DMCA on Trial

While the music download case is crucial to the future of P2P services on the Internet, another copyright case is the first criminal test of the DMCA:

“This case is about selling a burglar tool for software in order to make a profit,” assistant U.S. attorney Scott Frewing told jurors in a federal courtroom in San Jose, Calif.

The Russian company is charged with five counts of offering and marketing software designed to crack Adobe’s eBooks, actions prosecutors say violate digital copyright laws.

….Because digital material is so easy to copy and distribute, copyright holders have sought unprecedented controls over their work, ranging from technical measures that prevent replicating and printing to laws such as the DMCA. However, many programmers fear such crackdowns could discourage technical development and research if engineers fear becoming the target of criminal suits.

On Tuesday, during opening statements bolstered by a PowerPoint presentation, Frewing said the evidence would show that ElcomSoft broke the law by designing and marketing software to illegally crack eBooks and make money while doing so. He said the company continued to sell the software, even after Adobe warned it to stop.

The government plans to call employees from Adobe, eBook publishers and the Internet service providers that hosted the ElcomSoft site offering the software. Dmitry Sklyarov, the Russian programmer and ElcomSoft employee who designed the software, is also on the government witness list, but Frewing would not say when he’s scheduled to testify.

It was the detention of Sklyarov that launched the current case. In July 2001, at Adobe’s prompting, federal agents arrested and jailed Sklyarov after he gave a speech about his company’s software. The incident sparked protests around the world among programmers who feared their work could put them in jeopardy, too. As a result, Adobe backed off its pursuit of Sklyarov, and the government dropped charges against him in exchange for his testimony in the case against his employer.

The start of the trial has been delayed for several weeks while ElcomSoft employees traveling from Russia dealt with visa problems that originally prevented them from getting into the country. On Tuesday, ElcomSoft Chief Executive Alex Katalov sat at the defendant’s table.

During his opening statements, ElcomSoft attorney Joseph Burton characterized the case as a battle between two companies with different ideas about how much control users should have over their software. He said ElcomSoft programmers never intended to act illegally and instead offered the software so people could perform tasks like making back-up copies of a book. He said the software only worked on legitimately purchased eBooks and “was never used to make illicit, illegal copies of eBooks.” [CNET]

There’s never been a better time to be a copyright attorney.