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A federal judge has denied a motion to dismiss the case against Moscow-based software company ElcomSoft for allegedly violating the U.S. Digital Millennium Copyright Act.

The government is prosecuting ElcomSoft for allegedly creating and distributing software over the Internet that lets users circumvent the copyright protection in Adobe's eBook format.

The attorney for ElcomSoft had argued that the activity at issue in the case took place outside the jurisdiction of the court.

"Our argument was that the offense occurred primarily on the Internet and not in the U.S.," said attorney Joseph Burton, of Duane Morris LLP and Affiliates, in San Francisco.

"It's a pretty novel argument," he said.

Challenges Pending

Judge Ronald Whyte of the U.S. District Court for the Northern District of California, in San Jose, denied the motion on Tuesday. He based his decision in part on the fact that the software was offered for sale on a Web server located in the U.S. and was purchased by people in the U.S., Burton said.

On April 15, the court will convene for a status conference on two other motions for dismissal. In one motion, attorneys for the defendant are arguing that the DMCA violates the First Amendment guarantee of freedom of expression. In the other motion, the attorneys claim the law is unconstitutional because it is too vague.

"The statute doesn't clearly define the tools that are prohibited, and it prohibits some that are [actually legal]," Burton said.

Possible Precedent

ElcomSoft is being prosecuted for distributing a program called Advanced eBook Processor. The company and a programmer, Dmitry Sklyarov, were charged with violating the DMCA after Sklyarov presented information about the product at the Def Con hacker conference in Las Vegas last July. The program is legal in Russia.

The government's action prompted a wave of protests against the court and Adobe. Amid the 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.

The Electronic Frontier Foundation, a civil liberties group that focuses on digital rights and online issues, has filed an amicus brief supporting ElcomSoft and represented Sklyarov during his incarceration. Its legal counsel is monitoring the proceedings.

The EFF and other online rights organizations consider the case pivotal in the 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.

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