US v. ElcomSoft Sklyarov

View U.S. v. ElcomSoft Sklyarov frequently asked questions.

Dmitry Sklyarov, the 27 year old Russian programmer at the center of this case, was released from U. S. custody and allowed to return to his home in Russia on December 13, 2001. The Frequently Asked Questions (and Answers) which follow this text were prepared by the EFF at the time of Dmitry's arrest in July 2001 and have been updated to take account of subsequent developments. For those familiar with the previous version of the FAQs, the following paragraphs summarize the history of this case and developments since August 2001.

Dmitry Sklyarov was arrested in Las Vegas on July 16, 2001, and charged with trafficking in, and offering to the public, a software program that could circumvent technological protections on copyrighted material, under section 1201(b)(1)(A) of the U.S. Copyright Act, which was made law by the 1998 Digital Millennium Copyright Act (the DMCA). He was also charged with aiding and abetting his employer, Russian software development company, Elcom Ltd (a.k.a. ElcomSoft Co. Ltd), to do that. Dmitry was held in jail until August 6, 2001, when he was released on bail of $50,000, on condition that he remained in Northern California.

On August 28, 2001, a grand jury indicted both Dmitry and ElcomSoft with five counts of violating U.S. law. These include four counts alleging circumvention offenses and aiding and abetting circumvention offenses, under the DMCA, and a charge of conspiracy to traffic in a circumvention program. Under the charges, Dmitry faced up to 25 years in prison and a fine of up to $2,250,000, and ElcomSoft, as a corporation, faces a penalty of $2,500,000. (For further details, see the next question.)

On December 13, 2001, Dmitry was released from U.S. custody and allowed to return to his home in Russia, as part of an agreement between Dmitry and the U.S. Attorney on behalf of the U.S. government. Under the agreement, all the criminal charges against Dmitry will eventually be dropped. The agreement requires Dmitry to testify for the U.S. Government in its continuing case against Dmitry's employer, ElcomSoft. It is likely that Dmitry will also testify on behalf of ElcomSoft.

On January 14, 2002, ElcomSoft's legal team, headed by Joseph Burton of San Francisco law firm, Duane Morris LLP, filed two motions: a motion to dismiss the charges against ElcomSoft on the grounds of lack of jurisdiction and a motion to dismiss the conspiracy count. On January 29, 2002, ElcomSoft's lawyers also filed a third motion to dismiss the charges against the company on the grounds that the DMCA sections under which ElcomSoft has been charged violate the Due Process clause of the Fifth Amendment. The hearings for the first two of these motions will be held on March 4, 2002, and the third will be held on April 1, 2002. All hearings will be before Judge Ronald Whyte in the San Jose Division of the US District Court for the Northern District of California. EFF has filed an amicus brief in support of these motions.