.S. Attorney's Office of the northern district of California declined to comment on the case, citing a policy of keeping silent on pending litigation. Neither Adobe nor the Business Software Alliance, a lobbying group made up of big software companies, returned calls for comment on Sklyarov's release.
But Burton, Sklyarov's attorney, was rather candid about how the release was just a "first step," and that more news would follow. "I'm an optimistic kind of guy," he said. "We'll convince them by logic or by charm that this is not the right case to bring forward."
Paradoxically, however, if the case against Sklyarov is dropped, the chances for a constitutional challenge to the DMCA could perhaps be hampered, some observers said. Sklyarov is thought to be the first criminal defendant charged under the law, and many who oppose it see his plight as a kind of Kafkaesque example of why the law needs to be changed.
In the often-jovial hours before and after the hearing, the spectators talked about his case in an abstract, academic manner. They said that Sklyarov was getting a raw deal, but that maybe his case would provide a foot into the Supreme Court in order to overturn the law. Maybe there was a silver lining, in other words.
But when Sklyarov was escorted into the courtroom in handcuffs and an orange jumpsuit, the courtroom became tensely quiet. His attorney later described him as being in "good spirits throughout this whole thing," but the defendant appeared stunned, and he sat stone-faced through the proceeding. Even when he was ordered released, he hardly moved.
"He's a great test case against the DMCA," said Brad Templeton, the EFF's chairman of the board. "And perhaps we'd love to have him as a test case. But he's got a family. That's more important -- in order for him to be a test case, he would have to be trapped in this country. That's not the circumstances we want."
Other protestors agreed with this notion. They said they would love for there to be some real cutbacks in the DMCA, but they thought Sklyarov's plight was too much to ask for in return.
"It's sad," said Dan Kaminsky, a computer security expert who maintains a discussion site called DoxPara Research. "I just feel bad for the guy -- that he comes to a conference in the United States and gets arrested for speech. I was the guy who spoke before him there, and after (he was arrested) I was wondering if I'd ever done anything to make me a 'circumventionist.'"
