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The Courts Government News

ElcomSoft Verdict: Not Guilty 593

Posted by michael
from the merry-christmas-adobe dept.
truthsearch writes "From News.com: 'A jury on Tuesday found a Russian software company not guilty of criminal copyright charges for producing a program that can crack anti-piracy protections on electronic books.' HUGE legal win against the DMCA. Thank you Lawrence Lessig."
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ElcomSoft Verdict: Not Guilty

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  • Great!! (Score:4, Insightful)

    by Jaysyn (203771) <jaysyn+slashdot@NoSPAm.gmail.com> on Tuesday December 17, 2002 @01:48PM (#4908937) Homepage Journal
    This is great news for Dimitri & friends, but on the other hand this will never make it before the USSC to be ruled unconstitutional. I guess it's at least a good precident to set for other cases.

    jaysyn
    • so now... (Score:5, Insightful)

      by Anonymous Coward on Tuesday December 17, 2002 @01:52PM (#4908985)
      So what I want to know is how is the US Government and/or Adobe going to compensate Dmitri and Elcomsoft for this fraudulent lawsuit?

      The way he was treated and the significant portion of his life that was stolen from him to deal with this ridiculous lawsuit demands some serious retribution to make things right.
      • Re:so now... (Score:5, Insightful)

        by Qrlx (258924) on Tuesday December 17, 2002 @02:04PM (#4909092) Homepage Journal
        how is the US Government and/or Adobe going to compensate Dmitri

        A free lifetime supply of e-books?

        But seriously, they're not going to give him diddly. Things are frequently never made "right," esp. when the criminal justice system is involved.

        It's not like you get restitution for when the cops pull you over, give you a warning, and let you go. Though technically you were detained for a few minutes while they ran your registration. What happened to Dmitry is the same thing but on a larger scale.

        No fraud here. Lots of innuendo and FUD, but nothing arising to the legal definition of fraud. If you want to give hackers a better name, stop using the word fraudulently ... uh, fraudulently.
      • Re:so now... (Score:5, Interesting)

        by Chaswell (222452) on Tuesday December 17, 2002 @02:16PM (#4909217) Homepage
        this always shakes me to my core. It is by far one of the scarier things about our legal system.

        Example:
        An aguantance of mine ("Tom") is a guidance counselor. Tom would not give a female student a late pass to class, even though she begged because she would get detention. He refused and she stormed off to class. When asked by her teacher why she was late she started crying hysterically. The teacher and her stepped outside and she explained that Tom had made her undress and begged her to have sex with him. He said he wouldn't let her go to class unless she did. (the story is bigger and longer but anyway).
        Police are called in, Tom is suspended with pay (go unions) and told to get a lawyer (union said it would cover cost and then backed out).

        The girl later confessed to the police that she made the whole thing up and she just didn't want detention and wanted Tom fired.

        Get this, her mother said that the whole thing was too shady and that her daughter was too young to decide and she wanted to continue to press charges so that everything could be worked out in court!

        Tom has now been asked to please find a job elsewhere (union prevents him from being fired outright), but this has been in the papers, so good luck. He had to sell his house to have money for the lawyer. And when all this is said and done, he will have no way to recover where he once was in life and career.

        It makes me very, very ill.
        • Re:so now... (Score:5, Interesting)

          by Codifex Maximus (639) on Tuesday December 17, 2002 @02:29PM (#4909376) Homepage
          Yeah, US suit laws (Tort?) are really messed up.

          There are people who make a living suing other people. That's ALL THEY DO. They can file a suit for a pittance. Oftentimes, the defendant just settles. If not then the plaintiff goes to court and complains. Winning about half the time.

          Bottom line: Win/Lose for the plaintiff and Lose/Lose for the defendant.

          I also hear that in Europe, if the plaintiff in a suit loses, they foot the bill. I think it's high time the US adopted such a plan.
        • Re:so now... (Score:4, Informative)

          by Zathrus (232140) on Tuesday December 17, 2002 @02:37PM (#4909415) Homepage
          If true, then he has one hell of a slander case, and it's pretty much open-and-shut.

          Loss of livelihood, emotional trauma, yadda yadda yadda -- it would pretty much ruin the parents.

          Of course, he may not want to do that to them, or they may not have enough to make it worthwhile. I'd consider suing the kid just to get her convicted of a felony, which gets to go on her permanent record and fucks her life about as squarely as she just fucked his.

          But that's me, and I can be a vengeful asshole if you screw me first.
          • by FreeUser (11483) on Tuesday December 17, 2002 @02:59PM (#4909604)
            Of course, he may not want to do that to them, or they may not have enough to make it worthwhile. I'd consider suing the kid just to get her convicted of a felony, which gets to go on her permanent record and fucks her life about as squarely as she just fucked his.

            But that's me, and I can be a vengeful asshole if you screw me first.


            Your (or "Tom's") motive might be vengeful, but that wouldn't make it an entirely appropriate and constructive way to handle this sort of apalling injustice.

            Constructive how, you ask? Because clearly the only deterrance that really exists against this sort of abusive false accusation (in addition to normal social pressures and etiquette, which people who make such accusations are unmoved by anyway) is the fear of very real, very profound consequences.

