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. Last Updated: 07/27/2016

ElcomSoft Lawyer Asks U.S. to Ditch Case

SAN FRANCISCO -- The attorney for a Russian company accused of violating U.S. copyright law filed motions Monday to have the case dismissed, arguing the law is vague, too broad and shouldn't apply to a foreign company.

ElcomSoft Co. faces charges of violating the Digital Millennium Copyright Act by selling and conspiring to sell a program that lets people using Adobe Systems Inc.'s eBook Reader copy and print digital books, transfer them to other computers and have them read aloud by the computer.

The Moscow software firm faces $2.25 million in fines if convicted of breaking the law, enacted in 2000 to bar the creation or distribution of technology that can be used to circumvent copyright protections.

But defense attorney Joseph Burton of law firm Duane Morris in San Francisco said ElcomSoft makes software that allows people with lawful rights to copyrighted material to use the material in reasonable ways for personal use.

"If you have lawful access to the copyrighted material, you can circumvent controls in order to exercise a 'fair use' right," he said.

For example, a fair use of an electronic book would be to copy it from a desktop to a laptop for traveling, he said.

Movie studios and software companies have relied on the DMCA to help them restrict the way people use computer programs and view digital movies. They have argued, successfully so far, that because electronic material can be so easily distributed, it needs as much or more protection than printed material.

Free speech advocates, including computer scientists and software developers, argue the DMCA gives copyright owners and software vendors carte blanche over the use of digital material at the expense of free speech and "fair use" rights that people enjoy elsewhere.

In his motions, Burton argues that the DMCA, in addition to being too broad and vague, also infringes on First Amendment free speech rights under the U.S. Constitution.

"Copyright holders are trying to improperly extend their control; to claim a control over works I lawfully have that I don't believe the DMCA gives them," Burton said.

A hearing is scheduled for April 1 in the U.S. District Court in San Jose, California, on those two motions, he said.

Burton also filed motions to dismiss based on arguments that the law doesn't apply to a foreign company doing business solely on the Internet and that a company can't be charged with conspiracy when it involves communications with an employee.

A hearing on those motions is scheduled for March 4.