Skylarov employer faces criminal charges

A federal judge yesterday denied Russian software company Elcomsoft's request to dismiss charges against it for breaching the Digital Millennium Copyright Act (DMCA).

Elcomsoft is the company standing behind programmer Dmitry Sklyarov who is accused of violating the law by developing a program capable of circumventing copyright restrictions on Adobe's eBook software.

Judge Ronald Whyte's ruling means that Elcomsoft must face criminal charges on the ground that the DMCA's ban on copyright circumvention tools is constitutional, even if the circumvention tools themselves are used for legal purposes.

Cindy Cohn, legal director of the Electronic Frontier Foundation (EFF), which has filed an amicus brief in support of Elcomsoft, said: "It's as if the judge ruled that Congress can ban the sale of printing presses because the First Amendment right to publish speech was not attacked directly and quills and ink are still available.

"What good are the public's rights if the tools needed to make fair use of, or access works, in the public domain are illegal?"

Judge Whyte ruled that the plain meaning of the DMCA was to ban circumvention tools completely because the federal assumption was that "most uses" of the tools would be for unlawful infringement rather than fair or legal purposes.

Although the judge granted Elcomsoft's First Amendment argument that software does qualify as speech, he ruled that the First Amendment was satisfied because the government was controlling the "function" of the software rather than its "content".

He maintained that the statute did not ban more speech than is necessary to meet its goal of preventing piracy and promoting ecommerce.

EFF intellectual property attorney Robin Gross said that the organisation was "disappointed by Judge Whyte's unwillingness to dismiss the charges against Elcomsoft on constitutional grounds", but was pleased that "he agreed that software is protected speech under the First Amendment".

"Courts must now take the next step and give people the same rights to express themselves with software as they enjoy for traditional speech," he explained.

The court has scheduled a hearing for 20 May to set a trial date for the case.