Citation Edit

United States v. Elcom Ltd., 203 F.Supp.2d 1111, 62 U.S.P.Q.2d (BNA) 1736 (N.D. Cal. 2002) (full-text).

Factual Background Edit

ElcomSoft is a Russian software company that was selling software that enables users to strip user restrictions imposed by the publishers of Adobe eBooks. The restrictions available to publishers who use Adobe eBook technology include the ability to prevent unauthorized copying, distribution and printing. Thus, ElcomSoft's program, which is called Advanced eBook Processor, enables its users to infringe the copyrights to eBooks by making and distributing unauthorized copies.

The U.S. government was prosecuting ElcomSoft for violating the "anti-trafficking" provisions of the Digital Millennium Copyright Act by selling Advanced eBook Processor in the United States.

In a motion supported by the Electronic Frontier Foundation, ElcomSoft argued that the prosecution should be dismissed because the "anti-trafficking" provisions of the DMCA are unconstitutional in several respects.

Trial Court Proceedings Edit

Judge Whyte denied the motion to dismiss. He ruled that the DMCA bans the distribution of "all" circumvention tools — not simply those intended for infringing uses — and thus the Act is not unconstitutionally vague. The judge therefore rejected ElcomSoft's argument that the Act is so vague it denies Fifth Amendment due process.

Judge Whyte also rejected ElcomSoft's First Amendment free speech attack on the "anti-trafficking" provisions. He found that the government's interests in banning the distribution of circumvention tools "are both legitimate and substantial." And he found that those provisions do not burden more speech than necessary.

He also held that even if the Act prevents eBook users from making back-up copies or shifting eBooks from one computer to another, there is no First Amendment right to do. Thus, the Act is not so overbroad as to impair users' First Amendment rights.

ElcomSoft also argued that the Act is unconstitutionally vague, because it bans only those things that are "primarily designed" for certain uses. That phrase is defined in the Act, Judge Whyte noted. And when those definitions are taken into account, the law "is sufficiently clear to withstand a vagueness attack."

Finally, the judge rejected ElcomSoft's argument that Congress did not have the constitutional authority to enact the DMCA. He ruled that "Congress plainly has the power to enact the DMCA under the Commerce Clause." And he concluded that "Congress did not exceed its constitutional authority . . . ," because the anti-trafficking provisions are "not irreconcilably inconsistent" with the Constitution's Intellectual property clause.

The court examined the relationship between the DMCA’s anti-circumvention provisions and fair use. The court concurred with the Second Circuit’s conclusion that there is no legal authority “which guarantees a fair user the right to the most technologically convenient way to engage in fair use.”[1] Hence, the anticircumvention rules do not “eliminate” fair use by virtue of making it more difficult.

Indeed, the court observed that the crafting of the anticircumvention rules expressly protects the exercise of fair use. The DMCA bans both the act of circumventing and trafficking in devices that circumvent access controls to a copyrighted work. But, with respect to use restrictions on protected works, the Act bans:

only the trafficking in and marketing of devices primarily designed to circumvent the use restriction protective technologies. Congress did not prohibit the act of circumvention because it sought to preserve the fair use rights of persons who had lawfully acquired a work. See H.R. Rep. 105-551, pt. 1, at 18 (1998). . . . In fact, Congress expressly disclaimed any intent to impair any person’s rights of fair use[.] . . . Thus, circumventing use restrictions is not unlawful, but in order to protect the rights of copyright owners while maintaining fair use, Congress banned trafficking in devices that are primarily designed for the purpose of circumventing any technological measure that “effectively protects a right of a copyright owner,” or that have limited commercially significant purposes other than circumventing use restrictions, or that are marketed for use in circumventing the use restrictions.[2]

The distinctions are subtle but legally significant to the court’s fair use analysis. The anticircumvention rules prohibit acts and trafficking in devices intended to circumvent access controls; they also prohibit trafficking in devices — but not acts — intended to bypass use controls, even if the devices would bypass use restrictions in order to enable a fair use as opposed to an infringing one. Thus, “it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention.”[3]

Again, distinguishing between access and fair use, the court concluded:

[T]he DMCA does not eliminate fair use or substantially impair the fair use rights of anyone. Congress has not banned or eliminated fair use and nothing in the DMCA prevents anyone from quoting from a work or comparing texts for the purpose of study or criticism. The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.[4]

However, the jury acquitted the company of charges that it violated the anti-circumvention provisions of the DMCA by selling “Advanced eBook Processor.”[5]

Discussion Edit

Since the jury’s “not guilty” verdict was not explained in a written decision (jury verdicts never are), there is no formal judicial record of why the jury acquitted ElcomSoft. Observers, however, have speculated that the result turned on a jury instruction given by Judge Whyte. The key instruction required the jury to find that ElcomSoft both knew and intended to violate the law when it sold its program, in order for the jury to convict the company. ElcomSoft testified that it did not know its program violated U.S. law. The jury may have believed that testimony, because the copyright law of ElcomSoft’s home country, Russia, does not yet contain anti-circumvention provisions.

References Edit

  1. 203 F. Supp.2d at 1131.
  2. Id. at 1120-21 (footnote and citations omitted)(emphasis supplied).
  3. Id. at 1125.
  4. Id. at 1134-35.
  5. Matt Richtel, "Russian Company Cleared of Illegal Software Sales," N.Y. Times, Dec. 18, 2002, at C4.

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