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DMCA Clears Hurdle in Case Against ElcomSoft
Posted by Kevin Chen on Thursday, May 09 @ 00:59:07 EDT Digital Millennium Copyright Act
Article from Law.com via Yahoo:

Clearing the way for a criminal prosecution under the controversial Digital Millennium Copyright Act, a federal judge in San Jose, Calif., on Wednesday denied a motion to dismiss the case against Russian technology company ElcomSoft Co.

U.S. District Judge Ronald Whyte agreed with prosecutors that the DMCA bans all tools that circumvent technological protections, regardless of whether the tools are used to infringe copyrights or enable constitutionally protected fair uses.

Whyte also ruled that the DMCA is neither too vague under the Fifth Amendment nor too restrictive under the First Amendment.

Wired also has an article on this case.

UPDATE 0900 ET 09 May 2002
Ernest Miller adds:
Additional Resources:

Electronic Frontier Foundation
Press Release — (Judge Rejects Challenge to eBook Case: Rules Digital Copyright Law Trumps Free Speech)
The Decision
Elcomsoft Case Archive

C|Net News — (Judge denies dismissal bid in DMCA case)
Newsbytes — (Judge Says Russian Firm To Be Charged In E-Book Case)
Slashdot — (Elcomsoft Case Will Proceed)
The Register — (Sklyarov/ElcomSoft case sent to trial)

 
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Related Links
· Electronic Frontier Foundation
· Judge Rejects Challenge to eBook Case: Rules Digital Copyright Law Trumps Free Speech
· The Decision
· Elcomsoft Case Archive
· C|Net News
· Judge denies dismissal bid in DMCA case
· Newsbytes
· Judge Says Russian Firm To Be Charged In E-Book Case
· Slashdot
· Elcomsoft Case Will Proceed
· The Register
· Sklyarov/ElcomSoft case sent to trial
· More about Digital Millennium Copyright Act
· News by Kevin Chen


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"User's Login" | Login/Create an Account | 3 comments
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Re: DMCA Clears Hurdle in Case Against ElcomSoft (Score: 1)
by doug on Thursday, May 09 @ 18:22:58 EDT
(User Info | Send a Message) http://dhudson.com
Just like Judge Newman in the 2d circuit, this creates a circular definition of software speech.

(1) Software is speech, but

(2) The function of software is "not speech."

...but no one has taken on the task of distinguishing the protected "content" of software speech from the unprotected "function" of software speech.

Under this handy definition, any regulation of software, no matter how odeous, is content neutral, because the content is merely functional.

This analysis also conflicts with the intermediate scrutiny analysis applied in the Bernstein and Junger cases: encryption algorithms are functional, thus subject to completely content neutral regulation.

It seems clear that no judge wants to apply real first amendment analysis to this law, because it is likely to fail:

Does the DMCA (1201 et seq) restrict speech?
Yes.

Is the DMCA content neutral?
No. It restricts only speech that discusses or enables circumvention of access controls.

Is the DMCA the least restrictive means?
No. It bars speech that has substantial non-infringing uses. The three disjunctive requirements of 1201(a) and (b) (primarily designed for circumvention, OR no substantial non-infringing uses, OR marketed with intent to infringe) could easily be replaced with conjunctive requirements that are less restrictive, do not bar fair use and non infringing uses, and still reach any acts of infringement.

Under the DMCA as enacted and interpreted so far, I could use Newman's opinion as an access control for an article, and bar distribution of the opinion if I could show it was being distributed primarily to gain access to my article. The fact that it has a substantial non-infringing use is irrelevant.



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