A Loss for the Digital Millenium Copyright Act

The prosecution against the Russian software company ElcomSoft for selling software that could crack the copyright protection on eBooks has failed, CNET reports. The case—whose complications are well explained in the full article—ended up pivoting on whether the jury thought the company's acts were willfully intended to aid copyright violations. The jury decided that while what ElcomSoft had done indeed violated the Digital Millenium Copyright Act (DMCA), they probably didn't mean to.

What might this mean to the future of the DMCA? The CNET article, by Lisa M. Bowman, concludes:
"Lawyers not involved in the case said the ElcomSoft verdict boded ill for future criminal prosecutions under the controversial copyright law. A "not guilty" verdict in a criminal case comes without the ability to appeal, unlike the civil copyright cases targeting Napster and other companies that have bounced through federal court in recent years. Future courts won't be bound by Tuesday's verdict, which will stand untouched.

"It is troubling for enforcement of the (criminal provisions of the) DMCA," said Evan Cox, an attorney with the San Francisco firm of Covington & Burlington. "This was the kind of case that the DMCA was meant to prevent. If this enforcement led to a not guilty verdict, you have to wonder what would lead to a successful case."

Some lawyers speculated that the jury might have been rendering an opinion on the law itself, as well as on the strict legality of ElcomSoft's activities.

"The jury has the flexibility to think about (ElcomSoft's motives) and essentially nullify the law if they think it is overreaching," said Jefferson Scher, a partner at Carr & Ferrell. "I think there's a little O.J. factor if they decided that the law shouldn't be read as strictly as it seems to read."