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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
No, the plan is that US law is applied everywhere, not the other way round.
People from any country should be held by three laws, US law, international law, and national law. Of course people from the US are only subject to US law.
Where is the part that is difficult to understand? Quite simple, really it's called the new world order.
Unfortunately Pavlovich, like most Americans, is very America-centric. If he had thought things through he might have noted that far more movies are made in India (Bollywood) than in Hollywood, and that most computer manufacturing occurs in Taiwan or other locations in south-east Asia.
If pushed he could have admitted that there is a cultural bias suggesting that Hollywood is the source of all movies and Silicon Valley the source of all technology. But he would have been clever to follow that up with "You have identified that I am an expert witness, and as such I would have to note that I realize that California is a major player, but by no means the center of motion picture activity or technology".
I dunno, probably a decent lawyer would have trashed him no matter what he said, but it sure seems to me like he walked into that one. But then again, it must be hard to believe what they're trying is actually legal.
How long, do you think, until it is illegal to remember what you watched in a movie? It is after all, quite easy to tell a friend about a movie (to sing a song, or describe a book); in essense, to make a biological copy and then transfer it to an unauthorized receipient.
- Jim
A guy walks into a CA hospital with a rock lodged in his head, and blames a guy in NV. NV guy says that he's never set foot in CA and the CA guy asked for the rock. Since this would be a criminal case, presumtion lies with the NV guy (innocent until guilty and all that), and baring evidence that he threw the rock in CA, would be tried in NV, not CA. However due to the diversity of the litigants, this theoretical case might qualify for federal jurisdiction. IANAL YMMV TNSTAAFL.
I'd dispute your characterization of Pavlovich's motion to quash. It's not "I don't care who I hurt, you can't touch me!" It's more along the lines of "Everything I did was in IN, why should I be forced to defend myself 1500 miles away in CA?" (Ignoring that he now lives in TX.)
Presumption of innocence is the governing spirit in jurisdiction (or at least ought to be). If you want to sue me, fine, but you need to come to me to sue me. Should a FL vacationer sue in FL courts because he slipped on a AK store's floor?
-sk
dude
.. why pay for something which you can get for free and next to no risk of consequences?
they DONT want to pay for information. remember how many people said they wouldn't pay a dime for napster, and would just go get their mp3s elsewhere? it's not just open source enthusiasts, I think it applies to people in general
BilldaCat
It gets a lot worse...
:)
."
The Long Long Arm of the Low
Basically in this case, the judge applied the "effects test" set forth in the Supreme Court case Calder v. Jones, 465 U.S. 783 (1984)(reporter and editor, both Florida residents, were subject to personal jurisdiction in California for a defamatory article they had written in a national magazine about Shirley Jones, who lived and worked in California, on the grounds that the allegedly tortious actions were "expressly aimed at California")
The reasononing is, if the defandants actions are not "random, fortuitous, or attenuated" the court reasons they can exercise it's jurisdiction.
In Pavlovich's case, he was guiltly of targeting California because he held the common knowledge that the major studios are located in Holywood, and that Silicon Valley is considered to be a software and hardware center.
Have fun reading the rest...
"Q. . . . Are you aware -- do you have any understanding where the major motion pictures studios [sic] are located?
"A. [by Pavlovich]. By 'major' I'm just going to go out on a limb here in that you mean some of the larger motion picture producers or production companies.
"Q. That's correct. The sort of plaintiffs that were the plaintiffs in the matter that you were just an expert witness in.
"A. Okay. That makes a lot of sense. Yeah, they make a lot of movies in California, Hollywood, yeah.
"Q. Right. So what's your understanding of the term 'Hollywood'?
"A. Hollywood is the big area in California where they make a lot of movies and a lot of movie stars live and whatnot.
"Q. Is it fair to say that Hollywood, California is the center of the motion picture industry?
"A. I wouldn't know. Whether or not like all their offices and buildings are there, I don't know specifically, but I guess the general common idea is that Hollywood is the area for that . . .
As to California's dominance in the computer industry, Pavlovich testified in the same deposition, as follows:
"Q. Do you have any understanding of whether or not a significant number of hardware manufacturers are located in California?
"A. [by Pavlovich]. I believe . . . there is a lot of technology companies out in California . . . . Yeah, there's several hardware manufacturers located in California.
"Q. Have you ever heard of Silicon Valley?
"A. Yes.
"Q. What does that refer to?
"A. That's an area where there is a lot of technology-related companies, software writers, hardware manufacturers, programmers.
"Q. And that's in California; is that correct?
"A. Yes.
"Q. Based on your expertise in the computer industry, is there another state besides California that you could name has more or a higher concentration of hardware manufacturers?
