You remember Dmitry. He's the Russian hacker whom the FBI arrested after Defcon 6 at the behest of the spineless executives at Adobe.

You recall them, don't you? They're the ones who make products -- in this specific instance, one called "eBook" -- that use crappy, trivially-broken encryption to provide the illusion of protection for their customers' intellectual content.

They're also the ones that knuckled under to a few dozen sign-carrying geeks and ran whimpering away from the glaring spotlight of publicity with their metaphorical tail firmly tucked between their collective legs.

Their act of what I can only call corporate cowardice cut no ice with the Feds. They have their sacrificial lamb and they're not about to pass up the Congress-given opportunity to offer up his Russkie butt to the great god Digital Millenium Copyright Act.

You recollect the DMCA, right? It's the thoughtfully-gift-wrapped present our invertebrate national legislature awarded to its donors in the music and film industries -- and thereby took away from the the rest of us rights of fair use that the Supreme Court for four decades has held inhere to the First Amendment.

You remember the First Amendment, don't you? That's the one that specifically states, "Congress shall make no law..abridging the freedom of speech, or of the press.."

All Fall down

There are absolutely no heroes in this story. The most nearly admirable characters are intellectually dishonest, the least are outright thugs. Let's survey the cast, shall we?

Among the least admirable characters in our drama are: the Congress of the United States, (which foisted the theft of fair-use rights it calls the DMCA upon the citizens of this unfair land, because we don't have any lobby,) Robert Mueller, the ex-Marine who is President Bush's Director of the FBI, (and who, as U.S. Attorney for Northern California, was responsible for bringing the indictment against Skylarov,) the executives of Adobe Corporation, (who called in the Feds against Skylarov for pointing out to the Defcon attendees that the encryption in their products sucks wind and blows air,) and Skylarov himself.

What's that you say? Isn't Dmitry a hacker hero who has been unjustly arrested and unconstitutionally incarcerated for telling the truth about Adobe's incompetent encryption engineering?

Sure he is. At the same time, Skylarov's Russian employer, Elcomsoft, also owns mailutilities.com, a software vendor that makes most of its income building tools for spammers. I mean programs such as Advanced Email Extractor, (which exists ONLY to extract email addresses from Web pages,) Advanced Maillist Verify, (which exists ONLY to verify whether email addresses in "databases, address books and mailing lists" -- which is to say the lists that AEE creates -- are valid,) and Advanced Direct Remailer, (which uses an internal SMTP server function to allow spammers to bypass their own ISP's SMTP server and spam victims directly, instead.)

That makes Dmitry the least admirable actor in the bunch.

And then there are the merely craven players: the Electronic Frontier Foundation, (which tried to call off a planned protest at Adobe's headquarters which it did not itself initiate,) and the Free Dmitry protestors themselves, (the ones who keep harping on poor Dmitry's wife and child.)

Don't Stand So Close to Me

From where I stand, Dmitry's spouse and offspring are irrelevant. From no perspective would it matter if he were a batchelor, a eunuch or a polygamist. He would still be equally guilty or equally innocent of the charges on which he's been indicted.

And he's definitely guilty. What remains to be tested is not that question, but, rather, the core issue of the legality of the DMCA itself.

For the moment, Skylarov is out on $50,000 bail. Meantime, he's forbidden to leave Northern California. The EFF is paying his legal bills, and championing a letter-writing campaign calling on Attorney General Ashcroft to drop the charges and let our favorite villain go home to his family.

I think that would be a major mistake.

I say that because I'm convinced that even our unabashedly partisan current excuse for a Supreme Court will have no choice but to rule the DMCA unconstitutional. And I say that because it must otherwise pitch out the window a whole corpus of precedent that establishes our right of fair use.

Somebody must be the lucky defendant in that test.