(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.
Cryptome has made a number of transcripts from the trial available.
Looks like I got most of it right in my accounts! (Give or take a few words!) Cool!
I'll be doing a comparison later. (Later....later.......so much to do...)
I'll also be creating another category for "Comprehensive Coverage" of the ElcomSoft Trial.
(Delays...always delays....)
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
I'll have the Final Arguments posted tomorrow morning.
Burton then asked Ryan if there had been a non-standard version of the AEBPR product that remained available on RegNow's website for a few days after the standard version of the AEBPR product had been removed."Yes." Ryan said. "A discounted version for previous users of another product was still active."
Burton asked Ryan to explain how that happened.
"It was an oversight on our part." Ryan said. "We were all focusing on the email from Adobe which just mentioned the one product."
Ryan went on to explain that the non-standard version of the product was also disabled as soon as Alexander Katalov contacted RegNow! to inform it of the situation.
10/10/02 "Ryan X", RegNow! Employee
This segment follows this post.
The Defense called a witness that I'm going to call "Ryan X" who was identified as an employee of RegNow!. (RegNow! is a third party transaction service hired by ElcomSoft to handle many of their software sales transactions.)
Defense Attorney Joseph Burton asked Ryan to explain about the exact dates and reasons for RegNow's removing ElcomSoft's AEBPR program for its website.
"I received an email to one of our public email addresses from Adobe requesting that we deactivate one of our products." Ryan said, explaining that he forwarded the email to ElcomSoft and asked them for advisement on the matter.
"And you took it down?" Burton asked.
"Yes, we disabled that product." Ryan said.
Burton then asked Ryan if there had been a non-standard version of the AEBPR product that remained available on RegNow's website for a few days after the standard version of the AEBPR product had been removed.
"Yes." Ryan said. "A discounted version for previous users of another product was still active."
Burton asked Ryan to explain how that happened.
"It was an oversight on our part." Ryan said. "We were all focusing on the email from Adobe which just mentioned the one product."
Ryan went on to explain that the non-standard version of the product was also disabled as soon as Alexander Katalov contacted RegNow! to inform it of the situation.
Next, prosecuting attorney Frewing began his cross-examination, showing Ryan a subpoena and some faxed documents of an email conversation he had participated in.
Frewing confirmed with Ryan that it was a oversight on RegNow's part that the additional version of the AEBPR programs had not been removed from it's website at the same time the standard version had been removed.
When the prosecution asked about RegNow's parent company Digital River and "all of its assets," Burton objected on relevance. Judge Whyte asked them approach the bench so Frewing could explain to the Judge where he was taking this line of questioning.
"Is Digital River based in the United States?" Frewing asked.
"Yes." Ryan answered.
"No further questions." Frewing said.
Now on to the Final Arguments!
Here is the final segment of Alexander Katalov's testimony.
The employee from RegNow! is up next after this...
Burton presented the same license agreement that Frewing had presented up on the screen."Did ElcomSoft consult with a lawyer before using this license for your software?" Burton asked.
"No." Alexander replied.
Burton showed a more recent version of the same license agreement that had been modified slightly.
"Did you consult with a lawyer?" Burton said.
"No." Alexander replied. "I got it from the ASP (Association Software Professionals) website."
10/10/02 Alexander Katalov - President, ElcomSoft (Part 4)
This segment follows this post.
Below is my account of the cross-examination of Alexander Katalov by the prosecuting attorney (U.S. Attorney Scott Frewing). Also included below is the subsequent re-cross by Defense Attorney Joseph Burton.
Frewing started off asking if ElcomSoft had ever experienced anyone using a stolen credit card to obtain a serial number for one of their software programs.
Alexander said that yes, this has happened to ElcomSoft several times in the past.
Frewing then presented a slide of the software license for ElcomSoft's AEBPR product and used a pointer to highlight the paragraph that says "protected by U.S. Copyright Law and International treaties." He made the point that ElcomSoft used this license to protect itself.
You could tell where Frewing was going with this: ElcomSoft asserts that its software is protected by U.S. Copyright law and therefore should itself be bound by copyright law, right?
Alexander wasn't disagreeing at all with the point Frewing was trying to make.
"Most of our U.S. customers are large corporations." Alexander said. "So it's important."
Frewing projected a screen shot of a webpage from the ElcomSoft website that had been taken on June 28, 2002. The text on the webpage explained that, "unfortunately, you can't buy the AEBPR program anymore." The text on the webpage also explained that the program could still be obtained from one of two other Russian-based (.ru) locations.
Frewing then brought up the testimony of Special Agent Daniel J. O'Connell, who testified that, as of July 3, 2001, this text remained on the ElcomSoft website (with the links to the AEBPR software).
Here's a link to the original complaint against Dmitry Sklyarov and Elcomsoft in which O'Connell describes the same investigation described by his live testimony.
Alexander confirmed that "yes the text described by Special Agent O'Connell and shown in the screen shot was indeed what was displayed on the ElcomSoft website on July 3, 2001.
That was it. Frewing had no further questions.
Next, Defense Attorney Joseph Burton was allowed to re-cross.
Burton presented the same license agreement that Frewing had presented up on the screen.
"Did ElcomSoft consult with a lawyer before using this license for your software?" Burton asked.
"No." Alexander replied.
Burton showed a more recent version of the same license agreement that had been modified slightly.
"Did you consult with a lawyer?" Burton said.
"No." Alexander replied. "I got it from the ASP (Association Software Professionals) website."
Burton thanked Alexander and he stepped down from the witness stand.
Next up: my account of the testimony from a RegNow! employee.
Here's more of my account of Alexander Katalov's testimony from last week's ElcomSoft trial.
I'll be posting the rest of Alexander's questioning within the hour, and then my account of the testimony from a RegNow! employee.
Then off to the final arguments! They should be up tomomrrow.
Back in a flash!
Alexander explained how, on June 28, 2001, he received an email from RegNow! saying that they had been contacted by Adobe. The next day, Alexander sent an email to a RegNow! employee asking him to stop accepting money for the program.Burton projected an email on the screen in which RegNow! responds to his request.
Burton read the text of the email out loud: "I am really sorry for any inconvenience. Please disable the AEBPR temporarily until we remove the feature Adobe doesn't like or find another solution."
"Why did you stop selling the product?" Burton asked. "Why not wait until more complete information could be provided?"
"To protect RegNow!." Alexander replied. "I decided that it would be better to pull the software first and then figure out the problem."
10/10/02 Alexander Katalov - President, ElcomSoft (Part 3)
Defense Attorney Joseph Burton is questioning defense witness Alexander Katalov.
I am going to repeat the last few lines of the previous post to set the scene.
"Was your company involved with Cox Broadcasting?" Burton asked.
There was an objection from Frewing in here at some point on relevance, but the Judge overruled it and Burton was allowed to continue.
"One of our employees had sent an email to remove our software from the site." Alexander said.
Burton asked Alexander some questions about a series of emails between an ElcomSoft employee and Cox Broadcasting.
Alexander explained that the email exchange involved a discussion of the Digital Millennium Copyright Act (DMCA).
