Judge Rejects Challenge To eBook Case

A federal judge Wednesday denied a Russian software vendor’s request to dismiss criminal charges against the company for violations of the Digital Millennium Copyright Act (DMCA).

Judge Ronald Whyte of the Federal District Court for the Northern District of California ruled that Elcomsoft, a company that markets eBook formatter software, must now face criminal charges. The court has scheduled a hearing for May 20, 2002, to set the trial date in the case.

Lawyers for Elcomsoft complained that the DMCA is vague and ignores “fair use” protection for legal copying. The software company is also the employer of programmer Dmitry Skylarov, who is the first person charged with criminal violations of the DMCA.

Rejecting two previous legal challenges, the judge ruled that the DMCA’s ban on copyright circumvention tools is constitutional even if the circumvention tools are used for legal purposes.

“Congress was concerned with promoting electronic commerce while protecting the rights of copyright owners, particularly in the digital age where near exact copies of protected works can be made at virtually no cost and distributed instantaneously on a worldwide basis,” said Whyte in his 35-page ruling.

Members of the San Francisco-based online non-profit, civil liberties organization Electronic Frontier Foundation (EFF), which filed an amicus brief in support of Elcomsoft, were saddened by the news.

“It’s as if the judge ruled that Congress can ban the sale of printing presses, because the First Amendment right to publish speech was not attacked directly and quills and ink are still available,” said EFF Legal Director Cindy Cohn. “What good are the public’s rights if the tools needed to make fair use or access works in the public domain are illegal?”

However, on Elcomsoft’s First Amendment argument, judge Whyte ruled that the computer program qualifies as speech, rejecting the government’s argument that software is not speech. The court then ruled that the First Amendment was satisfied because the government’s purpose was to control the “function” of the software rather than its “content,” and that the statute did not ban more speech than necessary to meet its goal of preventing piracy and promoting electronic commerce.

“Although disappointed by Judge Whyte’s unwillingness to dismiss the charges against Elcomsoft on constitutional grounds, we are pleased that he agreed that software is protected speech under the First Amendment,” said EFF Intellectual Property Attorney Robin Gross. “Courts must now take the next step and give people the same rights to express themselves with software as they enjoy for traditional speech.”

The case stems from ElcomSoft’s Advanced eBook Processor software, which gets around embedded copyright controls in Adobe Systems’ eBook Reader. Adobe’s reader is a PDF-based program that lets you download entire books to your laptop or desktop computer. Elcomsoft’s program is available in Russia but not the U.S.

On July 16, Sklyarov was arrested at a major hacker’s convention in Las Vegas hours after giving a speech about the software platform. Adobe dropped its case against Sklyarov, but the U.S. Attorney’s office continued its prosecution under the blanket of DMCA enforcement.

Written in 1996, the DMCA has come under fire because some say it pushes the balance of copyright law too far toward the companies holding the copyrights and away from traditional fair use of copyrighted materials, for example in research and education.

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