FC: Judge refuses to dismiss DMCA criminal case against Elcomsoft

From: Declan McCullagh (declanat_private)
Date: Wed May 08 2002 - 18:16:18 PDT

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    Politech archive on U.S. v. Sklyarov:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov
    
    Politech archive on DMCA:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=dmca
    
    Today's ruling (which should not come as a surprise):
    http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html
    
    ---
    
    Electronic Frontier Foundation Media Release
    
    For Immediate Release: Wednesday, May 8, 2002
    
    Judge Rejects Challenge to eBook Case
    
    Rules Digital Copyright Law Trumps Free Speech
    
    San Jose, CA - A federal judge today denied a Russian
    software vendor's request to dismiss criminal charges
    against the company for violations of the Digital
    Millennium Copyright Act (DMCA).
    
    Judge Ronald Whyte of the Federal District Court for the
    Northern District of California ruled that Elcomsoft, a
    company that markets eBook formatter software, must face
    criminal charges. Rejecting two legal challenges, the
    judge ruled that the DMCA's ban on copyright circumvention
    tools is constitutional even if the circumvention tools
    are used for legal purposes.
    
    "It's as if the judge ruled that Congress can ban the sale
    of printing presses, because the First Amendment right to
    publish speech was not attacked directly and quills and
    ink are still available," noted Electronic Frontier
    Foundation (EFF) Legal Director Cindy Cohn. "What good are
    the public's rights if the tools needed to make fair use
    or access works in the public domain are illegal?"
    
    Despite acknowledging a lack of clarity in the
    Congressional record surrounding the adoption of the DMCA,
    Judge Whyte ruled that due process was not violated. He
    said the plain meaning of the DMCA statute was to ban
    circumvention tools completely because Congress had assumed
    that "most uses" of the tools would be for unlawful
    infringement rather than fair or noninfringing uses.
    
    On Elcomsoft's First Amendment argument, Judge Whyte ruled
    that the computer program qualifies as speech, rejecting
    the government's argument that software is not speech. The
    court then ruled that the First Amendment was satisfied
    because the government's purpose was to control the
    "function" of the software rather than its "content," and
    that the statute did not ban more speech than necessary to
    meet its goal of preventing piracy and promoting
    electronic commerce.
    
    "Although disappointed by Judge Whyte's unwillingness to
    dismiss the charges against Elcomsoft on constitutional
    grounds, we are pleased that he agreed that software is
    protected speech under the First Amendment," said EFF
    Intellectual Property Attorney Robin Gross. "Courts must
    now take the next step and give people the same rights to
    express themselves with software as they enjoy for
    traditional speech."
    
    The court has scheduled a hearing for May 20, 2002, to set
    the trial date in the case.
    
    EFF filed an amicus brief in support of Elcomsoft.
    
    Elcomsoft is the employer of Russian programmer Dmitry
    Skylarov, who was also originally charged with criminal
    violations of the DMCA.
    
    Judge Whyte's latest ruling in Elcomsoft case:
    http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html
    
    Elcomsoft case archive:
    http://www.eff.org/IP/DMCA/US_v_Elcomsoft
    
    For this release:
    http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_eff_elcom_pr.html
    
    
    
    
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