A federal judge ruled on Wednesday that the copyright infringement case against the Russian software company Elcomsoft can go on, dismissing the defense's claim that key provisions of the Digital Millennium Copyright Act are unconstitutional.
U.S. District Court Judge Ronald Whyte of San Jose said that the DMCA was neither vague nor did it violate the First Amendment, as Elcomsoft had argued. Although the judge agreed with Elcomsoft that computer code is speech, he said that the DMCA does not unconstitutionally ban that speech.
His ruling allows the first criminal prosecution under the DMCA to continue in the courts; neither the government nor Elcomsoft were available for comment regarding whether they may pursue any settlement negotiations.
U.S. v. Elcomsoft, the case that began last July with the arrest of the Russian programmer Dmitri Sklyarov, has become a major courtroom test of the DMCA, the controversial law that many in the programming community have criticized as being too broad. Elcomsoft is charged with creating and trafficking in a copyright "circumvention device" -- that device is the company's Advanced eBook Processor, which breaks the encryption scheme of Adobe's e-books.
One of the main complaints against the DMCA has centered around "fair use" -- the right to access copyrighted works for limited use. Elcomsoft's attorneys as well as other critics of the DMCA have argued that the law does not sufficiently protect fair use rights, and that it instead enjoins anyone from creating a so-called "circumvention device," even if the purpose of that circumvention is lawful.
But in denying the defense's motion, Whyte ironically agreed with them that the law does not distinguish between devices created to promote fair use and those created to "infringe" upon a copyright.
"Nothing within the express language would permit trafficking in devices designed to bypass use restrictions in order to enable a fair use, as opposed to an infringing use," Whyte ruled.
"The statute does not distinguish between devices based on the uses to which the device will be put. Instead, all tools that enable circumvention of use restrictions are banned, not merely those use restrictions that prohibit infringement. Thus, as the government contended at oral argument, (the law) imposes a blanket ban on trafficking in or the marketing of any device that circumvents use restrictions."
The judge further adds: "The act expressly disclaims any intent to affect the rights, remedies, limitations, or defenses to copyright infringement, including the right of fair use."
In other words, it doesn't matter whether you create software to crack an e-book only with the intent of copying some passages from the e-book in a "fair" manner: Creating that cracking software still violates the DMCA, according to Whyte.
Elcomsoft had argued that the code in its eBook Processor was a kind of "speech," and Whyte agreed.
"The government contends that computer code is not speech and hence is not subject to First Amendment protections," he wrote. "The court disagrees. Computer software is expression that is protected by the copyright laws and is therefore 'speech' at some level, speech that is protected at some level by the First Amendment."
But to the chagrin of Elcomsoft, he said that the DMCA's regulations on the speech-in-code is not unconstitutional: "In the digital age, more and more conduct occurs through the use of computers and over the Internet. Accordingly, more and more conduct occurs through 'speech' by way of messages typed onto a keyboard or implemented through the use of computer code when the object code commands computers to perform certain functions.
"The mere fact that this conduct occurs at some level through expression does not elevate all such conduct to the highest levels of First Amendment protection. Doing so would turn centuries of our law and legal tradition on its head, eviscerating the carefully crafted balance between protecting free speech and permissible governmental regulation."
Whyte's ruling marks yet another setback for DMCA foes, who have seen many of their legal efforts to overturn the law crumble at the hands of unsympathetic judges during the past year.
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."
On the same day, in a separate case, U.S. District Judge Garrett Brown dismissed a case against the Recording Industry Association of America, saying that the association had not stifled academic research when it told Ed Felten, a Princeton professor, that his research into a music-encryption scheme violated the DMCA.
