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ElcomSoft Verdict: Not Guilty
truthsearch writes "From News.com: 'A jury on Tuesday found a Russian software company not guilty of criminal copyright charges for producing a program that can crack anti-piracy protections on electronic books.' HUGE legal win against the DMCA. Thank you Lawrence Lessig."
"After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."
In this case the jury instructions are probably more important than the actual verdict. This establishes a key point that a product that has both legal and ilegal potential uses is not in and of itself ilegal.
-- your Web browser is Ronald Reagan
Intent is something that, in this case, was determined by a jury, presumably on the balance of evidence rather than on a reasonable-doubt basis, so someone producing something that allows you to make copies of DVDs for friends, or of DVDs you've rented, would appear to be unlikely to get away with doing so if there's any suggestion that they saw that as being the major application of the program.
Disclaimer: IANAL, but my mother is.
You are not alone. This is not normal. None of this is normal.
Much of the accolade goes to defense attorney Joe Burton and his dogged determination to defend Dmitry and Elcomsoft at considerable burden to himself. As a senior partner in the San Francisco office of Duane Morris LLP, he had to get the firm to buy into the importance of this case, because I believe they were paid very little. He sold it to the firm because he believed in this case, and that it was unfair to apply the DMCA criminal charges against this company. Well done Joe! And thanks for taking up this fight! And thank you Duane Morris for picking up much of the tab. Who said big law firms have no heart?
Nothing, since Jon isn't being tried in the US.
Not only that, but how does the DMCA have any right to step over into Russia? Regardless of whether or not it was found
to have cracked any eBooks, who are these people to say that Russian businesses fall under the DMCA?
Yes, but they were selling the software in the United States. No matter where the software was coded or where the company was based, according to the article it is illegal to use in the US and selling it brought on the charges. Fortunately the Judge had a little wisdom and ruled that they needed to "willfully" be violating the DCMA to be found guilty. However, the software is still ruled illegal.
If a company based in Nevada opened a casino in Utah it would be illegal even though gambling is legal in Nevada.
Enigma
Duhhhhh... you have to understand the difference between criminal and civil cases.
This is a criminal copyright case. The burden is higher ("beyond a reasonable doubt") and intent is a necessary element that the prosectution must prove.
This jury instruction is only applicable in criminal copyright cases.... not civil lawsuits like the MPAA/RIAA bring. In a civil copyright suit, they do NOT have to prove any intent at all. Yes, Virginia, merely publishing a tool that can be used to violate the DMCA is, and always was intended to be by the people that wrote it, actionable under the DMCA by a civil lawsuit. Such a tool must have non-trivial, legitimate noninfringing uses to be legal to publish, and the defendant must prove they exist.
If true, then he has one hell of a slander case, and it's pretty much open-and-shut.
Loss of livelihood, emotional trauma, yadda yadda yadda -- it would pretty much ruin the parents.
Of course, he may not want to do that to them, or they may not have enough to make it worthwhile. I'd consider suing the kid just to get her convicted of a felony, which gets to go on her permanent record and fucks her life about as squarely as she just fucked his.
But that's me, and I can be a vengeful asshole if you screw me first.
After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.
this was wedged into the bottom, and it is the most important part of the precedent set. its the legal ruling by the judge that the creators intent during creation determines its illegality under the DCMA. in other words, violate it all you want, as long as you truly believe that there is an allowable or "fair use" of the product you created.
say you made a decryption system to allow companies to recover data from an encrypted system in case of human tragedy (the only guy who knows the key dies), which does happen, you would not be in violation of the DCMA.
i think we all knew that it would only take a few test cases to rip this poorly written law open. this is just the first, and will hopefully discourage companies from invoking this unholy of the unholies.
of course the worst part of the law, is simply the threat of legal action. perhaps there will be popular support for making the threat of DCMA litigation a crime itsself.
on the outside, it means that there will be more suits, however, it could:
a)result in a large body of case law to stip the act of the rest of it's fangs
b)insure that companies only use it when the threat is DIRE.
c)really keep the EFF busy for a while.
my .02
"You never want a serious crisis to go to waste." - Rahm Emanuel
Lessig argued the Eldred case before the Supreme COurt. THe kudos here belong to Joseph Burton and the rest of the defense team.
I have discovered a truly marvelous sig, unfortunately the sig limit is too small to contain i
Slander actually, as it was of the spoken word, not the written. Also the girl can face criminal charges, should he choose to press the issue. It is illegal to knowingly falsely accuse someone else of a crime.
Well, if lower court judges regularly and consistently dismiss charges brought under a law, then eventually prosecutors will stop wasting their time.
This will lead either to amendments to the original legislation--which will then no doubt face constitutional challenge--or the law will effectively go away, because nobody bothers to enforce it.
It's not pretty, and it's not an ideal solution, but there are an awful lot of unenforced laws on the books. (This is a bad thing in and of itself, but that is a subject for another post.)
~Idarubicin
From the article:
"After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."
The race isn't always to the swift... but that's the way to bet!
As a criminal prosecution, the court needed to focus not only on 1201, but also on 1204, which states in part):
Sec. 1204. Criminal offenses and penalties
(a) In General. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -
(1) shall be fined not more than $500,000 or imprisoned for not
more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
That's where willful comes in, straight from the DMCA
Get the story here. It is only the government who saying that they failed to show intent, a self-serving smokescreen argument at best, which is unfortunately spreading via the media (I already heard it on NPR). The reality appears to be that the jury supported fair use for ebook users against the DMCA.
Regards,
proclus
http://www.gnu-darwin.org/