U.S. vs. ElcomSoft - Others' Trial Coverage
December 11, 2002
Elcomsoft Trial-- Elaborations On Another's Coverage

My comments on a fellow blogger's coverage -- Peter brought up some really good points and I just want to elaborate on them a bit from what I saw in the courtroom:

More on the Elcomsoft case....The testimony is over
and the two sides are wrangling with Judge Whyte
about the jury instructions.

Actually no, they came up to the bench to haggle about a specific line of questioning the prosecution was about to embark on about Reg Now's parent company, Digital River, and its assets. It seemed as if the defense won on that one because when they came back, the prosecution had totally changed its tune, and only asked one little question about the parent company residing in the U.S. and then said "no further questions".

Whyte did not allow Elcomsoft to introduce evidence
that its program allowed blind consumers to make
their Adobe ebooks readable by text-to-speech
software, or evidence on how any kind of
consumer actually used the program.

Note that the prosecution was also unable to come up with an example of a single infringing use!

Actually, Dmitry did testify about the uses for the blind, and the prosecution cross-examined on that point pretty clearly, by clarifying that the marketing materials and the splash screens that come up in the program don't say "now you can view this text on your braille reader." So the Judge may have felt that point had been made.

Arguments that Elcomsoft's program is protected
by fair use, or that the relevant portions of the
DMCA violate the First Amendment, will have to
wait for an appeal.

Yeah the Judge threw out the First Amendment defense earlier this year. That totally sucks, but that was his call, so I imagine he would stand by it and not allow a line of defense to be presented that he said he wasn't interested in.

That decision sure didn't give me much hope for this case or this Judge. But now, after seeing the Judge in action, I have hope again. He wants the trial to focus on ElcomSoft's intent: The company clearly did not mean to do anything illegal. When they were contacted about the problem, as soon as someone would clearly explain to them what the problem was, they acted accordingly.

Adobe's language in its C and D letter was confusing -- claiming that Elcomsoft had content on it's site that infringed on Adobe's copyrights (rather than ElcomSoft was distributing software on its site which could be used to infringe -- big difference). The bungled letter only served to confuse those being accused (ElcomSoft, its ISP and Reg Now!).

A Reg Now employee testified yesterday that it was their fault, and not ElcomSoft's, for not taking all of the versions from the website, as ElcomSoft had requested.

Even though the prosecutors dropped charges
against Dmitry Sklyarov in exchange for his
testimony, in the end they did not call him as a
witness, but used a taped deposition instead.
The defense called him as a witness, and
asked about his purposes in creating the program.

But the Fair Use stuff came up at little (but not much) in Dmitry's questioning -- but the Judge was quick to instruct the Jury that the testimony can only be used to judge Dmitry's state of mind at the time, not whether or not he is correct about what he thinks will be illegal.

(The DMCA requires wilfulness.) Also see coverage
here and here.

Yes! And it is this willfullness issue that might get ElcomSoft off! If there was one thing that was clear from the testimony, and even from the Prosecution's line of questioning with ElcomSoft President Alexander Katalov, it was that ElcomSoft never intended to do anything illegal. The company has a huge customer base in the Law Enforcement community and it would just be bad business.

That's why these guys came all the way back here to try to clear their name. This lawsuit has heard their legitimate business. They were growing exponentially every year until last year, where there profits remained constant.

Okay back to typing up my notes from the trial...

Posted by Lisa at December 11, 2002 10:06 AM | TrackBack
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