"My letter was rejected by Cox Broadcasting." Alexander said. "Since we were a company from Russia, there was no force of the law behind it."
Burton submitted as evidence an email sent to Alexander from another ElcomSoft employee explaining that Cox Broadcasting had rejected ElcomSoft's request, asking "what can we do?"
There was some discussion here about the employee going on to say (in the email to his boss at ElcomSoft) that he didn't understand American Law.
Burton asked Alexander if ElcomSoft felt their rights had being violated by Cox Broadcasting and he said "Yes." Alexander went on to explain how, because they were only a small Russian software company against a big America company like Cox Broadcasting, the company couldn't really do much about it.
Burton then changed the subject to whether or not ElcomSoft had in fact stop selling the AEBPR software.
"Did you ever stop selling the AEBPR product?" Burton asked.
"Yes." Alexander said.
Alexander explained how, on June 28, 2001, he received an email from RegNow! saying that they had been contacted by Adobe. The next day, Alexander sent an email to a RegNow! employee asking him to stop accepting money for the program.
Burton projected an email on the screen in which RegNow! responds to his request.
Burton read the text of the email out loud: "I am really sorry for any inconvenience. Please disable the AEBPR temporarily until we remove the feature Adobe doesn't like or find another solution."
"Why did you stop selling the product?" Burton asked. "Why not wait until more complete information could be provided?"
"To protect RegNow!." Alexander replied. "I decided that it would be better to pull the software first and then figure out the problem."
Burton asked Alexander a series of questions to help illustrate the dates involved for these emails and the AEBPR takedown:
1) June 28, 2002 - Email sent to ElcomSoft from RegNow!
2) June 29, 2002 - ElcomSoft responds to RegNow and tells them to take it down
3) June 30, 2002 - The software is taken down from the RegNow! website
Burton then asked Alexander another series of questions regarding the undisputed fact (both sides agree) that another non-standard version of the AEBPR software was somehow overlooked by RegNow! that remained available for purchase for 2-3 days before it was removed at the request of ElcomSoft.
This non-standard version of the program was left up on the site until July 3, 2002. Once ElcomSoft was made aware that this other version was still available, it contacted RegNow! to had it removed from the site.
Next up: the prosecution's cross-examination and the defense's re-cross.
Okay. So, even though we all know how the trial came out yesterday, I'm still going to finish my account of the various testimonies and final arguments -- so you can understand better about where the Jury was coming from with their Not-guilty verdict.
Later this week, I'll be interviewing Defense Attorney Joseph Burton about his experiences with the case.
I had to take a bit of a breather yesterday after this last week's events. Sorry for the hold up on the rest of this stuff. Back soon.
Yippie!!
Jury Finds ElcomSoft Not Guilty
By Joanna Glasner for Wired News.
Russian software developer ElcomSoft has been cleared of charges that it illegally created a program to disable encryption on Adobe e-books.The jury verdict, announced Tuesday in U.S. District Court in San Jose, California, concludes the first criminal trial of a company accused of violating the Digital Millennium Copyright Act, a 1998 federal statute that protects copyrights on electronic content...
The verdict comes on its third day of deliberations. Jurors had asked to review several pieces of evidence, including a videotaped deposition of ElcomSoft programmer Dmitry Sklyarov, prior to reaching the decision.
Here's the full text of the entire article:
http://wired.com/news/business/0,1367,56894,00.html
Jury Finds ElcomSoft Not Guilty
By Joanna Glasner
11:13 AM Dec. 17, 2002 PT
Russian software developer ElcomSoft has been cleared of charges that it illegally created a program to disable encryption on Adobe e-books.
The jury verdict, announced Tuesday in U.S. District Court in San Jose, California, concludes the first criminal trial of a company accused of violating the Digital Millennium Copyright Act, a 1998 federal statute that protects copyrights on electronic content.
Moscow-based ElcomSoft had been charged with violating the law by creating and selling a program called the Adobe eBook Processor, which allowed users to foil copyright protections put in place by e-book publishers.
The verdict comes on its third day of deliberations. Jurors had asked to review several pieces of evidence, including a videotaped deposition of ElcomSoft programmer Dmitry Sklyarov, prior to reaching the decision.
The government had charged the firm with four counts of violating the DMCA and one count of conspiracy. Assistant U.S. Attorney Scott Frewing maintained throughout the trial that ElcomSoft was aware it was violating the law by selling the Adobe eBook Processor.
But defense attorney Joe Burton maintained that ElcomSoft's behavior shows that the company was clearly not aware it was doing anything illegal when it began selling the e-book decrypting program in June 2001. Burton asked jurors why the company would have sold and even written press releases about a program it knew broke the law.
Here a bit more of my account of Alexander Katalov on the witness stand last week. More tomorrow!
"Did you believe that it (the AEBPR program) was unlawful?" Burton asked."No." Alexander said. "I still believe this program is legal."
"What did you know about the DMCA in 2001?" Burton asked.
"That it was an anti-piracy law." Alexander said. "I was happy that it existed because it would protect my software."
12/10/02 - Alexander Katalov, President, ElcomSoft (Part 2)
This picks up where this post left off.
Alexander explained how he thought Adobe was just trying to shut his website down as some kind of anti-competitive move, since Adobe knew that ElcomSoft's software wasn't truly illegal and didn't have any real legal grounds to sue.
At this point Burton submitted the letter Adobe sent ElcomSoft, and projected it on the screen for the jurors. He used a laser pointer and pointed to a specific section of language in the letter:
ACTION REQUESTEDAdobe is requesting you cease the illegal actions by removing the offending materials. Please respond to us no later than five working days." -- 06/25/01 Letter sent to ElcomSoft from Adobe.
Alexander explained that he understood the above wording to mean that he had a few days to fix the hosting situation and was planning to deal with Adobe after that.
"Why was the software still available after getting this letter from Adobe?" Burton asked.
"Because the letter didn't explain what was going on." Alexander said. "And I had other things to do, like trying to keep my business going."
Alexander explained that the AEBPR program was a small product and not a particularly important product at the time to them, in the scope of all the other business they were doing. Having to deal with a relatively unexplained shutdown took up the majority of his attention at the time.
I wish I had written down more of Alexander's explanation on this point verbatim, but here's the gist of the rest of it.
Alexander woke up one day and found out his ISP was going to shut down his website and ask questions later. His first priority was to get his website back up (by finding another ISP).
He didn't believe that the dispute with Adobe was going to be much of a problem. He was ready to do whatever was necessary to appease them, once he figured out what it was. Whatever it was, he thought it best to let it wait a day while he found another ISP and got his website and business back up and running.
"Did you believe that it (the AEBPR program) was unlawful?" Burton asked.
"No." Alexander said. "I still believe this program is legal."
"What did you know about the DMCA in 2001?" Burton asked.
"That it was an anti-piracy law." Alexander said. "I was happy that it existed because it would protect my software."
"Was your company involved with Cox Broadcasting?" Burton asked.
There was an objection from Frewing in here at some point on relevance, but the Judge overruled it and Burton was allowed to continue.
"One of our employees had sent an email to remove our software from their site." Alexander said.
Burton asked Alexander some questions about a series of emails between an ElcomSoft employee and Cox Broadcasting.
