September 20, 2020

More On Elcomsoft's Acquittal

Orin Kerr at The Volokh Conspiracy explains why ElcomSoft’s ignorance of the law was an excuse in this instance.

Also, some are suggesting that jury nullification may have played a role in ElcomSoft’s acquittal. (“Jury nullification” refers to a jury’s refusal to find guilt under a law because they consider that law unjust.) An AP story says:

The defense argued that the program merely enabled owners of Adobe eBook Reader software to make copies of e-books for personal use. If an owner makes a backup copy of an e-book or transfers it to another device he owns, they argued, that is permitted under the “fair use” concept of copyright law.

Jury foreman Dennis Strader said the argument made a big impact on the jurors, who asked U.S. District Judge Ronald M. Whyte to clarify the “fair use” definition shortly after deliberations began.

“Under the eBook formats, you have no rights at all, and the jury had trouble with that concept,” said Strader.