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