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[P]
Elcomsoft Acquitted, Sklyarov's Legal Burden Lifted

By HidingMyName in Technology
Thu Dec 19, 2002 at 05:21:00 AM EST
Tags: Freedom (all tags)
Freedom

In the U.S., the controversial Digital Millenium Copyright Act (DMCA) was promoted by the entertainment industry and content providers. The DMCA is designed to prevent people from circumventing copy protection schemes. So far, there have been two major prosecutions under the DMCA: Princeton Researcher Ed Felten which was dropped and Dmitry Sklyarov and Elcomsoft. Sklyarov was subject to a very public arrest for violating the DMCA shortly after he gave a scholarly discussion of vulnerabilities in Adobe's e-book software at DEFCON on July, 18, 2001, and upset some reputable crpytography and security researchers. Sklyarov and Elcomsoft were found not guilty yesterday (December 17, 2002).


Dmitry Sklyarov is a young researcher and employee at Elcomsoft, a Russian Software house. The Adobe e-book reader is a tool which supports e-book copy protection directives that publishers can issue, and attempts to prevent users from taking restricted e-books from e-book readers and printing them or viewing them on another machine. Sklyarov developed (for Elcomsoft) the Advanced e-book processor (AEBPR) software package, which allows owners of e-books to make backups or remove the copy protection and move the works to another device. It appears that Russian fair use laws state that the owner of a work has the right to transfer it to other media (for their own use), and that it is illegal to sell works that are copy protected. The DMCA, which was passed by congress at the urging of the entertainment industry and "content providers" in 1998, did not encounter sufficient organized resistance to prevent its passage. Among other things, the DMCA prevents disclosure of techniques for circumventing computer security systems, and in particular digital rights management tools.

The saga of the entire case is too long to present here, however, there are some important aspects, including:

  1. Sklyarov spent time in jail before bail could be arranged, and was detained in the U.S. until December in 2001 when a deal was made to drop the charges against Sklyarov in exchange for a promise to testify at the trial involving his employer, Elcomsoft.
  2. Sklyarov's employer, Elcomsoft, and Vladimir Katalov seem to have been supportive of Sklyarov. Unfortunately, these protracted legal proceedings have cost Elcomsoft (and presumably Sklyarov) substantial money and time.
  3. Adobe brought Elcomsoft to the government's attention, and instigated the arrest. However, there was a strong backlash in the research community to the arrest, and Adobe tried to wash its hands of the whole mess, and refused to accept responsibility for their actions and did not aid in the expensive and difficult defense of Sklyarov and Elcomsoft.
  4. The Immigration and naturalization service denied Sklyarov a visa, and prevented him from reentering the country for his original court date, causing a postponement of the trial
  5. Elcomsoft was found not guilty by the jury, however the DMCA was not subject to a constitutional challenge, and so the DMCA remains on the books, as the precedent set is not general. Interestingly, the foreman of the Jury seemed to understand the idea of fair-use, and could not fathom why Adobe's copy protection should enjoy legal protection.

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Poll
What should should be done to protect content providers?
o Discourage so many middlemen, the artists are the real providers. 48%
o Impose legal restrictions, punishing copyright violators. 5%
o Rethink what fair-use means in light of current technology. 19%
o Seek technical restrictions on content use (via digital rights management). 1%
o Some other approach. 1%
o There is no problem, so no action is needed. 24%

Votes: 89
Results | Other Polls

Related Links
o Digital Millenium Copyright Act (DMCA)
o Princeton Researcher Ed Felten
o Dmitry Sklyarov and Elcomsoft
o reputable crpytography and security researchers
o Elcomsoft
o Advanced e-book processor (AEBPR)
o Russian fair use laws state that the owner of a work has the right to transfer it to other media
o did not encounter sufficient organized resistance
o U.S. until December in 2001
o Adobe brought Elcomsoft to the government's attention
o refused to accept responsibility for their actions and did not aid in the expensive and difficult defense of Sklyarov and Elcomsoft
o denied Sklyarov a visa
o Interestingly, the foreman of the Jury seemed to understand the idea of fair-use
o Also by HidingMyName


Display: Sort:
Elcomsoft Acquitted, Sklyarov's Legal Burden Lifted | 65 comments (44 topical, 21 editorial, 1 hidden)
positive hope (4.50 / 4) (#5)
by influx on Wed Dec 18, 2002 at 08:51:49 PM EST

Even though the case was tried in tech-heavy San Jose, you have to give credit to the jurors for comments like this:

``Under the eBook formats, you have no rights at all, and the jury had trouble with that concept.''

