ElcomSoft Verdict: Not Guilty 593
truthsearch writes "From News.com: 'A jury on Tuesday found a Russian software company not guilty of criminal copyright charges for producing a program that can crack anti-piracy protections on electronic books.' HUGE legal win against the DMCA. Thank you Lawrence Lessig."
Great!! (Score:4, Insightful)
jaysyn
so now... (Score:5, Insightful)
The way he was treated and the significant portion of his life that was stolen from him to deal with this ridiculous lawsuit demands some serious retribution to make things right.
Re:so now... (Score:5, Insightful)
A free lifetime supply of e-books?
But seriously, they're not going to give him diddly. Things are frequently never made "right," esp. when the criminal justice system is involved.
It's not like you get restitution for when the cops pull you over, give you a warning, and let you go. Though technically you were detained for a few minutes while they ran your registration. What happened to Dmitry is the same thing but on a larger scale.
No fraud here. Lots of innuendo and FUD, but nothing arising to the legal definition of fraud. If you want to give hackers a better name, stop using the word fraudulently
Re:so now... (Score:4, Insightful)
This is not as big a win against the DMCA as some want to believe.
Re:so now... (Score:3, Insightful)
Re:so now... (Score:4, Informative)
Get the story here [yahoo.com]. It is only the government who saying that they failed to show intent, a self-serving smokescreen argument at best, which is unfortunately spreading via the media (I already heard it on NPR). The reality appears to be that the jury supported fair use for ebook users against the DMCA.
Regards,
proclus
http://www.gnu-darwin.org/ [gnu-darwin.org]
Re:so now... (Score:3, Informative)
"After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said."
Re:so now... (Score:3, Insightful)
While that's true, it's not really applicable to the example the two of you are riffing off of. Namely, speeding, FTY, etc, are not crimes, but rather civil infractions. They are violations of code which can only result in a civil sanction (fine, loss of license, etc). They cannot be punished with jail time, and because of that they don't afford you the same sorts of protections that you have when accused of a crime. I don't believe there is even any presumption of innocence. Probable cause is not a factor in infractions--they are rather decided by a preponderance of evidence. PC only comes into the equation if they find something that is evidence of a criminal offense after they stop you.
In other words, the officer DOES decide if you've broken the law when citing you for a traffic violation. He's not establishing PC for anything--he observed a violation and writes the citation. There is no further investigation and no necessity to file formal charges. If you don't respond to the citation, guilt is presumed (rather than innocence, which would be the case in a criminal offense) and the officer's judgement is upheld.
All this is true at least in my state, and I believe in most of them.
Re:so now... (Score:5, Interesting)
Example:
An aguantance of mine ("Tom") is a guidance counselor. Tom would not give a female student a late pass to class, even though she begged because she would get detention. He refused and she stormed off to class. When asked by her teacher why she was late she started crying hysterically. The teacher and her stepped outside and she explained that Tom had made her undress and begged her to have sex with him. He said he wouldn't let her go to class unless she did. (the story is bigger and longer but anyway).
Police are called in, Tom is suspended with pay (go unions) and told to get a lawyer (union said it would cover cost and then backed out).
The girl later confessed to the police that she made the whole thing up and she just didn't want detention and wanted Tom fired.
Get this, her mother said that the whole thing was too shady and that her daughter was too young to decide and she wanted to continue to press charges so that everything could be worked out in court!
Tom has now been asked to please find a job elsewhere (union prevents him from being fired outright), but this has been in the papers, so good luck. He had to sell his house to have money for the lawyer. And when all this is said and done, he will have no way to recover where he once was in life and career.
It makes me very, very ill.
Re:so now... (Score:5, Interesting)
There are people who make a living suing other people. That's ALL THEY DO. They can file a suit for a pittance. Oftentimes, the defendant just settles. If not then the plaintiff goes to court and complains. Winning about half the time.
Bottom line: Win/Lose for the plaintiff and Lose/Lose for the defendant.
I also hear that in Europe, if the plaintiff in a suit loses, they foot the bill. I think it's high time the US adopted such a plan.
