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Visa tangle delays DMCA case

A judge postpones the ElcomSoft trial--the first major criminal test of the DMCA copyright protection law--while lawyers work to get key witnesses into the United States.

The ElcomSoft trial has been delayed six-and-a-half weeks while both sides work to obtain permission for key witnesses to travel to the United States from Russia.

The trial, the first criminal test of the Digital Millennium Copyright Act, was originally scheduled to start Monday in San Jose, Calif. It is now slated to begin Dec. 2, to give lawyers time to get permission from immigration authorities for ElcomSoft programmer Dmitry Sklyarov and CEO Alex Katalov to enter the United States.

Officials at the U.S. Embassy in Russia denied the witnesses' visa applications to enter the country. Lawyers in the case were unable to provide an explanation for the denial.

ElcomSoft faces charges that it violated criminal provisions of the DMCA by offering software that could be used to crack the copyright locks in Adobe Systems' eBooks. The law makes it illegal to disseminate technology that can be used to circumvent copyright protection.

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 software. U.S. prosecutors later dropped the charges against Sklyarov in exchange for his testimony in their case against ElcomSoft.

At a hearing Thursday, U.S. District Judge Ronald Whyte, who was already expected to delay the ElcomSoft case because of a scheduling conflict, heard both sides recount the immigration problems they had faced in bringing the witnesses into the country.

Assistant U.S. Attorney Scott Frewing said he would use "whatever authority" he had to get permission for the witnesses to travel to the United States. He also said he was working with the Immigration and Naturalization Service on putting a special parole process for Sklyarov and Katalov in motion.

Frewing said that he would submit a videotaped deposition by Sklyarov in testimony if the programmer was not able to appear in court. However, ElcomSoft attorney Joseph Burton protested that that would not be acceptable to the defense.

Burton told the judge he plans to file a motion to dismiss the case because the key witnesses aren't available to give testimony.