Alexander explained that the email exchange involved a discussion about the Digital Millennium Copyright Act (DMCA).
"Since we were a company from Russia, there was no force of the law behind it." Alexander said. "And my letter was rejected by Cox Broadcasting.
On to the next segment.
Here's the first part (of 2 or 3 total, I'm predicting) of my account of Alexander Katalov's testimony.
Alexander explained how the Night Administrator for his company had called him on the telephone and woken him up about "a strange email from Adobe." Alexander went on to explain how his Night Administrator told him that the email sent to them from Adobe said that ElcomSoft had copyrighted material on its site.Alexander told the Night Administrator that he thought it was stupid to call him up in the middle of the night over it, and that they would work it out in the morning. The Night Administrator called him back again that night, this time at 3am. This time, it was Verio, ElcomSoft's ISP that was contacting the ElcomSoft, because they too had received a shutdown notice from Adobe over the same AEBPR product, except that the notice they sent to Verio says "within 24 hours".
Verio is telling ElcomSoft at this point that they are about to shut their entire website down.
Alexander tells his Night Administrator that it's 3:00 AM and he's really going to get it in the morning. That it's absolutely ridiculous that they are selling copyrighted Adobe software on their website, and that all of the confusion can be cleared up in the morning.
12/10/02 - Alexander Katalov, President, ElcomSoft (Part 1)
Immediately after Vladimir Katalov testified, Alexander Katalov was called up to testify.
Alexander is the older of the two brothers, at 39. He has short black hair, thinning on the top and he was wearing a black suit.
Defense Attorney Joseph Burton asked Alexander his name and age, and about his position at ElcomSoft.
"I am the President of Elcomsoft." Alexander said.
"What is your role there?" Burton asked.
"Marketing, tech support, hiring new employees..." Alexander named. "Sometimes I even work as a driver when I need to get things from one store to another." Alexander started to hold up his hands to drive an invisible steering wheel for a instant, before thinking better of the gesture and putting his hands back down.
Alexander explained how ElcomSoft started in 1989-1990 when his country was still the Soviet Union.
ElcomSoft formed with two partners (Alexander and Vladimir, his brother) at a time when citizens were just being allowed by the government to have private companies of their own.
Alexander went on to explain more about ElcomSoft's early history, and how the company started in the supercomputer and payroll computers business, providing both hardware and software for their clients.
Although many of these old products aren't sold anymore by the company, ElcomSoft continues to support these older systems for those clients still using them.
"We closed that line in 1995-1996," Alexander explained. "But we continue to support our old customers."
From 1995-1997, ElcomSoft focused on its software outsourcing business. Clients during this time period included VISA. In 1996, ElcomSoft starting selling shareware on the Internet.
"How many employees were at your company at this time?" Burton asked.
"Five to Seven." Alexander said.
"What was your first product you sold on the Internet?" Burton asked.
"Advanced Disk Catalog." Alexander said.
Burton asked Alexander to explain how the creation of the Advanced Disk Catalog came about.
"I asked Vladimir to write a program for my own needs, and we put it on the Internet for free and got feedback." Alexander said. "People wanted to give back. (There are more comments in here about how online users of the program contributed bugfixes to it, etc.)
Next, Burton asked Alexander when they started selling "password recovery" software.
"1997." Alexander said. He went on to explain how one of their business partners sent them some financial information in an ecrypted format with a password that was supposed to be the partner's phone number. When Alexander received the file, the phone number wouldn't work. He tried the partner's business number, home number, and cell phone number, but nothing worked.
Alexander had someone in the company write up a program to come up with all of the available passwords. (This took two weeks.) The program didn't work, however, and they still couldn't access the data until they finally heard back from the business partner. (Turns out, the business partner had included dashes in-between the digits of his business phone number.)
Burton continued to ask Alexander about the company's history and more recent activities. Alexander explained that in 1997, ElcomSoft decided to start "downsizing its outsourcing business and concentrate on shareware and focus on password recovery software."
"In 2000, what were the total sales of the company?" Burton asked.
"$200,000 to $300,000." Alexander said.
"And how many employees?" Burton asked.
"Ten to twelve." Alexander said.
"What were the total sales in 2001?" Burton asked.
"One million." Alexander said.
"In 2002? I know the year's not over yet, but..." Burton said.
"Probably about the same: one million." Alexander said.
Alexander said something about how the bad publicity had hurt their business this year and so they hadn't increased their business sales between 2001 and 2002.
"How many employees do you currently have?" Burton asked.
"Fifteen." Alexander replied. "And some part time employees that telecommute."
Burton said that he wanted to talk about the AEBPR program now.
"When did you first learn that there was a problem (with the AEBPR)?
"Around midnight on June 25-26th." Alexander said.
"Describe how you first learned about the problem." Burton said.
Alexander explained how the Night Administrator for his company had called him on the telephone and woken him up about "a strange email from Adobe." Alexander went on to explain how his Night Administrator told him that the email sent to them from Adobe said that ElcomSoft had copyrighted material on its site.
Alexander told the Night Administrator that he thought it was stupid to call him up in the middle of the night over it, and that they would work it out in the morning. The Night Administrator called him back again that night, this time at 3am. This time, it was Verio, ElcomSoft's ISP that was contacting the ElcomSoft, because they too had received a shutdown notice from Adobe over the same AEBPR product, except that the notice they sent to Verio says "within 24 hours".
Verio is telling ElcomSoft at this point that they are about to shut their entire website down.
Alexander tells his Night Administrator that it's 3:00 AM and he's really going to get it in the morning. That it's absolutely ridiculous that they are selling copyrighted Adobe software on their website, and that all of the confusion can be cleared up in the morning.
"Where were you when this happened?" Burton asked.
"In Russia. Moscow." Alexander said.
Burton asked the Jury to please keep in mind that, in Moscow, where ElcomSoft has just received the letter for the first time, it was already midnight. This is significant because in Adobe's June 25, 2001 letter, it gives ElcomSoft five working days to respond. Since the letter was not received until midnight at the end of the first of day, to ElcomSoft, one of those five days had already passed before they even received the letter.
At this point evidence was submitted and projected on the screen for the jurors...
Stay tuned!
I just wanted to make sure everybody knew that the Jury is still deliberating and they are scheduled to re-examine Dmitry Sklyarov's video testimony on Tuesday. (I read this in a Wired News article over the weekend, and then confirmed this via email with Judy Trummer, ElcomSoft's PR person.)
I'm about to post the first in a two or three part segment of my account of Alexander Katalov's testimony, which I hope to complete by this afternoon.
Then I still have my notes from the RegNow! employee witness to type up, and finally, my synopsis of the Final Arguments.
It's like a little race for me to finish before the Jury gives their verdict. Lucky for me, it's a very complex case, and it looks like we have a conscienscious Jury that's willing to take the time to make the right decision. (They don't seem to be making any hasty decisions anyway.)
Back in a flash!
Here's part two of my account of Vladimir Katalov on the witness stand.
You'll notice that there are more links now within the text. I've decided to start integrating the various documents and evidence I've been collecting since last year (since July 17, 2001) about the dispute between Adobe and ElcomSoft.