Re:so now... (Score:4, Informative)
Loss of livelihood, emotional trauma, yadda yadda yadda -- it would pretty much ruin the parents.
Of course, he may not want to do that to them, or they may not have enough to make it worthwhile. I'd consider suing the kid just to get her convicted of a felony, which gets to go on her permanent record and fucks her life about as squarely as she just fucked his.
But that's me, and I can be a vengeful asshole if you screw me first.
Vengeful or Not, it would be appropriate (Score:5, Insightful)
But that's me, and I can be a vengeful asshole if you screw me first.
Your (or "Tom's") motive might be vengeful, but that wouldn't make it an entirely appropriate and constructive way to handle this sort of apalling injustice.
Constructive how, you ask? Because clearly the only deterrance that really exists against this sort of abusive false accusation (in addition to normal social pressures and etiquette, which people who make such accusations are unmoved by anyway) is the fear of very real, very profound consequences.
Her having her reputation and life ruined by having her deception, and its willfully harmful and destructive consequences, in the public record is a singuarly natural and appropriate consequence of her despicable actions.
Whether out of vengeance, or to simply deter future similar acts, "Tom" should seriously persue such a case regardless. His motive is irrelevant, the outcome that is desired is for the perpetrator (in this case, the false accuser) to suffer appropriately for her crime, and in an appropriately severe and public enough manner to deter others from such conduct.
Re:Vengeful or Not, it would be appropriate (Score:3, Insightful)
Yes, but as a minor, she'll have no public record. Short of actually killing someone, a minor in the US (I assume this is the US) isn't usually named in the public record for any crime unless an exception is specifically made for their case, usually murder.
BTW, I'm also a former teacher who left for better hours and money, but I understand the rules all too well: we were taught in college to never be alone with a student of either sex, but work long enough and eventually circumstances may leave you out of eyeshot of anyone for a few seconds, and an angry student can get even real fast. Some of these kids can really work the system, and morals aren't even on their radars.
Re:Vengeful or Not, it would be appropriate (Score:3, Funny)
The best way of enacting vengence that Skylarov could do would be to use the fame and notoriety of his experience to write a book, make lots of money, and take his book tour (get laid a lot) - maybe even make a movie someday...
That could be ironic, then we could get the MPAA fighting against people who want to crack the encrypted copy-protected scheme to watch a movie about cracking an encrypted copy-protected scheme.
Re:so now... (Score:3, Interesting)
Slander/libel are civil torts, not criminal ones. Winning such a suit would therefore not "get her convicted of a felony." At best it would result in an award for damages being granted to the guidance counselor.
Furthermore I'm fairly sure others claiming that all he has to do is prevail in a lawsuit to be set for life are way off the mark. Chances are good that the girl's parents aren't loaded, so it isn't likely that he'll get much more than a six figure settlement, and even that is probably pushing it.
Despite what others are arguing, the true problem in this instance lies with the media, rather than the judicial system. This guy's problem is that he was unfairly tried and found guilty in the court of public opinion, and that is nothing that legal reform would prevent.
While the parents' willingness to litigate is obviously a factor, the media's eagerness to jump on exciting, scandalous news is a bigger part of the problem. They are quite good about tarring potential offenders with the broadest brush they can find, and considerably less ready to come forward and loudly retract and apologize.
But the media only provides content; it is the consumers of such content that are truly to blame for these unfortunate excesses. It is everyone with a small enough mind and mean enough heart that they would judge this man and condemn him, armed only with two minutes' worth of information on the matter.
Re:so now... (Score:5, Interesting)
Re:so now... (Score:5, Informative)
Re:so now... (Score:5, Funny)
I think beating the crap out of them will result in a more immediate and desirable outcome.
Comment removed (Score:4, Funny)
Re:Great!! (Score:4, Insightful)
Lawyers and politicians have one thing in common they are sneaky and cannot be trusted. espically in the case of defending laws that the companies that bribed
Re:Great!! (Score:5, Informative)
Re:Great!! (Score:2, Insightful)
Criminal aquittals can be appealed (sort of) (Score:5, Informative)
In this case, the Government could argue that the judge mis-instructed the jury on an incorrect definition of the word "willful," and that as a result, the jury was asked to apply incorrect law. If the appeals court found that the instruction was incorrect, the remedy would be to declare a mis-trial and re-try the case.
