FITUG e.V. Förderverein Informationstechnik und Gesellschaft

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" http://www.politechbot.com/p-04256.html

Background on Elcomsoft: http://www.politechbot.com/cgi-bin/politech.cgi?name=elcomsoft

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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>

Declan,

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 http://volokh.blogspot.com/2002_12_15_volokh_ archive.html#90064428)

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 laws. Id.at 199. The same goes for the DMCA.

Orin S. Kerr Associate Professor George Washington University Law School okerr@law.gwu.edu

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