Re: [dvd-discuss] ElcomSoft verdict: Not guilty

["John Zulauf" <johnzu(at)ia.nsc.com>]

Sadly, the jury sentiment is not binding.  The next time a less
sympathetic jury might fail to wrestle with the "fair use" issue that
really underlie the "not willful" finding.  I think the jury's reasoning
was.

(a) This is a confusing law
(a.1) It is inherently confusing
(a.2) It is not even the law of the land for Elcomsoft
(b) eBooks really had no fair use possible
(b.1) the judge says that the DMCA allows that but
(b.2) it is not intuitive that "fair use" can be abridged at will by a
publisher
(c) a "reasonable person" would want to exercise fair use 
(c.1) fair use required cracking the protections
(c.2) this is the kind of thing a skilled geek would do
(d) Elcomsoft reacted responsibly
(d.1) Removed software within reasonable time
(d.2) Has not reissued the software since
(e) thus Elcomsoft was acting innocently
(e.1) acted as a "reasonable person" would w.r.t. "fair use"
(e.2) responded as a person attempting to abide the law would
(e.3) showed no willful intent to produce or market an illegal TPM
circumventor

However, none of this logic is binding, and the prosecution will make
much of the "should have been aware" in future cases given the high
profile of this one.

In short both the defendant and the DMCA were given a "pass" this time
around.  The DMCA was given face value interpretation and no meaningful
challenge to its "plain" meaning, but at the same time the defendants
were not held strictly to that meaning.

In Blackjack they call this a push.  The next case is going to be far
more interesting.  The next defendant will be found guilty, and then the
law will have to stand or fall before higher courts.  Until then the
software community will have to tread very lightly unless they want to
become case #2.  It will be interesting to see what happens with the
Studio 321 case.

On that subject -- the MPAA should note that the 35,000 kayaks (DeCSS in
the form for DVD Copy Plus and DVD XCopy) are now available from
Amazon.com.  How long do they have to act before they are estopped?

.002

"Arnold G. Reinhold" wrote:
> 
> It seems the jury went beyond the issue of willfulness. Here is an
> interesting excerpt from CNN's story on the acquittal:
> http://www.cnn.com/2002/TECH/biztech/12/17/russian.programmer.ap/index.html
> 
> >The defense argued that the program merely enabled owners of Adobe
> >eBook Reader software to make copies of e-books for personal use. If
> >an owner makes a backup copy of an e-book or transfers it to another
> >device he owns, they argued, that is permitted under the "fair use"
> >concept of copyright law.
> >
> >Jury foreman Dennis Strader said the argument made a big impact on
> >the jurors, who asked U.S. District Judge Ronald M. Whyte to clarify
> >the "fair use" definition shortly after deliberations began.
> >
> >"Under the eBook formats, you have no rights at all, and the jury
> >had trouble with that concept," said Strader.
> 
> Arnold Reinhold
> 
> At 11:09 AM -0800 12/17/02, James S. Tyre wrote:
> >ElcomSoft verdict: Not guilty
> >By Lisa M. Bowman
> >Staff Writer, CNET News.com
> >December 17, 2002, 10:22 AM PT
> >
> >http://news.com.com/2100-1023-978176.html
> >
> >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.
> ...
> 
> >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.