"A. I don't know the exact numbers that are in the Silicon Valley. You know, I do know there is a lot now in Texas. We have got the Silicon Triangle is what we call it. There's three major cities in Texas with a lot of technology and telecommunications companies. Whether or not - I don't know the numbers between the areas, but there is a lot of technology hot spots around the world.
"Q. What would you describe as the top three technology hot spots in the United States?
"A. Silicon Valley, Texas, and - I have no idea where I'd get the third one from.
"Q. And as far as - for lack of a better term, hot spot of technology, is Silicon Valley - it's your understanding that Silicon Valley is such a hot spot of technology with respect to hardware or software and programmers? Is that the things you identified before; is that correct?
"A. Yeah."
Because Pavlovich knew 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. The question is whether Pavlovich's lack of physical and personal presence in California incapacitates California courts from jurisdictionally reaching him through its long-arm statute. We hold it does not.
Instant access provided by the Internet is the functional equivalent of personal presence of the person posting the material on the Web at the place from which the posted material is accessed and appropriated. It is as if the poster is instantaneously present in different places at the same time, and simultaneously delivering his material at those different places. In a sense, therefore, the reach of the Internet is also the reach of the extension of the poster's presence.
"Communism is like having one [local] phone company " - Lenny Bruce
Increasingly, the answer of the old boys network that runs America is to use the court system they run to throw tech professionals in jail, for trivial offenses. While you may not post DeCSS, other legitimate things you do in the course of sysadmin, security audits, app development, whatever, are increasingly going to be bordering on civil and *criminal* offenses.
Look at the Khafka-esque persecution of Skylarov, Randall L. Schwartz and others. This is the Spanish Inquisition, USA circa 2001. This is getting to be like McCarthism, and rapidly so. How about that dude in Georgia who is facing 20 years for using spare cycles to crunch numbers in a university lab?
If you are hanging out on slashdot, you may know enough to be a "suspect." Just being here may make you a suspect. Suspect of what? In this era, it doesn't seem much to matter.
Let me get this straight. You think that me here in Texas should have to worry that a fictional story dipicting criminal acts in Cambodia justify Cambodian officials dragging my ass there and executing me for treason is justifiable? I live in Texas for a reason. I don't like California laws. But now it doesn't matter because their jurisdiction is apparently over me.
I remember the early days of the WWW when anonymous servers were easy to find and were pretty much uncrackable. The original one in Finland shut down for reasons I can't remember. And some guys are currently setting up a data holding site on a "country" off of the British coast.
Why don't some of the open source advocates start creating a Gnutella-like p2p data storage facility, perhaps with solid crypto, where the machine's owner actually doesn't know what specific data really resides on his machine? Seems like if enough folks opted in with a small chunk of their hard drive, we could prevent things like DeCSS, RIASS/Napster, Dolby AC3, etc. from happening in the first place.
Additions and deletions could even be by mass vote where the stuff wasn't stored permanently (or was quickly deleted) if enough folks didn't agree it was important. Sort of like distributed FTP with crypto and voting for which files survived.
Your e-mail relative to the case entitled Pavlovich v. Superior Court (H021961), has been received. Your comments about this court's decision in said case are well taken. However, you may want to send your comments about their need for an unbiased technical advisor by letter to the Santa Clara County Superior Court at 191 North First Street, San Jose, CA 95113. I suggested writing a letter because I don't believe they have a website at this time. Very truly yours, Willy Magsaysay Senior Deputy Clerk I'm all out of stamps, someone send a letter for me.
Do not meddle in the affairs of sysadmins, for they are subtle, and quick to anger.
I was under the impression that if a trade secret is revealed by reverse engineering, it loses trade secret protection. Where would we be today if IBM had claimed that the PC BIOS was a trade secret?
Yes, the nick is flamebait
We need to be extremely careful moving forward. Challenging such things as DeCSS and DMCA with the term 'open source' leads, just as it did here, to the ideal that the open source community is simply a group of software pirates.
There must be a point made, whether by press release or otherwise, that Open Source does not in anyway support the copyright infringement of any commercially available (or, for that matter, freely available) software. We need to make it clear that we are not advocates of breaking the law, as this judgement seems to suggest.
However, saying that "I am not guilty of copyright infridgement because I work for the open source community" is not a valid arguement. This is probably why it has been associated with piracy. Again, we must make the difference clear to everyone so they don't get the wrong impression.
On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.
We're hampered by our own language and the concepts which many of us revel in.
"Free" vs "Libre" is the oldest conceptual problem of open source, and perhaps one of the subtlest tendrils that materialism has in our hearts. Free of cost is a very different thing from free of restraint (although they often coexist.) This is an obvious idea, with observation. But compare careful, rational examination with the deluge of advertisements proclaiming "FREE! FREE!" when what they give is usually the antithesis of freedom. At best it's the freedom of the streetcorner pusher, from whom the first one's free, but after that...
