ElcomSoft President Alexander Katalov testified in federal court here that his company acted in good faith in creating a product that thwarts anticopying features in Adobe Systems' eBook Reader--a function that prosecutors say violates U.S. copyright law.
Earlier in the trial, ElcomSoft had sought to enter evidence of the benign uses of the software, such as making back-up copies or allowing visually impaired readers to transfer Adobe eBooks to reading devices for the blind. However, Judge Ronald Whyte refused to allow most attempts at that line of defense, meaning ElcomSoft had to find other ways to assert its innocence.
In the fifth and final day of testimony in the, Katalov said he didn't believe ElcomSoft's Advanced eBook Processor software was illegal at the time of its sale. He added that he had pulled most versions of the software from the Web after receiving letters from Adobe saying the program was illegal, some eight days after it was first made available online.
However, Katalov testified that he never believed the software contravened the law. "I still believe this program is legal," Katalov said, in response to questioning by ElcomSoft attorney Joseph Burton.
ElcomSoft faces five charges related to offering software that can be used to break protections on Adobe's eBooks, which prosecutors say is DMCA).under untested criminal provisions of the Digital Millennium Copyright Act (
Attorneys from both sides are scheduled to present closing arguments to the jury on Thursday morning, after which jury members are scheduled to begin their deliberations. Meanwhile, Judge Whyte will work with the attorneys to come up with jury instructions that both sides can agree upon, a task that already has proven difficult, given the novelty of the case.
"There isn't any law in this area," Assistant U.S. Attorney Scott Frewing told Judge Whyte at a pretrial hearing two weeks ago, during which the judge heard arguments over jury instructions. One of the issues both sides are wrangling over is what it means to act "willfully" in this case. The defense wants the judge to instruct jurors that ElcomSoft had to have acted with an "evil-meaning mind," or for a "bad purpose," to be found guilty.
Law on trial
The case is being closely watched by legal scholars, digital publishers and programmers because it is the first major test of the criminal provisions of the DMCA. The law, passed in 1998, makes it illegal to crack protections on copyrighted material.
The DMCA is particularly tricky, legal experts say, because it outlaws such cracking--or offering products that do so--even if the person breaking the code plans to use the content for purposes that have traditionally been legal, such as for reverse engineering or making a backup copy.
During the trial, Judge Whyte denied most of ElcomSoft's attempts to present evidence about what customers did with the Advanced eBook Processor software they purchased. After the prosecution objected, the judge quashed e-mails presented by the defense that appeared to be from customers and cut off some lines of questioning about why people were purchasing the software.
Jefferson Scher, an attorney with the law firm Carr & Ferrell, said he would be surprised if the jury doesn't convict ElcomSoft. "The law says thou shalt not sell, and it's very hard to find loopholes in the law," Scher said. He believes most of the "juicy issues"--such as how free-speech protections square with the DMCA and how much authority Congress has in enforcing copyright law--will come up on appeal.
The DMCA already is affecting some programmers who worry their work could put them on the wrong side of the law--fears that could be exacerbated by a guilty decision against ElcomSoft. "In a would really slow down innovation if all engineers had to think about copyright law all day long," Scher said.
Copyright owners lobbied enthusiastically for the DMCA, saying it would prevent rampant copying and redistribution of their digital material. Because the Web makes it so easy to duplicate digital content, intellectual property owners fear losing control over their products--much as the music industry could have during the Napster phenomenon.
In recent years, movie, music, and software companies have been among the most enthusiastic enforcers of the law, citing it in letters and lawsuits against small Web operators, students and large corporations.
But many critics of the DMCA say it's being wielded too harshly and could thwart legitimate research and product development.
The ElcomSoft case raises the stakes in the battle by testing the criminal provisions of the DMCA. Until now, the major cases have pitted one company against another company in civil court.
In July 2001, at Adobe's behest, federal agentsand jailed ElcomSoft programmer Dmitry Sklyarov after he gave a speech about his company's software. Following worldwide protests by engineers--who feared they might also fall under risk of prosecution--Adobe backed away from its pursuit of Sklyarov, and prosecutors set aside charges against the programmer in exchange for his testimony in the current federal case.
During the trial, Sklyarovthat the software he created for ElcomSoft was an investigation into flaws in eBook software and was part of his dissertation. He also testified he hadn't cared or considered whether the software broke U.S. laws, but that he hadn't intended for it to be used by people who wanted to illegally copy eBooks.