(BTW, I haven't forgotten about my Final Argument coverage -- I just got swept away by the holidays for a few days...)
Sklyarov reflects on DMCA travails
By Lisa M. Bowman for CNET.
Sklyarov laments that he wasted a year and a half dealing with the legal wrangling surrounding the product he developed. But he's learned to take it in stride. He passed time in jail by reading books from the inmate library, including Ken Follett's "Night Over Water." And when he was not allowed to return to Russia for four months following his release from jail, Sklyarov wrote code for ElcomSoft from an apartment in the United States.Sklyarov said he didn't have to give up anything significant to get the government to set aside the charges against him last year. He thinks prosecutors backed down because they didn't have a good case against him.
"Most probably they understand that they couldn't prove that I am violating the law, so for them it's much more safe to...release me, to let me return back to Russia," Sklyarov said.
Sklyarov left to return to Russia the day after the defense wrapped up its case. He said he plans to spend more time with his wife and two children when not teaching and working on ElcomSoft projects he described as too complicated to explain. Meanwhile, he hopes to concentrate on coding and leave arguments about the DMCA to lawyers.
He said if someone came to him with another project focused on cracking copyright protections, "I would ask you, if you're sure this is legal." If the answer is unclear, Sklyarov said he would suggest the person find a lawyer who could figure it out.
Here is the full text of the article in case the link goes bad:
http://news.com.com/2100-1023-978497.html?tag=fd_lede1_hed
Sklyarov reflects on DMCA travails
By Lisa M. Bowman
Staff Writer, CNET News.com
December 20, 2002, 4:00 AM PT
SAN MATEO, Calif.--Russian programmer Dmitry Sklyarov thinks it was unfair of prosecutors to play his videotaped deposition at the ElcomSoft trial rather than calling him to the stand.
But after a legal saga that's included a surprise arrest outside his Las Vegas hotel room, three weeks in jail, and visa tangles that almost prevented him from coming back to the United States for trial, Sklyarov has decided not to worry about situations over which he has no control.
"During my life I'm trying not to spend too much time trying to find what means for me things I cannot change," Sklyarov, 27, said in his first interview since testifying in the criminal copyright case of ElcomSoft, his employer.
Speaking with the careful phrasing of someone communicating in a foreign language and still bound by an agreement to cooperate with the U.S. government, Sklyarov talked with CNET News.com about life after his arrest, his impression of the case, and his opinions about how the controversial Digital Millennium Copyright Act (DMCA) is affecting programmers.
The meeting took place here during a break in the trial at a restaurant across the street from the boxy, gray corporate apartment his company has kept since it became the target of U.S. prosecution 17 months ago. The interview was given with the understanding it would not run until the ElcomSoft trial ended and Sklyarov was no longer under the terms of the government agreement.
On Tuesday, a jury acquitted ElcomSoft of all counts against it in the first case to test the criminal provisions of the DMCA, a U.S. law aimed at updating intellectual property rules for the computer age. Although jurors agreed the product was illegal because it was designed to crack antipiracy technology controls, they declined to convict because they didn't believe ElcomSoft intended to break the law.
Anxiety over the DMCA
Sklyarov said many information security developers have been skittish since learning of his case, fearful that they, too, could face jail time for their work. "Nobody knows. Probably you'll do your work, and after that somebody comes for you to arrest you or something like that because the DMCA is very (broadly) written and many things can be linked with DMCA," he said.
Sklyarov catapulted to code-jockey fame in July 2001 when he was arrested after giving a speech about his company's Advanced eBook Processor, software designed to crack protections on Adobe Systems' eBooks. Prosecutors argued the product violated the DMCA, which outlaws offering software that can circumvent copyright protections.
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Sklyarov was jailed for three weeks, his case becoming a flashpoint for the battle between copyright owners seeking to maintain control over their material in the digital age and programmers working to highlight security flaws.
But after worldwide protests among programmers, Adobe backed away from its support of Sklyarov's prosecution, and government attorneys set aside charges against him in exchange for his testimony in the remaining case against his company.
Although Sklyarov returned to the United States specifically to testify as a government witness, prosecutors never called him to the stand. In a highly unusual move, the government decided to play an hour-long edited videotape of Sklyarov's deposition instead. Sklyarov said he didn't find out until the day before he was scheduled to appear as a government witness that he would not be called to the stand.
