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ElcomSoft Lawyer Says Internet Outside U.S. Law
NetRanger writes: "ElcomSoft, the company that employed Dmitry Sklyarov, has fired its opening shot, asking the court to dismiss the charges. Their argument: since the Russian company is based on the Internet, it is outside the jurisdiction of the DMCA. This is rather interesting if it holds up, because it would set a precedent which would allow other countries to tell the DMCA to just go away. If not, ElcomSoft could be out $2.25 million dollars, and the USA could find itself cold-shouldered by a lot of countries with less draconian copyright laws." Wired has another story.
Time to start up some internet-only-business?
rxvt, suse, vi, solaris, debian, java, c, feel the love. #unix@IRCnet, #gimp & #gnome@GIMPnet
If this argument doesnt hold up, that means the US government can keep controlling the whole world by passing DMCA like laws.
Thats absurd!
This case will be decided for Elcomsoft. If they lose, it means that being on the Internet holds you liable to *any* countries' commercial laws (this is a commercial case) if one of their residents buys one of your businesses' products.
I wonder if U.S. businesses would enjoy being constrained to French, Chinese or Uzbekistani commercial law if a resident there buys their product.
I think they are right to a point. The net is global so one country shouldnt be able to put on trial an offender from another country...but, this is a very tricky subject and begs the questions, who/what should set the laws for the net, if indeed there should/are to be any?
Well, ElcomSoft being outside of the US might not have to pay the fine, but I suppose they could be bared from doing business in the US, and possibly have any US assets ceased.
On the other hand:
If not, ElcomSoft could be out $2.25 million dollars, and the USA could find itself cold-shouldered by a lot of countries with less draconian copyright laws
Fortunately, most of the rest of the world is moving towards the same kind of draconian copyright laws. And by "fortunately" I mean "unfortunately"
autopr0n is like, down and stuff.
He added that Elcomsoft maintained a Web server in Chicago, that it hired a U.S. billing service, that it made no effort to prevent Americans from accessing its site, and that it sent e-mail messages to customers it knew were Americans.
For exactly the same reason Congress never votes itself a pay raise or declares they don't have the power to do something, no court is going to declare that the US doesn't have jurisdiction over the 'net. Those in power almost universally refuse to castrate yourself.
You know, this is pretty interesting. As we know, ElcomSoft had all or some (I can't remember) of their website hosted in America. They may have known that, but will everyone? If a Russian (or French or Japanese or whatever) registered company is providing web hosting services from Russia but colocating in the states, how is a customer to know where their data physically resides (aside from tracking down the IP's physical location)?
The internet, in a lot of ways, is a huge mesh. I live in Tokorozawa, Japan, but my domain is hosted in the states (I'm not even sure where - Florida I think). Does my content fall under the DMCA even if I setup through a Japanese company, pay in yen, and admin through a .jp URL?
3cx.org - A truly bad website.
It doesn't matter if they're doing business over the Internet, they still have physical employees, servers, and customers. And if those happen to be in country x, than that company can and should be accountable to country x's laws. And in this case, they had an employee in the US, servers in the US, and were going after customers in the US.
Any US resident will spend an average of 2 full years reading about his online rights and another 2 years wandering where have they gone, will aside the years needed to gain them back.
(has slashdot been aquired by lawfirms, or do you have major content problems?)
[category]
funny
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By what authority can a US court decide what laws should apply to the Internet?
Somewhere in the heavens... they are waiting.
Sheeesh!
That stupid notion that the internet is not a place within countries is merely an entrepreneur wet dream; it is time for the Nation-States to really show who's the boss around here..., and have the entrepreneurs follow the law and pay the taxes that are due.
"Our position is, regardless of where the Web site was, if the (alleged) criminal activity occurred on the 'Net, it's outside the jurisdiction" of the United States, he (Burton) added.
He does have a point here. Imagine the Worldwide Operating System in use. If you are downloading an illegal archive from other 200 computers, all those servers/temporary hosts deserve to be punished?
Or is DRM hardware/memory protection, in this case, on a system that's not even designed yet, a solution?
Nope.
It's not the weapon that makes one a criminal.
