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Jury scrutinises DMCA in ElcomSoft case

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The jury are continuing their deliberations today in the closely watched criminal prosecution of Russian software firm ElcomSoft for offences against the controversial Digital Millennium Copyright Act.

The jury retired on Thursday following six days in a San Jose federal court during which they heard testimony from Dmitry Sklyarov, the Russian programmer at the centre of the case, as well as ElcomSoft managing director Vladimir Katalov and other witnesses.

ElcomSoft is charged with five counts of violating digital copyright laws in supplying a tool which can be used to circumvent the weak copy protection in Adobe eBooks, ElcomSoft's Advanced eBook Processor (which was written by Sklyarov).

Sklyarov was arrested (at Adobe's behest) following a presentation at DefCon last year, which ironically enough focused on the weak security of Adobe's eBook format. The Russian programmer spent a month in a US jail (and four months on bail) before striking a deal which allowed him to return to Russia in exchange for testifying in any case against ElcomSoft.

During this trial, the prosecution argued that ElcomSoft's Advanced eBook Processor was primarily designed to circumvent copyright protection mechanisms and facilitate piracy. The defence highlighted its use in making audible copies of e-books for the blind, or copies of legitimately purchased electronic books.

ElcomSoft's Advanced eBook Processor is legal in Russia and was sold over the Internet last year (though it was withdrawn by ElcomSoft days after it received a complaint from Adobe). Jurors are being asked to consider if ElcomSoft wilfully violated the DMCA in marketing and supplying the utility over the Net. If convicted, ElcomSoft would be the first organisation or person to fall foul of the 1998 DMCA and could face fines of more than $2 million.

Wired reports that since retiring the jury has requested clarification on the DMCA from the trial judge. Initially, the jury requested a copy of the 100+ page Act to assist in their deliberations. U.S. District Court Judge Ronald Whyte declined this request, instead offering to answer questions on parts of the law they need to consider in order to reach a verdict in the case.

In closing arguments, prosecutor Scott Frewing said Moscow-based ElcomSoft is bound by the same copyright laws as American firms when they offer products in the US. He sought to draw parallels between ElcomSoft and corporate wrongdoers such as Enron and WorldCom, AP reports.

Joseph Burton, ElcomSoft's counsel, described the case as a dispute between Adobe and his client. He argued ElcomSoft believed its product to be legal and lacked any intent to violate copyright laws, asking why his client would be stupid enough to actively promote and draw attention to a product it knew might be illegal.

The jury, of eight men and four women is due to return back in court on Tuesday, though its unclear as yet how close they are to a verdict in the case. ®

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