United States v. ElcomSoft and Sklyarov

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U.S. v. ElcomSoft and Dmitry Sklyarov
Court U.S. District Court for the Northern District of California, San Jose Division
Full case name United States of America versus Elcom Ltd., also known as ElcomSoft Co. Ltd., and Dmitry Sklyarov
Decided ElcomSoft acquitted by a federal jury on December 17, 2002
Case history
Prior action(s) Dmitry Sklyarov dropped from prosecution in exchange for agreeing to testify and to leave the U.S.

United States v. ElcomSoft and Dmitry Sklyarov was a 2001-02 criminal case in which Dmitry Sklyarov and his employer ElcomSoft were charged with trafficking in, and offering to the public, a software program that could circumvent technological protections on copyrighted material, in violation of Section 1201(b)(1)(A)&(C) of Title 17 of the United States Code (the Copyright Acts, including most of the Digital Millennium Copyright Act), as well as Sections 2 (Aiding and Abetting) and 371 (Conspiracy) of Title 18, Part I, of the United States Code (the Federal Criminal Code).

Details[edit]

Dmitry Sklyarov in 2010.

Dmitry Sklyarov, a Russian citizen employed by the Russian company ElcomSoft visited the United States to give a presentation called "eBook's Security - Theory and Practice" at the DEF CON convention in Las Vegas, Nevada. On July 16, 2001, as he was about to return to Moscow, Skylarov was arrested by the FBI and jailed for allegedly violating the United States' Digital Millennium Copyright Act (of 1998) by writing ElcomSoft's Advanced eBook Processor software.[1]

The original issue came to the attention of prosecutors when Adobe Systems, a US company, complained that copy protection arrangements in its e-book file format were being illegally circumvented by ElcomSoft's product. Adobe withdrew its complaint, but United States Department of Justice prosecutors (under the authority of local U.S. Attorney Robert S. Mueller, future Director of the FBI) declined to likewise drop the charges. ElcomSoft's product, and thus presumably the efforts of its employees including Sklyarov, were entirely legal in Russia. Sklyarov was eventually released on bail, but forced to remain in California, separated from his family, until his case concluded.

The day after his arrest several web sites, coordinated from the website freesklyarov.org, and mailing lists started to organize protests against his arrest, many of them under the slogan "Free Dmitry" or "Free Sklyarov". The main point of these campaigns was that no DMCA violations were committed at DEF CON, and the DMCA does not apply in Russia, so Sklyarov was being arrested for something that was perfectly legal in his jurisdiction. A campaign to boycott Adobe products was also launched.

On July 19, 2001, the Association of American Publishers issued a press release announcing their support of his arrest. Adobe initially supported the arrest, but after a meeting with the Electronic Frontier Foundation, they issued a joint press release on July 23, 2001, recommending his release. However, Adobe still supports the case against ElcomSoft.

After Sklyarov was arrested he was held briefly at the North Las Vegas Detention Center; then he was held in the Oklahoma City Federal Prisoner Transfer Center until August 3, 2001, when he was transferred to the Federal building in San Jose, California. On August 6, 2001, Sklyarov was released on a US $50,000 bail and was not allowed to leave Northern California.

The US government agreed to drop all charges filed against Sklyarov, provided that he testify at the trial of his company. He was permitted to return to Russia on December 13, 2001.

On December 17, 2002, after a two-week trial in San Jose, California, a federal jury found ElcomSoft not guilty of all four charges under the DMCA.

The case raised some concerns particularly since it involved an individual being prosecuted for activities that were fully legal in the country where they occurred.[2]

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