This shows that the American system of checks and balanaces can and does work. Even though the prosecutors say this won't set a precident, I think it will. If the evil Russian commie hacker trying to defraud the good ole apple pie American Adobe can be found not guilty, prosecutors are going to look twice at future cases.

Of course, there still needs to be a push to overturn the law completely, but this is a great step in the right direction.

---
The more you know, the less you understand.

Agreed, the Jury process limited the injustice (4.66 / 3) (#19)
by HidingMyName on Wed Dec 18, 2002 at 11:47:39 PM EST

However, Elcomsoft and Sklyarov have sufferred a major inconvenience and expense without compensation. This is not a Strategic Lawsuits Against Public Participation(SLAPP), but a criminal action. Note that the instigator, Adobe, expended none of its own resources, the prosecutorial costs were borne by the tax payers, and the criminal charges had more potential to devastate the lives of the defendants than a civil suit. Thus, the DMCA is in some ways more frightening than a SLAPP.

[ Parent ]
True (4.50 / 4) (#23)
by 90X Double Side on Thu Dec 19, 2002 at 01:34:47 AM EST

I wonder if the companies aren't counting on bringing criminal cases against people as a scare tactic, then dropping their support to keep clear of any backlash, and to make sure a DCMA case isn't appealed and brought to constitutional scrutiny. They may feel the DCMA is more powerful unenforced than tested.

“Reality is just a convenient measure of complexity”
—Alvy Ray Smith
[ Parent ]
If the Govt. Takes Over, support is a moot point (5.00 / 1) (#32)
by HidingMyName on Thu Dec 19, 2002 at 09:14:10 AM EST

I wonder if the companies aren't counting on bringing criminal cases against people as a scare tactic, then dropping their support to keep clear of any backlash, and to make sure a DCMA case isn't appealed and brought to constitutional scrutiny. They may feel the DCMA is more powerful unenforced than tested.
It is hard to say. Jurisdiction can matter, some jurisdictions (e.g. Virginia) seem to favor Govt. convictions more strongly than others. Consider the following fictional scenario: suppose I call the SEC and IRS and say that one of the chairmen of company XYZ and their eomployee seemed to violate insider trading and tax laws. Then the govt. steps in, arrests them at a share holders meeeting and investigates them for months before deciding they are not guilty. If there is a major scandal, and everyone knows that I reported them, can I just say "I only brought the facts to the govts. attention, it was their decision to prosecute. I'm in no way responsible for the inconvenience"? Is there recourse under U.S. or Russian law? I don't know (I am pretty far from being a lawyer).

On a side note, Adobe's position is (nearly) unique, in that it is really hard to get by without using Adobe software or prodcuts derived from Adobe's work. Postscript for printing and PDF are nearly ineescapable.If you want to preview/share printed materials you'll be forced to use Adobe formats for quite some time.

[ Parent ]

Malicious prosection and slander (5.00 / 1) (#43)
by Pikachu with an Axe in his Head on Thu Dec 19, 2002 at 02:50:39 PM EST

(unless the "facts" really are the facts, in which case you're just doing your duty as a citizen.)

[ Parent ]
Facts that Aren't Facts (5.00 / 1) (#49)
by Matrix on Thu Dec 19, 2002 at 07:22:57 PM EST

Okay, so bringing a suit against an individual without cause is grounds for a "malicious persecution and slander" suit. So why can't Elcomsoft file one against Adobe? Adobe said "these guys are violating the DMCA!", Sklyarov got ambushed at the airport and thrown in jail for months, then Adobe's instigation quietly got dropped from the media and Elcomsoft was found innocent. So do they have any recourse at all here?

Or is this one of those cases where corporations aren't legally people after all?


