From:	 Declan McCullagh <declan@well.com>
To:	 politech@politechbot.com
Subject: FC: Judge refuses to dismiss DMCA criminal case against Elcomsoft
Date:	 Wed, 08 May 2002 21:16:18 -0400

Politech archive on U.S. v. Sklyarov:
http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov

Politech archive on DMCA:
http://www.politechbot.com/cgi-bin/politech.cgi?name=dmca

Today's ruling (which should not come as a surprise):
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html

---

Electronic Frontier Foundation Media Release

For Immediate Release: Wednesday, May 8, 2002

Judge Rejects Challenge to eBook Case

Rules Digital Copyright Law Trumps Free Speech

San Jose, CA - A federal judge today denied a Russian
software vendor's request to dismiss criminal charges
against the company for violations of the Digital
Millennium Copyright Act (DMCA).

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

"It's as if the judge ruled that Congress can ban the sale
of printing presses, because the First Amendment right to
publish speech was not attacked directly and quills and
ink are still available," noted Electronic Frontier
Foundation (EFF) Legal Director Cindy Cohn. "What good are
the public's rights if the tools needed to make fair use
or access works in the public domain are illegal?"

Despite acknowledging a lack of clarity in the
Congressional record surrounding the adoption of the DMCA,
Judge Whyte ruled that due process was not violated. He
said the plain meaning of the DMCA statute was to ban
circumvention tools completely because Congress had assumed
that "most uses" of the tools would be for unlawful
infringement rather than fair or noninfringing uses.

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. 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.

"Although disappointed by Judge Whyte's unwillingness to
dismiss the charges against Elcomsoft on constitutional
grounds, we are pleased that he agreed that software is
protected speech under the First Amendment," said EFF
Intellectual Property Attorney Robin Gross. "Courts must
now take the next step and give people the same rights to
express themselves with software as they enjoy for
traditional speech."

The court has scheduled a hearing for May 20, 2002, to set
the trial date in the case.

EFF filed an amicus brief in support of Elcomsoft.

Elcomsoft is the employer of Russian programmer Dmitry
Skylarov, who was also originally charged with criminal
violations of the DMCA.

Judge Whyte's latest ruling in Elcomsoft case:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html

Elcomsoft case archive:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft

For this release:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_eff_elcom_pr.html




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