[KLUG Advocacy] Speak of the devil: Elcomsoft _Not_ Guilty!

[Robert G. Brown]

"TheBS" Posted....
>http://rss.com.com/2100-1023-978176.html?type=pt&part=rss&tag=feed&subj=news
>
>Could this kill the DMCA???
>
>  'Merely offering a product that could violate copyrights was not
>   enough to warrant a conviction, the jury instructions said.'
>
>Since Adobe is no longer involved (they recanted shortly after Skylarov's
>arrest), and it's only the US Federal Government, do you think this "common law"
>might be applicable to the Johansen case???

Instructions to juries are a very funny thing in our system. My (perhaps too
shallow) understanding of the DMCA is that this was exactly the sort of thing 
they were trying to prohibit, and it's one of the things that makes the DMCA
"bad law", in my opinion. It's very untraditional in our system that the mere
posession (or sale) of a device implies the violation of someone else's rights,
OR that possesion of a device makes a compelling case for its being used in
an illegal way at some point in the future. Otherwise, none of us would own
guns, cars, or forks, for that matter.

If the prosecution wanted to really hang these guys up by their... well, what-
ever they want to hang 'em by, they might appeal a not-guilty verdict on the
grounds that the instructions to the jury were bad, for precisiely the above
reason (if the DCMA disagrees with it, as is my recollection). If they don't
press this point, not only does Elcommsoft get off, but the instructions be-
come a citable precendent, and perhaps a whole section of the DMCA will be
greatly weakened, without any explicit court decision. IANAL, but this is at
least my understanding of things.

I think I've answered your question; here's the executive summary: Yes.

							Regards,
							---> RGB <---