November 25, 2002 2:35 PM PST
Major test of copyright law set to start
Dmitry Sklyarov, a programmer at Moscow-based software company ElcomSoft, and Alex Katalov, the company's CEO, have been granted special permission to come to the United States for the court proceedings.
"They are ready to go," ElcomSoft attorney Joseph Burton told a judge at a hearing Monday in federal court in San Jose, Calif.
In a widely publicized case, ElcomSoft faces charges that it violated criminal provisions of the Digital Millennium Copyright Act by offering software that could be used to circumvent the copyright locks in Adobe Systems' eBooks digital books. The DMCA prohibits disseminating technology that can be used to circumvent copyright protection. The case is the first of its kind since the act passed in 1998.
Katalov is scheduled to represent ElcomSoft during the jury trial, which is expected to last four to five days. Sklyarov may be called as a government witness. The trial date already had been pushed back six-and-a-half weeks after the U.S. government denied the Russians their visas amid more stringent entry requirements.
However, the U.S. Attorney's Office intervened and landed a special "parole" visa for both men. Sklyarov obtained his last week, and Katalov received his Monday.
The pair is booked on a flight that arrives in the United States over the weekend. Jury selection is scheduled for Dec. 2, and opening statements and witness testimony is expected to start Dec. 3.
The case began when FBI agents, acting at Adobe's behest, arrested Sklyarov last summer at a Las Vegas conference after he gave a speech about the code-cracking software. The move created an uproar among security professionals and civil liberties groups, causing Adobe to publicly back down. U.S. prosecutors, though, continued the case but dropped the charges against Sklyarov in exchange for his testimony in their case against ElcomSoft.
At Monday's hearing, the lawyers spent much of the time wrangling over how the DMCA should be interpreted for a jury. The criminal provisions of the act may be especially perplexing because they outlaw cracking copyright protections--or offering tools that will do so--even if the person cracking the protections plans to use the material in a way that traditionally has been legal, such as making a backup copy.
"There isn't any law in this area," Assistant U.S. Attorney Scott Frewing told the judge.
Burton, the ElcomSoft attorney, argued that in order to convict the company of wrongdoing, the jury should have to find that company representatives were acting with an "evil-meaning mind" or for a "bad purpose," not just helping people crack copyright protections. He also argued that the jury should be instructed on what constitutes "fair use," a legal theory under copyright law that allows some copying of material for education, criticism and other purposes.
But Frewing disagreed. "Fair use is irrelevant and improper," to bring into the instructions, he said.
The judge said he would decide those issues as the case proceeds.