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Pavlovich Jurisdictional Challenge Denied
Appellate Court Issues Precedent Setting Ruling in Cyber-Jurisdiction ruling
The Sixth District Court of Appeals has issued its ruling in the jurisdictional case filed by Indiana student Matt Pavlovich, a foreign defendant in the California DVD case. You may recall that Pavlovich had moved the trial court to dismiss him from the main DVD action due to lack of jurisdiction. When the trial court denied his motion, Pavlovich filed a petition for Writ of Mandate with the Court of Appeals - that court summarily denied his petition. Pavlovich then turned to the Supreme Court for relief by way of a Petition for Review. In a rare move, all seven justices of the Supreme Court unanimously granted review and sent the matter back to the Court of Appeals with instructions that they re-consider the case. Following additional filings and oral arguments, today the Court of Appeals issued a published, written opinion again denying Pavlovich's petition. The Court's order will be available on our web site at www.legal.wao.com shortly, and is also accessible through the Court of Appeal's site.
Today's opinion dramatically increases the jurisdictional reach of California's court system, creating nearly limitless jurisdiction over internet disputes involving the motion picture industry, the technology industry, and any other industry reputed to exist in California. Because the exercise of jurisdiction is fundamentally a question of state power, we contend that this type of hyper-extension of California's long-arm statute violates the Constitutional safeguards found within the Due Process Clause of the U.S. Constitution. Because the decision affects the Constitutional Rights of U.S. Citizens everywhere, we are hopeful that the Supreme Court will again grant review of the Appellate Court's decision.
The underlying California Case:
Pavlovich, along with Andrew Bunner and some 500 other individual defendants, have been targeted by the Motion Picture Industry trade group DVD CCA in the California case. DVD CCA alleges that the defendants, who allegedly found the DeCSS information on the World Wide Web and then republished it, may not continue to publish the information based on California's Uniform Trade Secret's Act. Bunner claims that, like any other innocent republisher of information, he has a constitutionally protected right to publish this particular information and is not liable under the UTSA. Bunner, along with Amicus briefs from the prestigious IEEE and ACIS groups, also argues that the information he republished was properly and permissibly reverse-engineered and as such cannot be enjoined under the UTSA. In his papers, Bunner explains that Reverse-Engineering, along with the publication of technical discoveries, has long been a mainstay of innovation and evolution in the field of high-technology. Enjoining the publication of technical information, and stopping permissible reverse-engineering, would necessarily empower entities to use technologies like CSS to manipulate markets and bar consumer protections.
NEW YORK CASE:
The New York case continues through the appellate process. Appellants presented oral arguments before the appeals court and have recently responded to a number of written questions posed by the court. Additional resources are available at www.eff.org.
Resources:
HS Law Group's web site with information about the DeCSS cases:www.legal.wao.com
http://www.cryptome.org- tends to get the most recent filings fairly quickly
EFF Archive for DVD-CCA Cal. trade secret case: http://www.eff.org/IP/Video/DVDCCA_case/
EFF's DVD Archive: http://www.eff.org/pub/Intellectual_property/DVD/
Allonn E. Levy, Esq.
HS LAW GROUP a.p.c.
210 N. Fourth St. Fourth Fl.
San Jose, CA 95112
They closed it down in 1996 (was it really that long ago?).
Hehe. ohh please. Go away.
I believe Hollywood has some better and more attainable goals for piracy protection. Mainly lobbying laws to block isp's from content it finds offense and strengthening international trade laws. Their is no way in hell that anything you described above could possibly happen.
The Supreme Court would come down quite heavily if such a decision ever occurred by the California state courts. You also need to be proved guilty and have a search warrant to obtain evidence to be prosecuted by. Its illegal for hollywood to hire bounty hunters ot hurt someone. Their bounty hunters mainly are gumshoes who send nasty letters and obtain information to RIAA/MPAA legal teams for possible civil lawsuits and not criminal ones. They want to sue and shutdown ftp sites with mp3's as well as file-swapping service companies. Not open source programmers.
Unless FBI agents find some pirated dvd stacks in linus's house which by the way needed a search warrant in the first place I may add, linus would never be charged with anything.
