*Digital Copyright Act Set to Undergo Its First Trial Run*
The article on law.com

Shannon Lafferty
The Recorder
10-17-2002

With the first criminal trial under the Digital Millennium Copyright Act set to start next week, prosecutors and defense lawyers are sparring over just what the government must prove to convict ElcomSoft Co. Ltd.

The Moscow-based software company -- whose programmer, Dmitry Sklyarov, became a computer-world cause celebrity with his arrest last year -- could face more than $2 million in fines if found guilty of distributing software that enables theft of copyrighted works. But the money at stake is nothing compared to the precedent /U.S. v. ElcomSoft/ could set.

With Sklyarov's release in exchange for his testimony at trial, "a lot of public passion has left the case," said Robin Gross, an intellectual property attorney with the Electronic Frontier Foundation. But, she said, "it's still a very important case."

With the case set to open Monday before U.S. District Judge Ronald Whyte of the Northern District of California, the lawyers laying the first set of tracks for the new criminal copyright law are clashing over jury instructions, witnesses and evidence.

But prosecutors and defense attorneys agree the big question -- which Whyte must answer before a juror even steps foot into his San Jose, Calif., courtroom -- is whether the government needs to demonstrate that ElcomSoft intended to commit a crime.

"The government's effort to make the case a strict liability offense -- that's the real issue," said ElcomSoft lawyer Joseph Burton.

ElcomSoft and Sklyarov were indicted last year after Adobe Systems Inc. complained to the government about ElcomSoft's eBook processor, which allows readers to bypass the electronic copyright protections in Adobe's eBooks Reader so that readers can copy, print and transfer copyrighted works. Under the DMCA, ElcomSoft could face a fine of $500,000 on each of five charges -- conspiracy and four counts of trafficking a product designed to circumvent an encrypted security device.

ElcomSoft maintains that its software has noninfringing uses -- for instance, letting eBook purchasers read the work on a second computer or print it out. So Burton wants to call ElcomSoft customers to testify about how they intended to use the product. He also wants Whyte to instruct the jury that it must find the company's conduct was "willful," meaning it knew its software violated the law but distributed it anyway.

But Scott Frewing, the Assistant U.S. Attorney prosecuting the case, argues in court papers that "willful" just means "done voluntarily and intentionally, and not through ignorance, mistake or accident."

Frewing, who said he couldn't comment on the case, also wants Whyte to prevent Burton from calling ElcomSoft's customers to the stand. Twelve of the 24 witnesses designated by Burton are ElcomSoft customers. But in court papers, Frewing said that when Whyte denied ElcomSoft's motion to dismiss back in May he already ruled that the customers' plans for the software aren't relevant. Frewing quotes Whyte's conclusion that DMCA "does not distinguish between devices based on the uses to which the device will be put."

Burton, a Duane Morris partner, said that even if Whyte won't let him call ElcomSoft customers, he'll still be able to demonstrate that ElcomSoft acted in good faith. "We want those witnesses because we think they are good witnesses, but it won't kill our case" if they're excluded, Burton said. "It's not the only evidence of the lack of willfulness. The government is just trying to take willfulness out of the case."

Whyte's rulings in the case will be watched closely by lawyers in intellectual property circles, who say the outcome of the trial will have huge implications, both for enforcement of the controversial law and innovation.

"There is hope this case will bring about changes to the criminal provisions of the DMCA so it's much more difficult to prosecute under the act," said the EFF's Gross. "The prosecution sees this as a strict liability statute and a strict liability crime. How can this be a strict liability crime if you want to put people in jail? There has to be some intent to harm. That's one of the constitutional problems of the statute. If it's strict liability, that creates a lot of Fifth Amendment problems."

But a big wild card in the case is Sklyarov, whose dramatic arrest at a technology conference in Las Vegas last year captured the attention of the technology industry and programmers around the world.

