May 2002: Elcomsoft Hits the Courtroom in Late August
Cindy Cohn, EFF Legal Director
has begun for the first criminal case to be tried under the Digital
Millenium Copyright Act (DMCA). On Monday, California Superior
Court Judge Ronald M. Whyte set the start of the U.S. v. Elcomsoft
trial for August 26th.
Elcomsoft's motion to dismiss was refused by Judge Whyte on May
7, the company awaited the establishment of a hearing date in
the controversial case. The U.S. government's original target
was ElcomSoft programmer Dmitry Sklyarov, who was arrested last
July after speaking at a hacker convention in Las Vegas. Sklyarov
spent several weeks in jail and was prevented from leaving the
country for several months.
are shifting the focus to Elcomsoft, who could be fined $500,000
if convicted. The crux of the federal government's attack is Elcomsoft's
AEBPR program, which allows users to disable copyright protections
on Adobe e-Book software. The case is one of the first to challenge
the anti-circumvention measures of the DMCA as an unconstitutional
restraint on freedom of speech.
on the U.S. v. Elcomsoft case see the Elcomsoft case archive:
2002: Elcomsoft case proceeding
by Alan Wexelblat (firstname.lastname@example.org)
big surprise, really. US District Court Judge Ronald Whyte has
ruled that ElcomSoft can stand trial in the US for violating the
controversial DMCA. Whyte rejected the argument of lawyers for
the Russian software company, who said the DMCA was overly vague,
violated free speech rights and infringed on the established right
to "fair use" of copyrighted material.
surprising to me is that the judge added that while computer programs
legally qualify as speech, the DMCA does not violate the First
Amendment because the statute controls the function of the software,
not its content.
grounds for an appeal right there, as if more were needed. I'm
not enough up on how the law treats software to know if this content/function
distinction will hold up. I suspect we're about to wade into the
morass that is software patents, as that's one area where function
(what a program does) and content (a protected method for doing
something) get treated separately. Ug-lee.
the ruling makes me think that Whyte is going to rule against
ElcomSoft. In particular, his reading of the DMCA seems to suggest
he believes that Congress adequately considered fair use restrictions.
To wit: "...Congress did *not* (emphasis in the original)
ban the act of circumventing use restrictions. Instead, Congress
banned only the trafficking in and marketing of devices primarily
designed to circumvent the use restriction protective technologies.
Congress did not prohibit the act of circumvention because it
sought to preserve the fair use rights of persons who had lawfully
acquired a work."
not bode well for several of ElcomSoft's defense arguments. Furthermore,
Whyte appears to be accepting the government's argument that DMCA
bans all circumvention devices, regardless of fair use concerns,
and that it does so constitutionally: "The statute does not
distinguish between devices based on the use to which the device
will be put. Instead, all tools that enable circumvention of use
restrictions are banned, not merely those use restrictions that
doesn't bode well, as it seems to suggest that Whyte believes
the DMCA trumps the "Betamax" defense. In general, Whyte's
ruling is well-reasoned and worth a read. His deference to the
Commerce Clause and comments on the First Amendment are pretty
typical of what the EFF are going to have to face as they appeal
this case up the line.
don't see here (and so presume was adjudicated earlier) is any
mention of a motion to dismiss on jurisdictional grounds. ElcomSoft
is, after all, a Russian company. Even if we suppose for a moment
that the DMCA is correct and constitutional, surely its range
of application is US territories and possibly US citizens/companies
operating abroad. How this applies to a Russian company escapes
me. Anyone got a pointer to that?
note this is a temporary page; it's readable
as a PDF now but don't bookmark this page
April 2002: Elcomsoft is being bled dry by legal fees
by Alan Wexelblat (email@example.com)
Data source is BNA's Internet Law News (ILN)
Alex Katalov (CEO) says the DMCA charges have taken their toll
on his company, which has spent hundreds of thousands of dollars
to defend itself. He also told CNET that his experience with US
copyright law should send chills through the entire worldwide
development community, especially among those who make software
designed to test security and crack codes, as such programs could
also run afoul of the DMCA.
a big head-in-the-sand approach by software makers that I don't
understand. There should be a *line* of software executives waiting
to file amicus briefs in this case.