Pavlovich Jurisdictional Challenge Denied

The Sixth District Court of Appeals has denied Matt Pavlovich's challenge to being sued in California for the act of posting DeCSS on an internet web site. CNet has a blurb about it, or go straight to the ruling. The Court apparently believes that "open source" is shorthand for "pirate ring", as evidenced by their description: "At the time Pavlovich posted DeCSS on the Internet, he was a leader in the "open source" movement, the purpose of which was to make as much material as possible available over the Internet." Blatantly false statements like "Further; Pavlovich knew that his Web site allowed the illegal publishing and distribution of DVDs." do nothing to make me think the Court even understands what is alleged to have occurred. And since the Court describes Pavlovich's activities as "illegal", it appears to have already decided the main issue of the case itself (which has not yet been tried). Not good omens for the California DeCSS case. Below we have commentary from the attorney representing Pavlovich.

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

Comments

Jurisdiction Shopping

[Dave Rickey]

This is just a variant on the problem that comes up in a lot of IP law issues these days: The complainants can shop for their forums. In this case, they lobbied for a very strict Trade Secrets law that was specifically written to protect CSS in California (where the movie industry swings a lot of weight), and are now asserting that they may apply that law anywhere in the US if violations involve the internet.

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

Re:I hate comments like:

[am 2k]

The movie industry and DVD CCA argued that DeCSS could be used to illegally copy DVDs...

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.