Prosecutors agreed to release Sklyarov in exchange for his testimony, but it's unclear if he'll be able to return from his home in Moscow to take the stand.

And it appears both the prosecution and defense are counting on him; both have designated him as a witness.

So far, though, he's been unable to obtain a visa. His attorney, Daralyn Durie of San Francisco's Keker & Van Nest, said his first visa application was denied, but he's applied again.

Durie said the government could use his deposition testimony if it can prove Sklyarov was not available.

"He still works for the company. I think it's fair to say he believes the software has legitimate uses," Durie said. "I guess they both think his testimony will help their side. We will see which one is right when the jury returns a verdict."

Hmm, it seems the rest of the article is missing. Regardless if they start putting copyright infringers in jail, it will be a waste of tax payers money. It will piss a lot of people off. They're going about this in the wrong direction.

Hey people, do all you agree with me that the riaa is ever so close to signing their death warrant because of what they're going to do now?

Amazing. heh. I think what we should do from now on is post textless articles. Doesn't seem to affect the comments much. hehe

Nah, the RIAA censored the article. They're trying to take us over! AWAY!!! AWAY!!! Foul dogs of Hilary

These Russian guys are idiots. Firstly, they're not file-sharing or anything like that. They're counterfiting and selling (mainly) software. That's a bit different than p2p. Then they brag about being beyond the reach of U.S. law by being in Russia.

What do they do next? Accept free trips to New York to take part in what they think is a hacker convention! Of course, it's an FBI sting. Duh! They thought they were so slick, those were oil stains in the seat of their pants. Guess again, dumbkoff!

So I guess we're going to war with Sadam again... That sucks, i know it probably has to happen but wars stink.

What is so screwed about the DMitry (Milla please note the spelling) and ElcomSoft situation, is that the trial sarts on the 21st of October, but they have been denied VISAs to enter the US to defend themselves. If you remember, Dmitry took a plea bargain in which he is to testify against Elcomsoft. If he can't get in to testify, is his plea bargain valid?

Hehehe, yeah, but I knew ya couldn't keep it goin'.

oh now they add the text...

All this shows the whole obscenity of this notion which has been reinforced by the multinational entertainment-media complex about how copyright -- which, last I checked, could be considered a "thing" -- has far more rights than you or I -- who, again from what I'd last seen, are considered as people. If this is allowed to stand, civilization as a whole is in BIG trouble, and we as a society stand to plunge to the level of the most primitive Third World countries.

The fact that it is illegal to make software which can be used to circumvent copy protections is, in my eyes, ridiculous.

It is legal to make a backup copy of software for archival purposes, but illegal to circumvent any copy protections(?!?!?).
Does anyone else see the inconsistency that exists here?

Does the government (read:corporation) think we're all just stupid?

Once again, fair use by the consumer is being eradicated by cases like this. Face it everyone. There is no more fair use.
If you are unable to copy something because of copy controls, then exactly how in the hell are you supposed to back it up?

Who the hell wants to read a whole book on the computer or e-book anyway my eyes start hurting after a few minutes of it and I get a headache. I think it's a stupid idea in the first place. Anyway at least ElcomSoft's software makes it so you can copy it to print it out and read it there, at your convenience.

It's more like Iraq having nukes and being able to use them, never mind if they did or not, the fact they could have them is enough for a government to threaten to flatten them (again). It's the same with the software. It has a legitimate use but because someone could use it illegitimately it's the software company's fault? That's as bad as attacking ISPs because their customers do illegal things. It's as bad as throwing out a whole sack of potatoes because one was green.

I think Adobe are a bunch of whingers who don't want to be upstaged by a company who can make their software more user-friendly because THEY won't make anything off it (apart from increased sales when people find out it's been made more user-friendly) and to tell you the truth I find their software overpriced here anyway.

The bigger thing that can be done with Elcom's software was to translate the e-books so that they could be listened to by blind people.

