DMCA Still Faces Its First Criminal Test

[R. A. Hettinga]

http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZU66KQBZC&live=true&cst=1&pc=0&pa=0&s=News&ExpIgnore=true&showsummary=0



March 28, 2002


 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.


-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA

The IBUC Symposium on Geodesic Capital
April 3-4, 2002, The Downtown Harvard Club, Boston
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