SAN JOSE -- A Russian company accused of criminal copyright violations argued in federal court on Monday that the law it's accused of breaching, the Digital Millennium Copyright Act, is both unconstitutionally vague and restricts free speech.
Attorneys for Elcomsoft asked U.S. District Court Judge Ronald Whyte to dismiss U.S. v. Elcomsoft, the case that began last July with the arrest of the Russian programmer Dmitri Sklyarov. The attorneys claim the company's software enables "fair use" rights of copyrighted materials -- rights that the Constitution protects.
But the government argued that Elcomsoft's fair use arguments were a "red herring," and that there was nothing vague about the DMCA's restrictions of software like Elcomsoft's Advanced eBook Processor. The program allows owners of Adobe e-books to convert their e-books from the Adobe format to a less-restrictive format.
The courtroom debate lasted about an hour, with Judge Whyte asking few questions of the attorneys. He made no immediate ruling. He is also still considering a a previous defense motion to dismiss the case.
Elcomsoft launched a couple of constitutional attacks against the DMCA, the law that has been a thorn in the side of hackers, crackers, tinkerers and coders for the past two years, but which has so far enjoyed a relatively easy time of it in the courts.
The first problem with the DMCA, said Joseph Burton, the company's attorney, is that it "does not define the tools it purports to prohibit," and is consequently "too vague."
In a brief, Burton argued that the "legislative history" of the DMCA makes clear that lawmakers intended to allow at least certain programs that circumvent copyright restrictions because they saw the need for protecting fair use rights.
Elcomsoft intended its reader to be one such "lawful circumvention device," he said -- people can use the program to make a backup copy of their e-book, for example, which Burton contends is a legitimate use.
But the DMCA as written does not "clearly define which software tools it prohibits," and that "Elcomsoft could not know, with any reasonable certainty, if its lawful conduct was meant to be included within the statutory proscription," Burton wrote in his brief.
Joseph Sullivan, an assistant U.S. attorney, responded that Congress did not intend to make any allowances for technologies which might have lawful circumvention purposes, and instead it wanted "a blanket prohibition on any device that's designed to circumvent (copyright restrictions)," regardless of whether the device may have some legitimate purposes.
Elcomsoft also raised the seemingly ages-old argument against the DMCA: that all computer code is "human readable" and "expressive," and is therefore speech.
Even if code is just "functional" -- that is, even if its primary purpose is to tell a machine what to do -- it still deserves First Amendment protection, said Daralyn Durie, representing Elcomsoft.
By analogy, she said, "The government can't prohibit the sale of Madame Bovary on the grounds that it instructs women on the techniques of adultery or that it will lead to the decline of the American family."
Based on precedent, that analogy may not help because in previous federal cases, judges have not been too kind to the free speech defense -- never mind that adultery is not illegal, and copying a copyrighted book is.
Last fall, for example, an appeals court in New York, siding with the movie industry against 2600 magazine ruled (PDF) that the DMCA did not violate the First Amendment because its restrictions are "content-neutral, just as would be a restriction on trafficking in skeleton keys identified because of their capacity to unlock jail cells, even though some of the keys happened to bear a slogan or other legend that qualified as a speech component."
