## Facts

- Adobe’s eBook system used technological protection measures that limited copying, printing, and other uses of eBooks.
- Elcom Ltd., a Russian software company, developed and sold “Advanced eBook Processor” (AEBPR), which decrypted Adobe-protected eBooks and generated unrestricted files that bypassed those controls.
- Elcom marketed and sold AEBPR over the internet, including to U.S. customers, using U.S.-linked sales channels.
- A federal grand jury indicted Elcom and an Elcom programmer on charges including conspiracy and violations of the DMCA’s anti-circumvention/anti-trafficking provisions.
- After the individual programmer entered a deferred-prosecution cooperation agreement, Elcom pursued pretrial motions to dismiss the indictment on constitutional grounds.

## Issues

1. Whether 17 U.S.C. § 1201(b)’s anti-trafficking provisions are unconstitutionally vague under the Fifth Amendment Due Process Clause, facially or as applied to the charged conduct.
2. Whether criminalizing trafficking in circumvention technology under § 1201(b) violates the First Amendment because software code and distribution of software are protected expression.
3. Whether § 1201(b) is facially overbroad under the First Amendment because it can impede lawful uses, including fair use, by restricting circumvention tools.
4. Whether applying the DMCA to Elcom’s conduct was constitutionally improper based on other due process theories, including an asserted lack of domestic nexus and alleged chilling of research.

## Decision

- The court denied Elcom’s motions to dismiss the indictment.
- The court held § 1201(b) was not unconstitutionally vague because its terms, structure, and scienter requirements provided fair notice and constrained enforcement discretion.
- The court held § 1201(b) did not violate the First Amendment because it principally regulates trafficking in a functional circumvention tool, not the communication of ideas or research about circumvention.
- The court rejected facial overbreadth arguments tied to fair use, concluding that Congress may prohibit trafficking in circumvention tools even if that restriction incidentally affects some lawful uses.
- The court rejected additional constitutional objections, including arguments premised on extraterritoriality, because the alleged distribution and sales into the United States supplied a sufficient domestic connection.

## Legal Principles

- A criminal statute is void for vagueness only if it fails to give a person of ordinary intelligence fair notice of prohibited conduct or is so standardless that it invites arbitrary enforcement; scienter requirements reduce vagueness concerns.
- DMCA § 1201(b) targets trafficking in technologies primarily designed, marketed, or having limited commercial purpose other than circumventing technological measures that protect a copyright owner’s rights.
- Regulation of distributing a functional circumvention device may be treated as regulation of conduct that only incidentally affects expression, rather than a direct, content-based restriction on speech.
- The DMCA’s anti-circumvention regime is distinct from infringement doctrine; limits on circumvention tools do not, by themselves, establish a First Amendment violation based on fair use theories.
- A statute is not facially invalid on overbreadth grounds unless it substantially burdens protected speech relative to its legitimate scope.

## Conclusion

The court allowed the prosecution to proceed, concluding that the DMCA’s anti-trafficking provisions provided adequate notice, were directed at trafficking in circumvention tools rather than suppressing protected expression, and were not facially invalid based on fair use or related First Amendment theories.


United States v. Elcom Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002)