ElcomSoft gets off [LWN.net]

The ElcomSoft trial is over, and the verdict is in: not guilty. In the end, the jury decided that ElcomSoft did not willfully violate the law, and should not be punished. In other words, the court agrees with much of the community that the U.S., last year, violated the rights of an innocent man when it arrested and detained Dmitry Sklyarov.

The outcome of this case is good news for ElcomSoft, but it has little to offer others who face possible DMCA prosecutions. As a low-level jury trial, the ElcomSoft case would have had little precedent value in any case; the judge in this case also went out of his way to ensure that the validity of the DMCA itself was not called into question. The issue of whether or not ElcomSoft's software was illegal was not much discussed; what decided the case was the jury's assessment of whether ElcomSoft knowingly and intentionally violated U.S. law.

So ElcomSoft was acquitted, which is good news for the company. But the DMCA itself remains unchallenged, and companies that might consider distributing a "circumvention device" have seen that the DMCA can lead to expensive criminal trials and arrests, even if they win in the end. The DMCA's chilling effect will thus be undiminished, and, for those who remain unchilled, there will certainly be other criminal DMCA trials in the future.

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ElcomSoft gets off

Posted Dec 19, 2002 5:04 UTC (Thu) by ksmathers (subscriber, #2353) [Link]

You underestimate the importance of the Elcomsoft trial. While the jury
verdict isn't relevant in setting precedent, the instructions of the
Judge regarding what constitutes willful violation of the law is a much
higher hurdle than what the government was arguing for. Willful in this
law now means that the offending party must have been aware of the law,
and have intended to break it. The government was arguing that having
broken the law was sufficient evidence of willful violation.

ElcomSoft gets off

Posted Dec 19, 2002 18:02 UTC (Thu) by emkey (subscriber, #144) [Link]

Maybe I'm a little wet behind the ears, but I don't see this particular portion of the DMCA standing up when it makes it to the supreme court. Its essentially equivalent to congress passing a law saying that anyone who makes a tool that could be used for assult or murder can be put on trial. Thus a company that made baseball bats or hammers, etc. would be in significant danger of incurring substantial legal expenses etc.

A tool is a tool. Any good tool can be put to many different uses. Requiring the tool maker to be lible for a tool users eventual use of their tools has the potential to have a very negative impact across the board.