[free-sklyarov] DMCA applies to Whole World, Say Prosecutors

Seth Johnson seth.johnson at RealMeasures.dyndns.org
Wed Feb 13 20:16:13 PST 2002

(Forwarded from Interesting People list,
farber at cis.upenn.edu)

-------- Original Message --------
Date: Wed, 13 Feb 2002 03:59:21 -0500
From: David Farber <dave at farber.net>

>Date: Tue, 12 Feb 2002 09:38:42 -0500
>To: David Farber <dave at farber.net>
>From: Mike Godwin <mnemonic at well.com>
>Dave, it's interesting that at the same time some in
>the government argue that U.S. constitutional projections
>don't apply to the prisoners held at Guantanamo, other
>government officials are insisting that the DMCA applies 

Tuesday, February 12, 2002                    Vol. 3, No. 29

WORLDWIDE DMCA applicability claimed by federal prosecutors
in Elcomsoft copyright case.  Internet said to make it
impossible to apply only within U.S.  (P. 1)

U.S. Prosecutors Claim DMCA Applies Around the Globe

SAN JOSE -- The Digital Millennium Copyright Act properly
applies to activity outside the U.S., federal prosecutors
said in their case against a Russian company charged with
selling software decrypting Adobe e-Books.  "A construction
of the DMCA that applied it only within the borders of the
United States would thwart Congress's intent to prevent
circumvention technology from being available," the San Jose
U.S. Attorney's Office told U.S. Dist. Judge Ronald Whyte in
papers filed late last week.  "The ease with which materials
can be moved around the Internet makes it impossible to
conceive of an effective DMCA statute that applied solely
within the United States."  That construction was Congress's
intent, as shown by its prohibition against importation of
certain technology, prosecutors argued.

Prosecutors said the judge didn't need to decide that issue,
however, because Elcomsoft was subject to prosecution for
conduct within the U.S.  The company offered its program
through a Chicago server, took payment through a Washington
state firm, sold the software to U.S. customers, promoted it
at a Las Vegas conference, sought U.S. copyright protection
and intended an effect in the U.S., they said.  Further, the
prosecution comports with international law as a reasonable
application of U.S. law in protection of the country''s
territoriality and nationality, the filing said.

Prosecutors also sought to rebut defense arguments that
Elcomsoft had been charged improperly with conspiracy in a
case involving only its programmer, Dmitry Sklyarov, who no
longer is charged, and no one outside the company.  The
indictment refers to unnamed co-conspirators.  The 9th U.S.
Appeals Court, San Francisco, and others recognize the
legitimacy of charging intracorporate conspiracies, the
prosecutors said.  Contrary statements in First (Boston) and
10th (Denver) Appeals Courts opinions cited by the defense
were merely dicta, prosecutors contend.

The extraterritoriality and conspiracy issues are set for
hearing March 4.  Prosecutors are scheduled to file within 2
weeks responses to challenges to DMCA''s constitutionality.
-- Louis Trager

"I speak the password primeval .... I give the sign of
democracy ...."
            --Walt Whitman
Mike Godwin can be reached by phone at 202-637-9800
His book, CYBER RIGHTS, can be ordered at
         http://www.panix.com/~mnemonic .

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