Burton alleges that DMCA does not specifically detail fair use restrictions, and is thus overly broad.

From Wired, lawyers for Russian software developer Elcomsoft, Inc. have filed a motion with US District Court Judge Ronald Whyte to have the case dismissed on the grounds that the Digital Millenium Copyright Act (DMCA) is vague and unconstitutional. Attorneys for the government argue that the DMCA is very specific, and that Elcomsoft's arguments amounted to little more than "a red herring."

Elcomsoft specifically alleged that the DMCA does not specifically declare what sorts or natures of tools it deems illegal, and thus is overly broad in nature. Joseph Burton, Elcomsoft's arguing attorney, alleged that it makes allowance for specific circumvention devices which have a legal or legitimate purpose, and that Elcomsoft's software fits into that purpose, since it has functional uses as allowing eBooks to be read aloud for the blind, or transfer of eBooks to different computers, so that they're not tied down to one particular reader.

But the DMCA as written does not "clearly define which software tools it prohibits," and that "Elcomsoft could not know, with any reasonable certainty, if its lawful conduct was meant to be included within the statutory proscription," Burton wrote in his brief.

The U.S. v. Elcomsoft case could take on more weight over the coming weeks, as the likelihood of passing the CBDTPA would significantly wane if the DMCA were to be overturned.