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[dvd-discuss] ElcomSoft verdict: Not guilty

ElcomSoft verdict: Not guilty
By Lisa M. Bowman
Staff Writer, CNET News.com
December 17, 2002, 10:22 AM PT


SAN JOSE, Calif.--A jury on Tuesday found a Russian software company not
guilty of criminal copyright charges for producing a program that can
crack antipiracy protections on electronic books.

The case against ElcomSoft is considered a crucial test of the criminal
provisions of the Digital Millennium Copyright Act (DMCA), a
controversial law designed to extend copyright protections into the
digital age.

The company faced four charges related to directly designing and
marketing software that could be used to crack eBook copyright
protections, plus an additional charge related to conspiring to do so.

The case was launched in July 2001, when ElcomSoft employee Dmitry
Sklyarov was arrested during the Las Vegas Defcon hackers conference
after giving a speech about his company's software, which is designed to
crack protections on Adobe Systems' eBooks. Prosecutors, working with
Adobe, said ElcomSoft's Advanced eBook Processor violated the DMCA.

But after protests from programmers, Adobe backed away from its support
of the case against Sklyarov, and prosecutors set aside charges against
Sklyarov in exchange for his testimony in the case against his

During the trial, which lasted two weeks, the government said ElcomSoft
created a tool for burglars and characterized the company as an
affiliate of hacker networks that was determined to sell the Advanced
eBook Processor despite its questionable legality. U.S. Assistant
Attorney Scott Frewing charged that company representatives knew all
along that they were violating the DMCA by designing and offering the
software to the public.

The defense, in turn, argued that ElcomSoft acted responsibly, removing
the software from the Web just days after learning of Adobe's concerns.
Both Sklyarov and ElcomSoft president Alexander Katalov testified that
they did not think their software was illicit and did not intend for it
to be used on books that had not been legally purchased. Under cross-
examination by the defense, an Adobe engineer acknowledged that his
company did not find any illegal eBooks even after hiring two firms to
search the Web for unauthorized copies.

Because both the defense and prosecution agreed that ElcomSoft sold
software designed to crack copyright protections, the case essentially
turned on ElcomSoft's state of mind during the period it was offering
the software.

After much wrangling among attorneys over the definition of the word
"willful," the judge told jurors that in order to find the company
guilty, they must agree that company representatives knew their actions
were illegal and intended to violate the law. Merely offering a product
that could violate copyrights was not enough to warrant a conviction,
the jury instructions said.

James S. Tyre                               mailto:jstyre@jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net