ElcomSoft's DMCA Day in Court Delayed Two Months
Russian company's criminal trial pushed back from August 26 to October 21

20 August 2002

By Kurt Foss, Planet PDF Editor

More than a year since its introduction to the U.S. judicial system began, Russian software company ElcomSoft Ltd. had a firm date -- August 26 -- scheduled to begin its defense against criminal charges of violating the Digital Millennium Copyright Act (DMCA). The allegations stem from the company's development and sales of a software product, Advanced eBook Processor (AEBPR), that enabled the decryption of Adobe PDF-based eBooks. At the urging of Adobe Systems, the FBI arrested ElcomSoft programmer Dmitry Sklyarov on July 16, 2001 while he was attending an industry conference in Las Vegas. (Charges against Sklyarov were later dropped in exchange for his testimony in the case, but the Moscow-based company still faces a criminal indictment.)

If you're thinking of trying to get a seat to observe some of the U.S. District Court of Northern California proceedings, don't get in line just yet. The trial has been moved back to October 21, apparently due to scheduling problems for Judge Ronald Whyte.

In May 2002, Whyte ruled against three motions to dismiss the case submitted by ElcomSoft's legal team led by Jospeh Burton, denying defense requests to have the charges dropped. ElcomSoft had argued that the DMCA is vague, overly broad and had been misapplied in this case (challenging the law's jurisdiction). In his final ruling before setting the tentative August 26 trial date for the first criminal prosecution involving the DMCA, Whyte refuted the various defense challenges. In a 35-page opinion, the judge wrote:

"Congress was concerned with promoting electronic commerce while protecting the rights of copyright owners, particularly in the digital age where near-exact copies of protected works can be made at virtually no cost and distributed instantaneously on a worldwide basis."

Whyte is no stranger to technology-based legal disputes, not surprising given his court is based in Silicon Valley. In fact, he was the presiding judge in another significant case and ruling involving Adobe Systems and copyright. In 1998, Whyte ruled in favor of Adobe in a case it brought against Southern Software, Inc. for infringement of copyrights on some of its fonts. Whyte ruled that Adobe's Utopia font software program is protected by copyright, a decision hailed by many in the commercial font community.

While Adobe is not a party in the ElcomSoft case, the copyright protection scheme integrated into its eBook technology seems likely to be the focus of much courtroom discussion. Within the past month, ElcomSoft has posted three public reports citing alleged vulnerabilities and flaws in various components of Adobe's commercial eBook solution. While most news accounts of the vulnerability reports have suggested ElcomSoft's actions are driven by revenge and are likely related to its upcoming trial, a company executive recently denied such suggestions.

When asked about the obvious coincidence, Vladimir Katalov told Planet PDF that "there is no relationship between these reports and legal actions against Dmitry Sklyarov or our company." As to why at least some of the reports were publicized without Adobe having been informed first, Katalov said "We still don't know a reliable method of reporting the problems to Adobe," suggesting ElcomSoft received no responses on earlier bug reports it claims to have submitted to Adobe.

"We should not wait till the bugs and vulnerabilities will turn into working -- and dangerous -- exploits," he said, "and unsecure software will be installed on million systems worldwide."

Katalov challenged a comment made earlier this summer by Adobe's James Alexander, Director of eBooks, in recent testimony to a U.S. House of Representatives Subcommittee on Courts, The Internet, and Intellectual Property. In his "Digital Rights Management in Electronic Books: Preventing Piracy While Preserving Consumer Use Rights" presentation, Alexander said that "Adobe has been able to quickly update its eBooks security also shows off the DMCA's flexibility in allowing private industry to change DRM technologies as frequently as necessary in order to stay one step ahead of pirates."

"Unfortunately, it is not true," said Katalov. "During more than a year after release of AEBPR, Adobe eBook Reader has NOT been improved (from the point of security) -- they have just implemented a few simple tricks to prevent old version of AEBPR from working, but the core algorithms (and so security holes) are exactly the same as before."

Whether ElcomSoft wins a public war of words on the issue, however, is relatively insignificant at this point. If the current trial schedule holds, the Moscow-based company will have a much more important chance to explain its position when and where it counts: Beginning October 21 before District Court Judge Ronald Whyte.


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