It was Adobe that fired the first shot in this case, then they got their heads bit off by their consumers in a backlash. It was so bad that they took their names off the case and dropped it - it is going on ONLY because the Justice Department picked it up.

As if they don't have better things to do?

What a bunch of fucking rubes.

Deb.

It is time for Boucher & Zoe's bills to pass, eliminating DMCA Sec 1201, for to pass.

In my opinion, Dimtry Sklarov should not be in Jail, since Elcomsoft's E-Book processor does have "fair uses", such as allowing one to view an e-book on a Macintosh or Linux computer, and allow it to be read outloud to the blind.

I commend Dimitry for his work, and I hope that he is free, and does not go to jail.

For any of you in the area where is being jailed, I urge an anti-DMCA protest outside the trial, and his jail cell, if he is jailed.

Stephen

OK, i'm sick of this stupiud justice department. Democrat Admakers take note - if you wamnt to win this next presidential election start an ad campaign, don't say a word about bush, but just talk about what a failure his justice department is, between this and the whole anti-civil rights thing, Bush will lose the election hands down.

Dimitry is out. He managed to make some kind of deal with the DoJ. They droped the charges and he agreed to testify against elcomsoft. Something like that anyway. I am not a lawyer.

It's all about fair use and "willfullnes".. can anyone say BETAMAX? The manufacturer can't be held liable for the end users conduct. RE: Ramamageesh
"It is legal to make a backup copy of software for archival purposes, but illegal to circumvent any copy protections(?!?!?).
Does anyone else see the inconsistency that exists here?"
. True, he DID write the software, true, people DID use it as it was intended, (not for "piracy", but under fair use to be able to read/print it anywhere) but I'm sure the testimony (and the jury will have to hear this part) will show that it wasn't WILLFULLY written for piracy or "copyright protection subversion".
WAIT A MINUTE! What's the RIAA got to do with this shit? Besides being cling-ons around the shithole this debate has become, they're not involved at all.. or are they?
The whole law is based on "willfullnes" as in.. did you willfully download that MP3 to sell it, or use it? That is a constitutional issue, 5th Ammendment, and the law brings up 4Ammendment issuesa as well, ie Illegal search and seizure. But that's another rant. I hope this goes our way, and I know the jury will get at least SOME of the correct info if the defense does it's job. This will also affect the Verizon case, so watch it closely folks!!

I'm confused. What does a Russian software company, resident in Russia, making Russian software that is sold to Russians and that is perfectly legal and, in fact, required under Russian law, to do with the DMCA? How does the DOJ expect to claim these fines? And under what law? No offense was committed on American soil.

The DOJ is running around trying to prosecute non-Americans for acts which are criminal under American law but not in the countries in which they were perpetrated!

The title made me throw up.

Dimetry got arrested while visiting a conference in america. I dont know how a russian company can be vilating the DMCA through. Perhaps because the software is available in the US, even if its not sold there? Or perhaps its yet another wipo mess.

There are frequent incidents of american law being used against non-americans, espicially in internet-related cases. Its part of the american assumption that they are the only civilised country and the rest of the world is full of idiots, just because america happens to be so big.

This just goes back to people not being responsible for their own actions (willfulness - exactly Remye).
If the same principle that is being applied to intellectual property is applied to anything else - the ramifications of this case can be EXTREMELY ridiculous.
Consider that an automobile can travel in excess of any posted speed limit at any given time. Should an automobile manufacturer be liable for someone speeding and causing an accident because there are not sufficient controls in the automobile that should detect the correct speed limit and adjust the speed accordingly?
(To give credit where it is due - I read this in a previous article posted to this forum, but cannot remember the author's name)

I said it once, and here again - fair use is dead.
I propose the following:
Any piece of media that you own that is copy protected - damage it. Then send it to the appropriate manufacturer for a replacement. If they won't let YOU make a backup, then let THEM foot the bill to replace the damaged media.
Isn't this guaranteed somehow under "fair use" (other than the intentional mangling part - lol)?