Matrix
"...Pulling together is the aim of despotism and tyranny. Free men pull in all kinds of directions. It's the only way to make progress."
- Lord Vetinari, pg 312 of the Truth, a Discworld novel by Terry Pratchett
[ Parent ]

Facts and facts (5.00 / 2) (#52)
by Pikachu with an Axe in his Head on Thu Dec 19, 2002 at 08:25:17 PM EST

So why can't Elcomsoft file one against Adobe?

They can. They're unlikely to win, though, since Adobe can assert that they genuinely hoped to win and probably be believed. In fact, I think Adobe genuinely hoped to win.



[ Parent ]
Jury Nullification might Make Counter Suits Hard (5.00 / 2) (#54)
by HidingMyName on Thu Dec 19, 2002 at 09:37:50 PM EST

Again I'm not a lawyer, however, perhaps my contrived example had some weaknesses. Jury Nullification is defined by Randall Kennedy as:
Jury nullification occurs when guilt is established but the jury decides to acquit on its own sense of fairness, propriety, prejudice, or any other sentiment or concern.
and there are various levels of nullification. Malicious Prosecution is defined by lectlaw as:
MALICIOUS PROSECUTION - An intentional tort arising from the institution or instigation of unjustifiable and unreasonable civil or criminal litigation. An action for malicious prosecution can be brought against the underlying case's plaintiff, plaintiff's counsel and/or advisors.

So it might not be "malicious" in the sense that the evidence indicated that the law was actually violated. However, trying to enforce a law deemed unjust is a pretty nasty thing to do. I don't know if a countersuit under Russian law is an option.

One other thing to realize is that large companies tend to do well in courts all over the world (but especially in the U.S.) since they have a lot of resources to bully smaller adversaries with lots of procedural stuff and force them to give up on positions that the little guy might win otherwise.

[ Parent ]

A lot more story here (4.33 / 3) (#21)
by rusty on Thu Dec 19, 2002 at 12:34:42 AM EST

There's a lot more to this story, including the fact (as yet little noticed) that the jury's acquittal was contrary to the terms of the law and amounts to, in the words of Don Marti, a "giant glowing neon Jury Nullification of the anticircumvention provisions of the DMCA." See the rest of that LE thread for some other interesting points.

Nevertheless, this story sums up the basic facts of the case and includes a lot of useful links, which is good. I would really like to see a legal analysis of the decision, if we've got any lawyer types around who feel up to it. This verdict is a pretty big deal.

____
Not the real rusty

I don't know about that (5.00 / 1) (#22)
by ogre on Thu Dec 19, 2002 at 01:32:26 AM EST

I read the relevant portions of the law and they seem pretty clear about intent: you are only guilty of breaking the law if you sell a product that is intended to violate the rights of the copyright holder. The jury might have decided that the purpose of the product was to enable fair use, not to violate the copyright holder's rights. In any case, since jurys don't write decisions we will never know.

Everybody relax, I'm here.
[ Parent ]

Fair use was apparently the issue (4.00 / 3) (#24)
by rusty on Thu Dec 19, 2002 at 03:27:07 AM EST

The way I understand what happened (and IAObviouslyNAL) is that "intent" ended up being the out for the jury. The prosecution is desperately spinning that into being the entire scope of the decision, but comments by jurors indicate that fair use was the real reason for the decision. In other words, the jurors basically couldn't understand how a product which was clearly designed to enable (legally mandatory!) fair use of copyrighted materials could possibly be illegal.

The "intent" issue is probably going to be fiercely argued for a while, and that very fact points out how horribly flawed the law is to begin with. It has basically stuck juries with making thoughtcrime decisions: is the same product legal if it's called "FairUseBlaster2003" and costs $500.00, and illegal if it's called "CopyrightViolater2003" and released GPL? How can you determine the illegality of a product based on the mental processes of its creators? It would appear that the Elcomsoft jury hit this particular wall, and decided that fair use was fair use.

____
Not the real rusty
[ Parent ]

FairUseBlaster2003 (5.00 / 1) (#27)
by wiredog on Thu Dec 19, 2002 at 07:14:43 AM EST

Is that based on the Abooey RecipieBlaster2003™?

The greatest contribution of the internet to society is that it makes it possible for anyone of any age to become a grumpy old fart.
Parent ]
No (5.00 / 1) (#31)
by rusty on Thu Dec 19, 2002 at 08:44:49 AM EST

And if it were, it would be strictly in keeping wth existing fair code re-use provisions of US copyright law.

