Continued from yesterdayÕs World Tech Tribune column: ÒFair Use and the eBookÓ

One of the defenses of Russian hacker Dmitry SklyarovÕs illegal eBook decryption algorithm that landed him in Federal court in August is that it highlights the need for better cryptography. Wade Roush of the Technology Review broke the story that a similar program has been developed to strip the encryption from MicrosoftÕs competing electronic book software by an American hacker. This new hacker, a Òsecurity expertÓ, has chosen to remain anonymous. Like Sklyarov, this anonymous hacker says he only wants to expose the security holes in a recognizable product from a large corporation. Like Sklyarov, this hacker is blaming the victim for the theft, and heÕs the thief.

SklyarovÕs defenders on both sides of the political spectrum, from leftist lawyer Lawrence Lessig to conservative sci-fi author Jerry Pournelle, have used this argument to absolve the digital thieves of any responsibility. When a politically conservative author like Pournelle publicly announces: ÒI am not willing to hand over a speaker at a conference to a month in Club Fed because Adobe wasn't very good at encrypting their [eBook] files. Shame on Adobe,Ó you have to wonder what chance do you have convincing anyone that eBook hackers are thieves.

Is there something to the Òyou cannot tie your bike to a rack with a rubber band and then complain when your ÔsecureÕ bike gets stolenÓ argument? Could Adobe have come up with more effective encryption for their eBook? Possibly, but we all know that research and development for encryption costs time and money. Adobe could have funneled money into the security R&D department, but they lost over 50% of their worth in a six-month period this year alone. It is hard to keep up with the hackers that run off of Jolt cola, Cheetos and bragging rights ("I cr4ckd adobez crypto wid my L33t code skIllz WOOT!") when your publicly held company is in a tough financial position. The only tough financial position hackers find themselves in is when their mom refuses to keep paying for the 1.5Mb DSL line going into the basement until her son attempts to get a job. Too bad these same hackers can't show off their "L33t skillz" by coming up with some bulletproof encryption for a change. This is more proof of the axiom of it is easier to destroy than to create.

Hackers say that Sklyarov was jailed because of his showing the world how inferior AdobeÕs security was. Some have likened this to Sklyarov writing a how-to make your own printing press book. Sklyarov did not write a book about how to make a printing press; he made the scanning mechanism for a photocopier that only copies books sold by major publishers!

Photocopiers aren't bad, but the photocopiers that only run off copies of Bill GertzÕs The China Threat won't win the blue ribbon at the annual "Photocopier Phoundation" awards dinner (especially if Mr. Gertz is one of the judges). It is too specialized of a technology, a bad business move, unoriginal, criminal; and those guys do deserve to be in jail. The standard defense is: "Oh, so now you can arrest someone that makes lock picks?" Well, can you arrest someone that makes nerve gas? There is a case to be made that both are equally vile but equally necessary.

Hackers masquerading as civil libertarians will argue that hacking Adobe and MicrosoftÕs electronic book software is nothing more than Òfair useÓ rights enjoyed by all under US Copyright law. National Security Advisor Condoleeza Rice, a former professor at Stanford University, wrote to her colleagues in 1998 that: Ò[When] only a small portion of a work is to be copied and the work would not be used if purchase or licensing of a sufficient number of authorized copies were required, the intended use is more likely to be found to be fair... The U.S. Court of Appeals for the Sixth Circuit concluded that the copying of excerpts from books and other publications by a commercial copy service without the payment of fees to the copyright holders to create coursepacks for university students was not fair use. The size of the offending excerpts varied from 30 percent to as little as five percent of the original publications.Ó

What did I just do? I used a tiny piece of someone else's writing to make a scholarly point. I also gave proper credit on where I found this information and who the author was. I also had no intention of copying the entire work. This is fair use. Sklyarov and those who want to use his product are copying whole eBooks. Not five, not thirty but one hundred percent of the book. The ÒHey, dude itÕs all, like, fair use and stuffÓ argument will not wash with most clear thinking individuals. By establishing that Defcon attendees listening to SklyarovÕs speech are not really for "fair use," what now? Will the leftist lawyers from the Electronic Frontier Foundation try to defend Sklyarov as a pawn of the Russian software syndicate who had no idea that his technology would be used for decrypting copyrighted materials? Is it his ignorance of Imperial Amerika's Kopyright Laws? Either way, it sounds like the EFF team is going for the "my client was an idiot" defense, and I doubt Sklyarov wants to be saddled with that.

Adobe used the law that was there to protect them and other digital content creators. Sklyarov and the anonymous coward who allegedly cracked the Microsoft Reader have written hacks that breaks the encryption codes companies put on their products allowing anyone to steal encrypted information from their products and to pass it to anyone on the vast Internet for little to no cost. Like it or not, the Digital Millennium Copyright Act criminalizes this act. A fringe group of society has a problem with the DMCA because it does not allow for them to freely and conveniently distribute MP3s, hackz, crackz, warez and other "convenient" digital copies of commercial products.

To advocate stealing from another person, no matter how convenient or simple the theft is to accomplish, is evil. This is the hacker definition of Òfair use.Ó

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