Judge denies dismissal bid in DMCA case

A federal judge denies a motion to dismiss criminal charges against a Russian software company accused of selling a product designed to break anti-copying technology.

Evan Hansen Staff Writer, CNET News.com
Department Editor Evan Hansen runs the Media section at CNET News.com. Before joining CNET he reported on business, technology and the law at American Lawyer Media.
Evan Hansen
2 min read
A federal judge on Wednesday denied a motion to dismiss criminal charges against a Russian software company accused of selling a product designed to break anti-copying technology.

U.S. District Judge Ronald Whyte found that the Digital Millennium Copyright Act (DMCA) does not violate ElcomSoft's due process and free-speech rights. The decision clears the way for a trial in the closely watched case--believed to be the first criminal prosecution under the contentious law.

Attorneys for the software maker had argued that the law is overly vague and undercuts copying that is legally protected under "fair use" doctrines, among other things.

Joining other courts upholding the law, Whyte rejected those arguments in a 35-page decision.

"Congress was concerned with promoting electronic commerce while protecting the rights of copyright owners, particularly in the digital age where near exact copies of protected works can be made at virtually no cost and distributed instantaneously on a worldwide basis," he wrote.

The DMCA has been at ground zero of the burgeoning clash over copyrighted material and the easy copying and distribution of books, songs and music on the Internet. Enacted in 1998, the law was a compromise between copyright owners and telecommunications companies seeking freedom from liability over acts of online piracy.

The act included provisions making it illegal to traffic in tools that crack encryption and other anti-copying controls. Those prohibitions have raised an outcry among software programmers who worry the law could be used to bar legitimate research into encryption technology and other development efforts.

Despite legal challenges, the courts have so far given the law a largely sympathetic hearing. Wednesday's decision follows a similar decision from a federal appeals court last year barring Web publisher Eric Corley from including hyperlinks on his site to a software program known as DeCSS that can be used to crack DVD encryption.

The ElcomSoft case stems from an investigation into charges that the company had created a product aimed at cracking the encryption on Adobe Systems' eBooks software. The case originally targeted ElcomSoft employee Dmitry Sklyarov, but those charges were later dropped in exchange for his testimony.

Lawyers arguing on behalf of ElcomSoft expressed disappointment in Wednesday's decision, saying the ruling could dramatically weaken the right of consumers to engage in fair use, or legal copying of copyrighted works.

"The problem is we live in a world where copyright holders are increasingly turning to encryption and other locks that prevent people from copying at all," said Robin Gross, an attorney for the Electronic Frontier Foundation, a group that has filed a court brief on behalf of ElcomSoft.

The ruling "doesn't square with a digital world in which copyright holders preclude people from engaging in behavior that fair use is intended to provide for," Gross said.

The U.S. Attorney's office declined to comment on the ruling. Joe Burton, the attorney representing ElcomSoft, could not immediately be reached for comment.

A hearing has been set for May 20 to set a trial schedule in the case.