DMCA's Constitutionality Challenged

In a case that continues to test the boundaries of the Digital Millennium Copyright Act, lawyers for Russian software company ElcomSoft are arguing that the U.S. government's charges against the company under the DMCA are vague and unconstitutional.

ElcomSoft attorneys argued Monday that the case should be dismissed. Judge Ronald Whyte, of the U.S. District Court for the Northern District of California, heard both ElcomSoft and government lawyers on the motions to dismiss. The next status conference in the case is scheduled for April 15, according to Cindy Cohn, legal director for the Electronic Frontier Foundation.

ElcomSoft markets software that circumvents the copyright protection controls in Abobe's EBook format. ElcomSoft was charged last year with violating the 1998 copyright law, which prohibits such circumvention as well as bans trafficking in a copyright-circumvention device. Also initially charged was Dmitry Sklyarov, an ElcomSoft programmer, who demonstrated and distributed the software at the Def Con security conference in Las Vegas. However, after protests and customer pressure, Adobe withdrew its complaint. The U.S. Justice Department dropped its charges against Sklyarov in exchange for his agreement to testify against his employer.

Free Speech Cited

ElcomSoft lawyers say they are set to argue that the law does not define which tools are permitted to circumvent copyright protection and which are not, and that by completely barring the use of such tools, the law hampers fair use and free speech rights. The government has stated that the DMCA is a blanket law, prohibiting any circumvention of copyright protection.

Cohn said the judge showed little reaction to the arguments during the 45-minute hearing. It was not known when he will make a decision on the motions. EFF filed a friend of the court brief supporting ElcomSoft in the case, and is monitoring the proceedings.

"The judge took [the motions] under advisement and didn't show his cards at all," Cohn said.

Copying Concerns Climb

ElcomSoft's program, Advanced EBook Processor, is legal in Russia. The Electronic Frontier Foundation supplied attorneys to represent Sklyarov, who was jailed for three weeks after the Def Con incident. The organization also coordinated protests against Sklyarov's prosecution in the United States and in several international cities.

The EFF and other online rights organizations consider the case a pivotal one in their challenge of digital copyright laws, notably the DMCA. Critics of the 1998 law have long considered it overly broad and intrusive on fair use and consumer rights. Copyright holders say it is necessary in order to deter piracy.

Meanwhile, digital copy protection issues are drawing attention in Congress. Several pieces of legislation are pending that would enforce copyright law by imposing copying restrictions on electronics equipment.