            Her having her reputation and life ruined by having her deception, and its willfully harmful and destructive consequences, in the public record is a singuarly natural and appropriate consequence of her despicable actions.

            Whether out of vengeance, or to simply deter future similar acts, "Tom" should seriously persue such a case regardless. His motive is irrelevant, the outcome that is desired is for the perpetrator (in this case, the false accuser) to suffer appropriately for her crime, and in an appropriately severe and public enough manner to deter others from such conduct.
            • Her having her reputation and life ruined by having her deception, ... in the public record is a singuarly natural and appropriate consequence of her despicable actions.

              Yes, but as a minor, she'll have no public record. Short of actually killing someone, a minor in the US (I assume this is the US) isn't usually named in the public record for any crime unless an exception is specifically made for their case, usually murder.

              BTW, I'm also a former teacher who left for better hours and money, but I understand the rules all too well: we were taught in college to never be alone with a student of either sex, but work long enough and eventually circumstances may leave you out of eyeshot of anyone for a few seconds, and an angry student can get even real fast. Some of these kids can really work the system, and morals aren't even on their radars.

            • The best way of enacting vengence that Skylarov could do would be to use the fame and notoriety of his experience to write a book, make lots of money, and take his book tour (get laid a lot) - maybe even make a movie someday...

              That could be ironic, then we could get the MPAA fighting against people who want to crack the encrypted copy-protected scheme to watch a movie about cracking an encrypted copy-protected scheme.

          • Re:so now... (Score:3, Interesting)

            by Hobophile (602318)
            I'd consider suing the kid just to get her convicted of a felony, which gets to go on her permanent record and fucks her life about as squarely as she just fucked his.

            Slander/libel are civil torts, not criminal ones. Winning such a suit would therefore not "get her convicted of a felony." At best it would result in an award for damages being granted to the guidance counselor.

            Furthermore I'm fairly sure others claiming that all he has to do is prevail in a lawsuit to be set for life are way off the mark. Chances are good that the girl's parents aren't loaded, so it isn't likely that he'll get much more than a six figure settlement, and even that is probably pushing it.

            Despite what others are arguing, the true problem in this instance lies with the media, rather than the judicial system. This guy's problem is that he was unfairly tried and found guilty in the court of public opinion, and that is nothing that legal reform would prevent.

            While the parents' willingness to litigate is obviously a factor, the media's eagerness to jump on exciting, scandalous news is a bigger part of the problem. They are quite good about tarring potential offenders with the broadest brush they can find, and considerably less ready to come forward and loudly retract and apologize.

            But the media only provides content; it is the consumers of such content that are truly to blame for these unfortunate excesses. It is everyone with a small enough mind and mean enough heart that they would judge this man and condemn him, armed only with two minutes' worth of information on the matter.

        • Re:so now... (Score:5, Interesting)

          by theguru (70699) on Tuesday December 17, 2002 @02:37PM (#4909418)
          Sure he does. It's called libel. In the civil courts he can sue the girl's family, the school district, the teacher the girl cryed to if she ran around telling everyone the story as fact, etc..
    • Re:Great!! (Score:4, Insightful)

      by Lumpy (12016) on Tuesday December 17, 2002 @01:55PM (#4909012) Homepage
      not only that but it will be appealed probably another dozen times and then overturned silently in about 2 years.

      Lawyers and politicians have one thing in common they are sneaky and cannot be trusted. espically in the case of defending laws that the companies that bribed ....ummm... supported them paid for.
      • Re:Great!! (Score:5, Informative)

        by dalassa (204012) on Tuesday December 17, 2002 @02:01PM (#4909049) Journal
        Once he's been found not guilty it can't be "overturned." There's this thing called double jeopardy which is explicitly forbiden in the US Constitution. Not all lawyers are out to make the biggest buck by screwing over everyone in sight. Some actually have this idea that their job is to protect their client against unjust laws and to represent them to the best of their abilty.
        • Re:Great!! (Score:2, Insightful)

          by CaptainPsyko (632409)
          Verdicts can be overturned on appeal.
        • Re:Great!! (Score:5, Informative)

          by jdreed1024 (443938) on Tuesday December 17, 2002 @02:19PM (#4909250)
          There's this thing called double jeopardy which is explicitly forbiden in the US Constitution.

          Uh, go read the Constitution. First of all, double jeopardy is a recent term. All the constitution says is that you can't be tried twice for the same crime. Note, however, that you can be tried twice for seperate _instances_ of the same crime. (So even the advice given to Ashley Judd, in Double Jeopardy, was wrong). For example if you rob a bank, and are tried, and acquitted, and go rob the same bank again, you can be tried again and found guilty that time.

          The "double jeopardy" clause is in there to prevent the government from abusing its power. Consider Joe Blow, who prints handbills encouraging revolution. The government doesn't like this. They try him, he's acquitted. The government still doesn't like this. They try him, he's acquitted again. And so on until they bribe enough judges and prosecutors so he's found guilty. That is what "double jeopardy" is designed to prevent.

    • Just wait for the dumb-wit US DOJ to appeal.

