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Clearing the way for a criminal prosecution under the controversial Digital Millennium Copyright Act, a federal judge in San Jose, Calif., on Wednesday denied a motion to dismiss the case against Russian technology company ElcomSoft Co. U.S. District Judge Ronald Whyte agreed with prosecutors that the DMCA bans all tools that circumvent technological protections, regardless of whether the tools are used to infringe copyrights or enable constitutionally protected fair uses. Whyte also ruled that the DMCA is neither too vague under the Fifth Amendment nor too restrictive under the First Amendment. Defense attorneys had argued that the DMCA was too vague under the Fifth Amendment because it did not clearly spell out the conduct it prohibits. “This language is not difficult to decipher and is all encompassing: It includes any tool, no matter its form, that is primarily designed or produced to circumvent technological protection,” Whyte wrote. “There is no ambiguity in what tools are allowed and what tools are prohibited because the statute bans trafficking in or the marketing of all circumvention devices,” Whyte added. Moscow-based ElcomSoft and programmer Dmitry Sklyarov were indicted in August 2001 for marketing software that strips away protections built into Adobe’s eBook Reader, allowing readers to copy, print and electronically distribute electronic books. Prosecutors later agreed to dismiss Sklyarov so long as he provides testimony in the case. The case has been touted as one of the first tests of the DMCA’s criminal provisions. Lawyers for ElcomSoft and Sklyarov have been joined by various amicus groups in trying to use the San Jose case to strike down portions of the federal statute. “He obviously worked hard and dealt very seriously with the arguments,” said Keker & Van Nest partner John Keker of San Francisco, who represented Sklyarov and filed a brief in the ElcomSoft case urging Whyte to dismiss the case on First Amendment grounds. “We look forward to making them again in other courts if necessary.” ElcomSoft’s lawyer, Joseph Burton of the San Francisco office of Duane Morris, was not in the office Wednesday and did not return calls. Assistant U.S. Attorney Scott Frewing, who argued for the government, declined to comment. While taking issue with the prosecution’s arguments that computer code is not speech and the DMCA does not implicate the First Amendment, Whyte said in U.S. v. ElcomSoft, 01-20138, that the law’s restrictions on speech were content neutral. For that reason, he ruled, the law isn’t subject to strict scrutiny, and he found it passed intermediate scrutiny because it “does not burden substantially more speech than is necessary to achieve the government’s asserted goals of promoting electronic commerce, protecting copyrights, and preventing electronic privacy.” Robin Gross, a staff attorney with the Electronic Frontier Foundation, which filed a brief backing ElcomSoft, said Whyte gave “short-shrift” to the First Amendment arguments about computer code. “Really the appropriate level of scrutiny should have been a strict scrutiny,” said Gross. Whyte also rejected the defense argument that the DMCA allows companies like Adobe to prevent fair uses of copyrighted material. The security technology on Adobe’s eBook Readers doesn’t allow users to transfer, print or copy works. “Although certain fair uses may become more difficult, no fair use has been prohibited,” Whyte wrote, adding that users can still compare, criticize and quote from the work but just must rely on “old-fashioned” ways of doing so — such as retyping rather than transferring files or cutting and pasting. “Defendants have cited no authority which guarantees a fair user the right to the most technologically convenient way to engage in fair use,” Whyte concluded.

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