"It's unfair," Sklyarov said of the government's plan to play a tape of him. The "government could ask questions and show them on tape, but (the) defendant couldn't ask cross questions."
The defense later called Sklyarov as its own witness, and in a calm, cooperative manner, the boyish programmer testified that he never intended for the product to be used illegally--an assertion that played well with jurors interviewed after the case. He said the software was designed to allow people to make backup copies of eBooks they already own or transfer the material to a different computer. Earlier in the two-week long trial, the government had tried to use the videotaped deposition to characterize Sklyarov as a hacker affiliate who knew his program could be used for bad purposes but didn't care. The prosecution did not comment on its decision not to call him in person.
Electronic Frontier Foundation attorney Fred von Lohmann said he's not surprised that many jurors found Sklyarov sympathetic. "The jury saw this serious young man and not a copyright pirate," he said. "They must have said, 'Where's the bad guy here?'"
Battling copyright law
Von Lohmann said the arrest of the quiet, mild-mannered Sklyarov was critical in galvanizing programmers to fight heavy-handed use of the DMCA. "He is a classic programmer," von Lohmann said. "He looks like them; he talks like them; he cares about the issues they care about--and he went to jail."
Sklyarov is still working for ElcomSoft these days, in addition to teaching at a technical university in Moscow. He said the company treats him well, although he would think twice about working on any project that veers too close to the DMCA line. To this day, though, Sklyarov insists ElcomSoft's Advanced eBook Processor is legal. Echoing statements made by ElcomSoft attorney Joseph Burton during the trial, Sklyarov compared the Advanced eBook Processor to a lock pick, which could be used for both good and bad purposes.
He also likened the software to a gun. "It has legal applications; it could be used for many legal things, for good things," he said. "A weapon could be used for killing and for protecting myself, but in (the) United States (a) weapon is legal."
Sklyarov said he understood Adobe's eagerness to pursue him and his employer because they were pointing out flaws in the company's software. "Sure I can understand it because if somebody produces bad stuff, and someone proves that this stuff is real bad, nobody will like it." He said Adobe's PDF format is probably the best in the world for distributing documents, but it falls short when it comes to protecting them.
Sklyarov laments that he wasted a year and a half dealing with the legal wrangling surrounding the product he developed. But he's learned to take it in stride. He passed time in jail by reading books from the inmate library, including Ken Follett's "Night Over Water." And when he was not allowed to return to Russia for four months following his release from jail, Sklyarov wrote code for ElcomSoft from an apartment in the United States.
Sklyarov said he didn't have to give up anything significant to get the government to set aside the charges against him last year. He thinks prosecutors backed down because they didn't have a good case against him.
"Most probably they understand that they couldn't prove that I am violating the law, so for them it's much more safe to...release me, to let me return back to Russia," Sklyarov said.
Sklyarov left to return to Russia the day after the defense wrapped up its case. He said he plans to spend more time with his wife and two children when not teaching and working on ElcomSoft projects he described as too complicated to explain. Meanwhile, he hopes to concentrate on coding and leave arguments about the DMCA to lawyers.
He said if someone came to him with another project focused on cracking copyright protections, "I would ask you, if you're sure this is legal." If the answer is unclear, Sklyarov said he would suggest the person find a lawyer who could figure it out.
Software firm acquitted in first digital copyright law case
By Howard Mintz for the Arizona Daily Star.
The jury, however, sided with ElcomSoft, which maintained since the case broke into the public spotlight last year that it believed it was marketing a legal product and was unaware that it was violating the DMCA. Jurors said after the verdict that the government failed to prove that ElcomSoft willfully intended to violate U.S. copyright laws, the high standard required to obtain a conviction under the 4-year-old copyright act...Dennis Strader, the jury foreman, noted that ElcomSoft openly sold its software, taking no steps to conceal its conduct before being warned of problems by Adobe. Strader added that some jurors were concerned about the scope of the law and whether it curtailed the "fair use" of material simply because it was electronic.
"Under the eBook formats, you have no rights at all, and the jury had trouble with that concept," Strader said.
