I went down to the San Jose federal courthouse today with Lisa and watched Dmitry Sklyarov give evidence in the Elcomsoft trial. I’ve been there before, when Dmitry was in handcuffs and a bright orange prisoner garb. Now he wears a suit, like every non-gangster Russian I’ve seen wear a suit, like I wear a suit: scruffily.
American courts are, naturally, straight from TV land. This separates them from British courts, which are from period drama TV land. Counsel approaches the bench. Objections are sustained. Truths are pledged. I idly noted that this Federal court has a gold-fringed American flag, which must drive nutty tax protestors even more crazy.
I’m not sure how much I can talk about the case. I suppose a great deal, but my old sub judice instincts kick in, so I’ll try not to draw too many conclusions. Here’s how the arguments appear to be going.
The Defence
- … claimed Elcomsoft produced the software to expose weaknesses in e-book products. They introduced Dmitry’s Defcon speech as evidence for this. Dmitry’s speech is rather dry (apart from a hilarious moment at the beginning where another Defcon attendee forces him to say “Where are the nuclear vessels in Alameda?”. I laughed a bit too loudly in court here.)
- … asserted Elcomsoft deliberately kept the price of software high to reduce the damage to ebook publishers. The claim here is that $100 was enough to dissuade casual copiers of books, but allowed them to release the software into general use.
- … said that the software in the case – the Advanced Ebook Processor, is essentially the same as the Advanced PDF password recovery program, which Adobe appears to have no complaint with.
- … and that Elcomsoft (and Sklyarov) intended the software to be used for non-infringing uses: backup copies, blind users, fair use, etc. The backup provision is the most important here. Under Russian law, any computer user can make one backup copy – something they claim would not be possible with a standard Adobe ebook.
The Prosecution
- …pointed out that Dmitry didn’t write a program that exclusively produce copies in accordance with fair use (ie allow you to cut and paste just a few pages, output only in braille, etc.) Dmitry answered this by pointing out that there’d be no point – after a few uses, you could essentially decrypt everything.
- …asked why, if they wanted to draw attention to the flaws in Adobe’s ebook, why Dmitry hadn’t released his exploit on Bugtraq. This is a fascinating attack, given that it seems to imply that it would be *better* for Elcomsoft to release flaws on Bugtraq. Given that many people believe that releasing such circumvention code on Bugtraq is a breach of the DMCA itself, this seems kind of a weird condemnation. The point wasn’t examined in detail by either prosecution or defence. Dmitry said that Elcomsoft didn’t want to damage ebook publishers by publically releasing the exploit.
- …said that by reverse-engineering Adobe’s ebook reader, Sklyarov had breached Adobe’s download license. Dmitry pointed out that reverse-engeering for compatibility reasons was legal in Russia, so that part of the license didn’t apply.
This last point lead to the biggest soundbite of Sklyarov’s evidence, where the prosecution asked him “Did you care whether you broke US law when you wrote this program?”. Dmitry said no, he didn’t care. Prosecution, in a real TV Land moment, seized the opportunity to say “no further questions, your honour”, dramatically shuffled their papers and sat down. Defence leapt up and attempted to clarify what Dmitry had said. Dmitry rather stubbornly insisted that he didn’t care, and said that he was rather more concerned about whether he was legal under Russian law, which he was convinced it was.
Speaking personally, and given the “Alameda” yukfest at the beginning of the evidence, I would have taken this opportunity to cry out “In Soviet Russia, broken US laws do not care about you!”. I guess this is why I’m never asked to be an expert witness.
I missed the second witness, the MD of Elcomsoft. By all accounts, he played one of the better cards of the defence, by revealing that the vast majority of Elcomsoft customers were law enforcement and in the security field.
I’ll try and pop along tomorrow, although I’m now a bit late filing for my real work this week.