A San Jose, Calif., jury will final arguments Thursday morning in one of the most closely followed copyright trials in recent years. The first defendant ever charged with criminal violation of the Digital Millennium Copyright Act (DMCA), Russian software firm ElcomSoft is facing five counts of circumventing the copyright protections in Adobe Systems eBooks.
The charges stem from the arrest of programmer Dmitry Sklyarov at the 2001 DefCon conference in Las Vegas for selling the ElcomSoft software, which Sklyarov wrote, that allows people using Adobe’s eBook Reader to copy and print digital copyrighted books and transfer them to other computers.
By Aug. 28, 2001, Sklyarov and Elcomsoft were indicted for violating U.S law. At the time of the indictment, Sklyarov faced fines of up to $2.2 million and a prison term of up to 25 years. A month later Adobe withdrew charges against Sklyarov as the programmer made a deal with the U.S. District Attorney to testify against his employer.
Prosecution witnesses testified that ElcomSoft’s only response to requests from Adobe to cease selling the software was a notice on the ElcomSoft site saying its software should not be used for illegal purposes. When ElcomSoft refused to stop making and selling the software, Adobe turned to the FBI, claiming violations of the DMCA.
U.S. prosecutor Scott Frewing jurors in his opening statement that ElcomSoft was “selling a burglar tool for software to make a profit. They did it for money.”
Chief among Elcomsoft’s defense is that its software cannot be used by anyone who has not already “lawfully” purchased the right to view eBooks from retailers. ElcomSoft claims its software was developed for legal owners of eBooks to make backup copies and to transfer the text to other media for personal use under traditional “fair use” rights.
In his deposition taped last December, Sklyarov said he wrote approximately 80 percent of ElcomSoft’s Advanced eBook Processor program as part of his graduate dissertation.
“The basics for that program were my ideas. The product was developed not only for a profit (for ElcomSoft)), but also to show the weaknesses of the (Adobe) PDF format, and as a practical part of my dissertation,” Sklyarov said.
Sklyarov also said he knew the program could be used for “bad purposes” and that he urged his employers to put a disclaimer on its Web site saying the program should be not be used for illegal purposes.
Ryan Dewell, director of technical services for a Washington-based reseller of ElcomSoft products, said Tuesday sales of the program were quickly stopped after Adobe sent its notice to ElcomSoft.
Dewell testified that Alex Katalov, president of ElcomSoft, requested that resellers stop marketing the program within the five-day period demanded by Adobe. A second version of the program with a separate product code was listed for a few days beyond the five-day period, but Dewell said that version was pulled as soon as it was discovered.
“It was an oversight on our part. Katalov brought the second version to our attention,” Dewell said.
ElcomSoft defense attorney then introduced two e-mails from Katalov to Dewell ordering sales of the Advanced eBook Processor be halted. When asked why Dewell’s company, Register Now!. didn’t produce the e-mails in a prosecution subpoena for all ElcomSoft-related communications, Dewell again called it an “oversight.”
