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[FYI] (Fwd) FC: GWU prof Orin Kerr explains why Elcomsoft acquittal

------- Forwarded message follows -------
Date sent:      	Tue, 17 Dec 2002 18:09:23 -0500
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: GWU prof Orin Kerr explains why Elcomsoft acquittal happened
Send reply to:  	declan@well.com

Previous Politech message:
"Verdict's in: Elcomsoft NOT GUILTY of criminal DMCA violations"

Background on Elcomsoft:


From: "Orin Kerr" <okerr@law.gwu.edu>
To: declan@well.com
Date: Tue, 17 Dec 2002 17:58:36 -0600
MIME-Version: 1.0
Subject: for politech, if you like
Message-ID: <3DFF65CC.2783.90CAEBA4@localhost>


Re the Elcomsoft decision today, I thought
politech readers might be interested in this legal
analysis I recently posted to a blog (the blogcite is

According to press accounts, the ElcomSoft jury
acquitted because the jury was not convinced
that Elcomsoft meant to violate the DMCA. Why
does it matter whether the company meant to
violate the law, you might wonder?

Here's a bit of background. The general rule in
criminal law is that intent to violate the law
doesn't matter. As they say, "ignorance of the law
is no excuse." However, Congress occasionally
limits criminal liability to "willful" violations of the
law. Although there is some dispute as to what it
means to violate a law "willfully," the general rule
is that a willful violation means a violation that is
knowingly and purposely in violation of the law
itself. Willful violations are an exception to the
usual rule that ignorance of the law is no excuse:
when Congress limits a crime to "willful"
violations, ignorance of the law is an excuse. The
government must prove not only that the
defendant violated the law, but that the defendant
knew he was violating the law.

The DMCA is one of those laws that limits
criminal prosecutions to willful violations. In other
words, Congress only wanted violations of the
DMCA to be criminal when the person actually
knew that they were violating the law and did it
anyway. Because the San Jose jury was not
convinced beyond a reasonable doubt that
ElcomSoft knew they were violating the law, the
jury acquitted.

Why did Congress limit the criminal reach of the
DMCA to "willful" violations, you might wonder?
Because these laws are hard, and Congress
didn't want someone to go to jail when it wasn't
relatively clear what the law was. That's the
explanation that the courts have offered in the
area of tax law, another complex area of law that
allows criminal prosecutions only for "willful"
violations. Here's an excerpt from the Supreme
Court's decision in Cheek v. United States, 498
U.S. 192 (1991), a case that interpreted "willfully"
in the context of the federal tax laws:
     The proliferation of statutes and
     regulations has sometimes made it
     difficult for the average citizen to know
     and comprehend the extent of the duties
     and obligations imposed by the tax laws.
     Congress has accordingly softened the
     impact of the common-law presumption
     by making specific intent to violate the
     law an element of certain federal criminal
     tax offenses. Thus, the Court almost 60
     years ago interpreted the statutory term
     "willfully" as used in the federal criminal
     tax statutes as carving out an exception
     to the traditional rule. This special
     treatment of criminal tax offenses is
     largely due to the complexity of the tax
Id.at 199. The same goes for the DMCA.

Orin S. Kerr
Associate Professor
George Washington University Law School

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