      I mean the gall of a Russian company to violate US law. What will they think of next? Skipping out on US income taxes?
  • by Anonymous Coward on Tuesday December 17, 2002 @01:49PM (#4908948)
    Now I can go back to cracking.
  • A disaster (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 17, 2002 @01:51PM (#4908965)
    Because we won, we cannot challenge the constitutionality of the DMCA.

    This is good news for the DMCA.
    • Re:A disaster (Score:4, Insightful)

      by sjgman9 (456705) on Tuesday December 17, 2002 @02:26PM (#4909341)
      Ok, so Dmitry is out of trouble. Good.

      Next up is making sure that Jon Johansen's lawyers get this and use this to help him out.

      The RIAA and MPAA must be pissed off that their precious law got defeated once. Lets sue for damages against the RIAA and put them out of business! (They should be able to taste their own medicine).

      The cartel has the decision to use this law against us. Now that this precedent has been set, they cant sue everybody blindly for so much as thinking "MP3" or "DiVX;)".

      Somewhere, this law will get overturned. I give it 4 years and then its off the books.

      Thank you!
      • Re:A disaster (Score:3, Insightful)

        by Helter (593482)
        Wouldn't that be a hoot. Get a court in Norway to overturn a US law.

        I guess that makes as much sense as a US court trying somebody for a "crime" that was committed in Russia by a Russian citizen.
    • I never understood why anyone thought that this was a good test case for challeging the constitutionality of the DMCA. With Elmsoft being a Russian company, it wasn't entirely clear that the law would even apply to them. Plus, they could reasonably claim that they did not know about the law.

      A good legal test case would be one where the defendent was a US citizen living in the United States, who knowingly violated the DMCA by reverse engineering, with no other factors to distract the judge/jury/lawyers/etc. Then it would be a clean challenge, and more likely to be eventually heard by the Supreme Court.

    • Arghhhhhhhh! (Score:3, Interesting)

      by MacAndrew (463832)
      The verdict has nothing to do with the constitutionality of the DMCA. Nothing.

      What did have to do with the DMCA were defendant's motion to dismiss on the grounds of unconstitutionality, due process, and the first amendment before trial. Elcomsoft lost; I don't believe they appealed. That ended the issue for the purposes of this trial. Next trial, same deal.

      This is very very bad news for the DMCA for practical reasons. The big test case prosecution failed. The gov't will not be eager to bring the next, and its negotiating leverage is undermined. Elcomsoft looked like a pretty easy conviction, so unless they fix the law they're not going to try the more difficult ones, a waste of time and money. I'm assuming the jury here was not totally aberrant; it sounds like they did not nullify and were more or less reasonable. However, it is dangerous to rely on press accounts.

      Many more laws have been struck down for political reasons than constitutional.
  • by Raul654 (453029) on Tuesday December 17, 2002 @01:51PM (#4908969) Homepage
    How much closer does this get us to overturning the law? What exactly did we win?
    • by Rai (524476) on Tuesday December 17, 2002 @01:54PM (#4908997) Homepage
      I'm no legal expert, but I think we're still a long way from overturning that law. It will take a lot more cases such as this...a LOT more.
    • A joke (Score:5, Funny)

      by Raul654 (453029) on Tuesday December 17, 2002 @01:57PM (#4909020) Homepage
      I know it's bad form to reply to your own comment, but I just thought of something that IMHO is funny and hell and I have karma to burn.

      It kind of reminds me of that Chris rock joke -- Following OJ's aquital:
      Black people are like 'Yeah, we won!' What the fuck did we win? Every day I look in my mailbox for my O.J. prize - nothin'."
    • by buzzdecafe (583889) on Tuesday December 17, 2002 @02:00PM (#4909041)
      IANAL, but--
      In order to overturn the law, it would probably have been better to lose the case. Then they could appeal their way up the food chain to the Supreme Court. Challenging the constitutionality of the law is the way to get it overturned; losing in the lower courts is the only way to get there.

      But, I ain't no expert, so I also would appreciate more light on this issue.
      • by nomadic (141991) <nomadicworld@nOSpaM.gmail.com> on Tuesday December 17, 2002 @02:24PM (#4909302) Homepage
        IANAL, but I do watch Law and Order reruns a lot.

        I would think that this would set precedent so that other defense attorneys will be able to strengthen their cases by citing this.

        Of course I'm usually distracted by Carey Lowell or Jill Hennessy or Angie Harmon, but sometimes stuff seeps in to my lust-addled brain...
      • by Gorimek (61128) on Tuesday December 17, 2002 @02:33PM (#4909390) Homepage
        So if a law is bad enough that it will be routinely dismissed in the lower courts, it will never get to the SC, and will never get overturned?? Only borderline bad laws get challenged constitutionally?

        Sure, this is law, not logic, so it could well be like this. But I hope not.
        • So if a law is bad enough that it will be routinely dismissed in the lower courts, it will never get to the SC, and will never get overturned??

          Well, if lower court judges regularly and consistently dismiss charges brought under a law, then eventually prosecutors will stop wasting their time.

          This will lead either to amendments to the original legislation--which will then no doubt face constitutional challenge--or the law will effectively go away, because nobody bothers to enforce it.

          It's not pretty, and it's not an ideal solution, but there are an awful lot of unenforced laws on the books. (This is a bad thing in and of itself, but that is a subject for another post.)

