IP: a USACM letter to the AAP on Dmitry Sklyarov

[David Farber <dave () farber net>]

> Date: Fri, 27 Jul 2001 12:02:55 -0700
> From: Barbara Simons <simons () acm org>
> To: Dave Farber <dave () farber net>
> Subject: a USACM letter to the AAP on Dmitry Sklyarov
>
> Dave,
>
> USACM, the public policy committee of ACM, just sent a the
> following letter to the AAP expressing concern over the AAP's
> support for the DMCA in general and the arrest of Russian
> cryptographer Dmitry Sklyarov in particular.
> (ACM is a member of AAP).
>
> Links to the letter, the AAP, and USACM statements on
> the DMCA and other intellectual property issues can be
> found under Recent Activities and News at
> http://www.acm.org/usacm/.
>
> -------------------------------------
>
> July 26, 2001
>
> The Honorable Patricia S. Schroeder
> President & CEO
> Association of American Publishers
> 50 F Street, N.W., 4th Floor
> Washington, D.C.  20001
>
> Dear Ms. Schroeder:
>
> As you know, the Association for Computing Machinery (ACM) is a member of
> the Association of American Publishers (AAP).  As the Co-Chairs of the U.S.
> Public Policy Committee of ACM, we are concerned by the APP statement
> released on July 19, 2001, which hailed the U.S. Department of Justice's
> recent arrest of a Russian cryptographer for allegedly violating the
> anti-circumvention provisions of the Digital Millenium Copyright Act
> (DMCA).  We would like for the AAP to be aware that ACM has consistently
> opposed the anti-circumvention provisions of the DMCA.  In our view, the
> overly-broad provisions impede the progress of research in cryptography and
> other computer security areas by criminalizing multi-use technologies
> rather than narrowly penalizing infringing behavior.
>
> ACM has been shifting its publication operations from paper-only to
> electronic distribution and we understand the importance of reasonable
> copyright protections.  ACM is an educational and scientific computing
> society comprising computing professionals from all areas of industry,
> academia, and government.  As such, we strongly support the freedom of
> computer scientists to engage in research, and to exchange ideas and
> information fundamental to the progress of innovation.  The need for free
> communication and fair-use of information are vital to the processes of
> education and research.
>
> During consideration of the DMCA by the U.S. Congress and the subsequent
> rulemaking process, ACM recommended that the anti-circumvention provisions
> of the legislation be revised to restrict only circumvention directly
> involved in infringement.  We further elucidated other flaws of the Act,
> including:
>
> * failure to permit circumvention for "fair-use" purposes is inconsistent
> with the fundamentals of copyright law and deters individuals from
> conducting bona fide forms of science and technology research that is
> fundamental to innovation;
>
> * exempting encryption research from the anti-circumvention provisions is
> too limited as the majority of computer security research does not involve
> encryption;
>
> * permitting reverse engineering for the sole purpose of interoperability
> may criminalize development of software engineering tools and technology
> with other uses; and,
>
> * anti-circumvention exemptions that permit circumvention to obtain
> authorized access to a work are meaningless if access mechanisms and tools
> cannot be used to do so.
>
> Unfortunately, our concerns were not satisfactorily addressed as the DMCA
> was enacted or as the implementation rules were promulgated.  As a result,
> scientists are now finding themselves in a position where they must consult
> attorneys to determine if their previously legitimate research might be in
> violation of the DMCA.  In some instances, the threat of legal action under
> the DMCA has deterred scientists from publishing scholarly work or even
> publicly discussing their research.  Certain foreign scientists and
> international members of ACM have indicated they will not attend
> conferences in the U.S. while the law is in force.  We are clearly seeing
> evidence that the anti-circumvention provisions of the DMCA have proven to
> have a chilling effect on U.S. scientific and research enterprise.
>
> While we recognize that the AAP works to protect the interests of book and
> journal publishers by advocating strong copyright protection in digital
> environments, we urge you to recognize the distinction between
> circumvention for the purpose of obtaining unauthorized access to a work
> and circumvention for the purpose of making a non-infringing use of a
> work.  In addition, we would hope you would agree that absent some clear
> criminal intent, technologists should not be penalized for conducting
> research that is crucial to developing and testing copyright protection
> systems, security software, and better software engineering tools.
>
> In light of your recent release indicating support for the
> anti-circumvention provisions of the DMCA, we respectfully inquire if the
> AAP shares the concerns that ACM and other professional societies and
> research leaders have expressed regarding the Act's chilling effect on
> research and scientific freedom?
>
> We look forward to your reply.  Please contact Jeff Grove, Director of the
> ACM Public Policy Office at (202) 659-9711, if you have any questions or
> wish to discuss our concerns.
>
> Sincerely,
>
> Barbara Simons, Ph.D.
> Eugene H. Spafford, Ph.D.
>
> Co-Chairs
> U.S. ACM Public Policy Committee (USACM)
> Association for Computing Machinery



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