____
Not the real rusty
[ Parent ]
An Interesting Interpretation (4.00 / 1) (#33)
by HidingMyName on Thu Dec 19, 2002 at 09:36:40 AM EST

However, Law is not my field, so I tend to defer to experts in that area. I was hoping Lawrence Lessig would have an opinion up by now, however, his page does point to Dan Gillmor's Article. Is Don Marti a lawyer? Do copyright and intellectual property lawyers agree with his assessment?

[ Parent ]
Don Marti (4.00 / 1) (#45)
by rusty on Thu Dec 19, 2002 at 03:11:12 PM EST

Don is not a lawyer, and is sometimes (oh who am I kidding, all the time) an outspoken loudmouth. Nevertheless, he does very much know his shit in this field, and I trust his opinions to be, if not legally trained, at least highly informed and credible. The man does not, to my knowlege, ever get into an argument without having his ducks arranged in the manner of a Hoplite phalanx.

I would love to see Lessig's view of this as well. Gotta see if we can nudge him into writing something up about it.

____
Not the real rusty
[ Parent ]

Gillmor Article Speculates on Jury Nullification (4.00 / 1) (#47)
by HidingMyName on Thu Dec 19, 2002 at 05:11:30 PM EST

While I can't necessarily say what Lessig believes, he did point to an article by Dan Gillmor (for the San Jose Mercury, one of the best tech newspapers out there). Perhaps he respects Gillmor's opinion in the piece, and while not so strongly worded as Don Marti, Gillmor writes:
I find myself wondering if the jury did a little of what legal folks call ``nullification'' -- refusing to convict a defendant when the law itself is a bad one or a conviction feels unjust. Various press reports Tuesday afternoon said the jury just didn't feel the government had proved intentional law breaking.
Still, there may be room for interpretation here, and the more authoritative voices might have a better sense of the prevailing direction.

[ Parent ]
For those who don't like jury nullification (4.00 / 1) (#38)
by Quila on Thu Dec 19, 2002 at 10:43:11 AM EST

Please look at what positive outcome we can expect if juries across the U.S. are informed of their right to jury nullification.

I'm just amazed that a jury that understands the concepts of fair use and jury nullification got past the selection process.

[ Parent ]

Jury Nullification is a Dangerous Remedy (none / 0) (#61)
by HidingMyName on Fri Dec 20, 2002 at 11:41:31 AM EST

Not all nullifications happen for appropriate, it has the potential to be abused (e.g. the Emmet Till case, also described in Bob Dylan's song "The Death of Emmet Till"). Also, it is not always clear that nullification is what happened, because the jury just gives a verdict and does not publish an opinion like a judge might.

[ Parent ]
Good and bad aspects (none / 0) (#65)
by Quila on Mon Dec 30, 2002 at 03:54:43 AM EST

Yes, nullification has been used for bad things in the past, especially the KKK South.  But as a last stand against government tyranny, I'll take the bad with the greater good.

This isn't a certain case of nullification, but from the comments of the jurors, it looks like it.  They said how they didn't like this law interfering with fair use.

[ Parent ]

It's not nullification. (4.00 / 1) (#59)
by haflinger on Fri Dec 20, 2002 at 10:27:24 AM EST

They've basically decided, apparently, that Elcomsoft did not possess the mens rea required to support a criminal conviction. That's a proper area for the jury to decide; they're supposed to make decisions on the facts in the case.

What the Mercury article suggests is that the jury didn't think Elcomsoft purposely set out to undermine US copyright law. That's the high standard required for a criminal conviction by the DMCA. Don Marti is just blowing steam.

Did people from the future send George Carlin back in time to save rusty and K5? - leviramsey
[ Parent ]

DMCA faced Constitutional here earlier - it won (4.50 / 4) (#25)
by Seth Finkelstein on Thu Dec 19, 2002 at 03:55:06 AM EST

There was a Constitutional challenge to the law in this case in the early proceedings. That challenge was denied, the DMCA was ruled by the judge to be Constitutional.

