Forgot your password?
typodupeerror
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."
This discussion has been archived. No new comments can be posted.

ElcomSoft Verdict: Not Guilty

Comments Filter:
  • Great!! (Score:4, Insightful)

    by Jaysyn (203771) <(moc.liamg) (ta) (todhsals+nysyaj)> on Tuesday December 17, 2002 @02:48PM (#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
  • A disaster (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 17, 2002 @02:51PM (#4908965)
    Because we won, we cannot challenge the constitutionality of the DMCA.

    This is good news for the DMCA.
  • so now... (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 17, 2002 @02:52PM (#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.
  • by Rai (524476) on Tuesday December 17, 2002 @02:54PM (#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.
  • by Ben1234 (558406) on Tuesday December 17, 2002 @02:55PM (#4909009)
    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.
  • Re:Great!! (Score:4, Insightful)

    by Lumpy (12016) on Tuesday December 17, 2002 @02:55PM (#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.
  • if only (Score:1, Insightful)

    by Cheapoboy (634792) on Tuesday December 17, 2002 @02:58PM (#4909028) Journal
    Now if we can just get the US goverment to stop arresting european teenagers for being too clever, we'll actually have something!
  • by Slime-dogg (120473) on Tuesday December 17, 2002 @02:58PM (#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.

  • by buzzdecafe (583889) on Tuesday December 17, 2002 @03:00PM (#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 g_adams27 (581237) on Tuesday December 17, 2002 @03:00PM (#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.

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

    by WebBug (178944) on Tuesday December 17, 2002 @03:01PM (#4909045) Homepage Journal

    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.

  • by jander (88775) on Tuesday December 17, 2002 @03:02PM (#4909059) Homepage
    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.....

  • by Todd Knarr (15451) on Tuesday December 17, 2002 @03:02PM (#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.

  • by RealAlaskan (576404) on Tuesday December 17, 2002 @03:04PM (#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.

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

    by jgerman (106518) on Tuesday December 17, 2002 @03:04PM (#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.
  • Re:so now... (Score:5, Insightful)

    by Qrlx (258924) on Tuesday December 17, 2002 @03:04PM (#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.
  • by quantaman (517394) on Tuesday December 17, 2002 @03:05PM (#4909100)
    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 :(
  • by Guido69 (513067) on Tuesday December 17, 2002 @03:06PM (#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 i_luv_linux (569860) on Tuesday December 17, 2002 @03:06PM (#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 thelen (208445) on Tuesday December 17, 2002 @03:07PM (#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.

  • Re:Great!! (Score:2, Insightful)

    by CaptainPsyko (632409) <.ude.notlimah. .ta. .nisuacK.> on Tuesday December 17, 2002 @03:07PM (#4909122) Journal
    Verdicts can be overturned on appeal.
  • by Anonymous Coward on Tuesday December 17, 2002 @03:09PM (#4909143)
    I contribute to projects like MacGIMP [macgimp.org] as one way to fight their cowardice.
  • Re:Great!! (Score:1, Insightful)

    by poot_rootbeer (188613) on Tuesday December 17, 2002 @03:10PM (#4909151)

    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.
  • by Chagrin (128939) on Tuesday December 17, 2002 @03:12PM (#4909177) Homepage
    Let's not forget that Dmitry spent five months in jail. In this whole rediculous case, that is the real crime.
  • by dAzED1 (33635) on Tuesday December 17, 2002 @03:13PM (#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 epukinsk (120536) on Tuesday December 17, 2002 @03:20PM (#4909265) Homepage Journal
    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 thesadjester (87558) on Tuesday December 17, 2002 @03:21PM (#4909278)
    It get's us no closer to overturning the law, but instead sets a precedent. The precedent it has set is that (at least so far) it is alright to reverse engineer software under the DCMA. If I recall correctly, they had reverse engineered adobe's ebook format.

    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
  • by JordoCrouse (178999) on Tuesday December 17, 2002 @03:24PM (#4909305) Homepage Journal
    sorry, but ignorance of the law is not a reason to reach a not-guilty verdict.

    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)

    by gimpboy (34912) <[john.m.harrold] [at] [gmail.com]> on Tuesday December 17, 2002 @03:24PM (#4909309) Homepage
    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.

    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.

  • by inimicus (194187) on Tuesday December 17, 2002 @03:24PM (#4909313)
    "Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."

    If it doesn't warrant a conviction, does it still warrant an arrest?
  • Re:A disaster (Score:1, Insightful)

    by Anonymous Coward on Tuesday December 17, 2002 @03:26PM (#4909332)
    "Because we won, we cannot challenge the constitutionality of the DMCA."

    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)

    by zachjb (221132) on Tuesday December 17, 2002 @03:26PM (#4909340)
    They will if they are similar to this one. The one major benefit in this case is that the ElcomSoft company convinced (I believe they were all along) the jury that they had no intent to use the software illegally.

    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)

    by sjgman9 (456705) on Tuesday December 17, 2002 @03:26PM (#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!
  • by dillon_rinker (17944) on Tuesday December 17, 2002 @03:28PM (#4909369) Homepage
    And I think that's an ESSENTIAL distinction. If intent is not one of the determining factors, then Dell, Gateway, Compaq, HP, etc are all guilty of violating the DMCA. Why? Because they provide general purpose computing devices. These are demonstrably capable of subverting copy-protection mechanisms.
  • by Enigma2175 (179646) on Tuesday December 17, 2002 @03:29PM (#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 Wampus Aurelius (627669) on Tuesday December 17, 2002 @03:32PM (#4909383)
    The judge's statement does set a nice precedent for future similar cases. However, it is kind of sad that he even had to make a point of mentioning that; the RIAA/MPAA should never have been allowed to carry it this far.

