BUSTED FOR DEVELOPING WITHOUT A LICENSE?

-- By Peter Coffee --eWEEK Technology Editor (Ziff Davis)

Software has been called a form of machine. It has been

called, by people including myself, a form of speech--and

therefore deserving of First Amendment protection. But

crypto guru Bruce Schneier, publisher of the free newsletter

Crypto-Gram, suggests that we may be headed for a new and

scary legal view of software: code as a controlled

technology, in the same sense as lock picks or explosives,

an artifact that you can be prosecuted merely for

possessing--or even just discussing.

What pushes us across this line is fatally flawed

legislation such as the Digital Millennium Copyright Act,

with its draconian language barring "circumvention" of

copyright. Let me be totally clear: I do not assert, as do

some, that copyright has lost all relevance. I do assert

that a buyer of a copy of a copyrighted work should enjoy

traditional "fair use" protections, including the ability to

access that content in the manner and at the time and place

of the buyer's choosing. But that is not the primary point

that I want to make here.

With its criminal prosecution of researcher Dmitry Sklyarov

under DMCA rules, the FBI has placed all software developers

on notice that they are now in the same category as people

who handle narcotics in a hospital or explosives on a

construction site. Writing a piece of code, and handling it

in anything other than a government-approved manner, can get

you arrested and held without bail.

If you think I'm exaggerating the breadth of this issue,

consider Pamela Samuelson's observation that disabling the

Processor Serial Number feature of a Pentium III-equipped PC

could now be considered, in some situations, a criminal

violation of anti-circumvention law. When IBM does this,

presumably the engineers involved are sure that their

lawyers can beat up anyone else's lawyers. But would you be

equally confident of your ability to survive the attack of a

well-heeled plaintiff who chose to make you a test case?

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