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Sklyarov Case Opens Today
weakethics writes "The trial is scheduled to start today in the case of Adobe/DMCA versus Skylarov/Elcomsoft/right-thinking-people everywhere. The SF Chron has a story about it. It quotes a former DOJ attorney about the impact of the DMCA "I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years." Who obviously (purposefully?) misses the point: it's about intimidation rather than litigation."
Copyright test in San Jose
Russian expected to take stand in Adobe E-book code case
Carrie Kirby, Chronicle Staff Writer Monday, December 2, 2002
After a year of delays, the government is finally set to try in San Jose this week the first criminal case stemming from a law designed to bring copyright into the 21st century.
The United States of America vs. ElcomSoft Ltd. pits the need to protect intellectual property in the age of Internet file-trading and CD burning against the public's traditional right to use media they buy any way they want to.
The defendant, ElcomSoft, is a Moscow softwaremaker accused of violating Adobe Systems' intellectual property rights, by writing a computer program that disables the copy protection on the San Jose company's electronic books.
When the case was first brought in July 2001, it garnered international attention because it was the first criminal test of the Digital Millennium Copyright Act, a 1998 law eagerly sought by entertainment and software companies and bitterly opposed by cryptography researchers and free-speech advocates.
The case also grabbed headlines because the U.S. attorney for the Northern District of California actually jailed a Russian graduate student, Dmitry Sklyarov, for allegedly writing a computer program that violates the law.
To many, locking up a skinny, pale-faced student for writing a computer program was as ridiculous as incarcerating people who tear the "Do not remove" tags off mattresses. But to protesters who surrounded the San Jose jail, Sklyarov's incarceration was no laughing matter. His supporters believed -- and still do -- that Sklyarov's program represents free speech protected by the First Amendment.
Now, Sklyarov, 27, is expected to serve as the government's star witness.
In December 2001, Sklyarov agreed to testify in the case in exchange for having the charges against him dropped. Actually, he is expected to testify for both the plaintiff and the defendant, said Judy Trummer, spokeswoman for both Sklyarov and ElcomSoft.
"He has a single story to tell, and it doesn't differ with who calls him to the stand," Trummer said.
Jury selection for the trial is scheduled to begin this morning. However, Sklyarov and ElcomSoft's president, Alex Katalov, were not expected to arrive in the United States until Sunday night or this morning, Trummer said. ElcomSoft attorney Joe Burton planned to ask for a delay if his client is not present, she said.
Katalov and Sklyarov both had difficulties getting visas to return to the United States, but have finally received "parole visas" that allow them to be in the country only for the duration of the trial, Trummer said.
Northern District of California Assistant U.S. Attorney Scott Frewing may also call to the stand a number of people who bought ElcomSoft's E-Book cracking program, and two investigators employed by Adobe, whose complaint against ElcomSoft started the case.
The case, to be tried by U.S. District Judge Ronald M. Whyte, is expected to draw much attention, because the issue of copyright in the digital age is as hotly contested now as it was when Sklyarov was first arrested 16 months ago.
But Peter Toren, a former Justice Department attorney who prosecuted technology copyright cases, said that some of the case's drama may have worn off since Sklyarov was first arrested.
Then, supporters of consumer rights and free speech warned that criminal prosecutions based on the Digital Millennium Copyright Act would stop encryption research and other legitimate activities.
But in 1 1/2 years since the case started, Toren said he has heard of no other criminal cases invoking the law.
"I don't think it's had the effect that a lot of people have argued it would have -- with a single criminal case in four years," Toren said.
E-mail Carrie Kirby at ckirby@sfchronicle.com.
Skylarov, not Sklyarov.
look here.
...and it's pronounced - Sklee-yar-ov
The yolk's on you...
"Communism is like having one [local] phone company " - Lenny Bruce
Well, aside from the fact that the law is an affront to all things free and right, the program in question was written in Russia. As far as I know, the DMCA has no authority there. If I am not mistaken, Russian law guarantees the freedoms that the eBookReader software returns to the user.
