ElcomSoft Verdict: Not Guilty 593
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."
Great!! (Score:4, Insightful)
jaysyn
A disaster (Score:5, Insightful)
This is good news for the DMCA.
so now... (Score:5, Insightful)
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:Ok, someone fill me in (Score:4, Insightful)
Ahhh, the rainmaker comes (Score:2, Insightful)
Re:Great!! (Score:4, Insightful)
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
if only (Score:1, Insightful)
The biggest problem (Score:4, Insightful)
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.
Re:Ok, someone fill me in (Score:4, Insightful)
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.
Re:Huge legal win? I think not. (Score:5, Insightful)
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.
In Summary . . . (Score:2, Insightful)
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.
Willfull infringement? (Score:2, Insightful)
Hopefully, with more rulings like this we can postpone the seemingly inevitable trip to the re-education camps.....
The judge's instructions (Score:5, Insightful)
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.
Great, but I don't think it sets a precedent. (Score:5, Insightful)
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.
It's too bad... (Score:3, Insightful)
Re:so now... (Score:5, Insightful)
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
Re:Now I can finally rest easy at night... (Score:3, Insightful)
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.
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
Re:Huge legal win? I think not. (Score:4, Insightful)
I'm glad to see Elcomsoft come out on top of this, but don't see where it helps overturn the DMCA.
Although it sounds good there is a catch (Score:3, Insightful)
Re:The biggest problem (Score:4, Insightful)
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.
Re:Great!! (Score:2, Insightful)
Don't just boycott Adobe-- help GIMP (Score:1, Insightful)
Re:Great!! (Score:1, Insightful)
Oh, SHUT UP.
Whining about how all lawyers and politicians are for sale to the highest bidder and out to screw the regular guy (ie, you) isn't going to change anything. It just makes you a whiner.
I challenge you to s**t or get off the pot. Go enroll in law school so you can become the world's first honest lawyer. Run for a public office so you can be the only honest politician there is. The system CAN be changed if it's broken. You think it's broken, you change it.
Five months in the hole is a win? (Score:4, Insightful)
why this this is probably a Bad Thing (Score:5, Insightful)
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.
Re:Huge legal win? I think not. (Score:3, Insightful)
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:
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
Re:Ok, someone fill me in (Score:2, Insightful)
This did not help in protecting anything dealing with fair use or any of those aspects, but instead seems to deal with one's ability to reverse engineer a product. Maybe the courts woke up and realized that the whole computer industry really started picking up with compaq's reverse engineering of the IBM architecture.
-gabe
Re:Ok, someone fill me in (Score:3, Insightful)
Ahh, but thats the subtle genius of the DMCA. The "safe harbor" clause allows the "offending" party to be safe from prosecution if they "unknownly" violated the DMCA. Thats why the law is used so often, and so effectively - anybody just has to send out a threat (substanciated or otherwise), and 9 times out of 10 the fear of court cases and legal fees will get the desired result - unlike the good ol' days, when somebody actually had to ask a real live judge for an injunction.
Just another example of how the DMCA enriches our lives (not!). So, lucky that clause existed for ElcomSoft, but it doesn't do anything for the rest of the DMCA weary....
Re:so now... (Score:2, Insightful)
actually cops normally only pull you over if you've broken the law (speeding, failure to yield, running a stop sign). it's up to their discression of weather or not to give you a ticket. giving you a "warning" normally means
you were speeding and i'm choosing not to give you a ticket
and not:
you didn't break the law, but i wanted to pull you over "just for fun".
it's their way of encouraging you to follow the law without costing you money.
next time you get pulled over, you should demand a ticket so you can be vendicated in court. then you can hire a lawyer sue the city saying your civil rights have been violated.
don't get me wrong, sometimes cops pullover people just to harass them-this happens especially to people of color. if you are one of those people, you should push it in court. if enough people complain about an officer, something will eventually happen.
Begs the question... (Score:2, Insightful)
If it doesn't warrant a conviction, does it still warrant an arrest?
Re:A disaster (Score:1, Insightful)
IANAL, but consider that since it was determined that Elcomsoft was not trying to break the law, then the DMCA was not tested at all. If it was determined that Elcom was trying to do such a thing and then they were found not guilty, I would be worried.
Re:Excellent! (Score:2, Insightful)
Other groups/companies who make software that has no legitimate purpose, in my opinion, won't win cases like these.
It kind of makes you wonder if DeCSS would win if it went to trial again. The initial purpose was to allow the viewing of DVDs in Linux.
Hmm.
Re:A disaster (Score:4, Insightful)
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:The judge's instructions (Score:5, Insightful)
Re:The biggest problem (Score:5, Insightful)
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.
Finally common sense wins out... (Score:2, Insightful)
Think of the logic here: if a company produces something that COULD be used illegally, the company could be held liable for illegal acts with that product. By the same token, the folding knife in my pocket could be used for illegal acts (assault, armed robbery, etc.), and thus the knife maker is liable for any crimes I commit with it. Also, the makers of the lighter in my other pocket should be held responsible if I can use their lighter to smoke pot. And don't get me started on Honda for all the laws I can break by using their car.
Not good enough (Score:2, Insightful)
While software capability versus programmer intent as it pertains to the DMCA may be an interesting issue, I thought the main point of contention (at least from the perspective of the /. crowd) is the fact that we are holding a Russian-based software maker (and individual developer for christ's sake) accountable for United States law and United States copyrights. It's a double standard. Why should anyone writing code overseas give a shit about some copyright law in the US? And if there is a reason, then what's keeping the government of someplace like Botswana from hauling Microsoft into court??
Re:Jury Instructions (Score:5, Insightful)
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.
