Sin asunto

ElcomSoft verdict: Not guilty

By  Lisa M. Bowman
Staff Writer, CNET News.com
December 17, 2002, 10:22 AM PT


update 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.



Jury foreman Dennis Strader said the jurors agreed ElcomSoft's product was
illegal but acquitted the company because they believed the company didn't
mean to violate the law.

"We didn't understand why a million dollar company would put on their Web
page an illegal thing that would (ruin) their whole business if they were
caught," he said in an interview following the verdict. Strader added that
the panel found the DMCA itself confusing, making it easy for jurors to
believe that executives from Russia might not fully understand it.

ElcomSoft attorney Joseph Burton said Tuesday's win is important as one of
the first setbacks for publishers seeking to assert the law against
programmers. But he cautioned that the acquittal did not mean software
developers should consider themselves immune from future criminal
prosecutions under the law.

"This is sort of the first dent in the DMCA," Burton said. "Up until now,
the large publishers have sort of had their way...(but) I think developers
still need to be careful."

Prosecutors declined to comment other than to say that they respect the
jury's decision.

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 employers.

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.

The verdict comes after a series of legal wins by publishers seeking to
restrict the use of digital technology, which some believe heralds the death
knell for traditional media businesses, from film studios to music and book
publishers.

The DMCA makes it a crime to offer for sale products that circumvent digital
copy protections, including encryption schemes, the issue at stake in the
ElcomSoft case. Other provisions create penalties for creating and
distributing such tools, raising protests from programmers that the law
could, among other things, bar academic research and inhibit open discussion
of encryption technology, including in news reports. Last year, in a major
ruling favoring the film industry, a federal appeals court ordered a Web
site to remove links to code capable of cracking encryption on DVDs, citing
the DMCA.

Attorneys not involved in the case said the ElcomSoft verdict boded ill for
future criminal prosecutions under the controversial copyright law. A not
guilty verdict in a criminal case comes without the ability to appeal,
unlike the civil copyright cases targeting Napster and other companies that
have bounced through federal court in recent years. Future courts won't be
bound by Tuesday's verdict, but it will stand untouched.

"It is troubling for enforcement of the (criminal provisions of the) DMCA,"
said Evan Cox, an attorney with the San Francisco firm of Covington &
Burlington. "This was the kind of case that the DMCA was meant to prevent.
If this enforcement led to a not guilty verdict, you have to wonder what
would lead to a successful case."

Some attorneys speculated that the jury might have been rendering an opinion
on the law itself, as well as on the strict legality of ElcomSoft's
activities.

"The jury has the flexibility to think about (ElcomSoft's motives) and
essentially nullify the law if they think it is overreaching," said
Jefferson Scher, a partner at Carr & Ferrell. "I think there's a little O.J.
factor if they decided that the law shouldn't be read as strictly as it
seems to read."

News.com's John Borland contributed to this report.



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