(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.

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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.

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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.

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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.

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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.

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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…