Where the documents are still available in their original location online, I link to them there, with a link my version as a backup. However, some of the emails and message board postings have been removed since last year, so I'm really glad I saved my own copies of them.
I will sprinkle links to the evidence accordingly, as they come up. I'm also in the process of creating an "online evidence" page with everything itemized for easy reference.
I'll also be going back to my earlier posts and adding links to evidence wherever they fit in.
Two more witnesses (Alexander Katalov and the RegNow! employee) and then off to the Final Arguments...
Vladimir Katalov Takes The Stand In The ElcomSoft Trial: Part 2 of 2
10/10/02
Witness for the Defense
Vladimir Katalov, Managing Director, ElcomSoft
(Brother of Alexander Katalov, President, ElcomSoft)
This segment follows this post.
When I got to the courtroom at 8:30 am, Defense Attorney Joseph Burton had finished questioning Vladimir Katalov and the Prosecutor, U.S. Attorney Scott Frewing, was just starting his cross-examination.
"You did some marketing?" Frewing asked.
"Yes." Vladimir replied.
Frewing asked Vladimir a series of questions in order to establish some of the basic facts about the structure of ElcomSoft's online business. Frewing's questions gradually enabled Vladimir to explain how the actual content resides on the ElcomSoft website, although RegNow! handles the monetary transactions.
Next, Frewing moved on to ElcomSoft's PDF password recovery software (The Advanced PDF Password Recovery program or APDFPR).
"It doesn't really recover passwords, does it?" Frewing asked.
"No. It doesn't really recover passwords." Vladimir agreed.
What they are talking about is how ElcomSoft's "password recovery" products actually bypass the security altogether, rather than actually recovering a password is and providing it for the user to enter into the program to decrypt it.
Frewing used Vladimir's testimony to establish how Vladimir had arranged for the promotion and selling of the AEBPR program.
Frewing then asked Vladimir about his personal knowledge and understanding of the Digital Millennium Copyright Act (DMCA). According to Frewing, Adobe sent ElcomSoft a letter with some reference to the DMCA in September 2000 (10 months before the AEBPR e-book processor was released).
Sorry, I don't have a copy of the September 2000 letter.
"You said you looked at the statute?" Frewing asked, referring to the DMCA.
"Yes." Vladimir said.
"Carefully?" Frewing said.
"Not enough to understand it." Vladimir said.
Vladimir tried to explain his position better, acknowledging that he did research the DMCA after receiving the letter in September 2000.
"Do you understand it (the DMCA)?" Frewing asked.
"I'm not sure, but I think I do." Vladimir replied.
Frewing kept trying to establish that Vladimir had read the DMCA and understood it. Vladimir agreed that he had read it, but was pretty iffy on the "understood it" part. Vladimir was very adamant that, at that time (September 2000) he had thought that he understood it. However, when asked point blank if he now understands the DMCA, he could not seem to answer with complete certainty.
Frewing mentioned that there's no mention of "Fair Use" on the ElcomSoft website. Vladimir replied that language about fair use was included some of the company's press releases.
Frewing showed the Jury a marketing letter from ElcomSoft on the big screen and made the point that the AEBPR software was marketed as "a tool to decrypt ebooks."
Then Frewing moved on to an issue I'm still not sure what to make of: posting to bugtraq, and whether or not it is good or bad to do so. Earlier, when questioning Dmitry, Frewing seemed to be making the point that if ElcomSoft was really trying to use the AEBPR program as a demonstration program to make a point and improve PDF security in the long run, they would have published their information to a bug tracking mailing list to fuel the debate. (An ironic suggestion since publishing information about decrypting (circumventing) copy protected content can be a violation of the DMCA in itself. -- Interesting stance for the Prosecution to take.)
Frewing made the point that Vladimir didn't post the information to bugtraq, and Vladimir brought up that he wasn't a technician and wouldn't be the one to post information like that to a buglist anyway.
Despite Vladimir's comment above, for whatever reason, over a year after this dispute began with Adobe, on July 12, 2002, Vladimir posted to bugtraq about the AEBPR program. (If you have trouble accessing the bugtraq site, here's my own HTML version of the post .) Frewing ended his questions by bringing up this fairly recent bugtraq post.
"After you had already sold the (AEBPR) program, you posted to bugtraq?" Frewing asked.
"Yes." Vladimir said.
"After you heard about Adobe?" Frewing asked. (Meaning the dispute w/ Adobe, I presume.)
"Yes." Vladimir said.
"After you knew the FBI was involved?" Frewing asked.
"Yes." Vladimir said.
"No further questions." Frewing said.
Coming up next, ElcomSoft President Alexander Katalov takes the stand.
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.
I'll be keeping these installments coming over the course of the day.
Next installment - the Prosecution's cross on Vladimir Katalov, Alexander Katalov's testimony and the testimony from the RegNow! employee (Today - Saturday). The Final Arguments Synopsis will go up tomorrow (Sunday) afternoon sometime.
That's the plan stan!
Vladimir Katalov Takes The Stand in the ElcomSoft Trial (Part 1 of 2)
12/09/02 - Witness for the Defense
Vladimir Katalov, Managing Director, ElcomSoft
(Brother of Alexander Katalov, President, ElcomSoft)
The segment follows this post.
I will be referring to Vladimir Katalov and Alexander Katalov by their first names or complete names only, so it won't get too confusing in case if you are reading all of these segments at once.
Vladimir Katalov was called to the witness stand. He's about 5' 9", with short blond hair and wearing a tan/leaning towards yellow-ish suit. (Much like the color of the suit Dmitry was wearing.)
Burton asked Vladimir a few basic questions about himself.
"Your name?" Burton asked.
"Vladimir Katalov." Vladimir answered.
Vladimir explained that he was 33 years old and that he lived in Moscow.
"Are you currently employed by ElcomSoft?" Burton asked.
"Yes. I have worked for them for more than 10 years." Vladimir replied.
"What is your title there?" Burton asked.
"I am the Managing Director." Vladimir said.
Burton displayed a screenshot from the ElcomSoft website and pointed to the list of file types on the page.
"What other file types (besides EBook and PDF) do you sell password recovery programs for?" Burton asked.
"Word Perfect, Microsoft Publisher, other Microsoft software..." Vladimir said. "There are others."
Yeah, I'd say so! more than just a few.
"How many password recovery programs..." Burton started to say when the prosecuting attorney, U.S. Attorney General Scott Frewing, objected.
Judge Whyte overruled the objection.
It seemed like Frewing was trying to down play a couple different assertions that had been made by the Defense during Dmitry's testimony: 1) That the AEPBR program is just another in a long line of "password recovery" programs that ElcomSoft has been offering on the internet for years. 2) That the APDFPR and the AEBPR programs are essentially the same programs with different security handlers.
"Do you sell your software in Russia?" Burton asked.
"Yes." Vladimir said. "We sell it on the Internet to all countries."
"Are there customers of your software that are in law enforcement?" Burton asked.
"Yes." Vladimir said.
"Can you give me an example of a customer?" Burton asked.
"Police Departments, FBI, IRS." Vladimir said.
"Police Departments, the FBI and the IRS are customers of yours?" Burton asked.
