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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 Raul654 (453029) on Tuesday December 17, 2002 @02:51PM (#4908969) Homepage
    How much closer does this get us to overturning the law? What exactly did we win?
  • by Anonymous Coward on Tuesday December 17, 2002 @02:52PM (#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 TimeReliesOnLadyLuck (634991) on Tuesday December 17, 2002 @02:57PM (#4909023) Journal
    First, they had the man arrested. Second, what, did they back down only after massive protest??? Third,
    I still won't buy any product or contribute to their profit.

    Some things just can't be forgiven. In some republics, we would arrest Adobe, for harrassing an innocent programmer just writing code.

  • Looks like (Score:3, Interesting)

    by zephc (225327) on Tuesday December 17, 2002 @03:04PM (#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 EricWright (16803) on Tuesday December 17, 2002 @03:04PM (#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 gsfprez (27403) on Tuesday December 17, 2002 @03:13PM (#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
  • Re:so now... (Score:5, Interesting)

    by Chaswell (222452) on Tuesday December 17, 2002 @03:16PM (#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.
  • My concerns (Score:4, Interesting)

    by mmol_6453 (231450) <short.circuit@nospAM.mail.grnet.com> on Tuesday December 17, 2002 @03:19PM (#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.
  • by Dr.Dubious DDQ (11968) on Tuesday December 17, 2002 @03:25PM (#4909318) Homepage
    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 $beirdo (318326) on Tuesday December 17, 2002 @03:25PM (#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 @03:25PM (#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.
  • Re:so now... (Score:5, Interesting)

    by Codifex Maximus (639) on Tuesday December 17, 2002 @03:29PM (#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.
  • by Gorimek (61128) on Tuesday December 17, 2002 @03:33PM (#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.
  • Re:so now... (Score:5, Interesting)

    by theguru (70699) on Tuesday December 17, 2002 @03:37PM (#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..
  • ElcomSoft decision (Score:3, Interesting)

    by pulse2600 (625694) on Tuesday December 17, 2002 @03:40PM (#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.
  • by Happy go Lucky (127957) on Tuesday December 17, 2002 @03:42PM (#4909460)
    sorry, but ignorance of the law is not a reason to reach a guilty verdict.

    Why should a Russian programmer (working in Russia) know anything about US law? The act was perfectly legal in the place where he did it.

    What information are you legally required to provide to a pawnbroker in the state of Colorado? What, exactly, are the elements of the crime of "issuing a bad check" under the Uniform Commercial Code? What is the age of consent in the Phillipines? What is the penalty for speeding 25kph over a posted limit on a public street in Buenos Aires, Argentina?

    After all, ignorance of the law is not a reason.

  • Re:so now... (Score:2, Interesting)

    by EverlastingPhelps (568113) on Tuesday December 17, 2002 @03:52PM (#4909535) Homepage
    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

    That is completely wrong. The police don't have the power to decide if you have broken the law. They can't even charge you with a crime; a government attorney has to do that. What they CAN do is use arrest powers because of probable cause. That means that a reasonable person would say that you probably were breaking the law.

    Giving you a warning usually means they used the probable cause of one minor offense (speeding) to excercise thier arrest powers (detain and verify ID) to look for a bigger crime (warrant for murder, trading MP3s, cracking encryption, you know, capital crimes.)

    What it really means in this case is that the prosecuting attorney AND the Grand Jury both decided there was probably cause, but the verdict didn't agree. The legal term for the defendant's situation at that point is "Shit Out Of Luck".

  • by LordNimon (85072) on Tuesday December 17, 2002 @03:56PM (#4909569)
    I don't agree. This ruling clearly limits the scope of the DMCA to only people who willfully create software specifically designed to violate copyright and nothing else. At first, this might not mean much, but keep in mind that it's very easy to make any piece of software look like it has non-nefarious purposes. All a programmer needs to do is add a bunch of innocent features to his application, mention only those in the marketing literature, and let people figure out that it can be used to violate copyright.
  • by jkabbe (631234) on Tuesday December 17, 2002 @04:12PM (#4909710)
    That was a criminal case. Unfortunately we tend to believe accusations made (particularly of women against men) without any substantiation.

    Even after an accusation turns out to be false some people have trouble coming to grips with that and continue to believe the original accusation. There was a similar case where even after the girl admitted she made the story up people continued to spit on the man in public.
  • by CrazyDuke (529195) on Tuesday December 17, 2002 @04:56PM (#4910088)
    To give an anwser, sex is still illegal in Virginia, unless with your spouse and in the missionary position. No one to my knowledge actually gets convicted of it, however. Stupid laws are like an ink stain on your favorite shirt. They almost never go away completely.
  • by Eccles (932) on Tuesday December 17, 2002 @04:57PM (#4910094) Journal
    I'm no lawyer, but I don't think legal precedent was set, unfortunately.

    Juries decide issues of fact. Judges rule on issues of law. Legal precedent is all about issues of law, not fact.

    What *does* happen, however, is if prosecutors see juries unwilling to convict, they may be reluctant to waste their time with cases they feel they won't win.
  • by rilian4 (591569) on Tuesday December 17, 2002 @04:59PM (#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...
  • by raresilk (100418) <raresilk@ma[ ]om ['c.c' in gap]> on Tuesday December 17, 2002 @05:07PM (#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.

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

    by Hobophile (602318) on Tuesday December 17, 2002 @05:13PM (#4910239) Homepage
    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:2, Interesting)

    by matthewn (91381) on Tuesday December 17, 2002 @05:28PM (#4910400)
    Not only are you NAL, but apparently you can't be bothered to read the freaking article, which clearly states that "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." In some cases -- depending on how a law is written -- intent has a LOT to do with guilt.
  • by north.coaster (136450) on Tuesday December 17, 2002 @06:01PM (#4910677) Homepage

    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.

  • by nagora (177841) on Tuesday December 17, 2002 @06:02PM (#4910687)
    DVDs are not delievered in ANY kind of end user format that would cause the user to need to break some password or encryption that they set.

    Uh, like playing them?! Bare in mind that the objective of CSS on DVDs is to prevent use of a player that hasn't paid the cartel's fee; copying a DVD neither needs nor in practice uses DeCSS, it uses bit-for-bit copying machines and programs.

    Just like region encoding, CSS was developed for the price-fixing activities of the MPAA cartel, not for fighting piracy, against which is of no value whatsoever.

    TWW

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

    by Anonymous Coward on Tuesday December 17, 2002 @07:05PM (#4911350)
    Sure it is. The case can be used forever in future cases as a site reference. This doesn't validate the DMCA by any means, and can only HELP future cases. I am not a lawyer, but I work for them.
  • Re:so now... (Score:2, Interesting)

    by grey40 (574000) on Tuesday December 17, 2002 @07:38PM (#4911653)
    Here in Australia it's usually user pays. Lot's of court cases get thrown out when the defendant (a large company) demands that the plaintiff (an individual) prove thay can afford to lose the case bu putting up the cash for the legal fees of the large company, which may be millions.

    Currently these people want to appeal the appeal, but can't afford to. http://abc.net.au/news/newsitems/s748537.htm http://abc.net.au/news/newsitems/s748537.htm

  • Arghhhhhhhh! (Score:3, Interesting)

    by MacAndrew (463832) on Tuesday December 17, 2002 @09:24PM (#4912449) Homepage
    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.

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