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Why Elcomsoft was Acquitted: Orin Kerr
By Jon Newton,
(more articles from this author)
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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 ElcomSoft's software.

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."


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