Appeals by the Government don't happen very often, but when an important issue is on the line, they certainly can happen. Securing a favorable interpretation of the DMCA is important to the DOJ, but at the same time, this particular case is somewhat awkward for them, what with Adobe not urging prosecution. In light of that, I'd say the odds of a Government appeal are about 1 in 3.
Re:Criminal aquittals can be appealed (sort of) (Score:3, Insightful)
Re:Criminal aquittals can be appealed (sort of) (Score:3, Insightful)
As always, IANAL.
This may be a difficult case, but doesn't the fact that the Judge interpreted the work "wilful" in a specific way set a precedent? The Judge made a decision on a law, and doesn't that decision bind other Judges unless it is set aside by a higher court? Or is there something that makes a "Ruling" different from "instructions" to the jury?
Re:Great!! (Score:5, Informative)
Uh, go read the Constitution. First of all, double jeopardy is a recent term. All the constitution says is that you can't be tried twice for the same crime. Note, however, that you can be tried twice for seperate _instances_ of the same crime. (So even the advice given to Ashley Judd, in Double Jeopardy, was wrong). For example if you rob a bank, and are tried, and acquitted, and go rob the same bank again, you can be tried again and found guilty that time.
The "double jeopardy" clause is in there to prevent the government from abusing its power. Consider Joe Blow, who prints handbills encouraging revolution. The government doesn't like this. They try him, he's acquitted. The government still doesn't like this. They try him, he's acquitted again. And so on until they bribe enough judges and prosecutors so he's found guilty. That is what "double jeopardy" is designed to prevent.
Re:Knowledge of law? (Score:5, Informative)
So, check out the etymologies of legal terms like "breaking and entering" and "cease and desist". You'll see that one word has a French root.
"Breaking" comes from the Middle English "breken". "Entering" comes from French originally. At the time, both meant the same thing.
System corrupts (Score:5, Insightful)
If you want to change the system, exit the system. Write something, instead. If you are a programmer, write code. This is particularly pertinent to this discussion, where Dmitri and ElcomSoft did more to challenge the DMCA than any politician or lawyer could have done.
Re:Great!! (Score:5, Insightful)
This is not insightful. At best, it's an extremely unhelpful answer. Not everybody can go do anything they want, despite what mommy says when you're 5 years old and she has dreams of you being president of the USA. I could not be a brain surgeon. This isn't because I don't feel smart enough, it's because I don't have the remotest interest in medicine. If I aint interested, then I aint gonna be any good at it. There are things I'd like changed, but really don't feel like dedicating my whole life to fixing them. You cannot ask that of people and sound like you have all the answers. (You can sound like a total smeghead, though.)
The 'fix it yourself' answer is rude and devoid of any actual thought about the true solution to the problem. His 'whining' is really his expressing demand for a lawyer that has better motivations. The more people that express this demand, the more influence they'll have on future lawyers.
Be glad he has the right to 'whine'. If he didn't, this would be a shitty place.
It could still make it to the US supreme court ... (Score:2)
I mean the gall of a Russian company to violate US law. What will they think of next? Skipping out on US income taxes?
Thank goodness! (Score:4, Funny)
A disaster (Score:5, Insightful)
This is good news for the DMCA.
Re:A disaster (Score:4, Insightful)
Next up is making sure that Jon Johansen's lawyers get this and use this to help him out.
The RIAA and MPAA must be pissed off that their precious law got defeated once. Lets sue for damages against the RIAA and put them out of business! (They should be able to taste their own medicine).
The cartel has the decision to use this law against us. Now that this precedent has been set, they cant sue everybody blindly for so much as thinking "MP3" or "DiVX;)".
Somewhere, this law will get overturned. I give it 4 years and then its off the books.
Thank you!
Re:A disaster (Score:3, Insightful)
I guess that makes as much sense as a US court trying somebody for a "crime" that was committed in Russia by a Russian citizen.
