Fresh from a diplomatic coup at Adobe Systems, leaders of the Electronic Frontier Foundation will test their negotiating skills Friday in a meeting with the U.S. Attorney's office. Their goal: to persuade prosecutors to drop charges against Dmitry Sklyarov, a Russian computer engineer accused of trafficking software that circumvents Adobe e-book security.
"Failing that, the EFF, a civil liberties group, hopes to gain prosecutors' support for Sklyarov's release pending trial – much as it had persuaded Adobe to join the "Free Dmitry" movement.
"That's the saddest part of this case," EFF Chairman Brad Templeton said on Wednesday. "If he was an American, he'd be out on bail working on his defense. But because he's this Russian guy, he finds himself still [locked up] in there."
Although Sklyarov's case might make for an excellent challenge to the constitutionality of the controversial Digital Millennium Copyright Act, Templeton said, "This isn't a test case we want to pursue. ... Our real effort is to get him out of jail."
EFF representatives are scheduled to meet acting Assistant U.S. Attorney Leslie Caldwell on Friday to discuss the case.
Sklyarov, an employee of Moscow-based ElcomSoft and a father of two, has been incarcerated since July 16 when FBI agents arrested him after the Def Con hackers' convention in Las Vegas for creating software that violates the DMCA. He has yet to receive a bail hearing.
The EFF and others who consider the DMCA an infringement on free speech and scientific freedom have rallied to his cause in protests both online and on the streets outside Adobe offices.
Sklyarov has yet to receive a bail hearing. Under normal circumstances, legal experts say, Sklyarov would be an unlikely candidate for bail because, as a foreign national facing a potential five years in prison and $500,000, a judge would likely consider him a flight risk.
But these are not normal circumstances, Sklyarov's supporters contend. The EFF, Templeton said, will try to convince the U.S. Attorney's office "that this is not the best thing for them to be pursuing."
"You don't put the guy who figured out the flaw in the system in jail," Templeton said. "Even if they are keen on pursuing something like this, this is not the guy."
Sklyarov's arrest, prompted by an Adobe complaint, is the first criminal case involving software under the DMCA, a law that the EFF opposes because it outlaws not just the use of certain tools, but also their creation. Sklyarov's supporters argue that it is unjust to hold a Russian citizen accountable to U.S. copyright law and to bring charges against an employee of a company, rather than its top executives,
The U.S. Attorney's office, however, might consider Adobe's stance irrelevant, a spokesman said.
