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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
Here is the problem, the EFF and the community at large have been fighting a defensive war, one in which we have no hope of winning, because our opponent hold all the cards. They get to say who get is sued/arrested and where the trial takes place, usually California, so they can miximize thier chances of getting a Judge they have already bought off.
What we need to do is take the fight to them. Bring a class action law suit against the MPAA, the DvD-CSA and the US Government for attempting to deny us our Contitutional Rights to Free Speech, Freedom of the Press and Fair Use. We can even use this new ruling against them and bring the law suit in any jurisdiction we want, say Moose Breath Montana, where they don't take kindly to big business or big government and they understand that the DMCA abridges the Freedom of Speech, Freedom of the Press and guts Fair Use.
"Our products just aren't engineered for security,"
-Brian Valentine,VP in charge of MS Windows Development
This is *screwed up*. If this is allowed to stand, then it will mean that all web sites in the US will have to conform to the state laws of *every* state if they want to avoid fighting off law suits. The death of the internet as we know it. Unless we all leave the US, which is looking more and more attractive everyday. I'll stick around long enough to see what happens though.
If you had super powers, would you use them for good, or for awesome?
This is the real crux of the issue. The court is rather illegally overextending its jurisdiction. I have every confidence that the Supreme Court is going to lay the proverbial smack down on this decision, as judges really aren't stupid, there are just some that are exceedingly ignorant or biased (welcome to America, where our system is _designed_ to allow an individual representative of government to what he feels is right, even if it goes against everybody else... it's a feature, not a bug)
The absolute best case scenario is going to be knocking down the trial in California and having someone bring up the charges in Indiana. This is highly inconvenient for Pavlovich, as he lives in Texas now, but would be required to show for trial in ?Chicago? (not familiar where the court for my area is).
From the ruling, the problematic section of text: "The question in this case is whether California's long-arm statute reaches owners, publishers of those Web sites when, in violation of California law, they make available for copy or distribution trade secrets or copyrighted material of California companies. We hold it does." (Page 4). The whole ruling reads as a fan-boy decision in favor of California's Great Movie and Computer Industries. It also lists off some rather, uh, disparate, "related" cases.
Anyway, I said it before, and I'll say it again: I have every confidence that the Supreme Court will tell the California court they can't do this. This is America, where our system is _designed_ to allow an individual representative of government to what he feels is right, even if it goes against everybody else... it's a feature, not a bug!
One of the major problems the open source community has is its approach to defending its position and attempting to publicise itself is we can drone all day about how our products are free-as-in-GPL, and how much open sourced products help the user community, but the majority of judges and lawyers involved still won't know what all that means. Try explaining the difference between beer-free and opensource-free and you get a lot of eyes glazing over.
Secondly, many many lower court Judges have already been pre-conditioned by the media to automatically connect words like 'coder' and 'free software' with 'hacker' and 'piracy'. With Open Source not even being close to mainstream these days, they'll likely never know the truth without being part of the community. Compared to all the Joe Everymans out there, we make up a small minority. What people need to see are more win32 and macOS open source applications that they will use and understand.
Thirdly, the open sourced community has taken a strange legal approach in my point of view. With an ideal that is directly counter to most of the corporate world's ideology, Open Source needs to do more than fight the challenges are thrown at them with DMCA and DeCSS trials, We honestly need someone who can find a test case to bring to court that is so black and white under the law that the courts have to rule in our favour. Open Source has very few established precedents compared to Software Piracy and Malicious Hacking cases.
I may not have a Law degree, but I did stay at a Holiday Inn Express last night.
Ice Cream has no bones.
This begs an interesting question. What is the governmental motivation to prevent us from copying Xerox's printer driver if in fact it will be duplicated by open source advocates. As the goal of copyright is to encourage innovation by rewarding those who create it seems it is no longer working. For one if open source people are willing to create said driver/OS/whatever without the protection of copyright then it appears the incentive is no longer needed. In addition should the day ever come when open source software is a real competitor to the closed source software then the incentive is gone as well b/c who will purchase a product that costs money when they can buy one that does it for free. In this case copyright is merely forcing us to do duplicate work.
