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Judge Rejects Challenge to eBook Case

May 8, 2002

Judge Rejects Challenge to eBook Case

Rules Digital Copyright Law Trumps Free Speech

A federal judge today denied a Russian software vendor's request to dismiss criminal charges against the company for violations of the Digital Millennium Copyright Act (DMCA).

Judge Ronald Whyte of the Federal District Court for the Northern District of California ruled that Elcomsoft, a company that markets eBook formatter software, must face criminal charges. Rejecting two legal challenges, the judge ruled that the DMCA's ban on copyright circumvention tools is constitutional even if the circumvention tools are used for legal purposes.

"It's as if the judge ruled that Congress can ban the sale of printing presses, because the First Amendment right to publish speech was not attacked directly and quills and ink are still available," noted Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "What good are the public's rights if the tools needed to make fair use or access works in the public domain are illegal?"

Despite acknowledging a lack of clarity in the Congressional record surrounding the adoption of the DMCA, Judge Whyte ruled that due process was not violated. He said the plain meaning of the DMCA statute was to ban circumvention tools completely because Congress had assumed that "most uses" of the tools would be for unlawful infringement rather than fair or noninfringing uses.

On Elcomsoft's First Amendment argument, Judge Whyte ruled that the computer program qualifies as speech, rejecting the government's argument that software is not speech. The court then ruled that the First Amendment was satisfied because the government's purpose was to control the "function" of the software rather than its "content," and that the statute did not ban more speech than necessary to meet its goal of preventing piracy and promoting electronic commerce.

"Although disappointed by Judge Whyte's unwillingness to dismiss the charges against Elcomsoft on constitutional grounds, we are pleased that he agreed that software is protected speech under the First Amendment," said EFF Intellectual Property Attorney Robin Gross. "Courts must now take the next step and give people the same rights to express themselves with software as they enjoy for traditional speech."

The court has scheduled a hearing for May 20, 2002, to set the trial date in the case.

EFF filed an amicus brief in support of Elcomsoft.

Elcomsoft is the employer of Russian programmer Dmitry Skylarov, who was also originally charged with criminal violations of the DMCA.

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