Remember the Sony case against emulators? It failed because there are some legal uses for it. Linux and non-profit software (not unpaid software) have existed since the dawn of the pc and will not be outlawed. I do believe the term free is bad and sounds suspicious to those untechnical but non-commerical or non-profit sounds legit and its more of the truth of most open source apps. Even before shareware most apps were actually free in the pc and academic world. It was Microsoft that changed that.
But this guy did brake the law. He put an illegal link under the DMCA (which I don't think his action should be illegal, but it is) and he is being punished for it. Think linking is legal? Go read the law. We all hate the dmca but its the law of the land and without borders due to international trade laws, weither we like it or not. It will always be the law of the land until its appealed. But Hollywood doesn't give a crap about software hobbiests. They care are bearshare and mp3 warez sites and so on. Their lawyers used the term free as in not wanting to pay to piss of some ignorant judges in this case.
http://saveie6.com/
Yes, I am a lawyer. No, I am not offering anyone legal advice. No, I do not currently practice law (though I do keep up). No, you most definitely may not rely on anything I say below. If you read the Court's opinion, it is clear that Court perfectly understands what is alleged to have occurred. In the context of the rest of the Court's opinion, the statement "Furthermore; Pavlovich knew that his Web site allowed the illegal publishing and distribution of DVDs," clearly means, and is functionally the same as, the more precise statement "Furthermore; Pavlovich knew that [the tools or code distributed on] his Web site allowed the illegal publishing and distribution of DVDs." If you read the Pavlovich's deposition testimony quoted in the Court's opinion, it is obvious that the Court's statement is correct.
The Court has not "decided the main issue of the case" in any binding way. The Court of Appeal did not do anything improper. On the contrary, in making the statement Michael quotes above the Court of Appeal was acting properly, and in the same manner it does in every prejudgment appeal of a trial court's determination of personal jurisdiction. I'll try to explain.
Personal jurisdiction is not determined by the mere allegations of the complaint, but by the facts. According to the U.S. Supreme Court, personal jurisdiction in California is constitutionally permissible where intentional conduct outside of California is calculated to cause injury to the plaintiff in California. See Calder v. Jones, 465 U.S. 783, 791. Thus, parties submit admissible evidence -- e.g., affidavits, declarations, deposition testimony, etc. -- and the trial court must make a preliminary, non-binding determination of what the jurisdictional facts are prior to trial -- i.e., did the defendant in fact engage in conduct outside of California that was calculated to cause injury to the plaintiff in California? The preliminary determination of the jurisdictional facts is made by the trial judge and is NOT binding on the jury at trial. Where, as here, the defendant seeks an appeal (actually a petition for writ of mandamus) of the jurisdictional issue in order to get the case dismissed prior to trial, the Court of Appeal must necessarily review the trial court's (i.e., trial judge's) determination of the jurisdictional facts. Again, neither the factual determination by the Court of Appeal nor by the trial court is binding on the jury at trial. Indeed, said determinations are not even admissible as evidence at trial. The defendant starts the jury trial with an evidentiary clean slate.
Why is it done this way? For two reasons. First, to give the defendant a pre-trial opportunity to seek dismissal of the Complaint for lack of personal jurisdiction. Secondly, this procedure avoids what many on Slashdot might think of as an endless loop where: (a) you can't have a trial without first establishing personal jurisdiction over the defendant; but (b) you can't establish personal jurisdiction over the defendant until you determine what the facts are.
Only Women Bleed (Sex, Sharia remix)
It's being done. Professor Felten (who wrote the paper on SDMI for an Information Hiding workshop) and the EFF are suing the RIAA. The RIAA are trying to get this dismissed, as it is exactly the kind of lawsuit they don't want. It's all very well to sue members of the "evil Open Source movement", or for that matter nasty hackers, but a professor at MIT is a different matter.
The entire court ruling is dealing with that issue. A court must have "personal jurisdiction" over a defendant to hear a case. The main requirement to have personal jurisdiction over someone is that the defendant must have had minimum contacts with the state. The level of minimum contacts has been very hard to determine in the age of the Internet.
The court decided that the defendant knew that his actions would hurt someone in California (the huge tirade about where Hollywood is). By putting the DeCSS code on the net, the defendant broke California law, and could be prosecuted.