This Was Not a Good Test Case (Score:3, Interesting)
I never understood why anyone thought that this was a good test case for challeging the constitutionality of the DMCA. With Elmsoft being a Russian company, it wasn't entirely clear that the law would even apply to them. Plus, they could reasonably claim that they did not know about the law.
A good legal test case would be one where the defendent was a US citizen living in the United States, who knowingly violated the DMCA by reverse engineering, with no other factors to distract the judge/jury/lawyers/etc. Then it would be a clean challenge, and more likely to be eventually heard by the Supreme Court.
Arghhhhhhhh! (Score:3, Interesting)
What did have to do with the DMCA were defendant's motion to dismiss on the grounds of unconstitutionality, due process, and the first amendment before trial. Elcomsoft lost; I don't believe they appealed. That ended the issue for the purposes of this trial. Next trial, same deal.
This is very very bad news for the DMCA for practical reasons. The big test case prosecution failed. The gov't will not be eager to bring the next, and its negotiating leverage is undermined. Elcomsoft looked like a pretty easy conviction, so unless they fix the law they're not going to try the more difficult ones, a waste of time and money. I'm assuming the jury here was not totally aberrant; it sounds like they did not nullify and were more or less reasonable. However, it is dangerous to rely on press accounts.
Many more laws have been struck down for political reasons than constitutional.
Ok, someone fill me in (Score:4, Interesting)
Re:Ok, someone fill me in (Score:4, Insightful)
A joke (Score:5, Funny)
It kind of reminds me of that Chris rock joke -- Following OJ's aquital:
Black people are like 'Yeah, we won!' What the fuck did we win? Every day I look in my mailbox for my O.J. prize - nothin'."
Re:Ok, someone fill me in (Score:4, Insightful)
In order to overturn the law, it would probably have been better to lose the case. Then they could appeal their way up the food chain to the Supreme Court. Challenging the constitutionality of the law is the way to get it overturned; losing in the lower courts is the only way to get there.
But, I ain't no expert, so I also would appreciate more light on this issue.
Re:Ok, someone fill me in (Score:5, Funny)
I would think that this would set precedent so that other defense attorneys will be able to strengthen their cases by citing this.
Of course I'm usually distracted by Carey Lowell or Jill Hennessy or Angie Harmon, but sometimes stuff seeps in to my lust-addled brain...
That doesn't make sense...? (Score:5, Interesting)
Sure, this is law, not logic, so it could well be like this. But I hope not.
Re:That doesn't make sense...? (Score:3, Informative)
Well, if lower court judges regularly and consistently dismiss charges brought under a law, then eventually prosecutors will stop wasting their time.
This will lead either to amendments to the original legislation--which will then no doubt face constitutional challenge--or the law will effectively go away, because nobody bothers to enforce it.
It's not pretty, and it's not an ideal solution, but there are an awful lot of unenforced laws on the books. (This is a bad thing in and of itself, but that is a subject for another post.)
Re:That doesn't make sense...? (Score:5, Insightful)
Unenforced laws still have chilling effects.
--
Re:Ok, someone fill me in (Score:5, Interesting)
Secondly, there is NO proof of pirated eBooks out there, even after 2 independant groups were paid to troll the web looking for them. No proof of copyright violation, no DMCA-offense.
It really came down to whether or not there was a reasonable legal use for the tool or not. The jury found that there was, ie, fair use applications. Not guilty, case closed, proceed with appeals.
Re:Ok, someone fill me in (Score:3, Insightful)
Ahh, but thats the subtle genius of the DMCA. The "safe harbor" clause allows the "offending" party to be safe from prosecution if they "unknownly" violated the DMCA. Thats why the law is used so often, and so effectively - anybody just has to send out a threat (substanciated or otherwise), and 9 times out of 10 the fear of court cases and legal fees will get the desired result - unlike the good ol' days, when somebody actually had to ask a real live judge for an injunction.
Just another example of how the DMCA enriches our lives (not!). So, lucky that clause existed for ElcomSoft, but it doesn't do anything for the rest of the DMCA weary....