See the

"Order Denying Defendant's Motions To Dismiss The Indictment On Constitutional Grounds"


-- Seth Finkelstein

Pretty standard (5.00 / 1) (#36)
by Quila on Thu Dec 19, 2002 at 10:38:18 AM EST

Judges at the trial court level are usually not the types to start declaring laws unconstitutional.  That happens higher up the chain.

Had Elcomsoft been convicted, the appeal would be a good place to have the DMCA overturned.

[ Parent ]

But you have to file with the trial court. (5.00 / 1) (#60)
by haflinger on Fri Dec 20, 2002 at 10:34:25 AM EST

Normally, procedurally, you can only appeal decisions that the trial court actually made. So you file your constitutional protest with the trial court, it gets turned down; then the appellate counsel has a ruling to appeal against.

Did people from the future send George Carlin back in time to save rusty and K5? - leviramsey
[ Parent ]
A formality (none / 0) (#64)
by Quila on Mon Dec 30, 2002 at 03:52:03 AM EST

But it's a fun game, isn't it?

[ Parent ]
Thanks, that was a good point (none / 0) (#62)
by HidingMyName on Fri Dec 20, 2002 at 03:39:45 PM EST

Sorry for the delay in acknowledging the contribution. Thanks for providing that information.

[ Parent ]
Counter arguments (4.00 / 2) (#28)
by squigly on Thu Dec 19, 2002 at 08:07:49 AM EST

A quick "news.google.com"  search didn't really give me a lot of articles that were actively critical of this decision.  Many seemed to be fairly balanced, and the rest were biased in favour of Elcomsoft.  All I did find was this opinion piece:

http://www.worldtechtribune.com/worldtechtribune/asparticles/buzz/bz12182002.asp

Seems fairly pro-DMCA, but even this didn't have a lot to say, apart from pointing out that this can only be used to copy works sold my major publishers - i.e. only major publishers will use the protected e-book format.  

Debunking this is left as an excercise for the reader.  But I'd like to see more of the arguments from the other side.  Has anyone found any worthwhile links or comments?

He's wrong (4.00 / 1) (#35)
by Quila on Thu Dec 19, 2002 at 10:27:43 AM EST

only major publishers will use the protected e-book format.

At one point my medium sized military organization was looking into these protected PDFs to put tight reigns on the distribution and life span of certain sensitive (but not classified) material within our rather widespread and loose-knit larger organization.

Some of the products looked pretty good, then this thing came along and showed us the security wouldn't have been as good as we thought.  The idea died.

Thank you Sklyarov, I think you helped the security of the U.S. military by pointing out these security flaws.

[ Parent ]

Reads like a troll (5.00 / 1) (#42)
by nosilA on Thu Dec 19, 2002 at 01:45:15 PM EST

I'm really hesitant to believe that this article was actually written by someone who agrees with the Adobe side of this case.  It undermines itself with phrases like, "The EFF, in typical San Francisco anti-American fashion [...]"  This was either written by someone who was pro-Elcomsoft trying to discredit the Adobe side, or it's one of the most poorly-written arguments I've read in a long time.

-Alison
Vote to Abstain!
[ Parent ]

a lot of effort for a troll (5.00 / 1) (#44)
by grib on Thu Dec 19, 2002 at 03:04:30 PM EST

the site seems genuine. The author and editor-in-chief also has lots of cute little rants about why it is unfair for Linux administrators to work from home playing rainbow six, and for kicking him rather than "owe up to the fact that small businesses (and even some larger enterprises) are often being scammed by the myth that Linux is free, fast and secure" after all when I am playing a game I am often delighted to stop playing to justify the minutia of my employment to random strangers. Someone has felt the need to write at length about his own bizarre opinions, and has gone to the trouble to publish this on the Internet, imagine.

[ Parent ]
Many non-technical people don't get it (4.00 / 1) (#46)
by HidingMyName on Thu Dec 19, 2002 at 04:56:22 PM EST

My bet is that it is not just a troll, but that many people don't understand the technical significance of the DMCA and the associated civil liberties issues. This fellow may not have much in the way of technical skills. Furthermore, among conservatives, the San Francisco culture is a highly liberal environment, and is responsible for eroding the values they hold dear. So while I don't agree with this fellow, I'm not suspect that he is not alone in his views.