    • by EricWright (16803) on Tuesday December 17, 2002 @02:04PM (#4909093) Journal
      Nowhere. The judge actually had some sense and instructed the jury that, to find Elcomsoft guilty, they needed to decide that the company knowingly commited an illegal act, and intended to do so.

      Secondly, there is NO proof of pirated eBooks out there, even after 2 independant groups were paid to troll the web looking for them. No proof of copyright violation, no DMCA-offense.

      It really came down to whether or not there was a reasonable legal use for the tool or not. The jury found that there was, ie, fair use applications. Not guilty, case closed, proceed with appeals.
  • by Anonymous Coward on Tuesday December 17, 2002 @01:52PM (#4908979)
    Read the article. Elcomsoft removed the software and claimed they didn't realize their software was illegal. They prosecution also could not find any illegal ebooks on the web that had been cracked by Elcomsoft's software. This doesn't mean they can start selling the software again. Nor does it mean the DMCA cannot be used in future cases. Essentially they could not provide that Elcomsoft willfully violated copyright, which is necessary in criminal copyright violation cases. This is not a "huge legal win" by any stretch of the word.
    • by g_adams27 (581237) on Tuesday December 17, 2002 @02:00PM (#4909042)
      > This is not a "huge legal win" by any stretch of the word

      I disagree. Take another look at the last paragraph of the article:

      The judge told jurors...[that] merely offering a product that could violate copyrights was not enough to warrant a conviction

      That's a huge statement! One of the big, big sticks wielded by the RIAA/MPAA and others against software makers is that they can be held liable if their programs merely have the capability of being used to violate copyrights, even if the programmer had the best of intentions and never intended that it be used for that purpose. This guidance from the judge significantly reduces the ability of RIAA/MPAA to swing that stick.

      • The judge told jurors...[that] merely offering a product that could violate copyrights was not enough to warrant a conviction

        That's a huge statement!


        That's real cute. Did you actually read the part of that sentence that you cropped out? Or did you just put an elipsis over the part of the article that you didn't like? The real quote says:
        "the judge told jurors that in order to find the company guilty, they must agree that company representatives
        knew their actions were illegal and intended to violate the law."
        So they were let off not because it's legal to offer their copyright-violating product, but because they didn't know that it was against the law.

        Erik
    • by garyrich (30652) on Tuesday December 17, 2002 @02:01PM (#4909046) Homepage Journal
      "After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."

      In this case the jury instructions are probably more important than the actual verdict. This establishes a key point that a product that has both legal and ilegal potential uses is not in and of itself ilegal.
      • My concerns (Score:4, Interesting)

        by mmol_6453 (231450) <short@circuit.mail@grnet@com> on Tuesday December 17, 2002 @02:19PM (#4909251) Homepage Journal
        I'm concerned over the fact that the judge's instruction could apparently have so much weight in the outcome.

        Could the prosecutors claim the judge was biased and interfered, and demand a retrial?

        Regardless of the outcome, a retrial would be a disasterous effect on subsequent juries, since it implies that the original outcome may very well have been faulty. And a lot of people assume may==is.
        • I'm concerned over the fact that the judge's instruction could apparently have so much weight in the outcome

          IANALBIDTAJS101IC (i am not a lawyer but I did take American Justice System 101 in college), but you'd be surprised at how great an influence the judge has over a jury. Think of it: the jury is made up of people who have probably never even been inside a courtroom. The judge is the only other impartial person in the room besdes the jury, and the jury members take all their orders and instruction from him. He becomes something of a role model for courtroom behavior and attitude, in the jurors' eyes. If he seems to roll his eyes when the prosecution speaks, the jury will be think less of the prosecution. If he looks very interested in the defense's opening statement, the jury will pay more attention.

          In america, with our amateur juries, we get a lot of benefits (the right to be judged by a jury of your peers, people just like you), but there are also a lot of drawbacks (you are judged by an amateur, impressionable groups of normal people).
    • Not only that, but how does the DMCA have any right to step over into Russia? Regardless of whether or not it was found
      to have cracked any eBooks, who are these people to say that Russian businesses fall under the DMCA?
      • Not only that, but how does the DMCA have any right to step over into Russia? Regardless of whether or not it was found
        to have cracked any eBooks, who are these people to say that Russian businesses fall under the DMCA?


        Yes, but they were selling the software in the United States. No matter where the software was coded or where the company was based, according to the article it is illegal to use in the US and selling it brought on the charges. Fortunately the Judge had a little wisdom and ruled that they needed to "willfully" be violating the DCMA to be found guilty. However, the software is still ruled illegal.

        If a company based in Nevada opened a casino in Utah it would be illegal even though gambling is legal in Nevada.
    • Read the whole article. The judge instructions to the jury are interesting and will contradict what you're thinking.
    • by Guido69 (513067) on Tuesday December 17, 2002 @02:06PM (#4909106) Homepage
      Exactly. From reading the article, this sounds more like a win for the DMCA. Elcomsoft was found not guilty only because the tests in the law were not passed. Had nothing to do with whether or not those tests were appropriate.