Huge legal win? I think not. (Score:5, Interesting)
Re:Huge legal win? I think not. (Score:5, Insightful)
I disagree. Take another look at the last paragraph of the article:
The judge told jurors...[that] merely offering a product that could violate copyrights was not enough to warrant a conviction
That's a huge statement! One of the big, big sticks wielded by the RIAA/MPAA and others against software makers is that they can be held liable if their programs merely have the capability of being used to violate copyrights, even if the programmer had the best of intentions and never intended that it be used for that purpose. This guidance from the judge significantly reduces the ability of RIAA/MPAA to swing that stick.
Re:Huge legal win? I think not. (Score:3, Insightful)
That's a huge statement!
That's real cute. Did you actually read the part of that sentence that you cropped out? Or did you just put an elipsis over the part of the article that you didn't like? The real quote says:
So they were let off not because it's legal to offer their copyright-violating product, but because they didn't know that it was against the law.
Erik
Re:Huge legal win? I think not. (Score:4, Informative)
Nothing, since Jon isn't being tried in the US.
Re:DECSS (Score:3, Funny)
echo sfsdfsdfDsdfsdfsdfdsfMsdfsdfdsCsfdslkfdsfAdfgdfg | sed -e s/[a-z]//g
Re:Huge legal win? I think not. - a moderate win (Score:5, Informative)
In this case the jury instructions are probably more important than the actual verdict. This establishes a key point that a product that has both legal and ilegal potential uses is not in and of itself ilegal.
My concerns (Score:4, Interesting)
Could the prosecutors claim the judge was biased and interfered, and demand a retrial?
Regardless of the outcome, a retrial would be a disasterous effect on subsequent juries, since it implies that the original outcome may very well have been faulty. And a lot of people assume may==is.
Re:My concerns (Score:3, Insightful)
IANALBIDTAJS101IC (i am not a lawyer but I did take American Justice System 101 in college), but you'd be surprised at how great an influence the judge has over a jury. Think of it: the jury is made up of people who have probably never even been inside a courtroom. The judge is the only other impartial person in the room besdes the jury, and the jury members take all their orders and instruction from him. He becomes something of a role model for courtroom behavior and attitude, in the jurors' eyes. If he seems to roll his eyes when the prosecution speaks, the jury will be think less of the prosecution. If he looks very interested in the defense's opening statement, the jury will pay more attention.
In america, with our amateur juries, we get a lot of benefits (the right to be judged by a jury of your peers, people just like you), but there are also a lot of drawbacks (you are judged by an amateur, impressionable groups of normal people).
Re:Huge legal win? I think not. (Score:2)
to have cracked any eBooks, who are these people to say that Russian businesses fall under the DMCA?
Re:Huge legal win? I think not. (Score:3, Informative)
to have cracked any eBooks, who are these people to say that Russian businesses fall under the DMCA?
Yes, but they were selling the software in the United States. No matter where the software was coded or where the company was based, according to the article it is illegal to use in the US and selling it brought on the charges. Fortunately the Judge had a little wisdom and ruled that they needed to "willfully" be violating the DCMA to be found guilty. However, the software is still ruled illegal.
If a company based in Nevada opened a casino in Utah it would be illegal even though gambling is legal in Nevada.
Re:Huge legal win? I think not. (Score:2)
Re:Huge legal win? I think not. (Score:4, Insightful)
I'm glad to see Elcomsoft come out on top of this, but don't see where it helps overturn the DMCA.
Re:Huge legal win? I think not. (Score:4, Interesting)
I am certain that glasses of champagne are being raised all over the US by manufacturers of DVD and CD-recorders, portable media devices such as IPod and Rio, personal computers, digital video recorders such as Tivo, and any other device that "might" be used to violate someone's copyright. The cartels' position that any slight chance of copyright violation makes these devices criminal under the DMCA has been used to strongarm these companies into accepting intrusive, restrictive DRM schemes that will be highly unpopular with their own customers. Although the tech companies (rightly) suspected that this was only the first step in the cartels' campaign to make the internet and other digital tools so unpalatable for consumers that they would gladly return to the forcefed industry gruel, they had to step to the RIAA/Disney beat or risk a high profile, expensive DMCA trial. Now that the threat of DMCA prosecution for products with an intended legal use has been greatly lessened (if not removed) by the judge's decision, these companies may feel they can shrug off the pressure from the cartels and give their customers the freedom and flexibility they want.