It's quite certain that many "hacker" types enjoy the idea of being on the edge of outlawdom, laughing at laws and dancing over restrictions. Our most popular images are those of the late-night network wanderer, the Gibson-Sterling high-tech low-life, the gleeful anarchist subverting whole structures but by money and influence with small, deliberate acts.
The life of freedom is one we envision, yearn for, and often claim, through these deliberate acts. However, the model of freedom in a society constrained by irrational laws is the outlaw.
When you believe in your heart of hearts that you are a free spirit, don't be surprised when the Man, who lives on restriction, treats you like an outlaw. An out-law- one outside of the laws. Laws are, to their proponents, like a planet's atmosphere. Inside, the only possible conception of life. Outside, the brutal vacuum.
It is possible that the establishments which we rail against are finally listening to our message- which is, simply that the world of information is changing, and with that change our physical world will be transfigured.
Perhaps they've decided they don't like our future.
We haven't proven that the restrictors, the fencebuilders have lost the mandate of heaven. Yet.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey
At home I have numerous knives, blunt objects, and potentially lethal chemicals that could be used to murder people. From TV I know that I can construct a bomb using the fertilizer I possess (well I might need a bit more). But there is no evidence I will ever engage in these activities and I mostly use my knives for spreading peanut butter and scraping muck off the inside of the microwave. Nonetheless, using the DVD CCA's logic I should be jailed as a potential criminal or at least tied up in expensive court cases for years to come *just in case* ... Maybe I've had violent thoughts or dreams involving the use of knives? (I have but they were the result of watching too many movies "Falling Down" especially spawned a number of these).
;-) Or for that matter just watch the DVD on your sanctioned operating system or industry approved player and make a copy of it using your VCR.
...
...
What the industry fails to see is that what most people want from DeCSS is to be able to view, backup and edit/play with DVD's they *own*. They don't want to redistribute, sell or "pirate" this content. In the case of renting a DVD it would be nice to be able to view it on a platform of my choice. The fact that DeCSS is used in criminal activity has no bearing on these activities. In fact it still appears that no courts have heard any cases dealing with actual criminal "piracy" issues involving DeCSS at all and as the cases go forward it seems more and more obvious they have no understanding of the how concept of "reverse engineering" applies to what they consider "criminal technology".
What the courts need to ask themselves as a "test" perhaps is: "what's so hard about "pirating" DVDs *without* DeCSS?" After all one can just get a DVD burner/copier - sure these are expensive but you can make a lot of money with one
Why do you need DeCSS to do any of this? What does DeCSS have to do with criminal activity? DeCSS is neither sufficient or necessary to engage in criminal "content piracy".
What these kinds of cases and issues do for me is to make me into motivated consumer: motivated to not consume any hollywood produced or distributed media (this is easy - in fact it is **soo** easy to do without that crap and save your money and brain for something useful); and motivated to support *any* alternative. Home made Ogg/Tarkin based media distributed over the net anyone? I'm in
Let us all remember now what Francis Ford Coppola said about film as an art form and the day the "a fat kid in Minnesota makes a movie with a video camera". I will do everything I can to hasten the day when that art form can undo Jack Valenti and his ilk.
Hollywood delenda est
I live in a small unimportant country: Chile. As you may remember, we had a BIG political problem following Pinochet's arrest in the UK two years ago. One important part of the problem was that Judge Baltasar Garzón wanted to put Pinochet in trial for alleged crimes commited in Chile (not in Spain), using spanish law (not chilean law) in a spanish court (not a chilean one). This implied that anyone could be subject to trial, regardless of the country, and regardless of wether the alleged crime was legal in the country it was commited in. For example: prostitution is legal here (burdels aren't though). Can a local prostitute be subject to trial in the USA (in any of the states where it's illegal) because he/she went on his/her "business" in a street in Santiago last night?
The legal position my country took in that matter (Pinochet must be subject to trial in Chile and only in Chile) was, obviously, completely ignored because it's a weak small country with no power whatsoever. What's interesting to see is this: the judge that carries the process against Pinochet sent last week a... er... subpoena to Henry Kissinger, for his alleged responsibility in events that occurred here in 1973 that are part of the trial. USA's response? A formal letter saying, roughly, "Fsck you".
And now, we see a Californian court doing pretty much the same. How much time will pass before indonesian courts begin targetting US citizens in USA for violating their strict decency laws? Or how much time will pass before a Bahamas court offers quick trials for any crime, for a price (you commit a crime, go there, purchase a trial process where you are declared innocent: when they arrest you later in your country, you'll simply walk away because you've been already tried and declared innocent)?
