Press Releases: August 2001
Plead Not Guilty to Conspiracy and Circumvention Trafficking Charges
Russian programmer Dmitry Sklyarov and his employer Elcomsoft today pled not guilty to charges of providing electronic book format conversion software in the United States. Sklyarov, who had the benefit of a court interpreter, spoke the plea himself in English.
The court heard a five-count grand jury indictment against Elcomsoft and previously jailed programmer Sklyarov on charges of trafficking and conspiracy to traffic in a copyright circumvention device.
Sklyarov -- who is out of custody on US$50,000 bail -- could face a prison term of up to twenty-five years and a US$2,250,000 fine. As a corporation, Elcomsoft faces a potential US$2,500,000 fine.
"Dmitry has programmed a format converter which has many legitimate uses including enabling the blind to hear eBooks," explained Cindy Cohn, Electronic Frontier Foundation Legal Director. "The idea that he faces prison for this is outrageous. The EFF will support Dmitry through the end of this ordeal."
"We were hoping that the government would see the wisdom and justice in not pursuing a case against Sklyarov," said his attorney, Joseph M. Burton of Duane Morris in San Francisco. "Even if one were to ignore the serious legal questions involving the DMCA, this case hardly cries out for criminal prosecution. Sklyarov's and Elcomsoft's actions are not conduct that Congress intended to criminalize. We will vigorously contest these charges."
Sklyarov and his attorneys appeared at the arraignment with US Magistrate Judge Richard Seeborg presiding. The next court appearance scheduled in the case is 9:00 AM Pacific on September 4 before Judge Ronald Whyte in the San Jose Federal Court building.
Well-dressed observers attended the arraignment and nonviolent protests occurred in Moscow (Russia), London (England), Boston, San Francisco, Los Angeles, Reno, and Black Rock City, Nevada.
The United States Attorney's Office for the Northern District of California announced that Elcom Ltd. (also known as Elcomsoft Co. Ltd.) and Dmitry Sklyarov, 27, both of Moscow, Russia, were indicted today by a federal grand jury in San Jose, California on five counts of copyright violations.
The defendants were each indicted on one count of conspiracy to traffic in technology primarily designed to circumvent, and marketed for use in circumventing, technology that protects a right of a copyright owner, in violation of Title 18, United States Code, Section 371; two counts of trafficking in technology primarily designed to circumvent technology that protects a right of a copyright owner, in violation of Title 17, United States Code, Section 1201(b)(1)(A); and two counts of trafficking in technology marketed for use in circumventing technology that protects a right of a copyright owner, in violation of Title 17, United States Code, Section 1201(b)(1)(C).
This is the first indictment under the Digital Millennium Copyright Act ("DMCA"), enacted by Congress in 1998. The DMCA requires that the government prove a defendant offered to the public, provided, or trafficked in technology that was primarily designed to circumvent copyright protections, or was marketed for use in circumventing copyright protections. The statute provides criminal penalties where the copyright violations are perpetrated for purposes of commercial advantage or private financial gain. The DMCA also contains certain exemptions for nonprofit libraries, archives, and educational institutions, as well as for reverse engineering and encryption research.
According to the indictment, Elcom and Mr. Sklyarov are alleged to have conspired, for commercial advantage and private financial gain, to traffic in a technology that was primarily designed and produced for the purpose of circumventing, and was marketed by the defendants for use in circumventing, the Adobe Acrobat eBook Reader. The indictment alleges that prior to June 20, 2001, Mr. Sklyarov and others wrote a program called the Advanced eBook Processor ("AEBPR"), the primary purpose of which was to remove any and all limitations on an ebook purchaser's ability to copy, distribute, print, have the text read audibly by the computer, or any other limitation imposed by the publisher or distributor of the ebook.
The indictment alleges that Elcom made the AEBPR program available for purchase on the website elcomsoft.com which was hosted in Chicago, Illinois. According to the indictment, individuals wishing to purchase the AEBPR program were permitted to download a partially functional copy of the program from elcomsoft.com, and then were directed to pay approximately $99 to an online payment service RegNow, based in Issaquah, Washington. Upon making a payment via the RegNow website, Elcom provided purchasers a registration number permitting full-use of the AEBPR program.
The indictment states that Adobe Systems Inc. distributes the Adobe Acrobat eBook Reader for the reading of electronic books on personal computers. Consumers wishing to purchase ebooks formatted for the Adobe Acrobat eBook Reader can download a free copy of the eBook Reader to their personal computer and then purchase the ebook from an online retailer. Upon purchasing the ebook from the online retailer, a series of electronic communications between and among the computers of the online retailer - including, typically, an Adobe-supplied server - and the consumer's computer authorized the ebook to be read on the computer from which the purchase was made.