Buy a Nintendo DS Lite
This argument is so spurious it doesn't deserve its own article. ElcomSoft and other Internet-based companies don't exist in some otherworldly realm; they exist in real-world people and goods, and do business with other real-world people and goods. If enough such business is done in the U.S., the company will be subject to U.S. law. Simple, and certainly nothing new.
typical americans...
they think everyone has to abide by thier laws
To concede this is to concede that the courts (of which the Judge is a representative) have no jurisdiction over companies doing business in the United States unless they have a physical presence in the US.
No sane educated person would even begin to believe the court would self-sacrifice like that.
My $0.02 will always be worth more than your â0.02, so
Actually, this plea is along the same lines as whether or not satellites can be taxed as property. It's still a question of whether or not new technology can be thought of in the same manner. Nobody on the internet knows, or cares, where a website is stationed (and many times, it's not in just one location). People really start to see the internet as its own entity, separate from everything else. Same with the satellites. Kinda hard to put property taxes on something that is so far away from the earth's surface that it can't be seen.
I don't know how this will turn out any more than the rest of us (unless you're closely involved in the case and can tell how well their argument is being presented, or what kind of defense they're facing), but I wish them the best of luck.
The speed of time is one second per second.
Given that the points which are relevant are where this touches the physical world, such as computers. If I was a pick pocket who could reach from Britian to France to pick a Pocket, where does the crime take place? On Planet earth, obviously, but it could be argued that it takes place in France, not Britain. Since the events started in a meat space location, and ended in another meat space location, with meat space consequences, the intermediate media might not be relevant. On the other had, if you could have something that never originated in meat space, and never connected to meat sdpace, then the argument might have merit.
hmmm, this argument may not have the results that the Russians want.
"It is a greater offense to steal men's labor, than their clothes"
If Yahoo aren't constrained by French laws then the obvious result is that US laws don't apply in Russia. Unless of course the judiciary are bigotted hypocrits who feel that their laws should apply to everyone.
Personally I'm betting on the later as I don't have a great deal of faith in the US system being consistent as its record is that it protects US interests rather than rules according to law. You could say "well so they should" but the effect of that is to mean that US courts are biased, and to be contraversial.... racist, as they judge an applicant by their nationality.
An Eye for an Eye will make the whole world blind - Gandhi
See this article from the New York Times: Florida Community Can't Shut Down 'Voyeur Dorm' - October 5, 2001; upheld in the Supreme Court as cited in Wired - Court Rejects VoyeurDorm Case, February 25, 2002.
Granted, it's limited to the discussion of zoning laws in a local jurisdiction, but the courts seem to have held that businesses that only conduct commerce on the Internet are not limited by the regulations of the locations in which elements of the business are physically located.
Also, it's a messy can of worms, but they have definitely found that the Internet is a 'place' different from physical space, so the Elcomsoft lawyers have just made the next step.
Gonna be fun to watch!
The US cannot continue to try and impose its laws on the rest of the world. The De Beers example is a case in point.
For years the directors of DeBeers have been unable to travel to the US due to outstanding anti-trust caes's against them.
Still they continue to trade, and travel the rest of the world. This article tells how previous cases against the company have failed. Now, having realised how futile their attempts are, they are trying to play nice with the company.
The US can declare jurisdiction over the entire internet, but unless they do a Noriega, and go in and kidnap a few people, the laws will not mean much unless people visit the US.
Live today. Tomorrow will cost a lot more!
Foreign laws apply if your company has office in foreign country and they sell goods there. But here situation is completely different.
Example:
Let's suppose that in China is illegal to critize goverment.
Now when Chinese guy buys newsletter from US online service and this newsletter critizes Chinese goverment, is it ok that China sues this US online company for breaking Chinese law and requires them to pay large fine?
If the answer is no then how could US sue Russian online company for breaking US law?
A similar problem faces Canadian ISPs.
They would love to be able to tell complainants citing the DMCA to just go away (i.e., some user on a broadband service puts up a server on their DSL or cable line to distribute warez, mp3s, etc, and the right-holder in the US calls/writes to demand the user be shut down). Usually, copyright from one country is not in force in another, you need to establish copyright under both legal codes. The efforts of rightsholders in the US to enforce their law in other jurisdictions muddies these waters considerably.
perl -e 'print $i=pack(c5, (41*2), sqrt(7056), (unpack(c,H)-2), oct(115), 10)'
Kiddy porn isn't illegal on "The Internet" so it's fine to do it there. Right? Of course not!
