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Judge Finds DMCA Constitutional

9 May, 2002 By: Holly J. Wagner

A federal judge has ruled the Digital Millennium Copyright Act (DMCA)'s ban on circumventing copyright protections is constitutional, opening the door for prosecutors to proceed with a case against a Russian programmer accused of copyright violations.

While the case is focused on a software program, the decision sets a precedent for cases involving any copy protection mechanism, such as DVD content or password-protected Web sites.

Dimiri Sklyarov developed a program that cracks the copy protections of Adobe eBook files, a variation on PDF files. The enhancements he developed as part of his doctoral dissertation let users copy, print and transmit digital books and have their computers read them aloud. The government's case accuses him and his employer, Elcomsoft, of skirting copyright protections in violation of the DMCA.

Sklyarov was held under an Aug. 28, 2001, Grand Jury indictment and charged with two counts of "trafficking for gain in technology primarily designed to circumvent technology that protects the right of a copyright owner" and one count of conspiracy. He was released on $50,000 bail after 21 days and in January returned to his homeland after agreeing to cooperate with American authorities in their efforts to prosecute his employer, Elcomsoft Co.

His attorneys sought to have the case dismissed, arguing that circumventing copyright protection measures is only illegal if it's done for an illegal purpose; and that the software Sklyarov created is protected speech under the First Amendment.

Although DMCA critics say the law prevents consumers and developers from making fair use of copyrighted works, U.S. District Court Judge Ronald Whyte rejected that argument in a 32-page decision.

“That is part of the sacrifice Congress was willing to make in order to protect against unlawful piracy and promote the development of electronic commerce and the availability of copyrighted material on the Internet,” the judge wrote. “Congress sought to ban trafficking in any technology or device that could be used to circumvent technological restrictions that served to protect the rights of copyright holders.”

“It's as if the judge ruled that Congress can ban the sale of printing presses because the First Amendment right to publish speech was not attacked directly and quills and ink are still available,” said Cindy Cohn, an intellectual property attorney at the Electronic Frontier Foundation, which filed a friend of the court brief supporting Sklyarov in the case.

Whyte is scheduled to set at trial date at a hearing May 20.

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