Re:Huge legal win? I think not. (Score:2)
This doesn't mean they can start selling the software again.
Conversely, it doesn't mean that they can't. There is no evidence produced to show that it was ever used to violate copyright law. This gives Elcomsoft a strong arguement if they want to get a declaritory judgement that says their software is legal under the DMCA. It will be difficult for Adobe to prove that its "main purpose" is to infringe copyright if they can't find a single instance of it being used in that fashion in spite of the number already sold.>p?
Now I can finally rest easy at night... (Score:3, Funny)
I'm still worried about the whole idea that the law applies in Russia, though...
Re:Now I can finally rest easy at night... (Score:3, Insightful)
It doesn't exactly apply in Russia, it applies to people selling things in the US that may be illegal under american law. You don't have to like it but if you sell something in a country it's your responsibility to make sure it's legal under their laws. No matter how messed up.
Except for the fact that ElcomSoft withdrew the software in question. I'm not sure about you but I would consider withdrawing the software in question to be stifling innovation
Re:Now I can finally rest easy at night... (Score:2)
I see this comment a lot and it is not fair. No one claims that the law applies "in Russia". The prosecution argument was, first, that the software was offered for sale to US customers. They could have put on a button on their website that said, "I certify I am not a resident of the US", or even "I certify that this sofware is legal in my place of residence," but they didn't. Second, they supposedly used a US payment clearing firm for their web transactions. This alone is probably enough for them to come under US law. But even the prosecution didn't claim that the law applies "in Russia."
As an analogy, imagine a firm that operated in Russia, but shipped illegal drugs into the US. They clearly violate US law.
Now, under the judges instructions, perhaps the jury found it sufficient that they didn't specifically intend to sell the software to folks in the US, but more likely the jury was impressed that they didn't specifically intend for it to be used to violate copyright.
IANAL and none of this is intended as a defense of the DMCA, which is a horrible law.
DAMN! (Score:5, Funny)
Ahhh, the rainmaker comes (Score:2, Insightful)
The biggest problem (Score:4, Insightful)
Is that the case was turned on the wording, moreso the usage of the word "Willful." This case does not provide precedence for using the software to crack an eBook. Basically, we still cannot use our open source machines to do something that proprietary machines can.
There was no precedence established for the unconstitutionality of the DMCA, in part or in whole. Once that happens, we can be happy.
Re:The biggest problem (Score:2)
Of course, IANAL, so I could be off on this
Re:The biggest problem (Score:3, Interesting)
Almost certainly, except for one problem - if I'm reading the results right, there is nothing indicating that it is LEGAL now to sell the eBook Processor software, and in fact, if Elcomsoft offered it in the US again, they would obviously "willfully" be distributing the software.
Though the judge's instructions to the jury that mere ABILITY to commit copyright infringement is insufficient for a guilty verdict in this case is nice to see, it still doesn't go so far as to explicitly declare in any way (let alone one that sets a precedent) that substantial non-infringing use therefore makes a software product legal, and THAT'S the precedent we really need to get the DMCA under control...
Re:The biggest problem (Score:5, Insightful)
IANAL, but the way I understand the "fair use" principle, the copyright holder can do whatever they like in an attempt to prevent you from copying their work. They just are not allowed to prosecute you if you do manage to copy it.
Of course you would need to copy it with tools that you build yourself. If you used somebody else's tools (like the ebook decryption program in question or decss) then the author may be found guilty of violating the DMCA for distributing a "circumvention device". I don't think it is illegal to possess a circumvention device, I believe it is just illegal to (willfully) distribute them.
Re:The biggest problem (Score:4, Insightful)
Exactly, this case doesn't speak at all to whether the DMCA is itself legitimate, but rather whether ElcomSoft was in violation of it. This is good news in the sense that it sets a precendent for how to avoid prosecution under the law, but in no way actually undermines the law itself, which is what we truly need to happen.
