O ne of the greatest assault on your Fair Use rights, and indeed on free speech itself, the Digital Millennium Copyright Act (DMCA), showed the first chink in its armor on Monday. The law, which makes it illegal to circumvent digital copy protection, even for the purpose of making a legal back-up copy that you otherwise could not make, has resulted in such stunning court rulings as computer code, and even speech on the Internet, not being entitled to free speech protections.
It was also the legal grounds upon which a case against Russian programmer Dmitry Skylarov was launched almost 18 months ago when Adobe pressed charges against Mr. Skylarov for writing a program that broke that companyis eBook encryption. Though Adobe dropped charges under public pressure, federal prosecutors didnit drop their own prosecution until Mr. Sklyarov agreed to testify against his employer, ElcomSoft, the actual publisher of the software.
The trial against ElcomSoft has concluded, and the company was found to be not guilty of violating the DMCA. This is a huge verdict in the saga of the DMCA, especially considering the reason for the verdict. According to a C|Net story, with both ElcomSoft and prosecutors agreeing that the company had violated the law with the release of the eBook decryption software, intent became the focal point. That happened not because of wording in the law, but due to instructions to the jury from the judge. From the C|Net story:
During the trial, which lasted two weeks, the government said ElcomSoft created a tool for burglars and characterized the company as an affiliate of hacker networks that was determined to sell the Advanced eBook Processor despite its questionable legality. U.S. Assistant Attorney Scott Frewing charged that company representatives knew all along that they were violating the DMCA by designing and offering the software to the public.
The defense, in turn, argued that ElcomSoft acted responsibly, removing the software from the Web just days after learning of Adobeis 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 were not 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 companies 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 ElcomSoftis 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 is not how the DMCA has played out so far, as publishers, big media companies, and the like have been able to use the DMCA to have their way with consumers and even other companies. According to C|Net, the prosecutors have said that they respect the juryis decision, and there is no indication yet if that verdict will be appealed. You can find more information in the full article at C|Net.