SAN JOSE -- The Russian company that created software to circumvent Adobe's e-book format argued on Monday that its conduct -- which caused the arrest and detainment of programmer Dmitri Sklyarov in a high-profile case last summer -- was not illegal.
Elcomsoft, the Moscow-based software firm, claimed that because it offered the encryption-breaking software on the Internet, the company was not subject to U.S. copyright law.
Joseph Burton, Elcomsoft's attorney, told U.S. District Judge Ronald Whyte that Elcomsoft's actions "occurred in Russia or on the Internet, and we take the position that the Internet is a place" outside of U.S. jurisdiction.
Burton said the company was not specifically "targeting" the software to Americans, but that the software was instead available to anyone on the Internet, regardless of residence.
But Assistant U.S. Attorney Scott Frewing dismissed those claims, arguing that the Internet is a "physical presence" made up of many computers in America, and that "the U.S. has every right to stop contraband" on those machines.
He added that Elcomsoft maintained a Web server in Chicago, that it hired a U.S. billing service, that it made no effort to prevent Americans from accessing its site, and that it sent e-mail messages to customers it knew were Americans.
After the 40 minutes of arguments, Judge Whyte issued no immediate decision, and both sides said that they could not predict when a decision would come.
The Elcomsoft case began with the arrest Sklyarov on July 19 at a hacking conference in Las Vegas. In the first criminal prosecution of the DMCA, the government charged him with violating Adobe's copy-protection scheme. The case generated worldwide protests, and eventually the charges against Sklyarov were dismissed in favor of a case against Elcomsoft.
ElcomSoft is charged with violating the DMCA with its "Advanced eBook Processor," a program that allowed owners of Adobe e-books to convert their e-books from the supposedly secure Adobe e-book reader format to a less-restrictive format.
ElcomSoft CEO Alexander Katalov appeared at the hearing on Monday but was not called on to speak in court.
Katalov is concerned that public and media interest in his company's legal saga has seemingly dwindled since the court allowed Sklyarov to return to Russia in December. Katalov hopes that people are still paying attention to the case, which he believes has frightening implications for anyone who creates or uses digital technology.
"Dmitri's freedom and safe return to his family and home in Moscow are so much more important for me than any kind of attention from the press," Katalov said. "But if people think that this case has been resolved, then we should all be concerned. The DMCA is an unclear and vague law that may put legitimate businesses, technological innovations and innocent people in jeopardy."
If the motion to dismiss is not granted, Katalov's lawyers intend to argue that the DMCA is "overly broad and vague in violation of the Due Process Clause of the U.S. Constitution." Pending the results of Monday's ruling, that hearing is set for April 1.
"People who know about the case smile when they learn about this date. Russians also celebrate April's Fool Day," Katalov said. "The matter, however, is far from being a joke."
Katalov's problems began when his company offered downloadable copies of the Advanced eBook Processor (AEBP) on ElcomSoft's website for $99. The program, which is legal under Russian law, was coded in part by Sklyarov.
Adobe sent ElcomSoft a cease and desist notice five days after the AEBP was released. The program was removed from the site a week later, on or around July 3, according to Katalov.
After Sklyarov's arrest, Adobe released a statement that read, in part: "The prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry."
