April 1, 2002 1:30 PM PST

Russian firm battles copyright law

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A federal judge on Monday heard arguments in a high-profile criminal copyright case that pits U.S. prosecutors against a Russian company accused of hacking Adobe Systems' e-book encryption technology.

ElcomSoft stands charged with promoting technology to circumvent anti-copying protections, a violation of the Digital Millennium Copyright Act (DMCA). The case is among the first major tests of the criminal provisions of the law.

No ruling was issued at Monday's hearing in San Jose, Calif., in which the two sides presented arguments on ElcomSoft's motion to dismiss the case.

Lawyers largely reiterated the arguments they've made in numerous filings related to the case. Those include assertions by prosecutors that ElcomSoft was trying to profit by promoting illegal cracking of technology. ElcomSoft attorneys countered that the DMCA unfairly paints all consumers as potential thieves, even when they only want to make a copy of a book for personal use.

At one point during the hearing, U.S. District Judge Ronald Whyte questioned whether courts dealing with the DMCA should look at intent, according to Cindy Cohn, an attorney with the Electronic Frontier Foundation. The EFF has filed an amicus brief on behalf of ElcomSoft, hoping to challenge the constitutionality of the DMCA.

"We're seeing the effects of this unconstitutional law all over the place," Cohn said. "This is an opportunity for the courts to take a good hard look at it."

ElcomSoft has sought to dismiss the case on several grounds, including that the DMCA is overly broad because it prohibits technology that can be used for legal purposes.

The case garnered much attention last summer, when prosecutors also included programmer and ElcomSoft employee Dmitry Sklyarov in their allegations. The Russian programmer was arrested and detained after giving a speech about the technology at a Las Vegas convention.

After appeals from civil liberties groups, hackers and Adobe itself--which reversed an earlier position and asked law enforcement to back off--prosecutors dropped charges against Sklyarov. However, the charges against ElcomSoft remain, and Sklyarov must testify against his employer under the terms of his deal with prosecutors. ElcomSoft faces up to $2.5 million in fines if convicted.

Whyte is expected to issue a ruling on ElcomSoft's request sometime in the coming weeks.

 

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