Here's the full text of the article in case the link goes bad:
http://www.azstarnet.com/public/startech/wire1.html
SN: Fri 12.20.02
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Software firm acquitted in first digital copyright law case
By Howard Mintz
Knight Ridder Newspapers
SAN JOSE, Calif. — A federal jury in San Jose on Tuesday rejected the government's first attempt to enforce the criminal sanctions in a controversial digital copyright law, acquitting a small Russian software company of trying to illegally undermine a popular Adobe Systems product.
After nearly three days of deliberations, the jury cleared Moscow-based ElcomSoft of all charges that it violated the 1998 Digital Millennium Copyright Act, frustrating federal prosecutors who used the case as an unprecedented test of the law's teeth against Internet piracy. The verdict stemmed from a two-week trial in which prosecutors accused ElcomSoft of devising a "burglary tool" to allow computer users to copy and distribute electronic books that were supposed to be protected by Adobe's technology.
The jury, however, sided with ElcomSoft, which maintained since the case broke into the public spotlight last year that it believed it was marketing a legal product and was unaware that it was violating the DMCA. Jurors said after the verdict that the government failed to prove that ElcomSoft willfully intended to violate U.S. copyright laws, the high standard required to obtain a conviction under the 4-year-old copyright act.
The ElcomSoft case has been considered a key test of the DMCA, which has come under fire from critics who say it is overly broad and threatens the flow of information on the Internet. In the end, the case produced a mixed legacy — a series of rulings served to clarify and uphold the criminal provisions of the law, but legal experts said the jury's message also gives prosecutors a murky road map for using it in the future.
The case was the first to go to trial under the copyright law; two other prosecutions in the United States have ended in plea bargains. ElcomSoft faced millions of dollars in fines if convicted.
Assistant U.S. Attorney Scott Frewing, who prosecuted the case, said he "accepted" the verdict and downplayed the suggestion that it would discourage future use of the law. Frewing noted that U.S. District Judge Ronald Whyte earlier in the case upheld the constitutionality of the 1998 copyright act, establishing strong precedent for future prosecutions.
"I don't think one jury verdict is going to" undermine the copyright law, Frewing added.
San Francisco attorney Joseph Burton, a former federal prosecutor who represented ElcomSoft, agreed with Frewing that the verdict does not throw "a blanket" on the copyright act. But he stressed that he believes ElcomSoft was the wrong target for prosecutors. And ElcomSoft Chief Executive Alexander Katalov, smoking a cigarette while he phoned friends and colleagues after the verdict, was relieved by the outcome.
"This is why I spent a year to demonstrate we were not guilty of this," Katalov said. "It's why we rejected a guilty plea and a deal."
The ElcomSoft case attracted widespread attention in July 2001, when federal agents arrested Dmitry Sklyarov, an ElcomSoft programmer, at a Las Vegas Def Con hacker conference where he was praising the company's technology. Federal prosecutors broke new ground by charging Sklyarov and the company under the DMCA, sparking howls of protest from Internet rights groups and the hacker community.
Prosecutors eventually dropped charges against Sklyarov, but pursued the case against the company. They specifically alleged that ElcomSoft violated the law by marketing a program called the Advanced eBook Processor, which allowed users to unscramble Adobe's eBook Reader. The eBook Reader, designed to prevent copying of electronic books, was relied upon by publishing retailers like Barnesandnoble.com and Amazon.com to control sales and distribution of e-books.
During the trial, Frewing told jurors that ElcomSoft knew it was violating the law by selling a product designed to crack Adobe's technology. But ElcomSoft succeeded in convincing the jury otherwise, presenting witnesses, including Sklyarov, who testified that they believed the software had legitimate purposes and complied with Russian law.
Sklyarov admitted that when he developed the program, he was not concerned about violating U.S. copyright law, even though ElcomSoft sold the software on its Web site. Jurors, however, said such admissions were not enough to support a conviction.
Dennis Strader, the jury foreman, noted that ElcomSoft openly sold its software, taking no steps to conceal its conduct before being warned of problems by Adobe. Strader added that some jurors were concerned about the scope of the law and whether it curtailed the "fair use" of material simply because it was electronic.
"Under the eBook formats, you have no rights at all, and the jury had trouble with that concept," Strader said.
The "fair use" exception to traditional copyrighted material has been one of the core debates over the DMCA. Critics say the law punishes online use of material even if it could fall under that exception, which, for example, allows owners of copyrighted material to make a copy of a book for academic use or tape a record album.
