U.S. v. Elcom Ltd.
| Decision Date | 08 May 2002 |
| Docket Number | No. CR.01-20138 RMW.,CR.01-20138 RMW. |
| Citation | 203 F.Supp.2d 1111 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. ELCOM LTD., a/k/a Elcomsoft Co., Ltd. and Dmitry Sklyarov, Defendants. |
Scott Frewing, Assistant United States Attorney, San Jose, CA, for Plaintiff.
Joseph M. Burton, Stephen H. Sutro, Duane Morris LLP, San Francisco, CA, for Defendant Elcomsoft.
John Keker, Daralyn J. Durie, Michael D. Celio, Keker & Van Nest, San Francisco, CA, Specially Appearing as Of Counsel for Defendant.
ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS THE INDICTMENT ON CONSTITUTIONAL GROUNDS
On April 1, 2002, the court heard defendant Elcom Ltd.'s motions to dismiss the indictment for violation of due process and on First Amendment grounds. The government opposed the motions. The court has considered the papers submitted by the parties and amici curiae and had the benefit of oral argument on the motions, and for the reasons set forth below, defendant's motions to dismiss the indictment are denied.
Adobe Systems is a software company headquartered in San Jose, California. Adobe's Acrobat eBook Reader product provides the technology for the reading of books in digital form (i.e., electronic books, or "ebooks") on personal computers. Use of the Adobe eBook format allows publishers or distributors of electronic books to control the subsequent distribution of the ebook, typically by limiting the distribution to those who pay for a copy. Diaz Decl. ¶ 5. These restrictions are imposed by the publisher's use of the Adobe Content Server, which allows the publisher to grant or withhold a range of privileges from the consumer. For example, the ebook publisher may choose whether the consumer will be able to copy the ebook, whether the ebook can be printed to paper (in whole, in part, or not at all), whether the "lending function" is enabled to allow the user to lend the ebook to another computer on the same network of computers, and whether to permit the ebook to be read audibly by a speech synthesizer program. Id. ¶ 8. When a consumer purchases an ebook formatted for Adobe Acrobat eBook Reader from an Internet website, the ebook is downloaded directly to the consumer's computer from the ebook distributor's Adobe Content Server.1 The ebook is accompanied by an electronic "voucher" which is recognized and read by the Adobe Acrobat eBook Reader,2 which then "knows" that the copy of the ebook can only be read on the computer onto which it has been downloaded. Id. ¶ 9. Thus, typically, the purchaser of an ebook may only read the ebook on the computer onto which the ebook was downloaded but may not e-mail or copy the ebook to another computer. The user may or may not be able to print the ebook in paper form or have it audibly read by the computer. Id. ¶¶ 5-9.
The indictment alleges that Indictment ¶ 1(g).
Defendant Elcomsoft Company Ltd. ("Elcomsoft") developed and sold a product known as the Advanced eBook Processor ("AEBPR"). AEBPR is a Windows-based software program that allows a user to remove use restrictions from Adobe Acrobat PDF files and files formatted for the Adobe eBook Reader. The program allows a purchaser of an eBook Reader formatted electronic book to convert the format to one that is readable in any PDF viewer without the use restrictions imposed by the publisher. Katalov Decl. ¶ 6. Thus, the restrictions imposed by the publisher are stripped away, leaving the ebook in a "naked PDF" format that is readily copyable, printable, and easily distributed electronically. The conversion accomplished by the AEBPR program enables a purchaser of an ebook to engage in "fair use" of an ebook without infringing the copyright laws, for example, by allowing the lawful owner of an ebook to read it on another computer, to make a back-up copy, or to print the ebook in paper form. The same technology, however, also allows a user to engage in copyright infringement by making and distributing unlawful copies of the ebook. Defendant was indicted for alleged violations of Section 1201(b)(1)(A) and (C) of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. §§ 1201(b)(1)(A) and (C), for allegedly trafficking in and marketing of the AEBPR.
Congress enacted the DMCA following the adoption of the World Intellectual Property Organization Copyright Treaty as an expansion of traditional copyright law in recognition of the fact that in the digital age, authors must employ protective technologies in order to prevent their works from being unlawfully copied or exploited. As described by one court:
In December 1996, the World Intellectual Property Organization ("WIPO"), held a diplomatic conference in Geneva that led to the adoption of two treaties. Article 11 of the relevant treaty, the WIPO Copyright Treaty, provides in relevant part that contracting states "shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."
The adoption of the WIPO Copyright Treaty spurred continued Congressional attention to the adaptation of the law of copyright to the digital age. Lengthy hearings involving a broad range of interested parties both preceded and succeeded the Copyright Treaty.... [A] critical focus of Congressional consideration of the legislation was the conflict between those who opposed anti-circumvention measures as inappropriate extensions of copyright impediments to fair use and those who supported them as essential to proper protection of copyrighted materials in the digital age. The DMCA was enacted in October 1998 as the culmination of this process.
Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 315-16 (S.D.N.Y.2000) (citations omitted), aff'd 273 F.3d 429 (2d Cir.2001).
Through the DMCA, Congress sought to prohibit certain efforts to unlawfully circumvent protective technologies, while at the same time preserving users' rights of fair use. Some understanding of the interplay between copyright and fair use is essential to understanding the issues confronting Congress and the issues presented here. Fair use and copyright are discussed in more detail below, but in brief, copyright grants authors the exclusive right to make and distribute copies of their original works of authorship but the doctrine of fair use permits a certain amount of copying for limited purposes without infringing the copyright, notwithstanding the exclusive rights of the copyright owner.
As part of the balance Congress sought to strike in protecting the rights of copyright owners while preserving fair use, Congress enacted three new anti-circumvention prohibitions, Section 1201(a)(1), Section 1201(a)(2) and Section 1201(b). The first two provisions target circumvention of technological measures that effectively control access to a copyrighted work; the third targets circumvention of technological measures that impose limitations on the use of protected works.
With regard to the first category, Congress banned both the act of circumventing access control restrictions as well as trafficking in and marketing of devices that are primarily designed for such circumvention. Specifically, Section 1201(a)(1)(A) provides that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title." Thereafter, Section 1201(a)(2) provides that:
[n]o person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that —
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title [17 U.S.C. § 1 et seq.]; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
17 U.S.C. § 1201(a)(2).
The third prohibition, however, addresses a different circumvention, specifically, circumventing a technological measure that imposes limitations on the use of a copyrighted work, or in the words of the statute, that "effectively protects the right of a copyright owner." Using language quite similar to Section 1201(a)(2), the Act provides that:
[n]o person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that —
(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this...
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