JOSEPH M. BURTON (SB No. 142105)
STEPHEN H. SUTRO (SB No. 172168)
DUANE MORRIS LLP
100 Spear Street, Suite 1500
San Francisco, CA 94105
Telephone: (415) 371-2200
Facsimile: (415)371-2201
Attorneys for Defendant
ELCOMSOFT COMPANY, LTD.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
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UNITED STATES OF AMERICA Plaintiff, v. ELCOM LTD., a/k/a ELCOMSOFT CO., LTD., Defendant. |
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Case No.: CR 01-20138 RMW DECLARATION OF JOSEPH M. BURTON IN
SUPPORT OF MOTION TO DISMISS INDICTMENT FOR VIOLATION OF DUE PROCESS Date: April 1, 2002 Time: 9:00 a.m. Judge: The Honorable Ronald M. Whyte |
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I,
JOSEPH M. BURTON, declare :
1.
I
am a partner at the law firm of Duane Morris LLP, counsel of record for defendant
Elcomsoft Co. Ltd (“Elcomsoft”) in this matter. I have personal knowledge of the
following facts, and if called upon to do so, could and would competently
testify to them.
2. Attached
hereto as Exhibit A is a true and correct copy of a document titled
“Adobe Solutions for the eBook Market” that was produced by the
government to Elcomsoft in this matter.
3. Attached
hereto as Exhibit B is a true and correct copy of a printout dated July 4, 2001
from the portion of Elcomsoft’s website that described AEPBR (http://www.elcomsoft.com/
aebpr.html) that was produced by the government to Elcomsoft in this
matter.
4. Attached
hereto as Exhibit C is a true and correct copy of the July 16, 2001 Statement
of Elcomsoft Employee Dmitry Sklyarov to the FBI that was produced by the
government to Elcomsoft in this matter.
5. Attached
hereto as Exhibit D is a true and correct copy of the September 5, 2001 FBI
Interview of Aaron Mathieson that was produced by the government to Elcomsoft
in this matter.
6. Attached
hereto as Exhibit E is a true and correct redacted copy of an August 28, 2001
E-mail that Aaron Mathieson sent to me.
7. Attached
hereto as Exhibit F is a true and correct copy of the August 31, 2001 FBI
Interview of Stephen Richard Levine that was produced by the government to
Elcomsoft in this matter.
8. Following
the complaints by Adobe that AEBPR violated United States law, and
Elcomsoft’s termination of the sale of AEBPR, Elcomsoft received several
e-mails from potential users of AEBPR requesting a full version of the
software. In some cases, the
potential purchasers described why they needed AEBPR. The e-mails identified in subparagraphs (a.) through (e.)
below are true and correct copies of such e-mails received by Elcomsoft.
a. Attached
hereto as Exhibit G is a true and correct copy of a July 5, 2001 E-mail from a
potential user of AEBPR.
b. Attached
hereto as Exhibit H is a true and correct copy of a July 6, 2001 E-Mail from
State of Wisconsin.
c. Attached
hereto as Exhibit I is a true and
correct redacted copy of a July 5, 2001 E-Mail from SunGard eSourcing.
d. Attached
hereto as Exhibit J is a true and correct copy of a July 5, 2001 E-Mail from
Time Warner Communications.
e. Attached
hereto as Exhibit K is a true and correct copy of a July 14, 2001 E-Mail from
Daniel Bailey.
9. Attached
hereto as Exhibit L is a true and correct copy of a facsimile dated July 23,
2001 from RegNow to the FBI regarding Advanced eBook Processor sales
information that was produced by the government to Elcomsoft in this
matter. The page bates numbered
000101 reflects that on July 3, 2001, Lori Mullen of Los Alamos, New Mexico,
e:mail: ggg@lanl.gov, purchased AEBPR. Attached hereto as Exhibit M is a true and correct copy of
the August 30, 2001 FBI Interview of Gary Garrett, an employee at Los Alamos
Nuclear Labratory, and a Government Card Services credit card statement for the
period June 28, 2001 through July 12, 2001. The documents attached at Exhibit M were produced by the
government to Elcomsoft in this matter.
10. Attached
hereto as Exhibit N is a true and correct copy of H. Rept. 105-551 (Part I),
Report of the House Judiciary Committee on H.R. 2281, WIPO Copyright Treaty
Implementation Act (May 22, 1998).
11. Attached
hereto as Exhibit O is a true and correct copy of H. Rept. 105-551 (Part II),
Report of House Commerce Committee on H.R. 2281, the Digital Millennium
Copyright Act (July 22, 1998).
12. Attached
hereto as Exhibit P is a true and correct copy of S. Rept. 105-190, Report of
the Senate Judiciary Committee on S. 2037, the Digital Millennium Copyright Act
(May 6, 1998).
I
declare under penalty of perjury of the laws of the United States that the
foregoing is true and correct and that this declaration was executed in San
Francisco, California on January 28, 2002.
__________________________________
Joseph
M. Burton
SF\28589.1
United States of America v. Elcom Ltd.,
a/k/a Elcomsoft Co., Ltd.
Case No.: CR 01-20138 RMW
PROOF OF SERVICE
I
am a resident of the state of California, I am over the age of 18 years, and I
am not a party to this lawsuit. My
business address is Duane Morris LLP, 100 Spear Street, Suite 1500, San
Francisco, California 94105. On
the date listed below, I served the following document(s):
DECLARATION
OF JOSEPH M. BURTON IN SUPPORT OF MOTION TO DISMISS
INDICTMENT FOR VIOLATION OF DUE PROCESS
_ by
transmitting via facsimile the document(s) listed above to the fax number(s)
set forth below on this date during normal business hours. Our facsimile machine reported the
"send" as successful.
_ by
placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, California,
addressed as set forth below.
I am readily familiar with the firm's
practice of collecting and processing correspondence for mailing. According to that practice, items are
deposited with the United States mail on that same day with postage thereon
fully prepaid. I am aware that, on
motion of the party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after the date of deposit for
mailing stated in the affidavit.
John
Keker
Keker
& Van Nest
710
Sansome Street
San
Francisco, CA 94111
_ by
placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, deposited with Federal Express Corporation on the same date set
out below in the ordinary course of business; to the person at the address set
forth below, I caused to be served a true copy of the attached document(s).
Scott
H. Frewing
Assistant
United States Attorney
United
States District Court
Northern
District of California
280
South First Street
San
Jose, CA 95113
_ by
causing personal delivery of the document(s) listed above to the person at the
address set forth below.
_ by
personally delivering the document(s) listed above to the person at the address
set forth below.
I
declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Dated: January ____, 2002
________________________________
Lea
A. Chase
SF-28589