violations of the DMCA for distributing a product designed to circumvent copyright protection
measures. He was subsequently released on $50,000 bail and restricted to California.^1173
On Dec. 13, 2001, the U.S. government permitted Sklyarov to return home to Russia with
his family, essentially dropping prosecution of him in return for his agreement to testify against
his employer Elcomsoft in criminal proceedings the government brought against Elcomsoft. In
early Feb. 2002, the Electronic Frontier Foundation, joined by The Computing Law and
Technology and U.S. Public Policy Committees of the Association for Computing Machinery,
the American Association of Law Libraries, the Electronic Privacy Information Center, the
Consumer Project on Technology, Computer Professionals for Social Responsibility, and the
Music Library Association, filed an amicus brief, along with a brief from 35 law professors,
supporting a motion by Elcomsoft to dismiss the case. Elcomsoft’s motion and the Electronic
Frontier Foundation’s brief argued that the DMCA should be found unconstitutional because it
impinges on protected speech and stifles technological innovation.
Elcomsoft’s motion to dismiss and its challenge on constitutional grounds were rejected
by the court in an opinion issued on May 8, 2002.^1174 The court concluded that Congress
intended to ban all circumvention tools and rejected Elcomsoft’s argument that Congress
intended to ban only those circumvention devices that would facilitate copyright
infringement.^1175 The court also specifically concluded that “[n]othing within the express
language [of the anti-circumvention provisions] would permit trafficking in devices designed to
bypass use restrictions in order to enable a fair use, as opposed to an infringing use. Instead, all
tools that enable circumvention of use restrictions are banned, not merely those use restrictions
that prohibit infringement.”^1176 The court rejected the constitutional challenges on a rationale
very similar to that of the Second Circuit’s opinion in the Corley case,^1177 discussed in Section
II.G.1(m)(4) above. On Dec. 17, 2002, after a two week trial, a jury acquitted Elcomsoft of
criminal charges under the DMCA. The jury foreman told the press that some jurors were
concerned about the scope of the DMCA and whether it curtailed the fair use of material simply
because it was in electronic format. “Under the eBook formats, you have no rights at all, and the
jury had trouble with that concept,” the foreman reported.^1178
(ii) Other Criminal Prosecutions Under the DMCAIn Feb. of 2003, the operator of a web site, iSoNews.com, pleaded guilty to criminal
DMCA violations for sale of “mod” chips that allowed Microsoft Xbox and Sony Playstation
owners to modify their devices so they could use them to play illegally copied games. As part of
(^1173) This information is taken from the Free Dmitry Sklyarov! web site at http://www.freesklyarov.org.
(^1174) United States v. Elcom Ltd., 62 U.S.P.Q.2d 1736 (N.D. Cal. 2002).
(^1175) Id. at 1743.
(^1176) Id.
(^1177) Id. at 1744-57.
(^1178) Howard Mintz, “Russian Company is Acquitted by S.J. Jury” (Dec. 17, 2002), available as of Dec. 18, 2002 at
http://www.bayarea.com/mld/mercurynews/4763575.htm.