Sklyarov still jailed, attention turns to FBI nominee

Despite Adobe Systems Inc. reversing itself Monday and calling for the release of the Russian programmer imprisoned at the company’s behest, Dmitry Sklyarov remains in U.S. federal custody.

Meanwhile protesters are focusing their attention on current U.S. Attorney Robert Mueller, recently nominated as U.S. Federal Bureau of Investigation director, urging rejection of his candidacy as long as Sklyarov is jailed.

Sklyarov, the Russian programmer whose arrest at the end of the Def Con convention in Las Vegas almost 10 days ago has sparked international protests and calls for a boycott of Adobe, was charged with violating the terms of the 1998 Digital Millennium Copyright Act (DMCA). The DMCA forbids the distribution or sale of information, tools or software designed to circumvent copy-protection schemes, the very violation Sklyarov is said to have committed in writing the program Advanced eBook Processor. Advanced eBook Processor translates eBooks from Adobe’s more secure, but also more restrictive eBook Reader format to the company’s less secure PDF (Portable Document Format).

The case may hinge on the DMCA, a law that has stirred up great controversy over aspects that critics charge not only violate traditional consumer rights like fair use – the right to make personal copies of and quote from copyright material – but also violate the Constitution by impinging on freedom of speech.

Sklyarov’s arrest, for which a conviction could net him five years in prison or a US$500,000 fine, brought free speech, open source and consumer rights supporters into the streets of 21 cities worldwide on Monday to rally for Sklyarov’s release. In an unexpected turn of events late Monday, Adobe agreed to drop the charges against Sklyarov after meeting with representatives of the Electronic Frontier Foundation (EFF), a cyber-rights group who had helped coordinate some of the initial protests. Adobe did not return repeated requests for comment for this article.

Despite Adobe’s change of heart, Sklyarov may not go free. He remains in the custody of the U.S. Marshals and is to be transferred to San Jose from Las Vegas, Matthew J. Jacobs, an assistant U.S. attorney in San Francisco said.

The U.S. Attorney’s Office for the Northern District of California, the office handling the prosecution, is not commenting on Adobe’s statements, Jacobs said. However, Sklyarov is still charged, he said.

But just because he is still in custody and charged does not mean that Sklyarov will necessarily be prosecuted. The EFF is planning to meet with the representatives from the U.S. Attorney’s Office for the Northern District of California at 9 a.m. Pacific time on Friday, according to Will Doherty, online activist for the EFF.

Doherty expects that such a meeting will lead to Sklyarov’s release because “any reasonable person, looking at the facts of this case, would drop the prosecution immediately.” The weaknesses in the case are only underscored by Adobe’s decision to side with the EFF, he said, noting that: “to go ahead and prosecute a crime when the victim no longer wants to prosecute is illogical.”

“The only reason to prosecute at this point is a vendetta of some kind or political aspirations to appear hard on cybercrime,” he said.

Politics enters into the equation because Robert Mueller, the U.S. Attorney for the Northern District of California, is president George W. Bush’s nominee for FBI Director and will be facing confirmation hearings next week before the Senate Judiciary Committee.

As such, the attentions of the Boycott Adobe Web site, one of the leading organizers of the Free Sklyarov movement, have shifted to Mueller. The sites’ creators, Bill Scannell and Paul Holman, are saying that Mueller should be barred from becoming FBI Director unless Sklyarov is freed.

Boycott Adobe is also urging its readers to write to the Senate Judiciary Committee that will oversee Mueller’s confirmation hearings and ask them to reject Mueller’s nomination as long as Sklyarov is jailed. A new Web site,, has been created for the movement, though it does not yet appear to be online.

Though the EFF’s Doherty does expect that the U.S. Attorney’s office will eventually see the matter the EFF’s way, he also said that the organization would not fight the confirmation of Mueller as FBI Director. Mueller has been in Washington, D.C., for months and is not involved with the Sklyarov case, he said, a fact the Boycott Adobe Web site is apparently not aware of. Rather, Doherty said, the acting U.S. Attorney is prosecuting the Sklyarov case.

If Sklyarov is not freed, the effect will be far-reaching, Doherty said. More protests will be launched and a number of international researchers and conferences have decided not to come to the United States while the DMCA is still in effect, out of fear of being arrested – like Sklyarov – for work that is legal in their home countries, he said.

“(Sklyarov) got thrown in jail for doing his job,” and other programmers will not want to share his fate, Doherty said, alluding to the fact that Advanced eBook Processor is legal in Russia.

But this should not become an issue, as he expects that Sklyarov will be freed, Doherty said.

“I believe our justice system will come to its senses – sooner rather than later – and free Dmitry Sklyarov,” he said.

Adobe, in San Jose, Calif., can be reached at The U.S. Attorney for the Northern District of California can be reached at The Electronic Frontier Foundation, in San Francisco, can be reached at The Boycott Adobe Web site is online at