It is further alleged that when an eBook purchased for viewing in the Adobe eBook Reader format is sold by the publisher or distributor, the publisher or distributor of the ebook can authorize or limit the purchaser's ability to copy, distribute, print, or have the text read audibly by the computer. The eBook Reader permits the management of such digital rights so that in the ordinary course of its operation, the eBook Reader effectively permits the publisher or distributor of the ebook to restrict or limit the exercise of certain copyright rights of the owners of the copyrights for books distributed in the eBook Reader format.
The maximum statutory penalties for each count in violation of Title 17, United States Code, Sections 1201(b)(1)(A) and 1201(b)(1)(C) are five years imprisonment for an individual and a fine of $500,000 for an individual or corportation. The maximum penalties for a violation of Title 18, United States Code, Section 371, are five years imprisonment and a fine of $250,000 for an individual, and a fine of $500,000 for a corporation. However, any sentence following conviction would be dictated by the Federal Sentencing Guidelines, which take into account a number of factors, and would be imposed in the discretion of the Court. An indictment simply contains allegations against an individual or corporation and, as with all defendants, Elcom and Mr. Sklyarov must be presumed innocent unless and until convicted.
Mr. Sklyarov made his initial appearance in federal court in San Jose on August 6, 2001. He was released on bail based on an agreement between the United States and the defendant. The corporation has not yet made an initial appearance in federal court. The next scheduled appearance is at 9:30 a.m. on August 30, 2001 for arraignment for both defendants before Judge Seeborg.
The prosecution is the result of an investigation by the Federal Bureau of Investigation. Scott Frewing and Joseph Sullivan of the Computer Hacking and Intellectual Property ("CHIP") Unit are the Assistant U.S. Attorneys who are prosecuting the case with the assistance of legal technician Lauri Gomez.
Prior Restraint of Internet Publishers Unconstitutional
David Greene, FAP Executive Director / Staff Counsel
Robin Gross, EFF Intellectual Property Attorney
+1 415-436-9333 x112
+1 415-637-5310 (cell)
San Jose, California - A California appeals court today heard a debate over whether a lower court should have ordered dozens of Internet publishers to "stop the presses" pending the outcome of a California trade secrets trial.
In January 2000, as part of a trade secrets case brought by the motion picture industry, Santa Clara County Superior Court Judge William Elfving ordered Andrew Bunner and numerous other defendants to halt Internet publication of DeCSS pending the outcome of the trial. DeCSS is free software that allows people to play DVDs without technological restrictions, such as platform limitations and region codes, that are imposed by movie studios.
Today Bunner, represented by the Electronic Frontier Foundation (EFF) and the First Amendment Project (FAP), argued on appeal that this injunction violates his free speech rights under the First Amendment and the California Constitution. The argument took place in San Jose before three judges of the Sixth District California Court of Appeals.
"It is well-established that publishers of computer code are protected by the First Amendment. In granting the injunction against Mr. Bunner, the Superior Court failed to adequately consider Bunner's First Amendment rights," said David Greene, Executive Director and staff counsel to the First Amendment Project, who argued the appeal on behalf of Mr. Bunner. "The mere invocation of 'trade secrets' does not trump a publisher's First Amendment rights."
During today's oral arguments, the judges clearly appreciated the important First Amendment issues raised and asked probing questions of both sides. Upon completion of the oral arguments, the court took the matter under submission. A decision is expected in approximately 4-8 weeks.
Background on the DVD Copy Control Assoc. Inc. v. Bunner, et al. case:
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world:
The First Amendment Project is a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting freedom of information, expression, and petition. FAP provides advice, educational materials, and legal representation to its core constituency of activists, journalists, and artists in service of these fundamental liberties and has a website at:
Dmitry Sklyarov Issues Statement Thanking Supporters
Russian programmer Dmitry Sklyarov will appear in a California federal court next week, for an arraignment on charges of trafficking in a copyright circumvention device. For programming a software application that appears to be legal in Moscow where he wrote it, Sklyarov -- who is out of custody on $50,000 bail -- faces a potential prison term of five years and a $500,000 fine.
The arraignment is scheduled for 9:30am PT, Thursday, August 30 (it was delayed one week for the originally announced date of Aug. 23). The hearing will be held with US Magistrate Judge Richard Seeborg presiding, in courtroom 4, 5th floor of the Federal District Court for the Northern District of California, San Jose Branch, 280 South 1st Street, in San Jose, California.
Nonviolent protests will be scheduled outside the hearing in San Jose, and in Moscow (Russia), Cambridge (England), London (England), Minneapolis, Boston, San Francisco, Los Angeles, and Black Rock City, Nevada.