We should realize that copyright/patent laws are not inalienable rights but rather privleges granted to encourage innovation and thereby total utility. The current effect of copyright in the computer world is to force the same type of software to be written over and over rather than merely once and reused. A possible solution to this issue is to require software to be patented ( instead of copyrighted) only for a short term of 3-5 years and as a condition of said patent readable source code to be made availible (just like with normal patents the way the device works must be made availible as a condition of granting the patent). There would still be a significant incentive to create computer products but unnatural monopolies based on standards control would have a harder time flourishing in addition to the clear benifit of more free software around.
In terms of music and britney spears we should ask the same question. Does the utility associated with the incentive to produce music outweigh the clear disutility of not being able to freely trade and listen to music? I think the answer in this case is no. If Britney got no royalty money off CDs being a pop star would still be financially advantageous enough to her and to her backers for her to continue producing music. The money from concerts alone would make a profit.
In fact given the huge number of bands that exist and play without money from CDs and the fact that many very popular bands start this way with little hope (at their inception) of achieving a hit single we should assume that the copyright protection in music is a fairly minor incentive. Given this analysis it is highly reasonable that we should be able to freely take music (although this analysis would probably not apply to books or other non-performed material).
Finaly about the point of "freeing other peoples work without their consent" I would point out again that their is no inherint right to control your intellectual property. Unlike regular property when someone else uses your IP nothing is taken from you. In fact copyright laws take freedoms away from society as a whole in return for the promise of greater productivity. If this promise is not met then we should abolish copyright laws int hat area.
If you liked this thought maybe you would find my blog nice too:
So, this begs the question: did Pavlovich actually republish or distribute DVDs, or just DeCSS? The court seems to think he was actively pirating movies with his buddies.
How the hell he injuriously affects the computer industry is an open question...
"Pavlovich cannot claim innocent intent ... Pavlovich knew ... that by posting the misappropriated information on the Internet, he was making the information available to ... users ... including users in California" (page 11)
Wow. This is getting a bit excessive. My understanding is that the Trade Secret information was misappropriated by someone else, which is how it got into his hands. The fact the Internet just happens to extend into California is unfortunate.
I can't wait for judges in the bible belt to start shutting down porn sites based on the fact that "making these sinful images is illegal, and by doing it via the Internet, those images are made available to users in "
sigh. this is getting more and more saddening as i read it.
Read the ruling, and you notice about three pages of California marketing.
"Because Pavlovich know that California is commonly known as the center of the movie industry, and knew that Silicon Valley in California is one of the top three technology "hot spots" in the country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through the use of his Web site, while benefiting him, were injuriously affecting the motion picture and computer industries in California." p.10 of th 15 page ruling.
What?!?!!? That reads like a "Virginia is for lovers" marketing brochure. The most frightening phrase in that paragraph above in "or should have known". Are our courts set up to decide what a person should or shouldn't know?
------ Tim O'Brien
if i recall correctly (which i do) a whole microindustry of incredibly gifted assembler programmers grew out of the tendancy of groups to release small "demos" with their cracks or installers. not to mention the art and music scenes. i think many "fanboys" who were into the scene "back in the day" (if you'll permit me the bland reference) are making a positive contribution to the current state of technology.
fishfuicekr.
this is, of course, in stead of posting pithy little comments on slashdot.
guilty as charged.
Under DMCA, one can be legally attacked for creating a device that might be used to break the law (outside of DMCA itself) by violating copyrights. Winners: Big corporations. Losers: Individuals and small companies.
At the same time, gun owners are working at, and succeeding in, making themselves exempt from liability for creating devices that may and are used to break the law. Winners: Big corporations. Losers: Small guys.
Copyright violation via "circumvention devices" may cost a content owner some revenue. (And to that, it's been argued that some violations may indirectly INCREASE revenue, e.g. Napster's influence on CD sales.)
Illegal use of firearms results in severe physical and emotional trauma, and often in death.
The big corporations have a monopoly on both IP and on immunity.