System corrupts (Score:5, Insightful)
If you want to change the system, exit the system. Write something, instead. If you are a programmer, write code. This is particularly pertinent to this discussion, where Dmitri and ElcomSoft did more to challenge the DMCA than any politician or lawyer could have done.
Re:Great!! (Score:5, Insightful)
This is not insightful. At best, it's an extremely unhelpful answer. Not everybody can go do anything they want, despite what mommy says when you're 5 years old and she has dreams of you being president of the USA. I could not be a brain surgeon. This isn't because I don't feel smart enough, it's because I don't have the remotest interest in medicine. If I aint interested, then I aint gonna be any good at it. There are things I'd like changed, but really don't feel like dedicating my whole life to fixing them. You cannot ask that of people and sound like you have all the answers. (You can sound like a total smeghead, though.)
The 'fix it yourself' answer is rude and devoid of any actual thought about the true solution to the problem. His 'whining' is really his expressing demand for a lawyer that has better motivations. The more people that express this demand, the more influence they'll have on future lawyers.
Be glad he has the right to 'whine'. If he didn't, this would be a shitty place.
Re:Great, but I don't think it sets a precedent. (Score:2, Insightful)
Merely offering a product that could violate copyrights was not enough to warrant a conviction
ianal but my understanding is that this is contrary to the DMCA - ie the DMCA says that _any_ copy-circumvention tool is an infringement, no matter what it was intended to be used for, or what it's primary use is.
If it circumvents, acording to the DMCA it's illegal - the judge is saying that this isn't enough, and we have to take intent into account.
Re:so now... (Score:4, Insightful)
This is not as big a win against the DMCA as some want to believe.
Re:so now... (Score:2, Insightful)
"A" for effort, but that's a whole different story than a corporate dispute running it's course.
Re:Criminal aquittals can be appealed (sort of) (Score:3, Insightful)
Interesting Tactic (Score:3, Insightful)
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"
Minus One, Redundant (Score:4, Insightful)
Holy Christ, will this question ever stop getting asked? It's come up in every
Hopefully the end of the court case means no one will need to ask it again.
Re:so now... (Score:3, Insightful)
Re:Intent is everything (Score:2, Insightful)
Copyright is not what they were charged with violating, it was the anit-circumvention provisions of the DMCA. The judge instructed the jurors that in order to be found guilty, Elcomsoft had to be found to knowingly and wilfully produce a product that violated the DMCA.
Elcomsoft was not on trial for copying eBooks, but for creating software that could be used to circumvent the eBook encryption.
This is not a win in the fight against the DMCA. Elcomsoft was found not guilty, because:
If you are aware the DMCA says that you can't create circumvention tools, and you knowingly build and release such a tool, then you are stuck. The important part of Elcomsoft's claim above was that they didn't think their software was illicit, not whether they intended it to be used to illegally copy or legally copy eBooks. So the reason they were found not guilty had nothing to do with what they intended people to do with their program, but with their claim they didn't know it was in violation of the DMCA.
Vengeful or Not, it would be appropriate (Score:5, Insightful)
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.
Re:A disaster (Score:3, Insightful)
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.
US Laws used against a RUSSIAN Company?! (Score:2, Insightful)
Sure, try 'em under applicable Russian law, but... WTF?
Scott
Re:My concerns (Score:3, Insightful)
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).
Re:Knowledge of law? (Score:2, Insightful)
Intent is an excuse, not ignorance, For example, you are surfing hacking web sites , and(pre-popupblocking tools) you are forwarded to a sight with pictures of questionable legality that is being run as a sting to trap perverts. You aren't ignorant of the law prohibiting acquiring such items, but that was not your intent.
Nother example, you travel across country to visit your sick Auntie Bertha, She tells you the wrong address, and informs you that the door will be unlocked and you should just come on in. You arrive at the address, and find the unlocked door and go on up. The owner calls the police who come and find you looking for your Auntie Bertha, You will be found Not guilty of B&E/Trespassing.
INTENT
Re:Vengeful or Not, it would be appropriate (Score:3, Insightful)
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.
Software still illegal? (Score:1, Insightful)
the jury got it (Score:3, Insightful)
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.
Re:Criminal aquittals can be appealed (sort of) (Score:3, Insightful)
As always, IANAL.
This may be a difficult case, but doesn't the fact that the Judge interpreted the work "wilful" in a specific way set a precedent? The Judge made a decision on a law, and doesn't that decision bind other Judges unless it is set aside by a higher court? Or is there something that makes a "Ruling" different from "instructions" to the jury?
Re:so now... (Score:3, Insightful)
While that's true, it's not really applicable to the example the two of you are riffing off of. Namely, speeding, FTY, etc, are not crimes, but rather civil infractions. They are violations of code which can only result in a civil sanction (fine, loss of license, etc). They cannot be punished with jail time, and because of that they don't afford you the same sorts of protections that you have when accused of a crime. I don't believe there is even any presumption of innocence. Probable cause is not a factor in infractions--they are rather decided by a preponderance of evidence. PC only comes into the equation if they find something that is evidence of a criminal offense after they stop you.
In other words, the officer DOES decide if you've broken the law when citing you for a traffic violation. He's not establishing PC for anything--he observed a violation and writes the citation. There is no further investigation and no necessity to file formal charges. If you don't respond to the citation, guilt is presumed (rather than innocence, which would be the case in a criminal offense) and the officer's judgement is upheld.
All this is true at least in my state, and I believe in most of them.
Re:That doesn't make sense...? (Score:5, Insightful)
Unenforced laws still have chilling effects.
--
Re:A disaster (Score:1, Insightful)