Dmitry Skylarov issued the following statement thanking the activists who have taken up his cause:
To everyone who spent their time helping me:
During the three weeks I spent in jail I learned that many people were protesting against my arrest. I also learned that Adobe withdrew its support of my arrest after meeting with EFF. But I was not able to see that or to read letters and articles about my case.
After being released from jail on August 6, I was really surprised and impressed by the scale of the action and the number of people involved in the protests. I'm not an IT superman. I'm just a programmer, like many others. It was unexpected by me that so many people would support a guy from another country that nobody heard about before.
Your support means a lot to me and my family and makes a difference for all.
This experience is going to change me in a profound way that I cannot even appreciate fully as yet. Thank you very much.
Directions and map to San Jose Federal Building:
Background on the Sklyarov case:
Calendar of protests related to the Sklyarov case:
Coincidentally, the same afternoon nearby in San Jose, a California state appellate court will hear oral arguments regarding whether dozens of Internet publishers can be ordered to "stop the presses" pending the outcome of a California trade secrets trial.
In January 2000, as part of a trade secrets case brought by the motion picture industry, Santa Clara County Superior Court Judge William Elfving ordered that Andrew Bunner and numerous other defendants halt Internet publication of the source code for DeCSS pending the outcome of a trial. DeCSS is free software that allows people to play DVDs without technological restrictions, such as platform limitations and region codes, that are preferred by movie studios.
Bunner, represented by the Electronic Frontier Foundation and the First Amendment Project, is appealing this prior restraint on his free speech rights. The case is In Re: DVD Copy Control Assoc., Inc. v. Bunner, case no. H021153. Oral arguments will begin at 1:30 PM before California's Sixth Appellate Court, located at 333 West Santa Clara Street, Suite 1060, San Jose, CA 95113.
Directions and map to San Jose Appellate Court Building:
Background on the DVD Copy Control Assoc., Inc. v. Bunner case:
Praises Experience of Joseph Burton, Russian Programmer's Attorney
The Electronic Frontier Foundation (EFF) today welcomed the announcement of Joseph M. Burton as defense attorney for jailed Russian computer scientist Dmitry Sklyarov. Burton has represented Sklyarov since July 20.
Sklyarov was arrested July 16 on charges of distributing software that circumvents copyright protections, in violation of provisions of the Digital Millennium Copyright Act (DMCA).
The FBI arrested Sklyarov shortly after he gave a presentation at the DEF CON conference in Las Vegas outlining security flaws in Adobe eBook software. A Ph.D. student from Moscow, Russia, Sklyarov showed that industry claims about electronic book software were unfounded.
"I believe absolutely in Dmitry's innocence," Burton said Thursday. "I feel particularly confident, given the widespread support he's garnered, that we will be able to prove that innocence. This prosecution raises serious issues that need to be addressed if we are to enjoy the same rights in the new digital millennium as we have in the past."
Burton, a former Assistant United States Attorney, was chief of the Silicon Valley Office of the U.S. Attorney's Office for the Northern District of California, where he brought several pioneering high technology prosecutions. He is a member of the White Collar Crime and Complex Crimes committees of the Section of Litigation of the American Bar Assocation and former chair of the Computer Crime Subcommittee. Burton is also a member of the Bar Association of San Francisco's Judiciary Committee, the Federal Bar Association and the Charles Houston Bar Association.
EFF, which has called for Sklyarov's release, praised the choice of Burton, a partner in the San Francisco office of national law firm Duane, Morris & Heckscher LLP.
"His experience in criminal law and technology cases is exactly what Dmitry needs," said EFF Senior Staff Attorney Lee Tien.
Cindy Cohn, legal director of the San Francisco-based EFF, said "We are very pleased that Dmitry Sklyarov has capable criminal representation."
"We did not seek to represent Mr. Sklyarov ourselves because our legal expertise is concentrated in civil liberties, not in direct criminal defense," said Cohn. "However, as experts in the implications of the Digital Millennium Copyright Act, we plan to work closely with Mr. Burton and the rest of Mr. Sklyarov's defense team. And, of course, we will continue our role in informing the public and in organizing and participating in other efforts to free Dmitry."
The DMCA, enacted in 1998, imposes civil and criminal penalties for circumventing technologies that protect a copyright holder's interests. EFF, along with computer professionals, academics, librarians, and others, has maintained that the law goes too far, criminalizing legitimate activity and threatening computer security research.
EFF is counsel for defendants in an earlier civil DMCA case, Universal City Studios v. Reimerdes. In that case, currently on appeal, the defense team argued for 2600 Magazine's right to publish and link to a computer program that decrypts DVDs, allowing them to be played on Linux and other operating systems. In addition, EFF represents Princeton University Professor Edward Felten and his colleagues in a recent civil case challenging the DMCA and defending their right to publish academic research on copy protection systems.