The California judicial system can enforce its ruling by getting Texas or Illonois to enforce it. The States have to give "full faith and confidence" to other states judicial rulings.
Come play Heroes of Might and Magic Mini online.
The implications of this are just a reiteration on a small scale of the issues raised by the equivalent international agreements: Those who desire to restrict access to information are trying to leverage their control of local law-making bodies into the capacity for universal enforcement, because in a wired world if they can't enforce it everywhere, they can't enforce it at all.
Once upon a time, if you didn't like the way your local power structure ran things, you could leave. In some cases that might be very difficult, but it was always possible. Under "Universal Enforcability", everything on the Internet is theoretically subject to the *most* restrictive laws that can be found anywhere else on the internet.
The logical consequences have been pointed out before: Political speech of all but the blandest sort would be almost impossible, because between them virtually every possible ideology is deeply offensive or threatening in at least *one* nation on the planet. If US laws on pornography apply to the world then websites in Denmark (where 17 year-olds can legally be displayed, that's child porn in the US) have to be shut down. But if US laws apply, then so do Saudi Arabian laws, and even bikini "cheesecake" pinups are illegal. If French and German laws about display of a swastika apply, then so so those of Singapore, where "flipping the bird" at someone is potential jail time.
The alternative is that the laws of the most *permissive* jurisdiction apply, which would in practice mean everything was allowed (which is what we've gotten used to). That's unacceptable to those that would control what people would see and know.
In the long run, I'm pretty sure we're screwed. I don't see a meaningful stopping point on the slippery slope, and "Everything is permitted" will *not* be tolerated world-wide when you get to extreme cases like kiddie-porn and the manufacturing process for Sarin. Once you draw the line, it will keep sliding downhill until your only hope to stay out of prison is to either provide no information, or hope you never get noticed by a jurisdiction that thinks that those pictures of your girlfriend are obscene because she's wearing shorts and a halter-top. Oh, and you're a girl, too.
Of course, when studio execs are being hauled into foreign courts for violating local speech restrictions, they might start to think this precedent isn't such a great thing. But right now, they are spending a lot of money trying to cut their own throats.
--Dave Rickey
What the attorney is saying is that there is sufficient contact with California to give jurisdiction. Long-arm statutes haven't caught up to the Internet yet.
That sentence is really amazing, since you can copy DVDs without DeCSS, just by byte-copying. You only need DeCSS if you want to view the data on your computer or convert it into some other format.
So it's very obvious that they don't have a clue.
This is not surprising at all. Everyone who finds this case interesting should read about the corruption the exists in the 'american' legal system.
http://www.guerrillanews.com/cocakarma/
--
Dmitry will go to prison. The corporate sponsors of the DMCA have already paid for that and they won't accept a refund.
This is what happens when you get the rich, powerful companies feeding misinformation to the public, and to those in power. You've got plenty of people who believe that these companies are just looking out for us, and they wouldnt lie! Put a few of those people in high-ranking positions, and when the DVD people tell them that these hackers/pirates/whatever need to be locked up, the judges believe them.
Now we've got school textbooks being written and published by the logging, oil, chemical, etc industries. My sister's school uses them, and these books are so full of lies it's ridiculous. But, they've got the money and the power, and the ability to form public opinion.
On the bright side of this individual case, IANAL but I'm thinking that since this court ruling essentially declared the guy guilty without a trial, maybe he can use that to his advantage?
-J5K
The libertarian solution to the failures of capitalism is to apply more capitalism til the failures are fixed.
Now the genie is out of the bottle.
Too bad.
More people need to know this:
The jury has the right to judge the law.
Quoted from here.
Fully Informed Jury Association's 'Jury Power Page'.
Also, Whitten's _Citizen Rule Book_ has good info on your rights and responsibilites as a juror.
When you sit on a Jury, you have more power than as almost under any other capacity as a citizen, 1000 times more power than when you vote. You have more power than the judge, than the legislators, than the police. You have a right and a duty to judge the facts according to the law, AND TO JUDGE THE LAW ITSELF!
Jury Nullification is when a jury nullifies bad law. A jury can say "not guilty" for ANY reason, especially if the jury thinks the person violated a law, but finds that the law was a bad one.
Research what happened to Edward Bushnell, who sat on the jury of William Penn, accused of practicing an illegal religion.
