Advanced Copyright Issues on the Internet - Fenwick & West LLP

cases, and held that unauthorized distribution of passwords and user-names avoids and bypassesa technological measure in violation of Sections 1201(a)(2) and 1201(b)(1). 805The reasoning of the I.M.S. court – that a password somehow does not fall within[the analogy to the combination of a locked door used in the DeCSS cases], is notwell-founded. Rather, a combination to a lock appears to be essentially the sameas a password. Nor does the Court find support in the statute itself for drawing adistinction between passwords and other types of code that might be used fordecryption. Therefore, the Court rejects Defendants’ position. Unauthorized useof a password may constitute circumvention under the DMCA. 806(14) Criminal Prosecutions Under the DMCA(i)The Sklyarov/Elcomsoft CaseDmitry Sklyarov, a 27-year-old Russian programmer who worked for a Russian companycalled Elcomsoft, helped create the <strong>Advanced</strong> eBook Processor (AEBPR) software, whichenabled eBook owners to translate from Adobe’s secure eBook format into the more commonPortable Document Format (PDF). The software worked only on legitimately purchasedeBooks. Sklyarov was arrested at the behest of Adobe Systems, Inc. on July 17, 2001 in LasVegas after he delivered a lecture at a technical convention, and charged by the Dept. of Justicewith criminal violations of the DMCA for distributing a product designed to circumventcopyright protection measures. He was subsequently released on $50,000 bail and restricted toCalifornia. 807On Dec. 13, 2001, the U.S. government permitted Sklyarov to return home to Russia withhis family, essentially dropping prosecution of him in return for his agreement to testify againsthis employer Elcomsoft in criminal proceedings the government brought against Elcomsoft. Inearly Feb. 2002, the Electronic Frontier Foundation, joined by The Computing Law andTechnology and U.S. Public Policy Committees of the Association for Computing Machinery,the American Association of Law Libraries, the Electronic Privacy Information Center, theConsumer Project on Technology, Computer Professionals for Social Responsibility, and theMusic 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 ElectronicFrontier Foundation’s brief argued that the DMCA should be found unconstitutional because itimpinges on protected speech and stifles technological innovation.Elcomsoft’s motion to dismiss and its challenge on constitutional grounds were rejectedby the court in an opinion issued on May 8, 2002. 808 The court concluded that Congressintended to ban all circumvention tools and rejected Elcomsoft’s argument that Congress805806807808Id. at *24-25.Id. at *26.This information is taken from the Free Dmitry Sklyarov! web site at www.freesklyarov.org.United States v. Elcom Ltd., 62 U.S.P.Q.2d 1736 (N.D. Cal. 2002).- 184 -