Verdict's in: Elcomsoft NOT GUILTY of criminal DMCA violations
http://www.politechbot.com/p-04256.html
Sklywalker walks.
Regarding the possibility of jury nullification in the Elcomsoft case, a
little history review may be in order: We owe quite a bit of our freedom to
jury nullification--it isn't just O.J. What follows is an excerpt from a
paper I wrote recently, for which I am currently seeking publication: Among
the founders of colonies, William Penn was a particular defender of Magna
Carta, even publishing an edition in Philadelphia and urging his colonists
to cherish it.[1] He had good reason to do so--especially with regard to
Clause 39 [providing for punishment only "by the lawful judgment of his
peers, or by the law of the land"]: As a defendant at Old Bailey, charged
with giving a speech in breach of the peace, Penn had been acquitted by a
jury that acknowledged he had spoken in the street but refused, despite
attempts at coercion from the bench, to deem his speech a crime.[2] The
jurors were then fined, and in proceedings on habeas corpus, Chief Justice
Vaughan affirmed the right of jurors to decide according to their
convictions.[3] And in 1682, the year after William Penn became governor of
Pennsylvania, that colony received a Frame of Government proclaiming
"[t]hat all trials shall be by twelve men, and as near as may be, peers or
equals, and of the neighborhood, and men without just exception."[4] A case
of similar significance to Penn's[5] that took place on this side of the
Atlantic was the acquittal in 1735 of John Peter Zenger, publisher of the
New-York Weekly Journal, on a charge of seditious libel. It was argued in
that case that the statements published in the Weekly Journal could not be
libelous because they were true--but, as the judge told the jury,[6] truth
was no defense to a charge of seditious libel in 1735.[7] The only fact for
the jury to decide, as the law was then understood, was whether the
defendant had published the statements alleged to be libelous; this finding
was to be rendered by way of a special verdict.[8] Zenger's counsel
conceded publication[9] and demanded a general verdict.[10] The acquittal
can be understood only as a rejection of the law.[11] [1] "The 29th
Chapter, no free-man shall be taken, &c. Deserves to be written in Letters
of Gold . . . ." The Excellent Priviledge of Liberty & Property Being the
Birth-Right of Free-Born Subjects of England 23, quoted at Howard, supra
note 38, at 90. Chapter 29 is a later edition of Clauses 39 and 40. See
supra note 14. [2] Lloyd E. Moore, The Jury: Tool of Kings, Palladium of
Liberty 83 (2d ed. 1988). [3] Bushell's Case, 124 Eng. Rep. 1006 (n.d.).
The Chief Justice, finding that the allegation "that the jury did acquit,
against the direction of the Court, literally taken" was a mere "vail and
colour of words, which make a shew of being something, and in truth are
nothing," because every case contains elements of both law and fact, wrote:
If the meaning of these words, finding against the direction of the Court
in matter of law, be, that if the Judge having heard the evidence, the law
is for the plaintiff, or for the defendant, and you are under the pain of
fine and imprisonment to find accordingly, then the jury ought of duty to
do so; every man sees that the jury is but a troublesome delay, great
charge, and of no use in determining right and wrong, and therefore the
tryals by them may be better abolish'd than continued; which were a strange
new-found conclusion, after a tryal so celebrated for many hundreds of
years. 124 Eng. Rep., at 1011. Vaughan writes in terms of perceptions of
fact, and he argues, 124 Eng. Rep. at 1012-13, that the jurors may know
more about the case than has been presented in court, because they are from
the place where the facts at issue arose. It is notable, then, that his
opinion does not describe the events of the Penn and Mead trial, where the
jury found defendant Penn "Guilty of speaking Grace-Church Street," but
refused to include the words "unlawful assembly" as the court wished, and
where only after its first two verdicts were refused did the jury return a
full acquittal. Compare Bushell's Case, 124 Eng. Rep., at 106, to Moore,
supra note 40, at 84. [4] Quoted at Moore, supra note 40, at 97. [5] The
Zenger case has been taken to stand not only for trial by jury (as did
Penn's case and the subsequent trial of his jurors) and freedom of the
press (which is closely linked to the freedom of speech and assembly at
issue in the Penn case), but also for the right to counsel of one's own
choosing. See Bruce J. Winick, Forfeiture of Attorney's Fees under RICO and
CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How
to Avoid It, 43 U. Miami L. Rev. 765, 786 (citing "the most famous trial of
the colonial period, the trial of John Peter Zenger, which stands both as a
vindication of the right to retain counsel of choice and an early
demonstration of the importance of the right"). [6] Politics, the Press,
and Law: An Introduction to the Trial of John Peter Zenger, in A Brief
Narrative of the Case and Tryal of John Peter Zenger, Printer of the New
York Weekly Journal 5 (Paul Finkelman ed. 1997) (1736). [7] See 4 William
Blackstone, Commentaries *150 ("the provocation, and not the falsity, is
the thing to be punished criminally"). [8] Politics, the Press, and Law: An
Introduction to the Trial of John Peter Zenger, supra note 44, at 13. [9] A
Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the
New York Weekly Journal, supra note 44, at 110. [10] The judge maintained
that it was his right to determine whether the statements, if the jury
found that Zenger had published them, were libelous, but he did not prevent
Zenger's counsel from arguing that the jury ought to acquit on grounds of
truth. In England at that time, criminal defendants' attorneys were not
permitted to address the jury. Moore, supra note 40, at 107. [11] In 1770,
a Patriot described Zenger as rejecting seditious libel prosecutions.
Politics, the Press, and Law: An Introduction to the Trial of John Peter
Zenger, supra note 44, at 2. Yet the law of seditious libel remained on the
books through Independence and the Constitutional Convention. Id., at 9.
ALEX R. COHEN Class of 2003 University of Pennsylvania Law School
http://www.politechbot.com/p-04257.html
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 [EMAIL PROTECTED]