      I'm glad to see Elcomsoft come out on top of this, but don't see where it helps overturn the DMCA.
      • by raresilk (100418) <raresilkNO@SPAMmac.com> on Tuesday December 17, 2002 @04:07PM (#4910179)
        I think you've misinterpreted the decision completely, and I agree with those who are calling it a "huge legal win." The judge instructed the jury that unless ElcomSoft's product was intended to be used for copyright violation, ElcomSoft had not committed a crime under the DMCA. This principle, known as "mens rea," is supposed to apply to all criminal statutes, but the media and software cartels have been acting as though it did not apply to the DMCA. Instead, the cartels insisted that software or hardware is criminal if it might be used to violate a copyright, even if it is never used for that purpose, or if the legitimate uses far outweigh copyright-violating ones. The judge's instruction to the jury, and the jury's application of that instruction to reach an acquittal, is an unequivocal smackdown to the cartel position.

        I am certain that glasses of champagne are being raised all over the US by manufacturers of DVD and CD-recorders, portable media devices such as IPod and Rio, personal computers, digital video recorders such as Tivo, and any other device that "might" be used to violate someone's copyright. The cartels' position that any slight chance of copyright violation makes these devices criminal under the DMCA has been used to strongarm these companies into accepting intrusive, restrictive DRM schemes that will be highly unpopular with their own customers. Although the tech companies (rightly) suspected that this was only the first step in the cartels' campaign to make the internet and other digital tools so unpalatable for consumers that they would gladly return to the forcefed industry gruel, they had to step to the RIAA/Disney beat or risk a high profile, expensive DMCA trial. Now that the threat of DMCA prosecution for products with an intended legal use has been greatly lessened (if not removed) by the judge's decision, these companies may feel they can shrug off the pressure from the cartels and give their customers the freedom and flexibility they want.

    • Depends on your viewpoint. In the two previous cases, the judges said basically that any software that allows a user to circumvent access controls was ipso facto an infringing device.

      This doesn't mean they can start selling the software again.

      Conversely, it doesn't mean that they can't. There is no evidence produced to show that it was ever used to violate copyright law. This gives Elcomsoft a strong arguement if they want to get a declaritory judgement that says their software is legal under the DMCA. It will be difficult for Adobe to prove that its "main purpose" is to infringe copyright if they can't find a single instance of it being used in that fashion in spite of the number already sold.>p?

  • ...knowing that the DMCA's attempts to stifle software innovation have been conquered.



    I'm still worried about the whole idea that the law applies in Russia, though...

    • I'm still worried about the whole idea that the law applies in Russia, though...

      It doesn't exactly apply in Russia, it applies to people selling things in the US that may be illegal under american law. You don't have to like it but if you sell something in a country it's your responsibility to make sure it's legal under their laws. No matter how messed up. ..knowing that the DMCA's attempts to stifle software innovation have been conquered.

      Except for the fact that ElcomSoft withdrew the software in question. I'm not sure about you but I would consider withdrawing the software in question to be stifling innovation :(
    • I'm still worried about the whole idea that the law applies in Russia, though.

      I see this comment a lot and it is not fair. No one claims that the law applies "in Russia". The prosecution argument was, first, that the software was offered for sale to US customers. They could have put on a button on their website that said, "I certify I am not a resident of the US", or even "I certify that this sofware is legal in my place of residence," but they didn't. Second, they supposedly used a US payment clearing firm for their web transactions. This alone is probably enough for them to come under US law. But even the prosecution didn't claim that the law applies "in Russia."

      As an analogy, imagine a firm that operated in Russia, but shipped illegal drugs into the US. They clearly violate US law.

      Now, under the judges instructions, perhaps the jury found it sufficient that they didn't specifically intend to sell the software to folks in the US, but more likely the jury was impressed that they didn't specifically intend for it to be used to violate copyright.

      IANAL and none of this is intended as a defense of the DMCA, which is a horrible law.

  • DAMN! (Score:5, Funny)

    by wiredog (43288) on Tuesday December 17, 2002 @01:54PM (#4908999) Journal
    How the hell can we get the law tossed by the courts if we win at trial?
  • It's nice to see reason prevail against corporate tyranny. We can only hope that this is the first in a long list of successes against an unreasonble set of laws that make up the DMCA. Let's hope that there are not a string of appeals that that just ultimately drain the resources of ElcomSoft.
  • by Slime-dogg (120473) on Tuesday December 17, 2002 @01:58PM (#4909030) Journal

    Is that the case was turned on the wording, moreso the usage of the word "Willful." This case does not provide precedence for using the software to crack an eBook. Basically, we still cannot use our open source machines to do something that proprietary machines can.

    There was no precedence established for the unconstitutionality of the DMCA, in part or in whole. Once that happens, we can be happy.

    • I'm not sure about that. One cannot use Elcomsoft's software to crack an illegally obtained eBook or to facilitate the illegal distribution of a cracked eBook, but - if one were to legally purchase an eBook and use Elcomsoft's software to convert the eBook into a PDF to view in otherwise incompatible viewers, for personal use only (not to be shared), then I believe that would be legit, since it is not legal for content copyright holders to prevent the user from personal use of the copyrighted materials.