"Yes. They are purchasers of our programs." Vladimir said.
"Is the U.S. Department of Justice a customer?" Burton asked.
"Yes. We receive orders from them about once a month from different states." Vladimir replied.
"Are there state agencies that are customers of your software?" Burton asked.
"Yes." Vladimir said.
"Do District Attorneys purchase your products?" Burton asked.
"Yes." Vladimir said.
"Are there private companies?" Burton asked.
"Yes." Vladimir replied. "Adobe, Microsoft, Motorola, Siemens..."
"Adobe is one of your customers?" Burton asked, emphasizing Adobe ever so slightly as he said it.
"Yes." Vladimir said.
Burton then asked Vladimir some questions about how the AEBPR program was marketed, and about how it was reviewed in PC Magazine and in some books.
Burton then asked Vladimir about ElcomSoft's conference schedule in 2001.
"Did you attend any conferences in 2001?" Burton asked.
"Yes. Two." Vladimir said. "The Techno-Security Law Enforcement conference, which we were a sponsor of, and DefCon."
"So a Law Enforcement conference and a Hacker conference?" Burton asked.
"Yes." Vladimir replied. "We were a sponsor of the Techno Security Law Enforcement Conference. We had a booth."
Burton showed Vladimir, and then the Jury, two exhibits.
"Did individuals from Law Enforcement visit your booth?" Burton asked.
"Yes." Vladimir replied. "They asked questions..."
"Was one of the products that you were demonstrating in the booth the AEBPR program?" Burton asked.
"Yes." Vladimir replied.
"Did those members of law enforcement give you their business cards?" Burton asked.
"Yes." Vladimir replied.
He passed around to the Jury the business cards of law enforcement individuals that had been given to ElcomSoft while they were visiting the ElcomSoft booth at the Techno-Security conference.
"When was the date of the Techno Security Conference?" Burton asked.
"April, 2001" Vladimir said.
This date is very significant in that it is more than three months earlier than when the trouble with Adobe started (in late June). (That is, three months before Adobe sent their first correspondence to ElcomSoft and the first correspondence to ElcomSoft's ISP (Verio) about the AEBPR program.) This seems to make a strong case for ElcomSoft's assertion that it was under the impression that its software was perfectly legal, considering they were openly demonstrating it to members of the Law Enforcement community at such high profile Law Enforcement Technology and Security Conferences.
"Are there any competitors in this business?" Burton asked.
"Yes." Vladimir said.
"Companies who make products similar to yours?" Burton asked.
"Yes." Vladimir said. "There are at least four companies with programs that do about the same thing."
"Do those companies still exist today?" Burton asked.
"Yes." Vladimir said.
The Prosecution objected twice while this line of questioning was going on, but was the Judge overruled the objections both times.
"Did Adobe purchase the program before July?" Burton asked.
"Yes." Vladimir said. "I believe in February or March."
I'm pretty sure Burton had a slide of a transaction email or receipt or something that provided evidence of the date of purchase. (This is a factual detail I should be able to clear up with Joseph Burton after the trial is over.)
Court adjourned for the day at this point.
That's all I have from the Defense's questions, because I missed the first half hour of court Tuesday morning. (By the time I got there, the Prosecution was up.)
Next installment - the Prosecution's cross on Vladimir Katalov, Alexander Katalov's testimony and the testimony from the RegNow! employee.
The Jury is taking the weekend and Monday to consider the evidence further.
I'm going to blog a Wired News story about it in a second.
I've had a power outage the last few hours, so I was unable to post my latest ElcomSoft Trial update, which I will post in a minute.
I've decided to go through this stuff in the order that it took place, rather than jumping ahead and discussing the Final Arguments. If I'm lucky, the Jury won't come up with a decision till Monday, and I can string you along all weekend as I catch up on my notes up until the end of the Final Arguments. And then we can all hear the verdict on Monday morning and it will all be so dramatic.
If we get a verdict today, it will undoubtedly affect my telling of the story. (So that's just another reason I hope we don't get a verdict today.)
I also hope that the Jury is really thinking about these issues, and is taking as much time necessary before hopefully coming to the right decision.
So here's the rest of Dmitry Sklyarov's testimony, and then I'll move on to the other witnesses for the Defense (Vladimir Katalov, Alexander Katalov and an employee from RegNow!).
Defense Attorney Joseph Burton is wrapping up his rebuttal after the Prosecution has cross-examined Sklyarov.
"You were asked (by the prosecution) why you didn't make a program that only makes one backup copy. Is it technically feasible to make such a program?" Burton said.
"I supposed its technically feasible." Dmitry said. "But it doesn't make sense."
Dmitry explained how someone could still use the disabled program that only allows for backup copies to be used on the new copy created, and so on and so on. So the result would ultimately be the same. (Thus it not making sense to create such a product for the reasons the prosecution was getting at: that if the product was supposed to be for making backup copies, it should enable one backup copy to be made, and that's it.)
On to the next subject of why Dmitry didn't submit all his information about how to decrypt ebooks to bugtraq. Dmitry said he wouldn't publish such information in order to protect publishers, because someone could have used that information to create a free product that could have bee used to hurt publishers. (As opposed to the $99 dollar product sold by ElcomSoft that cost more than seveeral Ebooks.)
Next Burton addressed whatever the Government was trying to get at earlier when he asked Dmitry if telling the truth was a condition of his government agreement.
This reminds me that I forgot to mention earlier that Frewing had sort of implied that Dmitry might not be telling the truth when he cross-examined him earlier. He casually reminded Dmitry that if he didn't tell the truth, he would be nullifying his agreement with the government.
"With respect to the agreement with the government and your telling the truth." Burton said. "Who will ultimately decide if you are telling the truth?"
"I decide to tell the truth everyday." Dmitry said. "I tell the truth everyday."
Dmitry was confused by the question. And actually, we all were. You could tell from the looks on the audiences faces. Burton tried again.
"Who will decide if you have told the truth today?" Burton asked.
"Most probably, U.S. Government..." Dmitry sort of half said and half asked.
Not sure if Burton got what he was looking for there or not...
Burton moved on.
"Did you use the Adobe specification?" (When developing the AEBPR program.) Burton asked.
"Yes." Dmitry answered.
"No further questions," said Burton.
That was it for Dmitry.
Next: Vladimir Katalov takes the stand.
