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Attorneys defending a Russian software company against a criminal indictment Monday tore into the Digital Millennium Copyright Act. Urging federal Judge Ronald Whyte of the Northern District of California to dismiss charges against Moscow-based ElcomSoft, the attorneys argued the indictment was based on fatally flawed sections of the DMCA, which they said blindly protects copyright holders while plowing through due process, fair use and First Amendment protections. Whyte peppered both sides with questions during Monday’s hourlong argument in the much-anticipated challenge to provisions of the law that criminalize the facilitation of copyright infringement. Though Whyte didn’t tip his hand, he seemed at least receptive to ElcomSoft’s arguments that the law violates the First Amendment by making no provision for fair uses of copyrighted material, such as making duplicates for personal use. ElcomSoft markets software that allows users to break encryption on Adobe Systems’ eBooks. “The government’s position means the statute means any tool that circumvents [a copyright], not just any infringing tool,” argued ElcomSoft attorney Joseph Burton. “That’s a perfect example of arbitrary enforcement.” Burton argued that Congress’ intent was to target infringing uses, not circumventing devices used to facilitate fair uses, such as deaf people having an eBook read aloud or transferring a copy of the book from a desktop to a laptop. “If it was construed that way and applied to future situations, the issue at trial would be what the [product] was designed for?” asked Whyte. “Yes,” answered Burton. Prosecutors denied any due-process confusion and called the fair-use arguments a red herring. “The key question is whether the statute applies to any device to be used for illegal purposes. I don’t think it matters what the buyer’s purpose is. The plain language of the statute applies regardless of the intended purpose of the buyer. The seller can never know that,” said Assistant U.S. Attorney Joseph Sullivan. “So even if circumvented for fair use, it’s still a violation?” asked Whyte. “Yes,” Sullivan said. “It’s a blanket prohibition of trafficking a device or marketing a device if its purpose is to circumvent.” Daralyn Durie, a San Francisco-based Keker & Van Nest partner specially appearing on ElcomSoft’s behalf, argued that the exclusion of fair uses violated the First Amendment. “Here they have essentially prevented fair use all together,” Durie told Whyte. “Fair use is compelled by the First Amendment. There is no fair use left when the DMCA is done.” ElcomSoft and its programmer, Dmitry Sklyarov, were indicted under the DMCA in August for trafficking and conspiring to traffic software used to circumvent copyright protections. Sklyarov later reached a deal calling for dismissal of the charges against him in exchange for his agreement to testify against ElcomSoft. During Monday’s argument in United States v. ElcomSoft, 01-20138, Burton also argued that the DMCA was too vague to be enforced because it does not specify that the software must be designed or marketed for an unlawful purpose. Whyte seemed to pick up on that in questioning the government. “A device like ElcomSoft’s — there’s no way you can [lawfully] market it?” he asked. The case, which first made headlines when Sklyarov was arrested in Las Vegas after giving a speech at a technology convention, has since piqued the interest of public interest lawyers and more than 35 law professors, who argue in amici briefs that the DMCA must be struck down. The San Francisco-based Electronic Frontier Foundation also has championed the defense, filing an amicus brief.

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