December 12, 2002 4:03 PM PST

Adobe hacking case goes to jury

SAN JOSE, Calif.--The fate of the ElcomSoft criminal case is now in the hands of a jury, after both sides finished closing arguments in federal court here Thursday morning.

Assistant U.S. Attorney Scott Frewing urged jurors to find the Russian company guilty of five charges related to designing and marketing the Advanced eBook Processor, software that can crack protections on Adobe Systems' eBook.

During his closing statements, Frewing characterized ElcomSoft as an unscrupulous company that cared more about making money than obeying the law. He said Moscow-based ElcomSoft knowingly created a product that stripped away copy protections, offered it on the Web, and took it down only when it learned that its U.S.-based distributor was going to cut off access to the program. Even then, Frewing argued, ElcomSoft sought distributors outside the United States.

The case is the first major test of the criminal provisions of the Digital Millennium Copyright Act (DMCA) that outlaw cracking copyright protections. In this case, however, merely finding that the company sold a product that cracked copyright instructions is not enough for a guilty verdict. According to instructions given by the judge Thursday morning, the jury must agree the company acted willfully--or with knowledge of the DMCA and intent to break it--to find ElcomSoft guilty.

Frewing said ElcomSoft representatives knew about the law and willfully violated it by developing and selling the Advance eBook Processor. "The only point of the program was to remove protections from eBooks," he said.

He reminded jurors that after an eBook is run through the eBook Processor software, the page reads "protections successfully removed."

Frewing also read aloud e-mails sent by the company's president, Alexander Katalov. In those e-mails, sent after Adobe had asked ElcomSoft to take down the software but before the company removed it, Katalov lamented that journalists writing about publisher concerns about flaws in Adobe software didn't link to the ElcomSoft site.

"Damn, not even one bitch would put (in) a link," Frewing said, reading aloud from an e-mail Katalov wrote in a letter to his Web host.

But Joseph Burton, an attorney for ElcomSoft, explained away such e-mails by saying that Katalov was panicked because his site was being shuttered.

Burton told jurors the case should not even be in criminal court, painting it instead as a clash between Adobe and a small company that threatened its reputation. "It's a dispute," Burton said. "That's all it is. It's not a crime."

Burton said ElcomSoft sold its software publicly and did not try to hide its actions, as someone who was knowingly breaking the law might do. "They acted openly and notoriously," Burton said. "They sold an encryption product on their Web site all the world could see." Burton also said ElcomSoft removed the software from the Web after being contacted by Adobe within the five-day deadline the company gave it.

"They were a legitimate company making a legitimate product that turned out to be a problem," he said.

At one point, he compared ElcomSoft to the creator of a pass key, another product he said could be used for both good and bad purposes. He urged jurors to acquit ElcomSoft, saying the company did not intend to violate the DMCA. "There's not one scintilla of evidence in this case that they intended for their product to be used unlawfully," Burton said.

After both sides finished their arguments Thursday, Federal Judge Ronald Whyte, who is hearing the case, heaped praise on the attorneys. "I think this was the best-argued case I've seen since I've been on the bench," he said.

 

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