The Electronic Frontier Foundation, a strong critic of the law, said the verdict would "send a strong message to federal prosecutors who believe that tool makers should be thrown in jail just because a copyright owner doesn't like the tools they build."
"We have said from the beginning that Sklyarov, ElcomSsoft and technologists like them are not pirates," said Fred von Lohmann, a senior attorney with the Electronic Frontier Foundation.
Adobe issued a brief statement saying it was disappointed in the verdict but still confident it was correct to bring the case to the attention of law enforcement.
This is a great article except for the (often incorrectly reported) part about Dmitry testifying "against his former employer."
The facts are: 1) ElcomSoft is Dmitry's current employer, and 2) He didn't do anything against anyone; He just testified. Here's the story on that issue.
Digital Copyright: A Law Defanged?
Cyberlibertarians who denounced the feds' prosecution of a Russian programmer have their victory, but not the precedent they really need
By Alex Salkever for BusinessWeek Online.
Here is the full text of the article in case the link goes bad:
http://www.businessweek.com/technology/content/dec2002/tc20021219_4518.htm
DECEMBER 19, 2002
NEWSMAKER Q&A
By Alex Salkever
Digital Copyright: A Law Defanged?
Cyberlibertarians who denounced the feds' prosecution of a Russian programmer have their victory, but not the precedent they really need
In the summer of 2001, the tech slump wrenched Silicon Valley, but the geek masses had more to fret about than layoffs. Dmitry Sklyarov also had them spooked. On July 16 of that year, federal agents arrested the Russian programmer at the Defcon hacker confab in Las Vegas shortly after the waifish code jockey's well-attended lecture on the weaknesses in the copyright protection technology used to guard Adobe's eBook Reader (see BW Online, 7/25/01, "Don't Judge an eBook Case By Its Coverage").
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Skylarov didn't know Adobe had alerted the G-men that he was the copyright holder of the Advanced eBook Processor, a piece of software designed to crack eBook copyright-protection mechanisms. The software, the feds alleged, violated a controversial provision of the 1998 Digital Millennium Copyright Act (DMCA), which allows the government to press criminal charges against any company or individual who "willfully" creates technology to circumvent copyright protection. In the government's view, the Advanced eBook Processor, sold for $99 at the time by Sklyarov's Russian employer, Elcomsoft, represented a criminal offense.
APPELLATE LEVEL. Now, it appears the anti-DMCA side has won this skirmish. On Dec. 17, in a U.S. District Court in San Jose, Calif., a jury acquitted Elcomsoft of all criminal charges. (Sklyarov himself was not on trial as he had cut a deal to testify against his former employer in exchange for immunity.) Cyberlibertarians rejoiced, proclaiming that the decision would make it much harder to prosecute criminal cases under the DMCA.
That's probably true, but the outlook is a little more complicated: To set a precedent and broadly affect how the DMCA is interpreted, a similar case will need to reach the appellate bench. So far, not a single criminal DMCA case has gone that far. Two have been settled, leaving the Sklyarov matter as the only one to make it to trial.
While the feds say the Sklyarov ruling won't stop them mounting further criminal cases, it may well make them think twice. "They got slapped around in the press, and then the jury acquitted. It doesn't get worse than that," says Orin S. Kerr, a professor at George Washington University. As Kerr and others point out, the burden of proof in the Sklyarov/Elcomsoft case was particularly difficult. Says Kerr: "This is a good reminder that the statute is more limited than people think."
When Congress inserts "willful" into the definition of a criminal charge, it raises the bar very high. The word means with full knowledge, and that obliged the Justice Dept. to prove that Elcomsoft built the Advanced eBook Processor as a conscious violation of U.S. law. That was hard to prove because the DMCA has no legal equivalent in Russia, where Elcomsoft is headquartered.
DIGITAL LOCK PICK. The government believed that Sklyarov and Elcomsoft made perfect examples of why the DMCA was needed: as a means to punish those attempting to profit by selling technology explicitly designed to circumvent copyright protection. Elcomsoft was offering what amounted to a digital lock pick, the feds argued, a virtual version of something that would be illegal in the physical world.