"If I was an unscrupulous student, would I be able to use the AEBPR program to make copies (of the course materials) and give them to the other members of the class?" "Yes." Dmitry replied. "But it would be illegal to distribute them. You would be distributing them yourself. The program doesn't do it." Dmitry volunteered that an unscrupulous student could also open up the Ebook and take screen grabs of its pages and distribute them, or even print the pages out and make copies of them, and distribute those, illegally, to everyone in the class, if one were so inclined. Frewing made a point of having Dmitry clarify that it would probably be cheaper and take less time for the unscrupulous student to spend the $99 on the AEBPR program and email them to do students from his home than to perform any of the other options Dmitry had mentioned. "Yes." Dmitry conceded. "It might be cheaper."Dmitry Sklyarov's Cross Examination at the ElcomSoft Trial December 9, 2002 - Continued from this earlier post. My editorial comments are in italics. We're still in in the court room with Dmitry, who is being cross-examined by the prosecution. At this point a big screen had been extended out in front of the left side of the Audience box, covering much of the view, so everyone was crowded in on the right side of the courtroom. I decided to take the one spot available on the left next to Jury so I would have a better view of the exhibits and witnesses and the reactions on the Judge's face, if any. (Note: there weren't any. This guy's got a poker face if there ever was one.) "You're a Professor." Frewing stated/asked "Oh no." Dmitry said. "I am not a Professor! I am only an Assistant Professor." "Okay. An Assistant Professor." Frewing said. The room chuckled a bit. "Let's say, hypothetically, I'm a student." Frewing said. He went on to describe a typical scenario where an required Ebook was required (at $?/per Ebook) for a class of 99 students. "If I was an unscrupulous student, would I be able to use the AEBPR program to make copies (of the course materials) and give them to the other members of the class?" "Yes." Dmitry replied. "But it would be illegal to distribute them. You would be distributing them yourself. The program doesn't do it." Dmitry volunteered that an unscrupulous student could also open up the Ebook and take screen grabs of its pages and distribute them, or even print the pages out and make copies of them, and distribute those, illegally, to everyone in the class, if one were so inclined. Frewing made a point of having Dmitry clarify that it would probably be cheaper and take less time for the unscrupulous student to spend the $99 on the AEBPR program and email them to do students from his home than to perform any of the other options Dmitry had mentioned. "Yes." Dmitry conceded. "It might be cheaper." You could telling Frewing was getting really excited about his next line of questioning. "What's the last message that a user of the AEBPR program sees after using the program to decrypt an ebook?" Frewing asked. Dmitry strained to think of it. "Is it 'Protection Successfully Removed?'" Frewing asked. "It's possible." Dmitry said. Still not sure. Then Frewing projected a slide of the final message in question. "Does that say 'Protection Successfully Removed'?" he asked. "Yes." Dmitry re
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.
This is just a little informational post to let those interested know that I just got back from the last day of the trial and I'll have a brief synopsis of the day's events up soon (within the hour) before getting back to finishing up my extended coverage.
(update: 3:00pm. I'm fried guys. I was up till 2am editing my Trent Lott Daily Show piece, and then I had to be in court this morning at 8:00 am. So I am fr-ied!)
The Jury is planning to deliberate today and tomorrow morning -- so we might have a verdict before I "get there" with my narrative account of it -- but I'm trying to catch up!
Next update late tonight or early am. Juicy stuff!
Then I will go back and finish the long versions of the witness cross-examinations. Promise.
I'm hoping to get another installment up tonight...but it might not be till early morning.
The final argument is in San Jose at 8:00 am, so it's most likely I'll be posting well into the weekend on this thing. Hopefully the Jury will take its time deliberating on the evidence and not make any hasty decisions on Thursday afternoon. I'll keep you posted.
"I still believe that it is absolutely legal," he said."I'd like to rephrase the question. When you developed the program, you thought it was lawful. Correct?" Burton asked.
"Correct," said Dmitry.
"And up until July 16, 2001, you thought it was lawful?" Burton asked.
"Correct," said Dmitry.
"What were the reasons you thought it was lawful?" Burton asked.
"The initial idea was taken from the Internet. It had been around for years," Dmitry said.
"Between the time you developed the program and July 16, 2001, did anyone ever tell you that the AEBPR was unlawful?" Burton asked.
"No." Dmitry said.
Continued from my earlier post...
My comments/attempts at humor are in italics so as not to be confused with the often amusing real life events.
It's still Monday afternoon, December 9, 2002 and Dmitry is on the witness stand.
Dmitry explained several positive uses of his company's password recovery program (and of 'password recovery' programs in general). Some examples included: enabling blind people to extract the content of their legally purchased ebooks for their spoken reader applications and using excerpts to make a point within academic research of educational settings. (Dmitry Sklyarov is an Assistant Professor at Moscow University.)
"It's called..." he struggled to remember the right words, and then his eyes widened as he finally remembered, looked at the audience and said, "Fair Use."
Suddenly, thunder struck and lightening flashed wildly inside the court room. The Judge told the court reporter to strike the thunder and lightning from the record and immediately instructed the Jury to please disregard any implied statements made by the deity or supernatural forces that may have caused the thunder and lightning to occur when making their deliberations.
As soon as the issue of whether or not ElcomSoft's AEBPR program violated the law entered the picture, Judge Whyte quickly jumped in. He explained to the Jury that Dmitry's understanding of what was legal or not legal should only be considered regarding whether or not he acted willfully when doing something. He explained again that it should only be considered with regard to his state of mind -- and that it was not being offered regarding whether or not the program actually violated the law.
In general, I liked the way this Judge interacted with the witnesses and Jury -- although counsel on both sides seemed more than a little wary when interacting with him. Anyway, he was very good at clarifying things for the Jury at the right times, and he was paying close attention to the dates of everything -- which are critical factors in this case. Then he wanted more time to carefully prepare his Jury Instructions and give both sides time to prepare their final arguments -- and the Jury a day to digest everything they had seen so far. (Boy what I'd give for a set of those Jury Instructions...)
After the Jury had nodded -- and seemed to have all looked the Judge in the eye to acknowledge that they understood what he had said -- Dmitry was allowed to continue.
"I still believe that it is absolutely legal," he said.
"I'd like to rephrase the question. When you developed the program, you thought it was lawful. Correct?" Burton asked.
"Correct," said Dmitry.
"And up until July 16, 2001, you thought it was lawful?" Burton asked.
"Correct," said Dmitry.
"What were the reasons you thought it was lawful?" Burton asked.
"The initial idea was taken from the Internet. It had been around for years," Dmitry said.
"Between the time you developed the program and July 16, 2001, did anyone ever tell you that the AEBPR was unlawful?" Burton asked.
"No." Dmitry said.
Dmitry went on to explain how the program can only be made to work with legally-obtained ebooks. And how it worked by accessing the protected document and creating an unprotected copy.
"What was your intended use of the program?" Burton asked.
"To allow people who legally own some ebooks to read them on a computer -- any computer they like. Also, it is a demonstration of the weaknesses of PDF security," Dmitry said.
The members of the Jury were all taking feverish notes at this point.
"Was it your intent to violate anyone's rights?" Burton asked.
"No." Dmitry said.
"No further questions." Burton said.
Next came the prosecution's cross-examination by U.S. Attorney Scott Frewing. Frewing asked whether Dmitry had communicated with his lawyers before coming to the trial today, which of course, he had. It seemed as if Frewing was trying to make it somehow suspicious for Dmitry to be communicating with his lawyers.
Frewing then asked if Dmitry knew that the government had wished to question him earlier, prior to his appearance in the court room today. He said that no, actually, he hadn't known that until his counsel had told him earlier that day.
"Do you know that your lawyers declined for you on your behalf?" Frewing asked.
"Yes. I was told today." Dmitry said.
Again, somehow this was supposed to seem shifty. The audience was amused by this, and chuckled a bit. Some of the jurors didn't think it proper that the audience was chuckling, and looked over disapprovingly. (Luckily, I had contained myself.)
