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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 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!
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:
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.
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)
> 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!
But what other alternative do we have when confronted with this:
Dolby: You can't copy our AC3 decoder
FreeBSD: Okay then, I'll write my own decoder.
Dolby: No, you can't do that either! (All your hardware are belong do us!)
Two wrongs may not make a right. But neither do three.