The feds had their hands full trying to convince a jury, as they might have expected had they been following surveys of Internet users. In 2000, for example, Reston (Va.) market-data outfit PC Data polled 1,560 Web surfers and found that 56% regarded unauthorized music downloads as "harmless."
Nor did it help that the case went to trial in the heart of Silcon Valley, where the chances of assembling a tech-hostile jury must be reckoned among the lowest in the country, and where the very idea that a guilty verdict might lead to a stretch behind bars must have struck many as Draconian. "Juries are much more comfortable finding against [the government] in a civil case as opposed to a criminal case," says Ian Ballon, a partner at Manatt, Phelps & Phillips in Palo Alto, Calif., and the author of E-commerce and Internet Law.
GUN-SHY? If the Justice Dept. becomes increasingly gun-shy about enforcing the DMCA, as Kerr and others predict, one beneficiary will be researchers, who will be able to go about their business with little fear of arrest. On the other hand, lots of problems could lie ahead, however, if copyright holders mount a sustained civil battle against companies like Elcomsoft, which they may perceive to be in violation of the law.
Still, the "Free Dmitry" campaign that became a cause célèbre among cyberlibertarians and technologists now appears victorious. Meanwhile, the DMCA seems far less fearsome than its detractors feared -- and less likely to have an impact on innovation.
Salkever is Technology editor for BusinessWeek Online and covers computer security issues weekly in his Security Net column
ElcomSoft Jury Asks for Law Text
By Joanna Glasner for Wired News.
Jurors deliberating in the first trial in which a company stands accused of criminal violations of the Digital Millennium Copyright Act did not reach a verdict Friday. They did, however, seek further clarifications regarding the law they are being asked to apply.The jury asked U.S. District Court Judge Ronald Whyte for a full copy of the DMCA to assist in their decision-making. But he declined to provide a copy of the document, which is over 100 pages long.
Instead, Whyte said he would answer specific questions jurors had about portions of the law they must consider in determining ElcomSoft's guilt or innocence. The government brought its case against the Russian software firm for creating and selling a program that illegally removes encryption on Adobe eBooks.
Here's the full text of the article in case the link goes bad:
http://www.wired.com/news/business/0,1367,56853,00.html
ElcomSoft Jury Asks for Law Text
By Joanna Glasner | Also by this reporter Page 1 of 1
02:00 AM Dec. 14, 2002 PT
Jurors deliberating in the first trial in which a company stands accused of criminal violations of the Digital Millennium Copyright Act did not reach a verdict Friday. They did, however, seek further clarifications regarding the law they are being asked to apply.
The jury asked U.S. District Court Judge Ronald Whyte for a full copy of the DMCA to assist in their decision-making. But he declined to provide a copy of the document, which is over 100 pages long.
Instead, Whyte said he would answer specific questions jurors had about portions of the law they must consider in determining ElcomSoft's guilt or innocence. The government brought its case against the Russian software firm for creating and selling a program that illegally removes encryption on Adobe eBooks.
Jurors began deliberations Thursday, following six days of trial proceedings in the closely watched federal court case, which is being tried in San Jose, California. Jurors plan to return to court Tuesday morning.
"They appear to be quite serious," said Judy Trummer, spokeswoman for ElcomSoft, of the jury. Throughout the trial, ElcomSoft officials have repeatedly denied government accusations that they sold an allegedly illegal program, the Adobe eBook Processor, in deliberate violation of U.S. law.
Federal prosecutors charge that company executives were well aware they were breaking U.S. law when they began selling the software, which lets users foil copyright protections on e-book documents.
During the course of deliberations, jurors reviewed testimony on Friday from Vladimir Katalov, the company's managing director, who had said in court that he was familiar with the DMCA before the company put the disputed program on the market.
On Tuesday, jurors plan to review portions of the videotaped deposition of Dmitry Sklyarov, the ElcomSoft programmer who created the Adobe eBook Processor program.
In reading through just now it sounds very much like the final argument synopsis I'm typing up.
Danny's able to figure it all out from Monday's testimony with Dmitry :-)
Here are some of his main points:
The Defence* ... claimed Elcomsoft produced the software to expose weaknesses in e-book products.
* ... asserted Elcomsoft deliberately kept the price of software high to reduce the damage to ebook publishers. (The claim here is that $100 was enough to dissuade casual copiers of books, but allowed them to release the software into general use.)
