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Jurors who will determine the outcome of the first criminal trial of the Digital Millennium Copyright Act were left with just one question Thursday: Did Russian software maker ElcomSoft knowingly violate American law when it sold a tool that cracked electronic book encryption? A federal prosecutor and defense attorney agreed during closing arguments that the government had proven three-fourths of its case: ElcomSoft’s advanced eBook processor program’s sole purpose was to decrypt Adobe’s eBooks, posing an “economic threat” to publishers. ElcomSoft marketed and sold 25 copies of the product during 10 days in the summer of 2001, and it did so to make a profit. But the outcome of the case may swing on one jury instruction defining “willfully” that U.S. District Judge Ronald Whyte and attorneys were still tinkering with less than a day before it was read to the jury. The defense appears to have won a big victory as Whyte defined willfully as acting “with knowledge that one’s conduct is unlawful and with the intent to do something the law forbids.” The nearly page-long instruction says a good-faith misunderstanding negates willfulness, but a good-faith disagreement with the law doesn’t. “The question is what did the person honestly believe,” Whyte explained as he read the instruction to jurors. While ElcomSoft’s customers could put the program to fair use, the jury instruction explains, “that does not apply unless ElcomSoft erroneously believed that it was not violating the law by providing it for those purposes.” Defense attorney Joseph Burton argued that while ElcomSoft’s executives knew their software could be used to pirate copyrighted material, the government never proved beyond a reasonable doubt that ElcomSoft knew simply selling the tool to do it was illegal. “It’s not what ElcomSoft did. It’s what they thought, believed and knew,” said Burton, comparing ElcomSoft’s program to a master key that could have both good and illegal uses. The Russian company is charged with five counts of marketing and selling a product that circumvents electronic protections of copyrighted works and of conspiracy in U.S. v. ElcomSoft Co. Ltd., 20138. No one faces jail time, but the Russian company could be fined more than $2 million. Burton argued that if ElcomSoft knew its product was criminal, his client’s behavior of selling the product on the Web, sending out e-mail to ElcomSoft customers — including U.S. law enforcement — and coming to Las Vegas to give a seminar on the product would have been stupidity. “Talk about brazen; talk about stupid,” said Burton, a partner in Duane Morris’ San Francisco office. Burton instead characterized it as a “business dispute between a large company that was threatened by a development of a small company. It’s a dispute, not a crime.” He argued that ElcomSoft believed they could sell the program so its customers could make fair use of copyrighted work. But Assistant U.S. Attorney Scott Frewing said e-mail, actions and later testimony from company executives showed that ElcomSoft knew it was flouting American law. ElcomSoft’s managing director testified that he had read the DMCA nearly a year before the offenses, and the programmer who wrote the program, Dmitry Sklyarov, testified he adhered to Russian law and was not concerned about breaking American law. “Perhaps what is most telling of ElcomSoft’s knowledge of the law was their desire to use it to protect themselves,” Frewing said. “‘Protections successfully removed.’ That’s what the advanced eBook processor said when it completed decrypting or removing all the protections from Adobe’s eBooks.” The four-woman, eight-man jury left at 3 p.m. Thursday and will continue deliberations today.

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