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…