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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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  • 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.
  • 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.
  • 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 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 wizzy403 (303479) on Tuesday December 17, 2002 @02:12PM (#4909179)
    So what does this mean for Jon Johanssen and DeCSS??

    Nothing, since Jon isn't being tried in the US.

  • Re:Great!! (Score:2, Informative)

    by CaptainPsyko (632409) <Kcausin.hamilton@edu> on Tuesday December 17, 2002 @02:16PM (#4909219) Journal
    On appeal, a verdict of Not Guilty can be overturned if it was found that the judge in the lower court misinterpreted the law.

    Whats important to remember here is that this verdict of Not Guilty was reached NOT because 'he didn't do it' but rather because the conclusion was reached that 'he did it and he isn't guilty.'

    Therefore, on appeal, this verdict could be remanded (as opposed to overturned, because this is a jury trial) back to the lower court to try again. As a matter of 'he did it' or 'he didn't do it'
  • 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.

  • by Enigma2175 (179646) on Tuesday December 17, 2002 @02:19PM (#4909260) Homepage Journal
    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.
  • by Nurlman (448649) on Tuesday December 17, 2002 @02:26PM (#4909335)
    The Government can appeal a criminal acquittal, but only due to procedural errors made by the court, not because they think the jury reached the wrong result.

    In this case, the Government could argue that the judge mis-instructed the jury on an incorrect definition of the word "willful," and that as a result, the jury was asked to apply incorrect law. If the appeals court found that the instruction was incorrect, the remedy would be to declare a mis-trial and re-try the case.

    Appeals by the Government don't happen very often, but when an important issue is on the line, they certainly can happen. Securing a favorable interpretation of the DMCA is important to the DOJ, but at the same time, this particular case is somewhat awkward for them, what with Adobe not urging prosecution. In light of that, I'd say the odds of a Government appeal are about 1 in 3.
  • by Anonymous Coward on Tuesday December 17, 2002 @02:36PM (#4909406)
    Duhhhhh... you have to understand the difference between criminal and civil cases.

    This is a criminal copyright case. The burden is higher ("beyond a reasonable doubt") and intent is a necessary element that the prosectution must prove.

    This jury instruction is only applicable in criminal copyright cases.... not civil lawsuits like the MPAA/RIAA bring. In a civil copyright suit, they do NOT have to prove any intent at all. Yes, Virginia, merely publishing a tool that can be used to violate the DMCA is, and always was intended to be by the people that wrote it, actionable under the DMCA by a civil lawsuit. Such a tool must have non-trivial, legitimate noninfringing uses to be legal to publish, and the defendant must prove they exist.
  • 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 kraksmoka (561333) <grant@@@grantstern...com> on Tuesday December 17, 2002 @02:59PM (#4909593) Homepage Journal
    . . . 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.

    this was wedged into the bottom, and it is the most important part of the precedent set. its the legal ruling by the judge that the creators intent during creation determines its illegality under the DCMA. in other words, violate it all you want, as long as you truly believe that there is an allowable or "fair use" of the product you created.

    say you made a decryption system to allow companies to recover data from an encrypted system in case of human tragedy (the only guy who knows the key dies), which does happen, you would not be in violation of the DCMA.

    i think we all knew that it would only take a few test cases to rip this poorly written law open. this is just the first, and will hopefully discourage companies from invoking this unholy of the unholies.

    of course the worst part of the law, is simply the threat of legal action. perhaps there will be popular support for making the threat of DCMA litigation a crime itsself.

    on the outside, it means that there will be more suits, however, it could:

    a)result in a large body of case law to stip the act of the rest of it's fangs

    b)insure that companies only use it when the threat is DIRE.

    c)really keep the EFF busy for a while.

    my .02

  • Re:Huge Win? (Score:1, Informative)

    by Anonymous Coward on Tuesday December 17, 2002 @03:34PM (#4909905)
    See here's the problem though...juries find on issues of fact, not issues of law. As such, this has no vaule in terms of precidence for future cases, as only judges can decide issues of law.

    The constitutionality of the DMCA is a question of law, and as such, would need to be evaluated by a higher court (read: appellete or above) to create any binding precident.

    How often do you hear trial cases being quoted as precident? Never, because they never deal with issues of law, only of fact.
  • by lobsterGun (415085) on Tuesday December 17, 2002 @03:36PM (#4909911)
    1. Why was Elcomsoft under US jurisdiction? Do they do business here and thus are subject to US laws?
    This was the case. Elcomsoft was selling their software in the USA and thus fell under US jurisdiction.
  • 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.
  • Re:so now... (Score:5, Informative)

    by Sycraft-fu (314770) on Tuesday December 17, 2002 @04:20PM (#4910316)
    Slander actually, as it was of the spoken word, not the written. Also the girl can face criminal charges, should he choose to press the issue. It is illegal to knowingly falsely accuse someone else of a crime.
  • by Idarubicin (579475) <allsquiet@hotmai[ ]om ['l.c' in gap]> on Tuesday December 17, 2002 @04:20PM (#4910319) Journal
    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.)

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

    by Eric Damron (553630) on Tuesday December 17, 2002 @04:29PM (#4910414)
    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. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."

  • by Jim Tyre (100017) on Tuesday December 17, 2002 @04:31PM (#4910433) Homepage
    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

  • Re:Knowledge of law? (Score:5, Informative)

    by PD (9577) <slashdotlinux@pdrap.org> on Tuesday December 17, 2002 @05:09PM (#4910802) Homepage Journal
    The legal term breaking and entering is a result of the history of English. After the Norman conquest in 1066 all of elite England spoke French. At that time, certain French words entered our language and in an early attempt at bilinqualism, lawyers wrote them down in two langages.

    So, check out the etymologies of legal terms like "breaking and entering" and "cease and desist". You'll see that one word has a French root.

    "Breaking" comes from the Middle English "breken". "Entering" comes from French originally. At the time, both meant the same thing.
  • Re:so now... (Score:4, Informative)

    by proclus (33875) on Tuesday December 17, 2002 @05:54PM (#4911242) Homepage Journal
    No no no!

    Get the story here [yahoo.com]. It is only the government who saying that they failed to show intent, a self-serving smokescreen argument at best, which is unfortunately spreading via the media (I already heard it on NPR). The reality appears to be that the jury supported fair use for ebook users against the DMCA.

    Regards,
    proclus
    http://www.gnu-darwin.org/ [gnu-darwin.org]

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