Also research how Jury Nullification helped eliminate prohibition. (Well, of course I mean *alcohol prohibition*. we still have prohibition today, just a different kind!)
-end quote.
Image what a fully informed jury could do for cases like Pavlovish's, Dmitry's, 2600's, etc, etc.
Operator, give me the number for 911!
Nope. I forget the exact wording of the Constitution on this issue, but Judges, Congressmen, and other elected or appointed officials are immune to lawsuits concerning actions related to their jobs. That is, you can't sue a Congressman for what he says on the floor of the House or Senate, or a judge for what he says on the bench.
Best Slashdot Co
Get the public educated? I'm not sure about many other places, but here in Cornwall (surrounded by many country-folk) 50% of the population don't even *use* computers! Then there's the fact that most people think Windows is an intergral part of the computer itself - the only OSes that exist are Windows and "That there AOL"... The concept of Open Source will be very hard for people to understand. You pay for newspapers, you pay for 'net access, you pay to watch TV. Free information is a futuristic concept beyond most people. Ever heard the saying "nothing's for free"? When Open Source hits the classrooms we only have to wait a generation before the students become the judges and jury. Then Open Source and Piracy won't mean the same thing. .. or something.
You've got mail. Pattern baldness. - Crow
I disagree (but you are close). These laws were written to provide for the benefit of the nation the advantage of having people pursue the creation of those kinds of works that can be copyrighted, and those kinds of inventions that can be patented. By providing a mechanism of protection for the recognized owner of what we today call "intellectual property", this was supposed to encourage people to pursue these arts which can cost them in money and burdens to do. For example an inventor of a new machine may have to invest in research and development. An artist may have to create his works without spending time in employment and hence have no other source of income.
It is the nation that is supposed to benefit. If what is produced is worthless, we might not buy it. So there is no guarantee of income at all. If no one wants it, no one pays for it, and the inventors and artists of worthless junk get nothing. What the law provides for is protection that someone else will not steal that which is worth something, and this would supposedly encourage these pursuits and the nation would benefit. So you are right that there is no guarantee of profit. But the purpose is for the benefit of the nation, not the creator/inventor.
That is how it was supposed to work. Today things are changed somewhat. Patents are being issued for obvious ideas and concepts to any comer who has the filing fee. Copyright owners are now being given protections in law to allow them to exclude people of the nation from enjoying the benefits of the works even if they are willing to pay the demanded price while threatening these very people with jail for even trying to enjoy the works after they have paid the price.
Today, much of the technology and some of the art being created would be created anyway without any intellectual property protections to encourage it. Much of Open Source is that way (consider, if you will, that the lack of the laws would be somewhat equivalent to having the modified BSD license as your only choice). Even many technology companies are only patenting simple things they invent only to be sure someone else doesn't get the patent first and attempt to enforce them from using what they invented. Most patents go entirely unenforced, only protecting the owner from someone else getting the patent. For the government, this is just a filing fee cash cow.
The way the laws are working today is twisted, and headed in the direction of being outright evil. It needs to be changed (not discarded as some suggest, just fixed). Patent examiners need to be knowledgeable about their trades to properly recognized obvious claims. Copyright laws need to provide better protections for us to have and enjoy (which does include making sure the true creators are not shafted which would end up with less art for us all) what art we choose to buy.
Don't expect the Republicans to do this as this is the kind of thing big business and megacorporations like to have. Don't expect the Democrats to do this as this is the kind of thing that helps enhance big government and keep the ever increasing government payroll flowing.
now we need to go OSS in diesel cars
This case reminds me of the 1994 case US vs. Thomas, where a California couple operated a BBS (called Amatuer Action) whose content was legal within CA, but a DA in Tennessee dialed up from within his jurisdiction, declared that they had violated his local community standards, and had them picked up in California, and transported to Tennessee, where they were convicted of 11 counts of obscenity. They lost their appeal.
Does anyone know what happnned after that?
The real Webmaven is user ID 27463. I don't rate an imposter, because my ID is such a lame-ass high number.
That's already happened. A defendant was extradited to bum-fuck Tennessee for running a porn BBS back in the early 90's and convicted on obscenity charges.
Another proud carrier of the $rtbl flag