* ... said that the software in the case - the Advanced Ebook Processor, is essentially the same as the Advanced PDF password recovery program, which Adobe appears to have no complaint with.
* ... and that Elcomsoft (and Sklyarov) intended the software to be used for non-infringing uses: backup copies, blind users, fair use, etc. (The backup provision is the most important here. Under Russian law, any computer user can make one backup copy - something they claim would not be possible with a standard Adobe ebook.)
The Prosecution
* ...pointed out that Dmitry didn't write a program that exclusively produce copies in accordance with fair use (ie allow you to cut and paste just a few pages, output only in braille, etc.)
* ...asked why, if they wanted to draw attention to the flaws in Adobe's ebook, why Dmitry hadn't released his exploit on Bugtraq. (This is a fascinating attack, given that it seems to imply that it would be *better* for Elcomsoft to release flaws on Bugtraq. Given that many people believe that releasing such circumvention code on Bugtraq is a breach of the DMCA itself, this seems kind of a weird condemnation. The point wasn't examined in detail by either prosecution or defence. Dmitry said that Elcomsoft didn't want to damage ebook publishers by publically releasing the exploit.)
* ...said that by reverse-engineering Adobe's ebook reader, Sklyarov had breached Adobe's download license. Dmitry pointed out that reverse-engeering for compatibility reasons was legal in Russia, so that part of the license didn't apply.
Here's the full text of the article in case the link goes bad:
http://www.oblomovka.com/entries/2002/12/09#1039499520
2002-12-09»
Freed Dmitry»
I went down to the San Jose federal courthouse today with Lisa and watched Dmitry Sklyarov give evidence in the Elcomsoft trial. I've been there before, when Dmitry was in handcuffs and a bright orange prisoner garb. Now he wears a suit, like every non-gangster Russian I've seen wear a suit, like I wear a suit: scruffily.
American courts are, naturally, straight from TV land. This separates them from British courts, which are from period drama TV land. Counsel approaches the bench. Objections are sustained. Truths are pledged. I idly noted that this Federal court has a gold-fringed American flag, which must drive nutty tax protestors even more crazy.
I'm not sure how much I can talk about the case. I suppose a great deal, but my old sub judice instincts kick in, so I'll try not to draw too many conclusions. Here's how the arguments appear to be going.
The Defence
* ... claimed Elcomsoft produced the software to expose weaknesses in e-book products. They introduced Dmitry's Defcon speech as evidence for this. Dmitry's speech is rather dry (apart from a hilarious moment at the beginning where another Defcon attendee forces him to say "Where are the nuclear vessels in Alameda?". I laughed a bit too loudly in court here.)
* ... asserted Elcomsoft deliberately kept the price of software high to reduce the damage to ebook publishers. The claim here is that $100 was enough to dissuade casual copiers of books, but allowed them to release the software into general use.
* ... said that the software in the case - the Advanced Ebook Processor, is essentially the same as the Advanced PDF password recovery program, which Adobe appears to have no complaint with.
* ... and that Elcomsoft (and Sklyarov) intended the software to be used for non-infringing uses: backup copies, blind users, fair use, etc. The backup provision is the most important here. Under Russian law, any computer user can make one backup copy - something they claim would not be possible with a standard Adobe ebook.
The Prosecution
* ...pointed out that Dmitry didn't write a program that exclusively produce copies in accordance with fair use (ie allow you to cut and paste just a few pages, output only in braille, etc.) Dmitry answered this by pointing out that there'd be no point - after a few uses, you could essentially decrypt everything.
* ...asked why, if they wanted to draw attention to the flaws in Adobe's ebook, why Dmitry hadn't released his exploit on Bugtraq. This is a fascinating attack, given that it seems to imply that it would be *better* for Elcomsoft to release flaws on Bugtraq. Given that many people believe that releasing such circumvention code on Bugtraq is a breach of the DMCA itself, this seems kind of a weird condemnation. The point wasn't examined in detail by either prosecution or defence. Dmitry said that Elcomsoft didn't want to damage ebook publishers by publically releasing the exploit.
* ...said that by reverse-engineering Adobe's ebook reader, Sklyarov had breached Adobe's download license. Dmitry pointed out that reverse-engeering for compatibility reasons was legal in Russia, so that part of the license didn't apply.
