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With the first criminal trial under the Digital Millennium Copyright Act set to start next week, prosecutors and defense lawyers are sparring over just what the government must prove to convict ElcomSoft Co. Ltd. The Moscow-based software company — whose programmer, Dmitry Sklyarov, became a computer-world cause c�lebr� with his arrest last year — could face more than $2 million in fines if found guilty of distributing software that enables theft of copyrighted works. But the money at stake is nothing compared to the precedent U.S. v. ElcomSoft could set. With Sklyarov’s release in exchange for his testimony at trial, “a lot of public passion has left the case,” said Robin Gross, an intellectual property attorney with the Electronic Frontier Foundation. But, she said, “it’s still a very important case.” With the case set to open Monday before U.S. District Judge Ronald Whyte of the Northern District of California, the lawyers laying the first set of tracks for the new criminal copyright law are clashing over jury instructions, witnesses and evidence. But prosecutors and defense attorneys agree the big question — which Whyte must answer before a juror even steps foot into his San Jose, Calif., courtroom — is whether the government needs to demonstrate that ElcomSoft intended to commit a crime. “The government’s effort to make the case a strict liability offense — that’s the real issue,” said ElcomSoft lawyer Joseph Burton. ElcomSoft and Sklyarov were indicted last year after Adobe Systems Inc. complained to the government about ElcomSoft’s eBook processor, which allows readers to bypass the electronic copyright protections in Adobe’s eBooks Reader so that readers can copy, print and transfer copyrighted works. Under the DMCA, ElcomSoft could face a fine of $500,000 on each of five charges — conspiracy and four counts of trafficking a product designed to circumvent an encrypted security device. ElcomSoft maintains that its software has noninfringing uses — for instance, letting eBook purchasers read the work on a second computer or print it out. So Burton wants to call ElcomSoft customers to testify about how they intended to use the product. He also wants Whyte to instruct the jury that it must find the company’s conduct was “willful,” meaning it knew its software violated the law but distributed it anyway. But Scott Frewing, the Assistant U.S. Attorney prosecuting the case, argues in court papers that “willful” just means “done voluntarily and intentionally, and not through ignorance, mistake or accident.” Frewing, who said he couldn’t comment on the case, also wants Whyte to prevent Burton from calling ElcomSoft’s customers to the stand. Twelve of the 24 witnesses designated by Burton are ElcomSoft customers. But in court papers, Frewing said that when Whyte denied ElcomSoft’s motion to dismiss back in May he already ruled that the customers’ plans for the software aren’t relevant. Frewing quotes Whyte’s conclusion that DMCA “does not distinguish between devices based on the uses to which the device will be put.” Burton, a Duane Morris partner, said that even if Whyte won’t let him call ElcomSoft customers, he’ll still be able to demonstrate that ElcomSoft acted in good faith. “We want those witnesses because we think they are good witnesses, but it won’t kill our case” if they’re excluded, Burton said. “It’s not the only evidence of the lack of willfulness. The government is just trying to take willfulness out of the case.” Whyte’s rulings in the case will be watched closely by lawyers in intellectual property circles, who say the outcome of the trial will have huge implications, both for enforcement of the controversial law and innovation. “There is hope this case will bring about changes to the criminal provisions of the DMCA so it’s much more difficult to prosecute under the act,” said the EFF’s Gross. “The prosecution sees this as a strict liability statute and a strict liability crime. How can this be a strict liability crime if you want to put people in jail? There has to be some intent to harm. That’s one of the constitutional problems of the statute. If it’s strict liability, that creates a lot of Fifth Amendment problems.” But a big wild card in the case is Sklyarov, whose dramatic arrest at a technology conference in Las Vegas last year captured the attention of the technology industry and programmers around the world. Prosecutors agreed to release Sklyarov in exchange for his testimony, but it’s unclear if he’ll be able to return from his home in Moscow to take the stand. And it appears both the prosecution and defense are counting on him; both have designated him as a witness. So far, though, he’s been unable to obtain a visa. His attorney, Daralyn Durie of San Francisco’s Keker & Van Nest, said his first visa application was denied, but he’s applied again. Durie said the government could use his deposition testimony if it can prove Sklyarov was not available. “He still works for the company. I think it’s fair to say he believes the software has legitimate uses,” Durie said. “I guess they both think his testimony will help their side. We will see which one is right when the jury returns a verdict.”

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