Judge Whyte's Order Denying Defendant's Motion

to Dismiss Indictment for Lack of Subject Matter Jurisdiction, in US v. ElcomSoft (Mar. 27, 2002)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

UNITED STATES OF AMERICA,   Plaintiff,   v.   ELCOM LTD., a/k/a ELCOMSOFT CO., LTD. and DMITRY SKLYAROV,   Defendants

No. CR 01-20138 RMW ORDER DENYING DEFENDANTS' MOTION TO DISMISS INDICTMENT FOR LACK OF SUBJECT MATTER JURISDICTION

On March 4, 2002, the court heard defendant Elcom Ltd.'s motion to dismiss the indictment for lack of subject matter jurisdiction. Having considered the papers submitted by the parties and the arguments made at the hearing on the motion, defendant's motion is denied.

The court need not reach the issue of whether the Digital Millennium Copyright Act has extraterritorial application because the trafficking conduct for which defendants have been charged occurred in the United States. The conduct which underlies the indictment includes Elcomsoft's offering its AEBPR program for sale over the internet, from a computer server physically located in the United States. Purchasers obtained copies of the program in the United States. A copy of the program was sold to a purchaser in California. Payments were directed to, and received by, an entity in the United States.

There is sufficient conduct occurring within the United States for there to be subject matter jurisdiction over this matter on a territorial basis.

Defendant's motion to dismiss the indictment for lack of subject matter jurisdiction is therefore denied.

DATED:     3/27/02    

         [signature]         
RONALD M. WHYTE
United States District Judge

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