This last point lead to the biggest soundbite of Sklyarov's evidence, where the prosecution asked him "Did you care whether you broke US law when you wrote this program?". Dmitry said no, he didn't care. Prosecution, in a real TV Land moment, seized the opportunity to say "no further questions, your honour", dramatically shuffled their papers and sat down. Defence leapt up and attempted to clarify what Dmitry had said. Dmitry rather stubbornly insisted that he didn't care, and said that he was rather more concerned about whether he was legal under Russian law, which he was convinced it was.
Speaking personally, and given the "Alameda" yukfest at the beginning of the evidence, I would have taken this opportunity to cry out "In Soviet Russia, broken US laws do not care about you!". I guess this is why I'm never asked to be an expert witness.
I missed the second witness, the MD of Elcomsoft. By all accounts, he played one of the better cards of the defence, by revealing that the vast majority of Elcomsoft customers were law enforcement and in the security field.
I'll try and pop along tomorrow, although I'm now a bit late filing for my real work this week.
My comments on a fellow blogger's coverage -- Peter brought up some really good points and I just want to elaborate on them a bit from what I saw in the courtroom:
More on the Elcomsoft case....The testimony is over
and the two sides are wrangling with Judge Whyte
about the jury instructions.
Actually no, they came up to the bench to haggle about a specific line of questioning the prosecution was about to embark on about Reg Now's parent company, Digital River, and its assets. It seemed as if the defense won on that one because when they came back, the prosecution had totally changed its tune, and only asked one little question about the parent company residing in the U.S. and then said "no further questions".
Whyte did not allow Elcomsoft to introduce evidence
that its program allowed blind consumers to make
their Adobe ebooks readable by text-to-speech
software, or evidence on how any kind of
consumer actually used the program.
Note that the prosecution was also unable to come up with an example of a single infringing use!
Actually, Dmitry did testify about the uses for the blind, and the prosecution cross-examined on that point pretty clearly, by clarifying that the marketing materials and the splash screens that come up in the program don't say "now you can view this text on your braille reader." So the Judge may have felt that point had been made.
Arguments that Elcomsoft's program is protected
by fair use, or that the relevant portions of the
DMCA violate the First Amendment, will have to
wait for an appeal.
Yeah the Judge threw out the First Amendment defense earlier this year. That totally sucks, but that was his call, so I imagine he would stand by it and not allow a line of defense to be presented that he said he wasn't interested in.
That decision sure didn't give me much hope for this case or this Judge. But now, after seeing the Judge in action, I have hope again. He wants the trial to focus on ElcomSoft's intent: The company clearly did not mean to do anything illegal. When they were contacted about the problem, as soon as someone would clearly explain to them what the problem was, they acted accordingly.
Adobe's language in its C and D letter was confusing -- claiming that Elcomsoft had content on it's site that infringed on Adobe's copyrights (rather than ElcomSoft was distributing software on its site which could be used to infringe -- big difference). The bungled letter only served to confuse those being accused (ElcomSoft, its ISP and Reg Now!).
A Reg Now employee testified yesterday that it was their fault, and not ElcomSoft's, for not taking all of the versions from the website, as ElcomSoft had requested.
Even though the prosecutors dropped charges
against Dmitry Sklyarov in exchange for his
testimony, in the end they did not call him as a
witness, but used a taped deposition instead.
The defense called him as a witness, and
asked about his purposes in creating the program.
But the Fair Use stuff came up at little (but not much) in Dmitry's questioning -- but the Judge was quick to instruct the Jury that the testimony can only be used to judge Dmitry's state of mind at the time, not whether or not he is correct about what he thinks will be illegal.
(The DMCA requires wilfulness.) Also see coverage
here and here.
Yes! And it is this willfullness issue that might get ElcomSoft off! If there was one thing that was clear from the testimony, and even from the Prosecution's line of questioning with ElcomSoft President Alexander Katalov, it was that ElcomSoft never intended to do anything illegal. The company has a huge customer base in the Law Enforcement community and it would just be bad business.
That's why these guys came all the way back here to try to clear their name. This lawsuit has heard their legitimate business. They were growing exponentially every year until last year, where there profits remained constant.
Okay back to typing up my notes from the trial...
