ElcomSoft squares up to Feds in Sklyarov test case

Motion to dismiss

ElcomSoft, the employer of freed Russian software developer Dmitry Sklyarov, and federal authorities have squared up in court for the first time in a case that will challenge America's controversial Digital Millennium Copyright Act (DMCA).

In a pre-trial hearing yesterday, lawyers for Moscow-based ElcomSoft argued that charges brought against it under the DMCA should be dismissed because the law is "too broad and vague". The criminal charges brought against ElcomSoft are likely to prove "unconstitutional", the company's lawyers told Judge Ronald Whyte of the Northern District of California Federal Court.

ElcomSoft is charged with supplying a tool that circumvents the copy protection in Adobe eBooks, which can be used in making audible copies of e-books for the blind, or copies of legitimately purchased electronic books. ElcomSoft's Advanced eBook Processor, which is legal in Russia, was sold over the Internet (though it has since been taken off the market).

The DCMA prohibits the creation and distribution of such tools.

In this David vs Goliath battle, federal prosecutors opposed ElcomSoft's motion and argued that the tool could be used for illegal purposes, and was sold as such.

"If the seller markets it to circumvent the copyright, then they've violated the statute," Assistant U.S. Attorney Joseph Sullivan said, AP reports.

Judge Whyte gave little sign of what he thought of the merits of either argument. The case is scheduled to return to court April 15.

Sklyarov was also indicted in the case, and spent a month in a US jail (and four months on bail) before striking a deal that allowed him to return to Russia in exchange for testifying in any case against ElcomSoft.

'Crime' and punishment

Sklyarov was arrested and slung into jail in July following a court case instigated by Adobe. The California software company pulled the legal trigger in response to a presentation made by the Russian programmer pointing out the shortcomings of eBook security at last year's Defcon conference in Las Vegas. He faced charges punishable by up to 25 years in jail and a $250,000 fine.

Adobe attracted huge opprobrium for its actions, and in the face of a self-inflicted public relations nightmare, quickly withdrew support for prosecution. However, the Department of Justice took up the reins and even though Sklyarov was released on bail of $50,000 in August, he still had to remain in the US until December, when a deal was made.

The case against ElcomSoft and Sklyarov has become a cause celebre among white hat hackers, who objected to jailing a programmer simply for coding and distributing software. There were also concerns that, at the behest of the entertainment industry, the DMCA was being applied in a way which would stymie legitimate security research. ®

External links

Digital Millennium Copyright Act (DMCA): "US v. Sklyarov" archive

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