The Electronic Frontier Foundation (EFF) today filed an amicus brief in federal district court asking that the Digital Millenium Copyright Act (DMCA) be found unconstitutional because it impinges on protected speech and stifles technological innovation. The case arises from the criminal prosecution of Russian programmer Dmitry Sklyarov and Elcomsoft, the Moscow-based company where he works.

Despite essentially dropping its prosecution of Dmitry Sklyarov on December 13, 2001, the U.S. government has maintained that the Russian company Elcomsoft should still be held criminally liable for creating software that converts Adobe eBooks into PDF format files.

The Computing Law and Technology and U.S. Public Policy Committees of the Association for Computing Machinery, the American Association of Law Libraries, the Electronic Privacy Information Center, the Consumer Project on Technology, Computer Professionals for Social Responsibility, and the Music Library Association signed on to the EFF brief that, along with a brief from 35 law professors, supports Elcomsoft's own motions to dismiss the case.

"The Adobe eBook technology hands complete control of the user's experience to publishers," noted EFF Legal Director Cindy Cohn. "They can prevent lending or selling of eBooks, transferring eBooks from one machine to another for more convenient reading, printing segments of an eBook for use in criticism or commentary, or enabling text-to-speech software, often used by blind people."

"The law should protect the First Amendment rights of eBook purchasers, not just eBook publishers or corporations trying to lock down eBook formats," stated EFF Intellectual Property Attorney Robin Gross. "If Elcomsoft is convicted under the DMCA, it will be illegal for competitors to write software or build digital entertainment devices that compete with those from the established media companies."

At Adobe's request, the FBI arrested Elcomsoft employee Dmitry Sklyarov after he delivered a lecture in Las Vegas on July 17, 2001. In August, the U.S. Department of Justice indicted both Sklyarov and Elcomsoft on five counts of violating the DMCA's anti-circumvention measures and conspiracy. After weeks of protests and an international letter-writing campaign opposing the prosecution of the then 26-year-old father of two, the Justice Department finally agreed to drop the criminal charges against Sklyarov in late 2001 in exchange for his promise to testify in the case.

Elcomsoft's motion to dismiss on constitutional grounds is set to be heard before Federal District Court Judge Ronald Whyte on April 1, 2002 in San Jose, California. An earlier set of motions filed by Elcomsoft to dismiss the case for lack of jurisdiction and and for lack of proof of a "conspiracy" are set for hearing on March 4, 2002.