U.S. shows Sklyarov video in court

The Russian programmer, key to the ElcomSoft criminal trial, doesn't make a live appearance, but a video deposition has him saying software could be used for "bad purposes."

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SAN JOSE, Calif.--The U.S. government wrapped up its case in the ElcomSoft criminal trial Thursday without calling to the stand a Russian programmer initially expected to be the prosecution's star witness.

Instead of calling ElcomSoft programmer Dmitry Sklyarov to the stand in the courtroom here, government prosecutors played an hour-long video of the programmer's earlier deposition. Defense lawyers, after unsuccessfully trying to quash the video, said they intend to call Sklyarov to testify in person on Monday.

Russian software company ElcomSoft faces five criminal counts related to offering and marketing software that can be used to crack Adobe Systems' eBooks, or electronic copies of paper books. ElcomSoft is accused of violating the criminal provisions of the Digital Millennium Copyright Act, or DMCA, which outlaws offering software that can be use to crack copyright protections on digital content, no matter how the material is later used.

As part of the video deposition, Sklyarov admitted that the Advanced eBook Processor software he developed could be used to remove copyright protections to make multiple copies of an eBook.

"The program can be used for bad purposes," Sklyarov said, answering questions from a government lawyer through an interpreter in the video.

"After obtaining copies, somebody who wishes to harm can spread these copies. That's a negative effect of the use of that program," said Sklyarov, who in the video sported a beige jacket, a light-colored shirt and a thick sweep of black, disheveled hair.

Sklyarov said that before the first version of the Advanced eBook Processor was released, he encouraged ElcomSoft to add language to the company's Web site saying the program should not be used for illegal purposes. ElcomSoft added the language only after receiving a warning from Adobe Systems to stop selling the software, he said.

At one point Sklyarov, still an ElcomSoft employee earning $2,000 a month, said he created the program for research purposes as part of his dissertation.

"This product was developed not only for purposes of a profit, but to show the weaknesses of protections of PDF formats," he said.

The deposition was recorded in December 2001 after Sklyarov made a deal with the government to testify in exchange for charges against him being dropped. The programmer was arrested and jailed in Las Vegas after giving a speech about the company's software earlier that year.

The move to play a videotape in lieu of calling a witness in person is unusual in a criminal case. Assistant U.S. attorney Scott Frewing would not comment Thursday on his decision not to call Sklyarov to the stand.

Frewing did call to the stand an FBI agent who said his agency had questioned three people who admitted to using ElcomSoft's product to remove copyright protections on an eBook. However, government objections prevented the defense from making it clear whether those people had legally purchased the eBooks they decrypted. Also, it was not clear what the people in question planned to do with the decrypted books.

In court testimony Wednesday, an Adobe witness said he didn't know of any illegal copies of eBooks that had been created using ElcomSoft's software.