Sklyarov Takes Stand as ElcomSoft Begins Defense

The government’s criminal case against Russian software firm ElcomSoft resumed Monday with programmer Dmitry Sklyarov testifying that he knew a program he wrote to bypass the copyright protections in Abode’s Adobe Systems’ eBooks might be a violation of U.S. copyright laws. However, he added, the program was legal in Russia.

The trial in San Jose, Calif., is the first ever criminal prosecution for an alleged violation of the Digital Millennium Copyright Act (DMCA). Prosecutors have charged Moscow-based ElcomSoft, Sklyarov’s employer, with five criminal counts of marketing software for the purpose of cracking Adobe’s electronic books encryption code.

Skylarov was also originally charged in the case, but charges were dropped when he agreed to testify against ElcomSoft. Prosecutors opted not to put Sklyarov on the stand and, instead, introduced his taped deposition. Elcomsoft’s attorneys, though, chose to put Sklyarov on the stand.

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.

“ElcomSoft believed its product to be legal because it was intended to allow some flexibility in use of eBooks by their legitimate owners,” ElcomSoft attorney Joseph Burton told jurors in his opening statement.

In his deposition, Sklyarov 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. On Monday, he said ElcomSoft put a $100 price on the program to discourage hackers.

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 the software, Adobe turned to the FBI, claiming violations of the DMCA.

U.S. prosecutor Scott Frewing jurors that ElcomSoft was “selling a burglar tool for software to make a profit. They did it for money.”

According to the Electronic Frontier Foundation (EFF), a civil liberties organization and advocate for the Elcomsoft defense team, U.S. versus Elcomsoft is yet another controversial case that confronts the subject of copyright infringement via technology and to what extent developers and software companies are responsible for the ultimate outcome of their product.

In February, the EFF filed a brief supporting ElcomSoft stating that the DMCA is unconstitutional because it impinges on protected speech and stifles technological innovation. According to EFF, a group of more than 35 law professors also filed an amicus opposing the law.

“We believe copyright infringement is illegal and should remain so,” said Cindy Cohn, legal director for the EFF. “But this is a battle that is going on throughout the industry because copyright owners have chosen to seek protection greater than just copyright. They have started going after technology, and when they come into our turf and tell technologists what they can and cannot build, then that’s a problem.”

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