Testimony ends in Adobe hacking trial

A Russian software executive sought to deflect accusations against his company on Tuesday in a closely watched criminal hacking trial that legal experts said appeared to leave little room for effective defensive manoeuvres.

ElcomSoft President Alexander Katalov testified in federal court here that his company acted in good faith in creating a product that thwarts anticopying features in Adobe Systems' eBook Reader - a function that prosecutors say violates US copyright law.

Earlier in the trial, ElcomSoft had sought to enter evidence of the benign uses of the software, such as to allow visually impaired readers to transfer Adobe eBooks to reading devices for the blind. Judge Ronald Whyte refused to allow that line of defence, however, leaving the company few arguments to protest its innocence.

In the fourth and final day of testimony in the case, Katalov said he didn't think ElcomSoft's Advanced eBook Processor software was illegal at the time of its sale. He added that he had pulled most versions of the software from the web after receiving letters from Adobe saying the program was illegal, some eight days after it was first made available online.

However, Katalov testified that he never believed the software contravened the law. "I still believe this program is legal," Katalov said, in response to questioning by ElcomSoft attorney Joseph Burton.

ElcomSoft faces five charges related to offering software that can be used to break protections on Adobe's eBooks, which prosecutors say is illegal under untested criminal provisions of the Digital Millennium Copyright Act (DMCA).

Attorneys from both sides are scheduled to present closing arguments to the jury on Thursday morning, after which jury members are scheduled to begin their deliberations. Meanwhile, Judge Whyte will work with the attorneys to come up with jury instructions that both sides can agree upon, a task that already has proven difficult, given the novelty of the case.

"There isn't any law in this area," Assistant US Attorney Scott Frewing told Judge Whyte at a pretrial hearing two weeks ago, during which the judge heard arguments over jury instructions. One of the issues both sides are wrangling over is what it means to act "willfully" in this case. The defense wants the judge to instruct jurors that ElcomSoft had to have acted with an "evil-meaning mind," or for a "bad purpose," to be found guilty.

The case is being closely watched by legal scholars, digital publishers and programmers because it is the first major test of the criminal provisions of the DMCA. The law, passed in 1998, makes it illegal to crack protections on copyrighted material.

The DMCA is particularly tricky, legal experts say, because it outlaws such cracking - or offering products that do so - even if the person breaking the code plans to use the content for purposes that have traditionally been legal, such as for reverse engineering or making a backup copy.

During the trial, Judge Whyte denied most of ElcomSoft's attempts to present evidence about what customers did with the Advanced eBook Processor software they purchased. After the prosecution objected, the judge quashed emails presented by the defence that appeared to be from customers and cut off some lines of questioning about why people were purchasing the software.

Jefferson Scher, an attorney with the law firm Carr & Ferrell, said he would be surprised if the jury doesn't convict ElcomSoft. "The law says thou shalt not sell, and it's very hard to find loopholes in the law," Scher said. He believes most of the "juicy issues" - such as how free-speech protections square with the DMCA and how much authority Congress has in enforcing copyright law - will come up on appeal.

The DMCA already is affecting some programmers who worry their work could put them on the wrong side of the law -fears that could be exacerbated by a guilty decision against ElcomSoft. "In a would really slow down innovation if all engineers had to think about copyright law all day long," Scher said.

Lisa M. Bowman writes for News.com