In Summary . . . (Score:2, Insightful)
in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction(from the Judges instructions to the jury)
I think that pretty much sums it up. If you clearly intend to perform an illegal act then the DCMA is fully in effect. Elcom did not intend to circumvent the copy protection on ebooks except for the legitimate user making backup copies. Elcom reacted to Adobe's concerns in reasonable time and in manner that clearly demonstrated Elcom's concern with the legality of their eBook software.
In summary: the court found that intent is everything.
Comment removed (Score:5, Informative)
Willfull infringement? (Score:2, Insightful)
Hopefully, with more rulings like this we can postpone the seemingly inevitable trip to the re-education camps.....
oh great! (Score:2, Funny)
Oh my...
Congratulations Joe Burton (Score:5, Informative)
The judge's instructions (Score:5, Insightful)
That's the interesting part. He instructed the jury that simply making a product that could be used for copyright violation wasn't enough, the company had to intend for it to be used for copyright violation. This is similar to DeCSS, where it can be but isn't intended for copyright violation. If the ElcomSoft instructions were used in the DeCSS case, they'd be found not guilty by the same reasoning. From a PR standpoint this is a win, because it undercuts the ability of companies to use the DMCA to shut down everything while still allowing them to prosecute actual violation, and it makes them prove intent instead of just possible use.
Re:The judge's instructions (Score:5, Insightful)
Its amazing...the system works...sometimes (Score:2)
Great, but I don't think it sets a precedent. (Score:5, Insightful)
What this decision does do is show the government one way not to prosecute honest programmers and researchers. What it doesn't do is keep them from finding other ways, that will work.
To set a precedent, we need a judge's decision that the DMCA is/is not unenforceable/unconstitutional. That will make the DMCA a settled issue within that judge's jurisdiction. To make it effective nation-wide, it then needs to be appealed to the Supreme court, and upheld there.
Jury Instructions (Score:2)
I think that this is a key reason why much of DMCA will fail in court. Providing something that can be used illicitly is different from providing something that can only be used illicitly. A gun can be used to commit murder which is illegal. It can also be used in an Olympic event, which is legal. There is no legal use for crack cocaine, so having, providing, and using are all illegal. So as long as there are legitimate uses for the code, it should be legal.
My humble $0.02 on a complicated and tangled issue;-)
Re:Jury Instructions (Score:5, Insightful)
Exactly. An excellent argument to that effect was inadvertently made by Mr. Valenti himself when he called DeCSS a "digital crowbar". Note to Jack: crowbars are legal, and with good reason.
It's too bad... (Score:3, Insightful)
Looks like (Score:3, Interesting)
(more Simpsons references)
Fair use restored, dancing in the streets reported (Score:5, Funny)
Well, that clears DeCSS up, then!
If only it were that simple, eh?
TWW
Re:Fair use restored, dancing in the streets repor (Score:3, Interesting)
Uh, like playing them?! Bare in mind that the objective of CSS on DVDs is to prevent use of a player that hasn't paid the cartel's fee; copying a DVD neither needs nor in practice uses DeCSS, it uses bit-for-bit copying machines and programs.
Just like region encoding, CSS was developed for the price-fixing activities of the MPAA cartel, not for fighting piracy, against which is of no value whatsoever.
TWW
Although it sounds good there is a catch (Score:3, Insightful)
Five months in the hole is a win? (Score:4, Insightful)
How can the judge instruct this way? (Score:4, Interesting)
i don't read the word "wilfull" in the DMCA, so i have no idea of how this case could have come out this way.
The DMCA was written to prevent ALL forms of copyright breaking devices (with the well known supposed caveats of research, etc.) This judge's jury instructions seem to fly in the face of the DMCA's whole point... that any device which circumvents copyright protection is illegal.
This judge has effectively rewritten the law from the bench... the law now reads - providing this is what he actually instructed the jury to do..
"Any device which circumvents copyright protections for the use of w4r3z d00dz and pirates (arrgh, me maties) is illegal, but if its not intended to do that and only perform those acts which constitute normal fair use, then it is okay, and you are not criminally liable of any offense."
i'm sorry.. but what the fsck?
