[free-sklyarov] Major test of copyright law set to start

[Richard M. Smith]

http://news.com.com/2100-1023-975280.html?tag=fd_top

By Lisa M. Bowman 
Staff Writer, CNET News.com
November 25, 2002, 2:35 PM PT

The first big courtroom test of a U.S. law that makes it illegal to
offer software for cracking digital copyright protections should finally
begin next week, after visa delays for two of the case's main players. 
Dmitry Sklyarov, a programmer at Moscow-based software company
ElcomSoft, and Alex Katalov, the company's CEO, have been granted
special permission to come to the United States for the court
proceedings. 

"They are ready to go," ElcomSoft attorney Joseph Burton told a judge at
a hearing Monday in federal court in San Jose, Calif. 

In a widely publicized case, ElcomSoft faces charges that it violated
criminal provisions of the Digital Millennium Copyright Act by offering
software that could be used to circumvent the copyright locks in Adobe
Systems' eBooks digital books. The DMCA makes it illegal to disseminate
technology that can be used to circumvent copyright protection. The case
is the first of its kind since the act passed in 1998. 

Katalov is scheduled to represent ElcomSoft during the jury trial, which
is expected to last 4-5 days. Sklyarov may be called as a government
witness. The trial date already had been pushed back six-and-a-half
weeks after the U.S. government denied the Russians their visas amid
more stringent entry requirements. 

However, the U.S. Attorneys Office intervened, and landed a special
"parole" visa for both men. Sklyarov obtained his last week, and Katalov
received his Monday morning. 

The pair is booked on a flight that arrives in the United States over
the weekend. Jury selection is scheduled for next Monday, and opening
statements and witness testimony is expected to start the following day,
Dec. 3. 

The case began when FBI agents, acting at Adobe's behest, arrested
Sklyarov last summer at a Las Vegas conference after he gave a speech
about the code-cracking software. The move created an uproar among
security professionals and civil liberties groups, causing Adobe to
publicly back down. U.S. prosecutors, though, continued the case but
dropped the charges against Sklyarov in exchange for his testimony in
their case against ElcomSoft. 

At Monday's hearing, the lawyers spent much of the time wrangling over
how the DMCA should be interpreted for a jury. The criminal provisions
of the act may be especially perplexing because they outlaw cracking
copyright protections--or offering tools that will do so--even if the
person cracking the protections plans to use the material in a way that
traditionally has been legal, such as making a backup copy. 

"There isn't any law in this area," Assistant U.S. Attorney Scott
Frewing told the judge. 

Burton, the ElcomSoft attorney, argued that in order to convict the
company of wrongdoing, the jury should have to find that company
representatives were acting with an "evil-meaning mind" or for a "bad
purpose," not just helping people crack copyright protections. He also
argued that the jury should be instructed on what constitutes "fair
use," a legal theory under copyright law that allows some copying of
material for education, criticism and other purposes. 

But Frewing disagreed. "Fair use is irrelevant and improper," to bring
into the instructions, he said. 

The judge said he would decide those issues as the case proceeds.