Note: Frewing liked to make what sound like statements of fact, rather than questions when he asked his questions. He seemed to expect the witness to say "yes" if they agreed, but he didn't give his voice the right inflection like he was asking a question, and seemed a little nervous, resulting in him sounding a little stiffer still, and confusing things more. So every witness got a bit confused at first until they understood what his style was.
Frewing also spoke very fast (as he admitted himself, and cordially apologized for several times). So the strange inflection combined with the language barrier led to a bit of confusion at first, and every Russian-speaking witness had to ask him to please slow down. After he slowed down, and the witness got the gist of his questioning style, and that they were supposed to say if they agreed or not with his assumptions. Then the questioning went relatively smoothly.
"You testified that it (AEBPR) could be used for a bad purpose?" Frewing asked.
"Yes." Dmitry said.
"And you knew that when you were designing the product, that [it could be used for something bad] (or something like that)?" Frewing asked.
"Yes."
Frewing asked Dmitry to explain how ebook protections work, and how the ebooks protected by security technologies will make it so that copies of the ebook files to be non-functional.
"The AEBPR program removes all such protections?" Frewing asked.
"Right." Dmitry said.
"You didn't design it to make only one additional protected copy?" Frewing asked (referring to usage that Dmitry had cited earlier of making a back-up copy of a legally purchased ebook an ebook for the purposes of using it on a machine running the operating system of the purchaser's choosing).
"No. Because the copy is the same as the original copy." Dmitry said.
"You didn't design it so only sight-impaired people could use it." Frewing asked.
"Right." Dmitry conceded.
He then questioned him about why he didn't submit the security info to Adobe's bug tracking system.
He asked him about "bugtraq" and asked him to define it. (bugtraq is a mailing list where people send details of security holes, often with code to demonstrate them.)
This seemed like is a pretty ironic line of questioning considering that 1) Adobe's security flaws were way to extensive to be considered "bugs" and 2) ElcomSoft could have potentially been subjected to additional prosecution under the DMCA for making such knowledge public, had they done so -- making it pretty strange that the prosecution was scolding them for not making the information public.
"You didn't submit the bug to bugtraq, but instead, you wrote a program for ElcomSoft?" Frewing asked.
"Yes." Dmitry said.
"And they sold the program?" Frewing asked.
"Yes."
More to come...
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...
Here's my next installment from the ElcomSoft trial. My next post will be tomorrow in the AM.
When we last left our story, our hero (Dmitry Sklyarov) is being questioned on the witness stand by ElcomSoft defense attorney Joseph Burton (perhaps the real hero), as a video excerpt of Dmitry's July 2001 Def Con presentation is being presented to the Jury..."One of the things you were trying to do was to demonstrate weaknesses?" said Burton.
"Yes," replied Sklyarov. "Many companies say the Ebooks are copyproofed. But most of the ones I have seen are not secure and can be easily compromised. The program I developed demonstrates such security flaws."
"We are trying to show that E-book distribution on Adobe's Technology is insecure," he said. "We are not trying to hurt publishers."
"By 'publishers', who do you mean?" said Burton.
"I mean copyright holders," Sklyarov said. "Companies that use those (security technologies) can lose money, and that's not fair," said Sklyarov. "The public has a right to know."
12/09/02 - Dmitry Sklyarov's Testimony Continued
When we last left our story, our hero (Dmitry Sklyarov) is being questioned on the witness stand by ElcomSoft defense attorney Joseph Burton (perhaps the real hero), as a video excerpt of Dmitry's July 2001 Def Con presentation is being presented to the Jury.
During the course of the videotaped presentation, Dmitry demonstrated the AEBPR e-book reader and how it worked.
"There is no security at all," he says on the tape.
The video audience appears to be very impressed and claps accordingly.
After the video, in the real live courtroom, Dmitry explained his intentions in writing the AEBPR ebook reader program. "Now you can transfer your e-book to your laptop," he said. He also explained how it was just a demonstration program, only capable of creating a single PDF format copy of an encrypted e-book "one book at a time."
"One of the things you were trying to do was to demonstrate weaknesses?" said Burton.
"Yes," replied Sklyarov. "Many companies say the Ebooks are copyproofed. But most of the ones I have seen are not secure and can be easily compromised. The program I developed demonstrates such security flaws."
"We are trying to show that E-book distribution on Adobe's Technology is insecure," he said. "We are not trying to hurt publishers."
"By 'publishers', who do you mean?" said Burton.
"I mean copyright holders," Sklyarov said. "Companies that use those (security technologies) can lose money, and that's not fair," said Sklyarov. "The public has a right to know."
The discussion then focused on price -- why sell it instead of give it away?
"Why didn't you post the information showing the security flaws to the internet?" said Burton.
Dmitry explained the reasoning behind pricing the software at $99, rather than giving it away free, because that could "hurt publishers," and that his goal was to provide "just a demonstration."
"Did you participate in choosing the price?" said Burton.
"Yes," said Sklyarov. "As I understand it, making the price below $99 or free would hurt publishers. The price was high enough that it was more than the cost of an ebook."
Then the line of questioning shifted to the construction of the APDFPR and AEBPR programs and the alleged deconstruction of the Adobe E-book reader that Elcomsoft may have used in order to create its own ebook reader (later, upon cross-examination by the prosecution).
The defense had prepared a chart detailing the smaller components that make up ElcomSoft's APDFPR (Advanced PDF Password Recovery program) and AEBPR (Advanced E Book Password Recovery program).
At this point the prosecution had an objection of some sort [I believe it had to do with the prosecution wanting to only focus on the ebook program (AEBPR) rather than the other password recovery program (APDFPR)] and the Judge asked for counsel to approach the bench. That took a good minute or two, and I noticed Dmitry smiling at the jury as he sort of inspected them.
The debate continued quietly between the Judge, both attorneys and the court reporter up front at the Judges bench. (Apparently the court reporters are supposed to witness those bench-side tete-a-tetes, although they don't seem to keep a record of them, because he was just standing there listening.)
Finally, both sides appeared satisfied and the trial moved onward. The Judge allowed the defense to continue with its original line of technical discussion, after rephrasing the question slightly.
(I can't remember what the question was, but when he asked it differently, it seemed to me to be clearly the same question -- but I'm sure there was some kind of legal justification for why the prosecution wanted the wording to be changed.)
They went over the different parts of the program: User Interface, Program Protection, Registration, Kernel and Security Handlers.
It was then that I began to feel the watchful eyes of our attentive jurors start to glaze over just a little.
"Are there different kinds of security handlers?" Burton asked.
"Yes," said Dmitry. He then went on to discuss the different kinds of security handlers such as "file-open."
Burton then went on to establish that the two programs were created from the same kernel with modifications to the user interface and the addition of extra security handlers. Dmitry mentioned a number of the handlers by name, including: ROT 13, Adobe PDF Merchant Security Handler, EBX -- Electronic Books Exchange (what was initially Glassbook, which was bought by Adobe and implemented in its Ebook reader), and support for generic document handlers.