(scum sucking hellbound) Lawyers, please help us to understand this...
i'm not arguing with the judge's decision.. i'm questioning his legal position.. please don't get me wrong
Re:How can the judge instruct this way? (Score:3, Informative)
As a criminal prosecution, the court needed to focus not only on 1201, but also on 1204, which states in part):
Sec. 1204. Criminal offenses and penalties
(a) In General. - Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain -
(1) shall be fined not more than $500,000 or imprisoned for not
more than 5 years, or both, for the first offense; and
(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.
That's where willful comes in, straight from the DMCA
why this this is probably a Bad Thing (Score:5, Insightful)
The defense, in turn, argued that ElcomSoft acted responsibly, removing the software from the Web just days after learning of Adobe's concerns. Both Sklyarov and ElcomSoft president Alexander Katalov testified that they did not think their software was illicit and did not intend for it to be used on books that had not been legally purchased. Under cross- examination by the defense, an Adobe engineer acknowledged that his company did not find any illegal eBooks even after hiring two firms to search the Web for unauthorized copies.
Because both the defense and prosecution agreed that ElcomSoft sold software designed to crack copyright protections, the case essentially turned on ElcomSoft's state of mind during the period it was offering the software.
After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law. Merely offering a product that could violate copyrights was not enough to warrant a conviction, the jury instructions said.
Elmsoft knew what they designed the software to do. Duh. The jury was directed though to determine if Elmsoft "willfully" broke the law though. They decided that because Elmsoft stopped offering the software, that it wasn't willfull.
My personal opinion is that this is a Bad Thing, because it validates the DMCA, if anything. At the very least, it doesn't hurt it at all. The instructions were to determine if Elmsoft broke the law - what law? The DMCA. So the DMCA was being raised as a standard to determine willful disregard of - it being law was never questioned. Personally, I think its rather dumb to think that Elmsoft didn't *willfully* do what they did. I don't, however, think it should be against the law (due to fair-use) to do it, but until the law that does indeed exist is questioned, it is still law. If that makes sense.
The world of Common Sense had no victory today. And considering the appeals that will continue, not even Elmsoft gained anything.
MY GOD! A Judge with a CLUE (Score:3, Funny)
If ElcomSoft had been convicted... (Score:3, Interesting)
Guns don't kill software, People do (Score:3, Interesting)
ElcomSoft decision (Score:3, Interesting)
Also since the case is over and they are not guilty, can't ElcomSoft put their product back on the market without any legal problems?
Although this isn't anything close to the Supreme Court making a ruling concerning the DMCA's constitutionality, you can bet that this case will be constantly referred to in future DMCA trials.
Interesting Tactic (Score:3, Insightful)
1. Why was Elcomsoft under US jurisdiction? Do they do business here and thus are subject to US laws? If not, it seems that the US feels it can prosecute any business anywhere in the world for anything we feel violates our laws. It will be interesting to see how US businesses feel about it the first time the tables get turned.
2. This should set good precedent (assuming it survives appeal) for other technolgies that can be used for potentially illegal actions such as P2P. From the article "After much wrangling among attorneys over the definition of the word "willful," the judge told jurors that in order to find the company guilty, they must agree that company representatives knew their actions were illegal and intended to violate the law"
What does Lessig have to do with Elcomsoft? (Score:3, Informative)
interesting statement from the judge (Score:3, Interesting)
This quote is taken from the article linked to by the author of the thread. It is from the Judge in the case and refers to an instruction the jury was given regarding conviction. Does this statement seem like it would set precedent for things like maybe...p2p networks? If you apply this statement to napster or kazaa, all of a sudden things seem to change, don't they...
the jury got it (Score:3, Insightful)
If the case shows anything, it shows that the public see the problem with the DMCA. All the publicity is beginning to make an impact.
Re:Ha! (Score:5, Funny)
In Soviet Russia, "In Soviet Russia" posts get modded down.
Minus One, Redundant (Score:4, Insightful)
Holy Christ, will this question ever stop getting asked? It's come up in every
Hopefully the end of the court case means no one will need to ask it again.