Where's my lobbyist? Right here.
the program in question was written in Russia. As far as I know, the DMCA has no authority there.
However, Russian law cannot grant authority to sell Russian products to U.S. residents, which Elcomsoft did.
Will I retire or break 10K?
Nono; no "ee" there, just plain an simple Sklya-rov - two syllables, only one vowel sound for the "lyar" part, and in Russian only one letter for "ya" (the last letter of Russian alphabet).
The argument is essentially that programs are a form of expression (including machine code), and thus are protected speech. This has been upheld by courts, for instance (I believe) in the Bernstein crypto software case. (Personally, while source code as speech makes perfect sense to me, I'm a little bit reluctant to call compiler-generated machine code 'speech', though there is some remnants of speech in there.) In the 2600 case the judge rejected this argument because, though he held source is protected speech, the source code in this case was also simultaneously a "device" (ie, a circumvention device) under the DMCA. This is similar to considering a libelous poem to be simultaneously a creative work (ie, copyrightable) but also illegal because of its libelous content.
Yes and no.
The Federal District Court actually can rule on the Constitutionality of a law or other state act: in criminal matters, they conduct suppression hearings all the time.
I've been in Federal court precisely once in my 15-year career, so I'm not expert (IAAC, but IANAL). However, the purpose of a trial is to submit factual evidence to a trier of fact (usually a jury) so that they can rule as to guilt or innocence. IOW, questions of law are typically settled before the jury is even empaneled.
In other words, if this is the actual trial then there's not much left to happen at this stage wrt getting the DMCA tossed out. Everything here (from the non-participant anti-DMCA point of view which appears to be the majority on /.) is just getting positioned for the appeal.
As for the question of a countersuit...I don't believe so. In civil cases they can happen all the time. In this case Sklyarov MIGHT have a civil rights claim under 42 USC 1984. I wouldn't bet on it, though. However, IIRC the trial now opening is a criminal matter. Criminal cases basically cannot be privately prosecuted in the United States. Only a District/State's/Commonwealth Attorney (in state courts) or a United States Attorney (in Federal courts) can initiate criminal proceedings.
I don't know if this will simplify this for you or confuse you even more, but here's some background:
Civil cases are (usually) cases between two private parties. The stakes are monetary damages, and possibly an order from a court to either perform some legally-required duty or to refrain from some other activity.
Criminal cases are cases filed by a prosecutor, on behalf of the People (of the United States/of the State of XXX), in which he alleges that the defendant committed some offense "against the peace and dignity of the People of the blah blah blah." Criminal cases can only be filed for a violation of some specific provision of law.
So, this trial is basically to deal with the question of fact "Did he, or didn't he?" At this point, any real change of law will probably have to come through the appeals process, and a Federal Court of Appeals ruling is only binding in that court's own circuit. IOW, IIRC this is in the Ninth Federal Circuit. That means, an appellate ruling either way is only binding in a few states on the Pacific Coast. It will be persuasive in the other courts.
Actually, a challenge to the law's validity is brought at the outset. Elcomsoft did so and lost.
I just didn't want people going off on what a terrible law it is, or that it violated free speech.
O'Reilly's site has a very detailed and interesting article called "And Justice for Adobe". It has lots of details, a chronology of events and several links related to the case.
Anyone can petition his (or her) representative to have a law repealed, but to force one out using our "checks and balances" system, you have to use the courts. The court will not try a case without an injured party. That party in many cases is the State (U.S. vs Dmitri, et al.) To get a law declaired unconstitutional, you have to have a person or corporation (an artifical person) to go to the court and declare that his constitutional rights have been voilated by the law.
If you're not living on the edge, you're taking up too much space.
Disclaimers don't work.
STOP MISUSING APOSTROPHES, YOU MORONS!!!