      Of course, IANAL, so I could be off on this ..
      • if one were to legally purchase an eBook and use Elcomsoft's software to convert the eBook into a PDF to view in otherwise incompatible viewers, for personal use only (not to be shared), then I believe that would be legit

        Almost certainly, except for one problem - if I'm reading the results right, there is nothing indicating that it is LEGAL now to sell the eBook Processor software, and in fact, if Elcomsoft offered it in the US again, they would obviously "willfully" be distributing the software.

        Though the judge's instructions to the jury that mere ABILITY to commit copyright infringement is insufficient for a guilty verdict in this case is nice to see, it still doesn't go so far as to explicitly declare in any way (let alone one that sets a precedent) that substantial non-infringing use therefore makes a software product legal, and THAT'S the precedent we really need to get the DMCA under control...

      • by Enigma2175 (179646) on Tuesday December 17, 2002 @02:29PM (#4909371) Homepage Journal
        if one were to legally purchase an eBook and use Elcomsoft's software to convert the eBook into a PDF to view in otherwise incompatible viewers, for personal use only (not to be shared), then I believe that would be legit, since it is not legal for content copyright holders to prevent the user from personal use of the copyrighted materials.

        IANAL, but the way I understand the "fair use" principle, the copyright holder can do whatever they like in an attempt to prevent you from copying their work. They just are not allowed to prosecute you if you do manage to copy it.

        Of course you would need to copy it with tools that you build yourself. If you used somebody else's tools (like the ebook decryption program in question or decss) then the author may be found guilty of violating the DMCA for distributing a "circumvention device". I don't think it is illegal to possess a circumvention device, I believe it is just illegal to (willfully) distribute them.
    • by thelen (208445) on Tuesday December 17, 2002 @02:07PM (#4909118) Homepage

      Exactly, this case doesn't speak at all to whether the DMCA is itself legitimate, but rather whether ElcomSoft was in violation of it. This is good news in the sense that it sets a precendent for how to avoid prosecution under the law, but in no way actually undermines the law itself, which is what we truly need to happen.

  • In Summary . . . (Score:2, Insightful)

    by WebBug (178944)

    in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction(from the Judges instructions to the jury)


    I think that pretty much sums it up. If you clearly intend to perform an illegal act then the DCMA is fully in effect. Elcom did not intend to circumvent the copy protection on ebooks except for the legitimate user making backup copies. Elcom reacted to Adobe's concerns in reasonable time and in manner that clearly demonstrated Elcom's concern with the legality of their eBook software.


    In summary: the court found that intent is everything.

  • Intent is everything (Score:5, Informative)

    by squiggleslash (241428) on Tuesday December 17, 2002 @02:02PM (#4909054) Homepage Journal
    After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.
    That's the positive side. Basically, to move the argument to the other "big" DMCA-related case, if you want to produce a DVD player, as long as your intent is "clean" - ie your application is intended to provide fair use of content, such as the ability to watch it - you are not violating the DMCA by doing so.

    Intent is something that, in this case, was determined by a jury, presumably on the balance of evidence rather than on a reasonable-doubt basis, so someone producing something that allows you to make copies of DVDs for friends, or of DVDs you've rented, would appear to be unlikely to get away with doing so if there's any suggestion that they saw that as being the major application of the program.

    Disclaimer: IANAL, but my mother is.

  • by jander (88775)
    Although I believe this is a big win, I am not sure it was for the right reasons. It appears that the jury did not believe elcomsoft *willfully* violate the DMCA, but questions of jurisdiction and even applicability were not sufficiently answered, IMHO.

    Hopefully, with more rulings like this we can postpone the seemingly inevitable trip to the re-education camps.....

  • oh great! (Score:2, Funny)

    by Quasar1999 (520073)
    And in other news, DMCA2 is now being drafted... sounds like they're pluggin the legal holes... and what's this paragraph about? 'We the RIAA and MPAA reserve the right to f*$@ you up the...'...

    Oh my...
  • by Anonymous Coward on Tuesday December 17, 2002 @02:02PM (#4909064)
    Much of the accolade goes to defense attorney Joe Burton and his dogged determination to defend Dmitry and Elcomsoft at considerable burden to himself. As a senior partner in the San Francisco office of Duane Morris LLP, he had to get the firm to buy into the importance of this case, because I believe they were paid very little. He sold it to the firm because he believed in this case, and that it was unfair to apply the DMCA criminal charges against this company. Well done Joe! And thanks for taking up this fight! And thank you Duane Morris for picking up much of the tab. Who said big law firms have no heart?
  • by Todd Knarr (15451) on Tuesday December 17, 2002 @02:02PM (#4909068) Homepage

    That's the interesting part. He instructed the jury that simply making a product that could be used for copyright violation wasn't enough, the company had to intend for it to be used for copyright violation. This is similar to DeCSS, where it can be but isn't intended for copyright violation. If the ElcomSoft instructions were used in the DeCSS case, they'd be found not guilty by the same reasoning. From a PR standpoint this is a win, because it undercuts the ability of companies to use the DMCA to shut down everything while still allowing them to prosecute actual violation, and it makes them prove intent instead of just possible use.

