[free-sklyarov] RE: Free Sklyarov

Eric swive at getnet.com
Wed Nov 14 21:51:14 PST 2001

> He was not manufacturing, importing,
> offering to the public or trafficking it in any other technology.

He owns the copyright on the Advanced eBook Processor.  Elcom could not have
distributed it in the U.S. without his permission.  The concept here is that
he had the intent to commit a crime and is liable under a theory of
accomplicehood.  Ergo he was charged for that.  Don't misunderstand; his
arrest and indictment have nothing legally to do with his trip to Vegas.

> ElcomSoft
> was selling the software via the Internet in the US but not
> Dmitry himself.

Dimitri authorized it; it's *his* copyright.

> He did not come to the US to sell some samples of the Advanced eBook
> Processor (AEBPR).

You are missing the point.  Read the indictment.

> He was not going to distribute software on the US
> territory.

You don't get it.  See above.

> The fact that he was a copyright holder does
> not bring any changes to the outcome. There are two completely different
> things: the one is to be the author, and the other is to behave in a way
> forbidden by the DMCA, that is to say manufacture, offer to the
> public, etc.

They are not completely different, but if he is exculpated, it will be on
this distinction.

> If you are the author it does not necessarily mean that it is you and only
> you who exploits the work.

It means that no one can distribute your work without your permission.

> The distinction between Moral and
> Economic rights
> is of a great importance in that respect.

The U.S. does not recognize moral rights in copyright, or barely.

> Under Russian software law and
> copyright law the copyright on software created in connection with
> employment relationships always belongs to the employee as oppose to
> economic rights belonging normally to the employer (Articles 9 & 12 of
> Russian software law and Article 14 of Russian Copyright Law).

Russian law is not involved here.

> It is
> ElcomSoft who has economic rights, i.e. to manufacture, import,
> offer to the
> public, etc.

Dimitri is the copyright holder, so he has all the rights unless assigned.

> Dmitry can by no means be accountable for the
> allegations he is
> charged with. He did none of the acts enumerated in Sec 1201.
> Reading the Indictment I could not find anywhere the support of
> the charges
> against Dmitry in relation to Sec. 371 of the U.S.C. either. How
> can charged
> with conspiracy to commit acts listed above if he could by no
> means be able
> of performing all these actions (manufacture, offer to the
> public, etc).

His permission was necessary to distribute AEBPR.  His is therefore under a
theory of accomplice.  Elcom could not have distributed AEBPR without his
permission.  Therefore he assisted the trafficking of 1201 contraband.

> He
> is just an employee of ElcomSoft, not a director or a holder of any other
> top position in the company.

His degree of control is a question for the jury, not us.

> He can not be responsible for the behavior of
> the whole company.

But he may be liable for the distribution of AEBPR.

> In short, despite all the drawbacks of the American legislation
> in question
> the accusation looks quite ridiculous and seems to ignore obvious
> facts and
> general legal principles.



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