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Duane Morris at Forefront of Digital Copyright Law
In a precedent setting case, Duane Morris partner Joseph M. Burton successfully defended the principle of fair use in his representation of ElcomSoft. The Russian software developer faced the first criminal prosecution under the controversial federal Digital Millennium Copyright Act, which bans software tools that bypass encryption on digitally copyrighted works. Burton focused his argument on the concept of a legitimate company selling a legitimate product that provided consumers access to a "fair use" of their purchase. Burton's work on the case prompted U.S. District Judge Ronald Whyte to state "This is the best-argued case I've seen since I've been on the bench," according to The Recorder.
Due in large part to his work on the case, Burton was named the 2003 California Lawyer Attorney of the Year for Criminal and Copyright Law by California Lawyer magazine. The magazine bestows the awards on lawyers who "have made significant impact on public policy, creatively managed complicated cases or transactions, and won cases against great odds."
The not guilty verdict returned by a Silicon Valley jury for ElcomSoft has significant potential ramifications, and Burton noted that the decision calls on Congress to clarify certain provisions of the DMCA. "This ruling demonstrates that the concept of fair use is still alive," observed Burton. "While it is vital to protect the rights of copyright creators and owners, it is equally important to protect the rights of legitimate owners of digital products. If you purchase a product, you have some rights to use that work in a reasonable way, even if the publisher hasn't specifically granted them." Burton hopes the ruling is a catalyst for owners of copyrights and purchasers of copyrighted digital materials to begin talking to each other. "We need to find a way to balance concerns for privacy with the legitimate rights of consumers."
The DMCA contains provisions that prohibit the sale of technology that can defeat electronic coding designed to prevent consumers' ability to reproduce digital products such as DVDs, e-books, music and software, among others.
Burton, based in the San Francisco office of Duane Morris, concentrates his practice in complex civil, criminal and appellate litigation. He is nationally recognized for his work in the emerging field of Information Security Law, where he advises and represents individuals and corporations regarding their rights and responsibilities in maintaining the security of digital information. His practice includes trade secret, trademark and patent litigation with an emphasis in cybercrime and cybersecurity matters. Burton is a former Assistant United States Attorney and chief of the Silicon Valley Office for the Northern District of California where he handled several pioneering high technology investigations and prosecutions, including the first prosecution in the nation for criminal copyright infringement of computer code and the first investigation of the former and notorious "hacker" Kevin Poulsen, for cybercrimes. As a defense counsel, Burton represented one of the targets of the first criminal investigation into the export, by computer, of cryptography programs.