  • Its amazing what can happen when things get put to a jury, instead of being decided by a single judge or targeted committe! The Jurors have appearently opted for freedom in a country that values freedom...its really very shocking...
  • by RealAlaskan (576404) on Tuesday December 17, 2002 @02:04PM (#4909082) Homepage Journal
    This is certainly good news for Elcomsoft: they've won their battle. Unfortunately, it doesn't help much to win the war. This decision was by the jury. That means that it doesn't set a precedent, and won't help get the law overturned.

    What this decision does do is show the government one way not to prosecute honest programmers and researchers. What it doesn't do is keep them from finding other ways, that will work.

    To set a precedent, we need a judge's decision that the DMCA is/is not unenforceable/unconstitutional. That will make the DMCA a settled issue within that judge's jurisdiction. To make it effective nation-wide, it then needs to be appealed to the Supreme court, and upheld there.

  • the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.

    I think that this is a key reason why much of DMCA will fail in court. Providing something that can be used illicitly is different from providing something that can only be used illicitly. A gun can be used to commit murder which is illegal. It can also be used in an Olympic event, which is legal. There is no legal use for crack cocaine, so having, providing, and using are all illegal. So as long as there are legitimate uses for the code, it should be legal.

    My humble $0.02 on a complicated and tangled issue;-)

    • by bnenning (58349) on Tuesday December 17, 2002 @02:35PM (#4909400)
      Providing something that can be used illicitly is different from providing something that can only be used illicitly.


      Exactly. An excellent argument to that effect was inadvertently made by Mr. Valenti himself when he called DeCSS a "digital crowbar". Note to Jack: crowbars are legal, and with good reason.

  • It's too bad... (Score:3, Insightful)

    by jgerman (106518) on Tuesday December 17, 2002 @02:04PM (#4909088)
    ... that the reason was because they weren't "wilfully" breaking the law. Not for the defendents of course, any reason to get off is good for them. But in the grande scheme of things it would have benefited many more people if the law was found unconstitutional.
  • Looks like (Score:3, Interesting)

    by zephc (225327) on Tuesday December 17, 2002 @02:04PM (#4909090)
    the older decision in "Lawyers vs. Justice" has been overturned! Here's hoping the "Reversal of Freedom Act" will be overturned soon too!

    (more Simpsons references)
  • by nagora (177841) on Tuesday December 17, 2002 @02:06PM (#4909105)
    Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.

    Well, that clears DeCSS up, then!

    If only it were that simple, eh?

    TWW

  • by i_luv_linux (569860) on Tuesday December 17, 2002 @02:06PM (#4909114)
    In this case, we should remember that Adobe backed from its initial claims and thus opened the way for a win for the Elcom. This will probably not be true for other cases, and from what I understood the "intention" thing is too shaky. It is too subjective, another jury with a different atmosphere can find the defendant guilty. So overall I think we are still not so sure about the power of DMCA.
  • by Chagrin (128939) on Tuesday December 17, 2002 @02:12PM (#4909177) Homepage
    Let's not forget that Dmitry spent five months in jail. In this whole rediculous case, that is the real crime.
  • by gsfprez (27403) on Tuesday December 17, 2002 @02:13PM (#4909182)
    "After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said. "

    i don't read the word "wilfull" in the DMCA, so i have no idea of how this case could have come out this way.

    The DMCA was written to prevent ALL forms of copyright breaking devices (with the well known supposed caveats of research, etc.) This judge's jury instructions seem to fly in the face of the DMCA's whole point... that any device which circumvents copyright protection is illegal.

    This judge has effectively rewritten the law from the bench... the law now reads - providing this is what he actually instructed the jury to do..

    "Any device which circumvents copyright protections for the use of w4r3z d00dz and pirates (arrgh, me maties) is illegal, but if its not intended to do that and only perform those acts which constitute normal fair use, then it is okay, and you are not criminally liable of any offense."

    i'm sorry.. but what the fsck?

    (scum sucking hellbound) Lawyers, please help us to understand this... .this appears to make no logical legal sense to me.

    i'm not arguing with the judge's decision.. i'm questioning his legal position.. please don't get me wrong
    • i don't read the word "wilfull" in the DMCA, so i have no idea of how this case could have come out this way.


      As a criminal prosecution, the court needed to focus not only on 1201, but also on 1204, which states in part):



      Sec. 1204. Criminal offenses and penalties
      (a) In General. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -

      (1) shall be fined not more than $500,000 or imprisoned for not
      more than 5 years, or both, for the first offense; and
      (2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.


      That's where willful comes in, straight from the DMCA

  • by dAzED1 (33635) on Tuesday December 17, 2002 @02:13PM (#4909184) Homepage Journal
    There exists, among some in the /. community, and adversion to actually clicking links and reading articles. So I'll quote the important part.
    The defense, in turn, argued that ElcomSoft acted responsibly, removing the software from the Web just days after learning of Adobe's concerns. Both Sklyarov and ElcomSoft president Alexander Katalov testified that they did not think their software was illicit and did not intend for it to be used on books that had not been legally purchased. Under cross- examination by the defense, an Adobe engineer acknowledged that his company did not find any illegal eBooks even after hiring two firms to search the Web for unauthorized copies.

    Because both the defense and prosecution agreed that ElcomSoft sold software designed to crack copyright protections, the case essentially turned on ElcomSoft's state of mind during the period it was offering the software.