    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)

    by davetrainer (587868) <slashdot&davetrainer,com> on Tuesday December 17, 2002 @03:35PM (#4909397)
    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.

    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??

  • by bnenning (58349) on Tuesday December 17, 2002 @03:35PM (#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.

  • System corrupts (Score:5, Insightful)

    by whig (6869) on Tuesday December 17, 2002 @03:35PM (#4909403) Homepage Journal
    My father's a lawyer, and I've run for office in younger, less experienced days. I know very well that I could have been more successful if I'd been willing to compromise my principles more than I did. Even to the extent I was holding them fast at the time, I realized I had to put them in watered-down form. I realized that the process was corrupting me, and I dropped out of politics.

    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)

    by Anonvmous Coward (589068) on Tuesday December 17, 2002 @03:37PM (#4909417)
    "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....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."

    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.
  • by daveball (171178) on Tuesday December 17, 2002 @03:39PM (#4909426)
    I think there is the chance for precedence here, from the judges instructions to the jury

    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)

    by Eric Damron (553630) on Tuesday December 17, 2002 @03:40PM (#4909436)
    I'm not in favor of the DMCA but the software that this company developed does go afoul of this law. It is only the fact that it couldn't be proven that they knew it was in violation of the law that got them off.

    This is not as big a win against the DMCA as some want to believe.
  • Re:so now... (Score:2, Insightful)

    by porkface (562081) on Tuesday December 17, 2002 @03:41PM (#4909446) Journal
    Now a confession about an out-and-out lie is a whole other ballgame when it comes to compensation. And Tom could sue the district if his career path were affected by the events described. Even if the girl retracted her retraction, there would be no way to convict him short of clear physical evidence.

    "A" for effort, but that's a whole different story than a corporate dispute running it's course.

  • 1 in 3? how bout one in a million.
  • Interesting Tactic (Score:3, Insightful)

    by Multimode (627267) on Tuesday December 17, 2002 @03:44PM (#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 poot_rootbeer (188613) on Tuesday December 17, 2002 @03:55PM (#4909554)
    BECAUSE THEY SOLD THE SOFTWARE TO PEOPLE IN THE US. IN EXCHANGE FOR US DOLLARS. FROM A SERVER HOSTED IN THE US.

    Holy Christ, will this question ever stop getting asked? It's come up in every /. story about the case since Dmitry was first arrested. And it's been answered soundly each time.

    Hopefully the end of the court case means no one will need to ask it again.
  • Re:so now... (Score:3, Insightful)

    by Helter (593482) on Tuesday December 17, 2002 @03:55PM (#4909561)
    I suppose the word "jurisdiction" means nothing to you?

  • by CoreDump (1715) on Tuesday December 17, 2002 @03:56PM (#4909572) Homepage Journal
    You got the right idea, almost.

    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:

    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

    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.

  • by FreeUser (11483) on Tuesday December 17, 2002 @03:59PM (#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.
  • Re:A disaster (Score:3, Insightful)

    by Helter (593482) on Tuesday December 17, 2002 @04:09PM (#4909687)
    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.
  • by Geraden (15689) on Tuesday December 17, 2002 @04:18PM (#4909772) Homepage
    I know this has probably been gone over four or five times, but why does this law apply against a company not within the legal jurisdiction of the United States of America?

    Sure, try 'em under applicable Russian law, but... WTF?

    Scott
  • Re:My concerns (Score:3, Insightful)

    by Anonymous Custard (587661) on Tuesday December 17, 2002 @04:30PM (#4909885) Homepage Journal
    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).
  • by stanmann (602645) on Tuesday December 17, 2002 @04:52PM (#4910038) Journal
    IANAL BUT!

    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
  • by Insightfill (554828) on Tuesday December 17, 2002 @05:35PM (#4910463) Homepage
    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.

  • by Anonymous Coward on Tuesday December 17, 2002 @05:42PM (#4910545)
    While I am pleased to see the Good Guys win for once I am still disturbed that the jury found the software *illegal*. The software could be used in many ways that are NOT illegal but the jury didn't seem to understand that.
  • the jury got it (Score:3, Insightful)

    by ntk (974) on Tuesday December 17, 2002 @05:44PM (#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.
  • by oh (68589) on Tuesday December 17, 2002 @06:09PM (#4910794) Journal
    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.


    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)

    by ScuzzMonkey (208981) on Tuesday December 17, 2002 @06:11PM (#4910830) Homepage
    The police don't have the power to decide if you have broken the law.

    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.

  • by Saeger (456549) <farrellj AT gmail DOT com> on Tuesday December 17, 2002 @06:42PM (#4911133) Homepage
    But how much will it cost me in lawyer fees to get to the point of having my case dismissed?

    Unenforced laws still have chilling effects.

    --

  • Re:A disaster (Score:1, Insightful)

    by Anonymous Coward on Tuesday December 17, 2002 @07:08PM (#4911375)
    No, the court should not have stepped in at all. They should have let Florida solve their own problems. States are supposed to be able to choose electors however they want.

If it's not in the computer, it doesn't exist.

Working...