Well, it was more succinct in my head this morning when I was still bright-eyed, but you get the drift.
The system's pretty good. It's constantly evolving, in the direction of good and bad, but it still works well.
One more post on the journey to negative Karma history!
If you look at it in the right light, the open-source philosophy is un-American.
The open-source movement espouses freedom of information, making commercial-quality software available without cost. Moreover, the source code for these utilities and operating systems - an unparalleled teaching tool for aspiring programmers - is distributed freely. Everyone has the same access to information.
What is America today? Intellectual property and copyright. An industry dominated and stifled by a single monolithic entity. Companies and individuals in ruthless pursuit of the all-mighty dollar.
Open-source may be un-American, but it all depends on what kind of America you believe in.
Just because there's a known risk of danger doesn't make one dumb for still proceeding, especially in the case of civil disobediance. Would the US be better off if instead of sympathizing with Civil Rights activists being sprayed with fire hoses, we took a "they should've seen it coming" stance? I think not.
Rock over London. Rock on Chicago. Slashdot: News for Nerds. Stuff that matters.
It is not the job of the courts to make the laws (as any first year poli-sci major, or, for that matter, almost anyone who's taken US History will tell you). The job of the courts is to enforce the laws, and under the DMCA, the actions of Mr. Pavlovich were unquestionably illegal.
No, the job of the courts is to interpret the law, and to determine if the laws made are valid. The Executive branch is the section of the US government that enforces the law. The cops (FBI, ATF, Secret Service, whoever), did their job by enforcing the law, and forcing this case to go to trial. The court's job now is to determine whether or not the law was broken, and, should the defense mount an "unconstitutional" argument, determine whether the law is valid in the first place.
I'd have to disagree.
My understanding is that the CSS protection on a DVD is supposed to block unauthorized *playing*, not duplication. In other words, to mass-duplicate CDs, a byte-by-byte duplicator suffices, and the CSS (or DeCSS, for that matter) is irrelevant.
What DeCSS infringes upon is access control from the player point of view; it allows unauthorized *playing* of DVDs on devices that weren't licensed to as CSS decoders. In other words, he might be nailable under DMCA (circumvention of digital access protection method), but it's irrelevant from a *duplication* point of view.
Only the dead have seen the end of war.
Hell, maybe we should start sueing everyone who figures out how to copy files by right clicking them and picking "copy" in Windows. ;)
No, you got that wrong... don't sue the people who copy the files, sue the company that made the copy mechanism!
Therefore Microsoft produces software that can be used to illegally reproduce and distribute copyrighted material and therefore is in violation of the DMCA. Quick, someone send this to the judges on the MS case... we may still have a chance for that XP injunction!
Take these terms and give them to the general populous, including judges, and they are as forign as say chemical names are to non-chemists. Sodium chloride is not something the average person wants to sprinkle on fries... A hacker is not someone the average person wants protecting their private data. They want salt on fries, and a Computer Programmer / Data Security Expert for their data.
We as a community flant with and love the somewhat reckless nature of our subculture, fully knowning where its intentions and morals lie, but the average person does not. Most importantly, no matter how much we want to educate the average person on the nuances of our subculture, they won't learn it. Just like they'll never know what sodium chloride is.
Don't ever expect them to. It's not a failing, it's just reality.
Aaron
AaronCameron.net
Actually, that's not correct either. The job of The Supreme Court is to determine the validity of laws. Your average Circuit court just decides whether you've broken a law, without regard to the validity of that law. That's why only the Supreme Court can declare a law unconstitutional, and circuit courts aren't blasting acts of Congress left and right.
You just come along with me and have a good time. The Galaxy's a fun place. You'll need to have this fish in your ear.
This story was posted last night. My post from that article follows:I would hope that a federal judge would exempt this guy from the case if he were to appeal it. This is clearly an interstate law enforcement issue, which is solely the role of the federal government. What is legal in one state but illegal in another opens you up to completely unreasonable attempts at applying jurisdiction. Making an analogy to the physical world, suppose I pollute the Colorado River in Nevada or Arizona within levels granted by a state permit, but a California permit would be more stringent, and that pollution then enters California territorial waters. The State of California has absolutely no jurisdiction whatsoever, so why do they think they do in this case? Doing so is a violation of the US Constitution.
