U.S. v. Elcom

Citation: United States v. Elcom Ltd., 203 F.Supp.2d 1111, 62 U.S.P.Q.2d (BNA) 1736 (N.D. Cal. 2002).

Factual Background
Though its name makes it sound like a general purpose program, “Advanced eBook Processor” does just one thing: it circumvents Adobe eBook encryption. Adobe eBook technology gives publishers the ability to prevent unauthorized copying, distribution and printing of their books. Thus, ElcomSoft's program enables its users to infringe the copyrights to eBooks by making and distributing unauthorized copies.

Trial Court Proceedings
In the pre-trial stages of the case, federal District Judge Ronald Whyte denied ElcomSoft’s motion to dismiss the prosecution. The motion was based on the company’s argument that the anti-circumvention provisions of the DMCA are unconstitutional. But in a lengthy and thoughtful opinion, Judge Whyte rejected that argument.

However, a jury acquitted the company of charges that it violated the anti-circumvention provisions of the DMCA by selling “Advanced eBook Processor.”

Since the jury’s “not guilty” verdict was not explained in a written decision (jury verdicts never are), there is no formal judicial record of why the jury acquitted ElcomSoft. Observers, however, have speculated that the result turned on a jury instruction given by Judge Whyte. The key instruction required the jury to find that ElcomSoft both knew and intended to violate the law when it sold its program, in order for the jury to convict the company. ElcomSoft testified that it didn’t know its program violated U.S. law. The jury may have believed that testimony, because the copyright law of ElcomSoft’s own country, Russia, does not yet contain anti-circumvention provisions.