Burton asked Dmitry a series of questions to establish to what extent the code base in question was Dmitry's handiwork. Dmitry explained that he wrote the entire kernel and that the kernel consisted of about 60-70% of the ebook reader code. The point was made that besides the user interface and security handler differences, there was no difference between the APDFPR and the AEBPR programs.
Tip, re: Keeping APDFPR and AEBPR straight: I finally figured out that these are the same initials except for a "PDF" or an "EB" (for ebook) in the middle. Once you think of them as "A" (advanced) (insert file format here) PR (password recovery)", they don't seem so complicated.
Stay tuned for the next episode, when Dmitry says the "F" word on the witness stand!
("Fair Use" that is...)
Court wrapped up early today. Both sides have presented all of their evidence and examined and cross-examined each other's witnesses.
Tomorrow will be a day off to let the Judge finalize the Jury instructions (which the Judge explained could not be prepared properly until all of the evidence was heard) and to let both sides prepare for their final arguments, which will be taking place Thursday morning at 8:00 am.
I expect to be writing up yesterday and today's events for the next 24 hours or so.
I'll keep posting them here in 1,000 word incriments.
Here's a little courtroom artwork to tide you over till the next one.
That's the "Jury" on the left and "Reporter" (meaning the court reporter) on the right.
My First Impressions of the Trial
Sketch by Lisa Rein
I had a really interesting day in court Monday observing the U.S. vs. ElcomSoft trial.
Dmitry Sklyarov was cross-examined by both sides and Vladimir Katalov had just taken the stand for a bit when it was time for court to adjourn.
I'll be posting more this evening before heading over to the big EFF party tonight.
See you there!
All in all I'd say the Jury was probably just trying to keep up with the conversation more than anything else -- which did get rather confusing from time to time in the context of all of the products, technologies and acronyms flying around.Even I had to look at the big chart provided by the defense showing the two products being discussed side by side -- the APDFPR (Adobe PDF Password Recovery program) and AEBPR (Adobe Ebook Password Recovery program) -- every so often in order to keep it clear in my mind which one they were talking about as they switched back and forth. And I've been familiar with the case for over a year -- so I can't imagine what it would be like for a juror to try to stomach all of this stuff in a couple of sittings.
One thing about the jury though: they sure looked interested in what was going on. They were paying close attention and were taking everything very seriously -- yet they were also quick to laugh when things were, well, just plain funny.
I'd like to apologize ahead of time for what is undoubtedly going to be a stream of consciousness style of writing for these notes. I'm trying to write all of this up while it's fresh in mind so I don't fall into the trap I've been in for the last few weeks trying to reconstruct what happened from my notes at Eldred.
The whole point of my taking entire week to observe this trial, besides the obviously selfish reasons of wanting to experience history in the making and all that kind of stuff, was to bring the experience to those who couldn't be there. With that in mind, it only seemed fair to enable you to share the experience with me in a timely manner -- and while you're interest is up!
Please do let me know if any of this needs further clarification. It is my intention to eventually have an online account of the trial that is linked to all of the evidence (most of which is already available online in some form or another) so that a reader can follow along and consider all of the evidence presented for and against etc., and try to understand the thought process of everyone involved as the events were taking place.
I believe it is important to have a historical account of this case because, much like the Eldred case, I believe that its outcome will greatly change the course of history.
It was Dmitry Sklyarov's arrest in July of 2001 that got me interested in Copyright Law and the DMCA in the first place. I cared very little about either until I learned that a Russian graduate student had been arrested and was still being held without bail (only for a few days originally -- but eventually he was held for over three weeks in jail and then not allowed to return home for almost six months!) -- and all because a software company alleged that some software his employer had developed could have potentially infringing uses. It didn't seem possible.
I began researching this strange "DMCA" law the technological and legal issues involved, and learned that the plot only thickened with more information I obtained. Webcasting issues became involved, and ultimately, free speech and the public domain seemed the most at risk.
I continued with my research, and decided to move back to the SF Bay Area to see if I could be of any assistance to anyone trying to help the situation. Five months later, I was working for Lawrence Lessig at Creative Commons.
One thing I know for sure -- for me, none of it would have transpired as it did were it not for Dmitry's arrest. For this reason, and the reasons mentioned earlier, I wanted to be there to experience this trial for myself.
12/09/02 - 2:00 pm San Jose Federal Court
I walked in an hour after court started, right as Dmitry Sklyarov was on the stand and Elcomsoft's lawyer, Joseph Burton, was questioning him. (It is my understanding that the prosecution called witnesses last week and now the defense is presenting their witnesses.)
I counted only 21 people in the audience of the small courtroom in downtown San Jose, California.
Burton played a twelve minute video excerpt from Dmitry's July, 2001 (exact date here) presentation at the Def Con conference in Las Vegas, Nevada. The tape was played on a TV set placed between the witness stand where Dmitry sat and the jury box. The jurors sat with 4 in front and 8 in the back row, and all of them had note pads that they were all keeping pretty busy with.
All in all I'd say the Jury was probably just trying to keep up with the conversation more than anything else -- which did get rather confusing from time to time in the context of all of the products, technologies and acronyms flying around.
Even I had to look at the big chart provided by the defense showing the two products being discussed side by side -- the APDFPR (Adobe PDF Password Recovery program) and AEBPR (Adobe Ebook Password Recovery program) -- every so often in order to keep it clear in my mind which one they were talking about as they switched back and forth. And I've been familiar with the case for over a year -- so I can't imagine what it would be like for a Juror to try to stomach all of this stuff in a couple of sittings.
One thing about the jury though: they sure looked interested in what was going on. They were paying close attention and were taking everything very seriously -- yet they were also quick to laugh when things were, well, just plain funny.
For instance, during the beginning of the Def Con presentation in the video clip they were showing, when Dmitry attempted to begin his presentation, someone from the audience asks Dmitry if he can please say "where are the nuclear wessels in Alameda?" Which he finally says, reluctantly. (Note: I'm not sure how I would feel exactly if someone stopped my presentation somewhere to ask me to say "Totally Excellent Dude" or something with my American accent, but he was a good sport about it.)
Anyway, it was pretty funny -- and everyone in the court room laughed loudly. It also served to loosen things up a bit.
The video clip itself was also kind of funny because it had this really Tron-like sort of outdated pseudo-flashy opening but then the footage of the presentation itself was very amateurish and low tech. Dmitry was sitting at a table up on stage with a microphone in front of him and two or three other people at the table next to him without microphones. It was very bright in the room and it looked warm. Too warm. Like, Las Vegas in July warm.
After the "talk like Checkov for us" incident, Dmitry went on with his presentation. It seemed like he was shouting into the microphone, but I couldn't tell if it was just turned up too loud at the even itself or if perhaps whoever recorded the video had blown out the levels when they recorded the tape. Dmitry seemed to be reading from his pre-written speech for the most part.
Okay it's midnight and I've got to get some sleep before court tomorrow. But I will say that I've somehow managed to write over 1,000 words already, although I've only gone through one page of the thirty or so pages of notes I took today. So suffice to say that there's a lot more where this came from.
More tomorrow afternoon -- court gets out at noon and I'm going to the EFF party at 7pm, so I'll post as much as I can in-between.
