24 May 2002: Elcomsoft Hits the Courtroom in Late August
Cindy Cohn, EFF Legal Director

The countdown 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.

Ever since 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.

Now prosecutors 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.

For information on the U.S. v. Elcomsoft case see the Elcomsoft case archive: http://www.eff.org/IP/DMCA/US_v_Elcomsoft

9 May 2002: Elcomsoft case proceeding
Commentary by Alan Wexelblat (wex@media.mit.edu)

Not a 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.

What's 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.

That's 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.

Reading 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."

This does 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 prohibit infringement."

That also 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.

What I 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?

Ruling at
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html
note this is a temporary page; it's readable as a PDF now but don't bookmark this page

Coverage at
http://www.newsbytes.com/news/02/176474.html
http://www.wired.com/news/politics/0,1283,52404,00.html
http://www.siliconvalley.com/mld/siliconvalley/news/editorial/3225282.htm

30 April 2002: Elcomsoft is being bled dry by legal fees
Commentary by Alan Wexelblat (wex@media.mit.edu)
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.

This is 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.
http://news.com.com/2100-1023-894171.html

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