Adobe Systems Inc., a US-based software developer, sold a software product, called the Adobe eBook Reader, that permitted the authorized reading of electronic books (or e-books) protected by digital rights management (DRM) technology. Such protection entailed that a publisher could directly embed restrictions into an e-book regarding its usage and other related functions. For example, an e-book might have embedded restrictions limiting its reading only to the original computer used for purchase, prohibiting the copying of snippets from the text, and allowing only for three instances of printing. The Adobe eBook Reader could decode these embedded restrictions and enable or disable the appropriate functions.

In 2001 investigators at Adobe became aware of software made by ElcomSoft, a Russia-based company, that removed the technological restrictions from e-books in Adobe's eBook Reader format and converted them into Adobe's Portable Document Format (PDF), thereby allowing an unrestricted use of such material. Although researched and originally produced in Russia, ElcomSoft made available a partly functional version of the software, called the AEBPR, through a server located in Chicago, Illinois and contracted with a company based in Issaquah, Washington to sell a fully functional version. Adobe also noted that Dmitri Sklyarov, an ElcomSoft employee who worked on this software, was traveling to a conference in the United States to give a talk about the weaknesses of Abode's eBook Reader. Alleging that the AEPR software violated US copyright law, Adobe complained to the Federal Bureau of Investigation (FBI) and brought to their attention Sklyarov's presence in the US In July, 2001 Dmitri Sklyarov was arrested in Las Vegas and charged with “trafficking in a product designed to circumvent copyright protection measures”¹ (ElcomSoft was also charged) in violation of provisions made into law by the 1998 Digital Millennium Copyright Act (DMCA).²

The immediate relevance of this case could be perceived in legal terms, specifically regarding the transformation of copyright law to accommodate digital works. The abilities of perfect copying and nearly instantaneous transmission of material allowed by digital communication networks certainly present challenges to the traditional legal notions of intellectual property rights (IPR). A viewpoint from the field of political economy could focus on the growing importance of the protection of intellectual property and other intangibles as a key driver in the advanced sectors of various national economies. The perspective proposed here identifies in this case the emergence of technology-enabled private authority (TEPA), whereby the publishers of digital content directly enforce compliance with legal codes through technology. This “downward shift”³ in decision-making authority represents a migration away from but through the state in the exercise of economic authority. This migration and the application of this kind of private authority in the multi and non-territorial spatiality of digital networks contribute to a multilayered and dynamic approach to the governance of global affairs. The aforementioned perspective will be examined through a brief study of the legal aspects, global trends, and normative implications relating to this case.

The question of legal jurisdiction to arrest and charge Dmitri Sklyarov in the United States allows for an observation on the territoriality of digital networks juxtaposed with the multi and non-territorial space they engender. Why was a Russian citizen and resident who worked for a Russian company arrested and charged in the US for activities he primarily conducted in Russia? The specific legal aspects of this question escape the expertise of this author and generally are irrelevant to our argument, except for the issue of the locality of the servers distributing ElcomSoft's software product. According to the Electronic Frontier Foundation's dossier on this case “for jurisdiction to exist in this case, the court would probably consider whether an act of [...] trafficking in, or marketing of, the AEBPR software took place and if so, whether it could be said to have ocurred in US territory”.⁴ Sklyarov's research and contribution relating to this software was conducted in Russia, where similar products are not illegal, however, as stated above, the indictment against ElcomSoft alleged that it distributed the software through a Chicago, Illinois-based server. For subject-matter jurisdiction to exist, the courts would have had to consider this distribution coupled with ElcomSoft arrangement to sell the software with the Issaquah, Washington-based company as sufficient and that Sklyarov and his employer were involved in these transactions.⁵ The Internet creates a multi and non-territorial virtual space which, for example, facilitates a Russian company to distribute software through US-based servers to any user irrespective of his or her physical location and the legality of such software in the user's country. Nevertheless, a motion to deny the indictment against ElcomSoft for lack of subject-matter jurisdiction was denied; in the order to deny the motion, the US District Court argues that there was “sufficient conduct occurring within the United States for there to be subject-matter jurisdiction over this matter on a territorial basis” considering that “Elcomsoft's [offered] its AEBPR program for sale over the Internet, from a computer server physically located in the United States”.⁶ This case reminds us then that the 'virtualness' of cyberspace emerges only from the servers, fiber-optic cables, and its other constituting components still very much subject to the physicality of national politics, economics, and law.⁷

A three-pronged structure supports the effectiveness of TEPA; the constitutive components of this structure being: the legal legitimacy conferred by the state (in the US through the DMCA, as discussed in the case here), a rational justification of their existence (some argue a need to protect intellectual property to spur innovation, which merits an extended examination), and forced compliance through technology. This third component gives rise to an important normative implication. Spheres of authority sustained through legitimacy or rational justification generally allow an individual to privately resist its authority in a participatory manner. For example, a citizen in a democratic state, a sphere of authority sustained through legitimacy, can resist the authority of some of the state administrators through elections, a way of resistance through participation. In contrast, as observed in the case discussed here, those who resist TEPA are able to only because they posses the technical knowledge which permits this resistance (for example, Sklyarov had the technical knowledge to develop a program to circumvent Adobe's DRM technologies). Others that do not posses this technical knowledge cannot resist compliance with TEPA through participatory conduits; their only recourse for non-compliance being non-participation. This phenomenon highlights the enforced-compliance nature of TEPA.

Technologies which permit private actors to directly force compliance upon others, like the software developed by Adobe, signal the emergence of technology-enabled private authority (as described before, TEPA). This is part of a larger trend in global affairs of formal and institutionalized authority splitting and diffusing into what James Rosenau calls multiple spheres of authority.⁸ Rosenau argues that spheres of authority emerge as “the population of collectivities that make up the multi-centric world [...] undergoes continual growth and shift in its composition as new needs arise and traditional practices are superseded”.⁹ The actions of 'collectivities' that increasingly create, distribute, and otherwise are involved in the transaction of intellectual property encased in virtual objects have challenged the state's ability to protect the rights of copyright-holders, an ability traditionally focused toward physical objects. From the publishers of digital intellectual property has risen a new need for the protection of their rights which the state cannot effectively satisfy. Therefore, temporary and micro spheres of authority are constituted in each interactive moment when a user complies with the technology-enabled restrictions directly embedded in a digital object by its publisher.¹⁰ Although temporary and 'micro', the spatial character of digital networks allows TEPA to be endowed with a multi and non-territorial character to their enforcement measures. Through DRM technologies a copyright-holder can force an end-user to comply with his or her intellectual property rights irrespective of the location of either; also, the DRM technology can be adapted to the particular intellectual property laws governing the multiple locations of end-users. Nevertheless, as discussed earlier, the physicality of digital networks can easily cross over to the virtual realm with significant implications.