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The prosecution rested its case Thursday in the first criminal test of the Digital Millennium Copyright Act — and did so without calling its star witness. Russian computer programmer-turned- celebrity Dmitry Sklyarov did not take the stand in the government’s criminal case against his employer ElcomSoft Co. Ltd., despite a plea deal that he would testify for the prosecution. Instead, Assistant U.S. Attorney Scott Frewing, over objections from the defense, showed about an hour of a two-day deposition taped last December where Sklyarov said the software program at the center of the criminal trial could be used for a “bad purpose.” Russian software company ElcomSoft is standing trial for marketing and selling the eBook reader processor that circumvents a security measure designed to protect a copyright. In June 2001, ElcomSoft marketed and sold the eBook processor that decrypts security measures on Adobe’s eBook reader, allowing users to copy, print and alter the text of copyrighted books. It’s the first test of the DMCA’s criminal provisions at trial. Prosecutors initially indicted the company and program author Sklyarov, but later agreed to a diversion deal that dismissed charges against Sklyarov in exchange for his testimony. Sklyarov, who is represented by Keker & Van Nest partner John Keker, still works for ElcomSoft and is also on the defense’s witness list. During the deposition, Sklyarov testified that he worked as a contractor for ElcomSoft for $2,000 a month and first suggested to his boss that he could create a product that disabled security encryptions on Adobe’s eBook reader. From the program’s inception, Sklyarov said he knew it could cause problems. “It’s quite clear this program can be used for a bad purpose,” Sklyarov said through a translator. “I was understanding this even prior to beginning work on this.” Sklyarov said that stripping security features off an eBook allowed the text to be copied. “After obtaining copies, somebody who wishes to harm can spread these copies. That’s the negative effect,” Sklyarov said in the deposition. “Who would that harm?” Frewing asked on the tape. Sklyarov answered, “The owners and those who hold the rights of the documents.” Under questioning, Sklylarov agreed that the sole function of the eBook processor was to circumvent security, but then said its purpose was twofold. “It was developed not only for the purpose to profit but to show the weaknesses of the protections of the PDF format,” Sklyarov said. ElcomSoft attorney Joseph Burton objected to the use of the deposition, because Sklyarov was in San Jose and able to testify. However, U.S. District Court Judge Ronald Whyte said prosecutors could show the deposition, agreeing that it was an “admission by a party opponent.” The defense reserved the right to show additional portions of the deposition after it launched its side of the case on Monday. Burton also moved to have the one count of conspiracy dismissed, arguing that the prosecution did not prove that any party outside of ElcomSoft took part. Whyte said he would consider the motion. During the past two days, the prosecution has called nearly 20 witnesses, including FBI agents who explained how they went undercover to a Las Vegas hacker convention and spoke to Sklyarov in July 2001 where he was giving a presentation on his software — and where he was later arrested. During opening statements, defense attorney Burton characterized what transpired between Adobe and ElcomSoft as a business dispute in an area of emerging technology and said that only 25 copies of the software were sold for a period of 10 days. Burton said an Adobe executive has testified that there is no evidence that Elcomsoft’s software ever led to copyright infringement. Burton seemed to be trying to create the impression that ElcomSoft executives did not know about the Digital Millennium Copyright Act, pointing out that a letter Adobe sent to ElcomSoft did not list the statute or the offense, but rather listed contributory copyright infringement. This distinction could be crucial when Judge Whyte completes jury instructions that will define “willful.” Under the DMCA, Elcomsoft’s conduct must be willful.

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