IANAL.
"Trust me - I know what I'm doing."
- Sledge Hammer
I'm not at all surprised that judges think that open source enthusiasts are pirates; Think about the rallying cry, "Information wants to be free!" To the non-technical audience, that means "I don't want to pay for my information!"
Our only hope is to get this kind of stuff into mainstream media with the correct terms applied, so that the public can be educated.
Maybe I'm an idiot, but precisely how does DeCSS support these illegal acts?
Does DeCSS enable me to copy a DVD? Nope - any bitwise copy program will produce a copy identical to the original. Assuming there isn't some issue with the physical media (e.g., how some CD players can't read CD-R media) that copy can be used anywhere. Pirates don't need DeCSS to produce their bootleg copies.
Does DeCSS enable me to *distribute* a DVD? Of course not - distribution either means taking those bootleg discs to a mail box or a bitwise copy (see above) to a server somewhere on the net. Pirates sure as hell don't need DeCSS to distribute their bootleg copies.
What illegal act does DeCSS enable? Exactly one - circumvention of the "country code" so that a DVD produced for the US market can be viewed in Europe. These codes, it should be noted, were created solely to create artifically limited markets so the studios can make more money.
In contrast, any reasonable analysis must consider the legal uses of this software. Namely, the ability of people to view DVDs they legally purchased in the time/manner/place they prefer. The fact that this is even an issue says just how screwed up the current legal environment is. It's one thing for THX to insist on certain standards for commercial theaters who wish to use their logo, it's another for a studio to insist on the OS and, to a lesser extent, computer hardware of any person who wishes to view a DVD they legally purchased (or rented) from the corner store.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
> If he had thought things through he might have ...than in Hollywood, and that most computer
> noted that far more movies are made in India
>
> manufacturing occurs in Taiwan or other locations
> in south-east Asia.
Do you know what's the most hideously two-faced thing Hollywood is doing in all this?
The reason movies are centered in Hollywood is because all these suddenly noble, intellectual property rights-protecting Big Studios located themselves in southern California around the turn of the century because they wanted to violate Tom Edison's movie patents, and wanted, literally, to be able to make a run for the border at a moment's notice.
The Big Studios got their start, and built their industry, in Hollywood because of, and by way of, violating someone else's intellectual property!!!.
I am for the complete Trantorization of Earth.
What this attorney is saying, both here and by representing the DVD CCA in this case, is that it's okay for a man who committed a "crime" outside of California to be tried in California, because it's against California's laws.
I wonder if he'd be singing the same tune if China passed a law carrying the death penalty for being an attorney and started coming after him...
Every once in a while I like to masturbate a new word into my vocabulary, even if I don't know what it means.
I think you're going a bit far with this statement.
The civil law exists to provide a consistent means to resolve disputes. By its very nature, interpretation of law is slow to change. This is NOT a bad thing, but it does have consequences. People make decisions based on how the law is interpreted, imagine the chaos if interpretations changed radically every 5 years or so.
Any society where the laws are created by elected people will have laws that reflect both the majority and vocal minorities. Having said that, the past 10 years or so have been ruled by those vocal minorities with lots of money - problem there.
These laws are indeed being written by people who don't completely understand in impact of the growth of the internet and in information exchange. Most copyright/patent laws were originally created to protect the rights of the creator. Not to guarantee profit, or income, but to guarantee that the creator can control what they have created.
I don't see a problem with this general goal. Some people will be foolish, and try to maintain complete control - let them. Someone will create an alternative. I DO have a problem with people creating means to circumvent an attempt at control. Thats just my view.
Others will take their creations, and let everyone use them or modify them. Over time, these creations will evolve faster and better fulfill the needs of consumers.
When we as members of society hold the juidicial system in contempt, we are only hurting ourselves. Whether we like it or not, this is the system we live in, and this is the system that defines the legal structure we deal with. It is to our benefit that we continue to educate these people as to the impact of new technolgy. We CANNOT tell them that this or that is wrong.
I personally believe that from the appellate level up, judges tend to be highly educated people who think quite a bit about the overall impact of their rulings. If we can help them to understand the issues involves, and the impact of new technologies, I firmly believe that they will begin to alter their decisions.
American society is always changing, but it has always been done in a fairly slow manner. Rapid changes in our society (60's and 70's) have resulted in conflict and chaos. We are now seeing that on the internet and will continue to do so for a few years at least.
Okay, long ramble, and somewhere along the line my thoughts shifted - sorry. We're in a period of change - it's gonna be ugly. You can fight the system two ways - Directly, and get rejected, or Indirectly, with education and persuasion.
Decide soon.
-- Ravensfire
"But we decide which is right, and which is an illusion"