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The controversial Digital Millennium Copyright Act faced its first criminal jury Tuesday with a federal prosecutor labeling the software at the center of the trial a “burglar tool” while the defense characterized it as a legitimate program never used to infringe copyrights. Attorneys outlined their cases in opening statements in a San Jose, Calif., courtroom Monday in what is the first trial testing the criminal provisions of the fledging DMCA. Moscow-based software company ElcomSoft Co. Ltd. faces five counts of violating criminal provisions of the law for conspiring, marketing and selling a product that circumvents a security device by unencrypting Adobe Systems Inc.’s eBook reader. No one faces jail time, but the decade-old Russian company that specializes in password recovery software could face more than $2 million in fines if convicted. Also at stake is the future of the DMCA, passed in 1998, which criminalizes what had been civil intellectual property disputes. Success by the Northern District of California in this case may breed similar prosecutions by other U.S. attorneys. Likewise, a high-profile failure could chill further criminal prosecutions under the act. Tuesday, Assistant U.S. Attorney Scott Frewing characterized ElcomSoft’s product, the advanced eBook processor, which strips off security devices allowing users to print, copy or edit electronic books, as a “burglar tool” that company officials knew was illegal but sold anyway to make a profit. Frewing explained how publishers, expanding their business from paper books to electronic books, use Adobe’s software to publish and distribute books via the Internet, but need additional electronic security measures to protect copyrights. “With just the click of a mouse, someone can make one or more copies of a book,” Frewing said. Adobe’s eBook reader prevents copyright infringement by allowing publishers to encrypt electronic products, which prevent copying, transferring or printing eBook files. “The law protects the technology that protects these books,” Frewing said. But defense attorney Joseph Burton of the San Francisco office of Philadelphia’s Duane Morris suggested that what transpired between ElcomSoft and Adobe was not a crime, but a business dispute. “This case, it’s about two companies, a new software industry and a new law,” Burton said. “ElcomSoft never intended to market and produce a program that was illegal in any fashion.” ElcomSoft voluntarily pulled the product 10 days after putting it on the market and five days after receiving a cease-and-desist letter from Adobe, Burton told the jury. At that time, ElcomSoft had sold just 25 copies of its software and collected $2,000 from its sale. “The eBook processor was never used to make illicit, illegal copies of eBooks,” Burton said. Rather, Burton said ElcomSoft allowed legitimate eBook customers to make fair use of their purchase — including making backup copies, transferring it to a different computer or printing it out. But the prosecution outlined how ElcomSoft sent an e-mail in June 2001 advertising the new lock-pick product to its customer base and allowed users to buy a copy for $99. “You’ll hear that the threat of unprotected copies of [publishers'] work on the Internet is a real threat,” Frewing said. Adobe told ElcomSoft its product violated the law, and contacted the American-based Internet service provider hosting ElcomSoft’s Web site. The ISP temporarily shut down ElcomSoft’s site, Frewing said. But Burton described what transpired in June 2001 as a series of knee-jerk reactions by Adobe, leading to the arrest of ElcomSoft’s engineer, Dmitry Sklyarov, at a conference in Las Vegas in July and ElcomSoft’s and Sklyarov’s indictment in August. “Adobe had a horrific reaction to this program,” Burton said. “Adobe believed in good faith that they were dealing with pirates. � Adobe became an accuser and initiated a criminal investigation with the U.S. attorney’s office.” The trial is expected to span two weeks with prosecutors calling Adobe engineers, law enforcement and Sklyarov, the engineer who wrote the ElcomSoft program. Sklyarov reached a deal with the government to testify in exchange that charges against him be dropped. U.S. District Judge Ronald Whyte has yet to determine final jury instructions in the case, which both sides agree could be crucial in the outcome of the case. The language of the DMCA requires that the prosecution prove the defendant’s acts were “willful.” Prosecutors have argued that means knowingly and intentionally, while the defense believes willful means the government must prove that ElcomSoft sold its software “for a bad purpose” and knew it violated the law. The case is U.S. v. ElcomSoft Co. Ltd., 20138

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