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Elcomsoft Case Will Proceed
An Anonymous Coward writes "Reuters, via the NY Times (free registration required) reports that Elcomsoft's final motions to dismiss were denied. Apparently code *is* protected speech, but... not protected from the DMCA. But most interesting to me was this part: 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.' The EFF has the whole scoop as usual." There's a Wired story about the decision, and the judge's order is available.
Judge Says Russia Software Company Can Be Tried
By REUTERS
Filed at 9:56 p.m. ET
SAN FRANCISCO (Reuters) - A federal judge on Wednesday denied final motions to dismiss a lawsuit against a Russian software company accused of violating a controversial U.S. copyright law that defense lawyers argued is unconstitutional.
U.S. District Court Judge Ronald Whyte in San Jose, California, rejected the argument of lawyers for ElcomSoft Co. Ltd. who said the 1998 Digital Millennium Copyright Act was overly vague, violated free speech rights and infringed on the established right to ``fair use'' of copyrighted material.
Moscow-based ElcomSoft briefly sold a computer program over the Internet last year that allowed people using Adobe Systems Inc.'s (ADBE.O) eBook Reader to circumvent copyright protections so they could copy and print digital books, as well as transfer them to other computers and have the computer read them aloud.
``The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,'' the judge wrote in a 35-page opinion. ``The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.''
In addition, Whyte noted that there has been no generally recognized First Amendment right to make back-up copies of electronic works.
``In short, the statute bans trafficking in any device that bypasses or circumvents a restriction on copying or performing a work,'' regardless of whether it was designed to enable fair use, Whyte said.
While agreeing with defense lawyers that computer code can be speech and thus protected by the First Amendment, the judge found that in enacting the DMCA, the U.S. Congress sought to ban code not because of what it says but because of what it does.
The case is seen as a crucial test of the DMCA, which civil rights advocates and software programmers say gives copyright owners broader rights than they have over non-digital material, at the expense of individual rights to legitimate users.
Movie studios and record labels argue that the law is necessary to prevent unauthorized copying of films and music over the Internet, where digital material is easily downloaded and swapped.
FREE SPEECH PROTECTIONS OF CODE
``In the digital age, more and more conduct occurs through the use of computers and over the Internet. Accordingly, more and more conduct occurs through ``speech'' by way of messages typed onto a keyboard or implemented through the use of computer code when the object code commands computers to perform certain functions,'' Whyte said.
``The mere fact that this conduct occurs at some level through expression does not elevate all such conduct to the highest levels of First Amendment protection,'' he said.
``The DMCA does not burden substantially more speech than is necessary to achieve the government's asserted goals of promoting electronic commerce, protecting copyrights and preventing electronic piracy,'' Whyte said.
A federal prosecutor declined to comment on the ruling. Meanwhile, defense lawyer Joseph Burton, of the San Francisco law firm of Duane Morris, said it is likely he will appeal the ruling.
``It's difficult to understand how, without digital tools, you can achieve fair use of digital material,'' Burton said from a hotel room in Chicago. ``To me that's a paradox.''
The programmer who wrote the product at the heart of the case was released with the promise that charges would be dropped against him in exchange for his testimony.
Dmitry Sklyarov, 27, returned home in December and vowed to return to testify in support of his employer. He was arrested last July after speaking at the DefCon hacker conference in Las Vegas.
A hearing is scheduled for May 20 at which the court is expected to set a trial date. ElcomSoft faces $2.25 million in fines if convicted.
The judge previously denied two other defense motions to dismiss the case.