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DMCA Still Faces Its First Criminal Test Criminal case will test Digital Copyright Act Jason Hoppin The Recorder March 28, 2002 Dmitry Sklyarov is free, but the law under which he was jailed remains. The young Russian programmer turned cyber-cause celebre, arrested last year after a speech in the United States, has been home since he promised to testify in what was once, arguably, the Northern District of California's highest-profile case. But nothing has changed about the underlying issues that so inflamed the cyberlaw community. On Monday, U.S. District Judge Ronald Whyte will put those issues under a microscope in a criminal case that should have a significant impact on creative industries' drive to protect their products through legislation. ElcomSoft Co. Ltd., Sklyarov's employer when he wrote a program that unlocks Adobe Systems Inc.'s password-protected eBooks and PDF files, faces charges under the Digital Millennium Copyright Act, which outlaws the circumvention of encrypted digital works. But ElcomSoft's lawyers, along with Sklyarov's attorneys and backed by a phalanx of law professors and public interest lawyers, will ask Whyte to dismiss the case for a number of reasons, including that ElcomSoft could not have understood the penalties it faced. "The failure of a statute, particularly one that carries criminal consequences, to clearly define the conduct it proscribes and thereby ensnare innocent law-abiding individuals is the essence of constitutional vagueness," wrote Duane Morris partner Joseph Burton in asking Whyte to toss the case. Two lawyers from the Northern District's Computer Hacking and Intellectual Property Unit will counter each argument, ranging from broad constitutional issues that may require Whyte to divine the Founding Fathers' intentions to parsing the specific language of the DMCA. Whyte has already heard arguments on whether the government has the jurisdiction to prosecute a Russian company, but hasn't yet ruled. Burton will be joined Monday by attorneys from San Francisco's Keker & Van Nest, who will argue that the prosecution violates ElcomSoft's First Amendment rights, since computer code is considered speech. Keker partner Daralyn Durie, joined by associate Michael Celio, are appearing as of counsel. A coalition made up largely of intellectual property law professors, led by Georgetown University's Julie Cohen, submitted a rare amicus curiae brief at the district court level arguing that Congress overstepped its bounds when it enacted the DMCA. And the San Francisco-based Electronic Frontier Foundation, already an integral player in the case, was joined by a hodgepodge of public interest groups (including the American Association of Law Libraries) in submitting a brief in support of the Free Speech argument. (The EFF had lobbied Adobe to drop its support for prosecuting Sklyarov, which it eventually did following a barrage of protest.) The case seems to go to the heart of the efforts of a variety of industries -- movies, music, videos, books and software -- to protect their digital products, which they argue is necessary to protect their livelihood. Cary Sherman, general counsel of the Recording Industry Association of America, said his group has been following the case from afar. "We've got our hands full with everything else," Sherman said. "The Department of Justice is doing a fine job. ... I think that the government should win." For EFF general counsel Cindy Cohn, the case is about consumers' fair use rights and the First Amendment -- returning to people the ability to copy, print or otherwise manipulate a lawfully purchased eBook. "Are we going to put people in jail who simply provide us the tools to get back what they took from us?" Cohn asks. Also troubling for Cohn is the message sent by prosecuting someone for creating a technology. "I think any attempt to go after the technology is problematic," Cohn said, echoing the EFF's argument that more cases like U.S. v. Elcomsoft, 01-20138, would chill innovation. Sklyarov was arrested in Las Vegas by federal agents in July after giving a speech on eBook encryption at DEFCON, which bills itself as "the largest hacker convention on the planet." He was the first person charged by a federal grand jury under the DMCA. The uniqueness of the case is underscored by the number and breadth of the briefs, which offer not just case cites, but virtual histories of the development of IP law in the late 20th century. ElcomSoft, Sklyarov's Moscow-based employer, sold what it called the advanced eBook processor (AEBPR) through a United States-based Web site. Very few of the programs were ever sold -- court filings show an FBI agent contacted only three buyers, though possibly more. A prison term is no longer an issue in the case, but ElcomSoft could face stiff criminal penalties. Sklyarov's prosecution was deferred and will likely be dropped if he cooperates and, if necessary, testifies at trial. In the meantime, his lawyers are helping out with his employer's defense. "Once the prosecution of Dmitry was deferred, [Sklyarov's lawyers] were basically out of the case," Burton said. "We asked them to help out on the First Amendment issues." Handling the government's case are Assistant U.S. Attorneys Joseph Sullivan and Scott Frewing, who argue, among other things, that the defense is overstating the fair use issues in the case. "The claims of Elcomsoft and amici that purchasers of eBooks require the AEBPR program to engage in fair uses are misleading," Frewing and Sullivan wrote, pointing to other, albeit more limited, ways for consumers to exercise fair use rights. They also argue that since the AEBPR removes copyright protection to reveal a "naked" file, what ElcomSoft's product produces then is not a copy, but a derivative work, the production of which is a right that lies solely with the copyright holder. The government also urges Whyte to tread carefully in deciding whether all computer code, or just certain types, can be considered speech. "The court should be reluctant to extend First Amendment protection to the act of trafficking in a functional product or good that merely acts as a machine," Frewing and Sullivan wrote. The law professors' brief, meanwhile, argues that since the DMCA was written into � 17 of the United States Code, headlined "Copyrights," that Congress enacted the DMCA under the authority granted it by what is known alternately as the Copyright or Intellectual Property Clause of the Constitution. Courts have long held that Congress' power is limited under the Intellectual Property Clause, and the law professors argue that with the DMCA, Congress overstepped its bounds. The government counters that legislative history shows that the DMCA was enacted under the Commerce Clause. "Our argument is that you can't use [the Commerce Clause] to do an end run around the Intellectual Property Clause," Georgetown's Cohen said. Related brief: Amicus Brief filed by EFF ========================= "Of all the great motors handed down from the manufacturing period, horsepower is the worst, partly because a horse has a head of its own" Karl Marx
