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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
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:
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
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.
List of things which are used to pirate DVDs:
List of things which 'could' be used to pirate DVD's:
See the difference?
Liberty.
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
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"
> 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.