Why Elcomsoft was Acquitted: Orin Kerr
Russia's Elcomsoft may have violated Hollywood's Digital Millennium
Copyright Act with software meant to crack Adobe Systems' eBooks. But a jury
acquitted the company because they believed it didn't mean to break the law,
said the foreman.
"This is sort of the first dent in the DMCA," said ElcomSoft attorney
Joseph Burton. "Up until now, the large publishers have sort of had their
way...(but) I think developers still need to be careful."
Actually, the verdict was no great surprise, particularly after Adobe
retreated from its support of the case against ElcomSoft's Dmitry Sklyarov,
arrested during the Las Vegas Defcon conference after a speech about
So what was it all about, anyway?
In a Volokh Conspiracy piece, George Washington University Law School
associate professor Orin Kerr wrote that jury foreman Dennis Strader said,
in an interview after the verdict, the jurors didn't understand why a
million-dollar company would, "put on their Web page an illegal thing that
would (ruin) their whole business if they were caught".
Kerr also said that according to Strader, the panel found the DMCA itself
confusing, making it easy for jurors to believe that executives from Russia
might not fully understand it.
But, "Why does it matter whether the company meant to violate the law,
you might wonder?" - Kerr asked. And here's his answer.
"The general rule in criminal law is that intent to violate the law
doesn't matter," he says. "As they say, 'ignorance of the law is no excuse.'
However, Congress occasionally limits criminal liability to 'willful'
violations of the law. Although there is some dispute as to what it means to
violate a law 'willfully,' the general rule is that a willful violation
means a violation that is knowingly and purposely in violation of the law
itself. Willful violations are an exception to the usual rule that ignorance
of the law is no excuse: when Congress limits a crime to 'willful'
violations, ignorance of the law is an excuse. The government must prove not
only that the defendant violated the law, but that the defendant knew he was
violating the law.
"The DMCA is one of those laws that limits criminal prosecutions to
willful violations. In other words, Congress only wanted violations of the
DMCA to be criminal when the person actually knew that they were violating
the law and did it anyway. Because the San Jose jury was not convinced
beyond a reasonable doubt that ElcomSoft knew they were violating the law,
the jury acquitted. Why did Congress limit the criminal reach of the DMCA to
'willful' violations, you might wonder? Because these laws are hard, and
Congress didn't want someone to go to jail when it wasn't relatively clear
what the law was. That's the explanation that the courts have offered in the
area of tax law, another complex area of law that allows criminal
prosecutions only for 'willful' violations. Here's an excerpt from the
Supreme Court's decision in Cheek v. United States, 498 U.S. 192 (1991), a
case that interpreted 'willfully' in the context of the federal tax laws:
"The proliferation of statutes and regulations has sometimes made it
difficult for the average citizen to know and comprehend the extent of the
duties and obligations imposed by the tax laws. Congress has accordingly
softened the impact of the common-law presumption by making specific intent
to violate the law an element of certain federal criminal tax offenses.
"Thus, the Court almost 60 years ago interpreted the statutory term
'willfully' as used in the federal criminal tax statutes as carving out an
exception to the traditional rule. This special treatment of criminal tax
offenses is largely due to the complexity of the tax laws."