    After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.


    Elmsoft knew what they designed the software to do. Duh. The jury was directed though to determine if Elmsoft "willfully" broke the law though. They decided that because Elmsoft stopped offering the software, that it wasn't willfull.

    My personal opinion is that this is a Bad Thing, because it validates the DMCA, if anything. At the very least, it doesn't hurt it at all. The instructions were to determine if Elmsoft broke the law - what law? The DMCA. So the DMCA was being raised as a standard to determine willful disregard of - it being law was never questioned. Personally, I think its rather dumb to think that Elmsoft didn't *willfully* do what they did. I don't, however, think it should be against the law (due to fair-use) to do it, but until the law that does indeed exist is questioned, it is still law. If that makes sense.


    The world of Common Sense had no victory today. And considering the appeals that will continue, not even Elmsoft gained anything.

  • by Newer Guy (520108) on Tuesday December 17, 2002 @02:17PM (#4909227)
    "After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said. That thud you heard was me fainting!
  • by $beirdo (318326) on Tuesday December 17, 2002 @02:25PM (#4909321) Homepage
    ...it would have been better for the anti-DMCA movement. The constitutionality of the DMCA could have been tested on appeal. This way, the only good to come out of the trial was the statement "Merely offering a product that could violate copyrights was not enough to warrant a conviction". Granted, that's a very good statement to hear in this decision, but the greater question of the DMCA's legitimacy was avoided.
  • by ArhcAngel (247594) on Tuesday December 17, 2002 @02:25PM (#4909326)
    As with any "TOOL" there is the potential for abuse. What the RIAA MPAA want is to take away all the tools to remove that ptotential. If they win then next we will lose the right to bear arms (because somebody might use one to shoot somebody "illegally") and then the right to bear pencils because those can take an eye out. What we need in the USA is to take responsibilty for our own actions and stop being so damn greedy. The companies that comprise the RIAA, MPAA make plenty of money....they just don't like it that Co. B is making more. Until rampant greed is quelled this type of human rights violation will continue.
  • ElcomSoft decision (Score:3, Interesting)

    by pulse2600 (625694) on Tuesday December 17, 2002 @02:40PM (#4909440)
    Like most of us, I think this is great - especially what the judge was quoted as saying. With that in mind, I wonder how this case might have went if ElcomSoft decided to continue selling the software instead of pulling it off their site when Adobe complained. Would a judge/jury think that ElcomSoft had intended to violate the law just because they continued to sell their product?

    Also since the case is over and they are not guilty, can't ElcomSoft put their product back on the market without any legal problems?

    Although this isn't anything close to the Supreme Court making a ruling concerning the DMCA's constitutionality, you can bet that this case will be constantly referred to in future DMCA trials.
  • Interesting Tactic (Score:3, Insightful)

    by Multimode (627267) on Tuesday December 17, 2002 @02:44PM (#4909468)
    I find it interesting that the successful tactic used by the defense was "Yes, we know we made software that cracked copyright protection but we didn't intend for it to be used illegally" instead of "We are a Russian company and not subject to American law". This seems to have a number of implications:

    1. Why was Elcomsoft under US jurisdiction? Do they do business here and thus are subject to US laws? If not, it seems that the US feels it can prosecute any business anywhere in the world for anything we feel violates our laws. It will be interesting to see how US businesses feel about it the first time the tables get turned.

    2. This should set good precedent (assuming it survives appeal) for other technolgies that can be used for potentially illegal actions such as P2P. From the article "After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law"
  • by Royster (16042) on Tuesday December 17, 2002 @03:52PM (#4910036) Homepage
    Lessig argued the Eldred case before the Supreme COurt. THe kudos here belong to Joseph Burton and the rest of the defense team.
  • by rilian4 (591569) on Tuesday December 17, 2002 @03:59PM (#4910119) Journal
    "Merely offering a product that could violate copyrights was not enough to warrant a conviction, "

    This quote is taken from the article linked to by the author of the thread. It is from the Judge in the case and refers to an instruction the jury was given regarding conviction. Does this statement seem like it would set precedent for things like maybe...p2p networks? If you apply this statement to napster or kazaa, all of a sudden things seem to change, don't they...
  • the jury got it (Score:3, Insightful)

    by ntk (974) on Tuesday December 17, 2002 @04:44PM (#4910558) Homepage
    Here's what the jury foreman said about the judgement (from the AP story [yahoo.com]):

    The defense argued that the program merely enabled owners of Adobe eBook
    Reader software to make copies of e-books for personal use. If an owner
    makes a backup copy of an e-book or transfers it to another device he
    owns, they argued, that is permitted under the "fair use" concept of
    copyright law.

    Jury foreman Dennis Strader said the argument made a big impact on the
    jurors, who asked U.S. District Judge Ronald M. Whyte to clarify the
    "fair use" definition shortly after deliberations began.

    "Under the eBook formats, you have no rights at all, and the jury had
    trouble with that concept
    ," said Strader.


    If the case shows anything, it shows that the public see the problem with the DMCA. All the publicity is beginning to make an impact.

"The way of the world is to praise dead saints and prosecute live ones." -- Nathaniel Howe

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