[ Parent ]
Could be satirical (4.00 / 1) (#53)
by squigly on Thu Dec 19, 2002 at 08:30:13 PM EST

I think you're right.  IHBT.

Looking at the rest of the site, I find it hard to believe that a generally tech savvy site like that would have an attitude so opposed to the stereotype geek attitude.  I'm just not used to such right wing geeks.

Could be serious, or could be playing devils advocate in the opinion columns.  I'm not sure.  I think I could come up with a better argument against Elcomsoft though.  

<TROLL>
Elcomsoft scraped through on a technicality after they were charged with assisting digital piracy. [summary of trial].  

Elcomsoft's software was a hacker tool, that allows protected ebooks to be copied without the copyright holders permission.  

I find it hard to believe that the jury were convinced that this had legitimate uses.  They actually decided that Elcomsoft were not guilty because "they didn't mean to break the law".  Is this going to be the defence for all manufacturers of hacking software?  In a single blow, the San Fransisco Jury has effectively removed any effective legal protection of copyrighted material.  
</TROLL>

Anyway, it seems a stronger argument to me.  

[ Parent ]

Yeesh (none / 0) (#63)
by Dyolf Knip on Sat Dec 21, 2002 at 10:27:49 PM EST

This article basically describes the whole trial as such:

"A bunch of dirty anti-American Russian hackers and some commie Christian-wannabe lawyers at the EFF actually got away with telling a good decent corporation that their product isn't as good as they thought it was. Silly blind people shouldn't be reading books anyhow. And by the way, the Ninth Circuit Court is so liberal and unpatriotic they don't even think murder is wrong."

For some reason, I get the feeling that the author, Scott McCollum, thinks that legal games are fun and entertaining and that anyone in a position of power can do no wrong (which, in a perverse sense, is quite true). Someone ought to throw him in jail for a month for, I dunno, tearing off the tags from his bed matress or putting 87 octane gas in his car when it clearly says it needs 93, and see how much he likes this sort of nonsense then.

---
If you can't learn to do something well, learn to enjoy doing it poorly.

Dyolf Knip
[ Parent ]

A Correction (5.00 / 1) (#29)
by HidingMyName on Thu Dec 19, 2002 at 08:09:10 AM EST

I just noticed point 5 reads:
Sklyarov was found not guilty by the jury ...
It should read: Elcomsoft was found not guilty by the jury ...

Another correction (4.50 / 2) (#34)
by Quila on Thu Dec 19, 2002 at 10:20:46 AM EST

There haven't been two prosecutions, only this one.  The Felton case never got beyond threatening letters, as the RIAA decided not to pursue civil penalties or make a criminal complaint when they realized they could never win a DMCA case against a respected academic.  They need someone they can villainize, like a Russian programmer (you know they're all hackers, right?).

That was sort of a win since the RIAA backed down, but it was a loss because they essentially reserved the right to harass anyone at a later date.  Felton's resulting civil suit to prevent future harassment was thrown out.

Even the 2600 case, which (IIRC) is the only other court action under the DMCA to play out, was a civil suit, not a criminal prosecution.  That one, of course, was pursued to the fullest and won by the DVDCCA (read: MPAA) because it is easy to go after dirty hackers.

What's impressive is that the dirty hackers got off in the Elcomsoft case.  That makes me feel good for the future.

The other current DMCA abuse that looks to be a big win is the case of FatWallet vs. Wal-Mart et. al.  FatWallet is going on the offensive against the companies that used the DMCA to try to force sales information off the Web, preparing to sue and collect damages under the DMCA for false claim of copyright and maybe even perjury in Wal-Mart's case.

[ Parent ]

Challenges (4.00 / 1) (#40)
by squigly on Thu Dec 19, 2002 at 10:48:16 AM EST

The Felton thing may have done some good.  I'm not quite sure how motions to dismiss are affected by precedent, but I guess it could allow a later similar threat to be dismissed on the same grounds that this one was.

The Fatwallet one should establish that a list of prices is not copyrightable, but that may be all it does.

[ Parent ]

Felton & FatWallet (5.00 / 2) (#56)
by Quila on Fri Dec 20, 2002 at 03:31:24 AM EST

Felton never got to a motion to dismiss.  The DVDCCA threatened him, causing him to pull his paper.  The later furiously backpedaled and denied they ever made a threat.  Felton sued to get a finding to make sure this would never happen again.  The DVDCCA convinced the judge to throw it out because DVDCCA had promised not to go after him, so there's no case.

