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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
now if we can just teach warez fanboys good programming, maybe we can tap a whole new market of emerging programmers...
dude, wanna join our 1337 open-source group?
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
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.
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/
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
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?
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)
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
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!
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.
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.
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:
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
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.
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.
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.
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
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.
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
List of things which are used to pirate DVDs:
List of things which 'could' be used to pirate DVD's:
See the difference?
Liberty.
Now the genie is out of the bottle.
Too bad.
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.
"Today the United States of California declared war on Italy. Last week, California sued Italy for defmation, claiming an Italian government official posted a joke on the internet regarding 'Surfers and Marijuana'."
"I can't give you a brain, so I'll give you a diploma" - The Great Oz (blatently stolen sig)
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.
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
People on the net understand that bad guys 0wn boxes and consider themselves cool. They seem to forget that bad corporations 0wn courts and do far more evil things. There is no remotely possible way an honest judge could have reached the conclusions he/she did
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 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"
> 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.
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.