December 9, 2002 6:51 PM PST

Sklyarov testifies in copyright trial

SAN JOSE, Calif.--The long-awaited live testimony of Dmitry Sklyarov finally got under way in the ElcomSoft trial Monday afternoon, when the Russian programmer took the stand for the defense.

ElcomSoft, a software company based in Russia, is charged with five counts of offering and marketing software designed to crack Adobe Systems' eBooks, actions prosecutors say violate digital copyright laws.

Sklyarov, whose arrest in July 2001 prompted the case against his employer, was expected to be called as a government witness. Sklyarov was jailed after giving a speech about his company's software, but prosecutors later set aside charges against him in exchange for his testimony in the case against ElcomSoft. Instead of calling him to the stand during the trial, however, government lawyers played an edited videotape of Sklyarov's deposition and would not comment on their decision.

The trial is the first major test of the criminal provisions of the Digital Millennium Copyright Act (DMCA), which outlaw the offering of software that can be used to crack copyright protection. The case also raises questions about how much control a publisher should have over its products after they've been purchased by a consumer.

Because digital material is so easy to copy and distribute, copyright holders have sought unprecedented controls over their work, ranging from technical measures that prevent replicating and printing to laws such as the DMCA. However, many programmers fear such crackdowns could discourage technical development and research if engineers fear they will become the target of criminal suits.

During Sklyarov's testimony Monday in federal court here, ElcomSoft attorney Joseph Burton tried to paint the programmer as an upstanding assistant professor who sought to expose flaws in Adobe software as part of his dissertation. Prosecutors, meanwhile, sought to portray Sklyarov as an associate of underground hacker networks who didn't care whether the product he developed broke U.S. laws.

Sklyarov, who declined to use an interpreter while on the stand, testified that he developed the Advanced eBook Processor while working for ElcomSoft. During questioning from Burton, he said that although the software could be used for nefarious purposes such as widely distributing electronic documents, he actually intended it to be used so people could make backup copies of an eBook they'd bought, print pages, or transfer it to a reading device for the blind.

"Was it your intent to violate anyone's rights?" Burton asked. "No," Sklyarov replied.

The defense also played a tape of the speech that spurred Sklyarov's arrest. During his presentation on flaws in eBook security at the DefCon convention in Las Vegas, Sklyarov told the audience that a publisher of an eBook "puts itself in danger" when it relies on the insecure software provided by software publishers including Adobe.

During testimony Monday, Sklyarov told the jury that his software demonstrates security flaws in such software. "The general public needs to choose which solutions are secure and which are not," he said.

Burton also tried to diffuse government attempts to characterize ElcomSoft as a shady company that attends hacker conventions.

"Do you consider yourself to be a hacker?" Burton asked Sklyarov.

Sklyarov said he did not. "I am computer engineer, programmer," he said.

During cross-examination, assistant U.S. Attorney Scott Frewing disputed Sklyarov's assertions that his software was intended for the benign purposes of helping the blind or letting people print. Frewing pointed out that after ElcomSoft's product is applied to an eBook, the statement "protections successfully removed" appear.

In one dramatic moment in a relatively anticlimactic afternoon of testimony, Frewing forced Sklyarov to acknowledge that he didn't consider the legality of his program.

"Isn't it true that when you wrote this software you didn't care whether it violated laws in the U.S.?" Frewing asked.

"That's true," Sklyarov said.

ElcomSoft Managing Director Vladmir Katalov took the stand after Sklyarov. He testified that ElcomSoft, which also makes password-retrieval software, has many major customers for its products, including Adobe and the U.S. Department of Justice.

 

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