The case against ElcomSoft, employers of freed Russian programmer Dmitry Sklyarov, will go to trial after a judge yesterday denied the company's motions to dismiss the case.

Judge Ronald Whyte of the Federal District Court for the Northern District of California ruled that Elcomsoft, which markets eBook formatter software, must face criminal charges. Rejecting two legal challenges, the judge ruled that the Digital Millennium Copyright Act's ban on copyright circumvention tools is constitutional even if the circumvention tools are used for legal purposes.

On Elcomsoft's First Amendment argument, Judge Whyte ruled that the computer program qualifies as speech, rejecting the government's argument that software is not speech. But the court then ruled that the First Amendment was satisfied because the government's purpose was to control the 'function' of the software rather than its 'content', and that the statute did not ban more speech than necessary to meet its goal of preventing piracy and promoting electronic commerce.

The court has scheduled a hearing for May 20, when a trial date will be set. The prosecution is the first case brought under America's controversial Digital Millennium Copyright Act (DMCA).

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).

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 and prevent 'fair use' of copyrighted material. Civil liberties groups, most notably the Electronic Frontier Foundation, and Internet activists have also campaigned hard on Sklyarov's behalf. ®

External Links
Judge Whyte's ruling
Digital Millennium Copyright Act (DMCA): "US v. Sklyarov" archive

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