Felton just should have presented his paper and invited them to go after him.

Too often so far, someone exercises his free speech rights on the net, a company writes a letter, and the little guy panics and takes down the information for fear of getting buried under litigation.  I've only heard of one other successful challenge (funny, too) to a take-down notice, but damages weren't pursued as it wasn't under the DMCA anyway.

FatWallet is important, since it may serve as a disincentive for companies to abuse the DMCA by throwing around take-down orders without making damn sure they are in the right.  

[ Parent ]

We need a successful DMCA challenge (4.00 / 1) (#57)
by squigly on Fri Dec 20, 2002 at 04:50:29 AM EST

Felton never got to a motion to dismiss.

Yes, I know.

Felton sued to get a finding to make sure this would never happen again.  The DVDCCA convinced the judge to throw it out because DVDCCA had promised not to go after him,

That's the one I was talking about (although I thought it was the SDMI/RIAA).  Since the case was thrown out here, can this be used to show that the RIAA have agreed that this sort of thing is not an infringement.  

Hmmm...  Reading that back, my logic appears a little confused.

FatWallet is important, since it may serve as a disincentive for companies to abuse the DMCA by throwing around take-down orders without making damn sure they are in the right.

Certainly.  This is probably the best weapon against the "safe harbor" provisions of the DMCA.     Fatwallet is clearly a consumer friendly site which will hep a lot in the media.  Just about nobody believes that copyright prevents others from publishing a price list, and we've seen this week that juries can understand fair use.  

Hopefully the succesful use of this law to delay legitimate speech will not go down well.

[ Parent ]

Sorry, mixing the suing parties (3.00 / 1) (#58)
by Quila on Fri Dec 20, 2002 at 05:15:10 AM EST

MPAA, RIAA, DVD/CCA, I mix the names of the bad guys sometimes.

[ Parent ]
Felton screwed up (4.00 / 1) (#50)
by kcbrown on Thu Dec 19, 2002 at 07:36:28 PM EST

Felton's resulting civil suit to prevent future harassment was thrown out.
Yes, it was. It was thrown out because, like a moron, Felten decided to present his SDMI findings to the rest of the world at Usenix despite the fact that it was not clear whether or not he would be sued under the DMCA for doing so. And as a result, when Felten then essentially went to the courts and said "this law violates my Right to Free Speech!", the judge replied "Huh? I don't see any violation of your right to free speech here...".

Felten had received two letters. One said the RIAA would sue under the DMCA. The other said it wouldn't. Which to believe? Instead of letting that doubt persist through the court proceedings, Felten decided to put that question to the test. And lost.

Much better to have let the doubt remain.

I won't be surprised if our side ultimately loses this battle over our Constitutional rights because we seem to be idiots when it comes to matters of law.

On the subject of the article, I'm betting that the only reason Elcomsoft got acquitted is that they pulled their product from the U.S. market. Had it remained on the U.S. market, things might have turned out quite differently, regardless of the fact that the product itself was never written for the purpose of aiding the illegal distribution of eBooks.

[ Parent ]

Correction (5.00 / 3) (#37)
by Merk00 on Thu Dec 19, 2002 at 10:42:20 AM EST

There was never any prosecution of Princeton Researcher Ed Felten. Instead, there was a threat of civil litigation, which is completely different from criminal prosecution, towards Ed Felten if he were to present his paper at a conference. Because of this, Ed Felten sued the DVDCA. He was attempting to get an order banning the DVDCA from using the DMCA against him. At some point, the DVDCA dropped the threat towards Ed Felten.

------
"At FIRST we see a world where science and technology are celebrated, where kids think science is cool and dream of becoming science and technology heroes."
- FIRST Mission

You and Quila both pointed that out. (4.00 / 1) (#39)
by HidingMyName on Thu Dec 19, 2002 at 10:47:40 AM EST

Thanks for the correction, this is a better description of the facts than I posted.

[ Parent ]
Elcomsoft Acquitted, Sklyarov's Legal Burden Lifted | 65 comments (44 topical, 21 editorial, 1 hidden)
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