Having California laws being valid in every other state isn't enough. Afterall, they need to punish the evil haxors in other countries.
Afterall, even huge industries with billions of dollars that can afford to pay crappy actors millions to appear in movies can't afford even ONE evil teenager possibly circumventing region coding so they can watch a DVD they bought here in their own country, where said DVD isn't commercially available.
To think that these villains would even get the idea that they could do whatever they wanted with something they paid money to buy is absurd. How dare they believe that they have any rights whatsover?
"You spoony bard!" -Tellah
Hmmm. There's a word for this kind of statement, and it's ugly:
What do our friends at opensource.org make of this? Doesn't this consititute recklessly negligent defamation? What do you do when the source of this is the courts?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Look, I -KNOW- Blake's 7 is popular with the Californian courts, but they don't need to do a re-run of episode 1. Really. And they can take off those fake eye-patches, too.
Seriously, this "attitude" is getting perilously close to defining "Open Source" and "Free Software" as a cult with terrorist leanings. And once you go there, it wouldn't take much to have it outlawed entirely, on national security grounds.
Let's play through this little tale of paranoia, and see where it takes us... Let's say that the movie industry could maintain a de-facto monopoly not, as Microsoft has done, through buying or pushing the competition out, but through declaring competition to be not only illegal, but a threat to American interests.
(If this seems like a big jump, think about what it means to be "a leader of the Open Source Movement", where said movement is about traffiking illegal goods on the Internet. It's not openly said, but what's the difference between this and racketeering?)
The RIAA and MPAA should be applauded for this tactic. They have avoided the pitfall the Microsoft blundered into, by using the legal system itself to crush and destroy any who stand in their way.
But, in California, "Open Source" may be declared an illegal activity, through this action. If the courts decide that it IS solely for traffiking in illegal goods, it looses all Constitutional protections.
Again, let's imagine that this comes to pass. What would be the result?
First, Linus Torvalds would have a price on his head. He and his family would need to evade police and bounty hunters, in his flight to a more civilised State. He might well leave the country altogether.
Richard Stallman wouldn't run. If he lived through the arrest (always difficult, for popular figures, anywhere in the world), he can expect some brutal treatment. The taller the hero, the more vicious the bludgeoning.
Companies openly involved in Open Source would have three choices. Relocate - and fast!, hope that their size makes them unpopular targets, or stand up in opposition. This last option sounds like the sensible one, at first, but when there is a "legitamate target" that anybody can spew all their hate at, entirely legally, I can easily see it rapidly escalating from protests to running battles, to what would amount to a gang war, with California on one side, and the Open Source advocates on the other.
Don't take this attitude lightly. From the UK's "Potential Subversives" to the American's anti-war protestors, confrontations have historically become extremely volatile, with significant body-counts. Until I've seen some reason to believe otherwise, I think I would HAVE to assume that the California situation could become -literally- deadly at any time. To not assume that is to ignore history. And given the choice of being overly-suspicious, or dead, I'll take the overly-suspicious any day.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
I cherish the old RMS ethic:
Xerox: You can't copy our printer driver.
RMS: Okay, then I'll write my own printer driver, operating system, editor, and compiler. Who wants to help me?
But now it's just:
RIAA: You can't copy our Britney Spears tunes.
Slashdotters: Yes we can! All your bits are belong to us!
If you people want to protest about the distinction of "free" versus "libre", then knock off all the "free" activity that consists of freeing other people's work without their consent, and engage in some more "libre" activity of developing your own libre software, libre music, libre movies, and so on.
We'de be in a world with much more advanced personal computers, instead of hauling around 21-year-old legacies.
Cloning of the PeeCee did have some good effects, in how it commoditized them and made them cheap, but it also caused a shitload of stagnation and retardation. In some aspects, the "modern" computers of 2001 are shockingly primitive compared to many personal computers that were around in 1985.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.