[wordup] GWU prof Orin Kerr explains why Elcomsoft acquittal happened

[Adam Shand]

Via: politech at politechbot.com
From: http://volokh.blogspot.com/2002_12_15_volokh_archive.html#90064428

[Orin Kerr, 2:34 PM]

ELCOMSOFT NOT GUILTY: A jury in San Jose has found the Russian software 
company ElcomSoft not guilty of violating the criminal provisions of the 
Digital Millennium Copyright Act:

     Jury foreman Dennis Strader said the jurors agreed ElcomSoft's 
product was illegal but acquitted the company because they believed the 
company didn't mean to violate the law. "We didn't understand why a 
million-dollar company would put on their Web page an illegal thing that 
would (ruin) their whole business if they were caught," he said in an 
interview after the verdict. Strader added that the panel found the DMCA 
itself confusing, making it easy for jurors to believe that executives 
from Russia might not fully understand it.

     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.