Why do people think that the Internet is somehow a different place, outside of all nations. It's not. It's made up by servers and cables that are on the territories of real nations. It's used by people and companies who live in real nations. These people and companies are bound by normal laws. If I send kiddy porn from Finland to the USA over the Internet, why should it be any different than if I send it with normal mail and the pictures are physical?
Same thing in this case! The defence is completely brain dead!
If the courts find that the U.S. can hold foreign companies to US copyright law because they transact over the net, the ramifications go much father than just businesses. This means that China (under US interpretation of law) can hold the Founder of FaLun Gong guilty of breaking their intellectual property laws. The average person won't be able to buy controversial items (such as satanic verses, hitler's smoking jacket, DVD's of any kind) because of the expense involved in maintaining dozens of country / locality / product type blacklists as well as location verification. In short (and probably in redundant) this will dumb down the net to the LCD. Basic Yahoo vs. France stuff.
Of course, it would be a shame if this were the case to set a prescedent, as many articles have pointed out that Elcomsoft ran a server out of Chicago, communicated with US customers in english, and was quite aware of the law. Yes, this is why their approach is so novel: they are arguing that the infrastructure of the net on the US soil is not under US law. Novelty is no substitute for intellectual prowess. They really haven't a snowball's chance with that line of legal reasoning any more than an indian tribe who asserts sovereginity and tries to grow hemp. It's that specific that makes it so sad that this case will be applied overly broadly to anything American corporations don't like. We own our net, so QED we own yours.
The ______ Agenda
Antitrust is a special case, because the free market is compromised. In most cases, a company conforms to the law of the jurisdiction or doesn't do business there. If there are multiple companies, some will conform in order to profit form that market, while others won't in order to profit more in other markets.
This doesn't work in the De Beers case because there aren't really multiple companies. Thus the U.S. and anywhere else they've violated antitrust law are forced to choose between compromising their laws or forgoing the product altogether. Since the latter just leads to black markets, they've opted for the former. Moral of the story: it's nice to have a ridiculous amount of market power propped up by a government willing to keep you in place.
In most cases, though, the concept of "if you do business with us, you abide by our laws" holds.
Typical Americans...
They think those who do business in America have to abide by their laws.
The test of any Jurisdiction is can the Court exerted its Authority over that Jurisdiction.
The Internet has repeatedly demonstrated than National courts cannot (PGP, DeCSS, et.all), as worst they can only exert their authority over a small proportion of it.
If they cannot exert their authotity over it, then defacto, they have no Jurisdiction.
Exactly. A business case that's based on finding loopholes in U.S. laws resembles offshore banks whose sole purpose is evading U.S. tax laws instead of supplying normal banking services.
How is that different from having an 800 number that's forwarded to another country for mail order purposes? Intent is not the issue. If I'm in Mexico, and I run a mail-order business, I don't want potential customers calling internationally, and being billed (outragously) for a simple product inquiry. The internet is even easier than that. A previous post pondered the question of "Did Elcomsoft KNOW their hosting service was in IL?". Was there any way to know? Why would someone ask? Well, they will now :)
If foreign companies who do business in the U.S. are not bound by the same laws as U.S. companies, U.S. companies are put at a substantial disadvantage for obeying the law.
Err. Have you ever wondered why (say Abu's) gas station has gas cheaper than Joe Blow? Did you know that immigrants who buy a gas station (at least where I live) get a 7 year interest free loan from the government? After 7 years they'll sell it to a family member, and get another 7 year interest-free loan. Is that fair to U.S. citizens? And that's IN the U.S.
I think some big companies are going to have to leave the U.S., and senators pockets will need to be emptied before anything substantial happens.
Personally, I think someone should resurrect CopyIIPC offshore.
Yahoo.fr is a subsiduary of Yahoo, therefore Yahoo has a physical presence (servers and employees) within France.
So where is the difference ?
An Eye for an Eye will make the whole world blind - Gandhi
Remember GHOST busters 2? Happy slime! It made the statue of liberty dance, made ray happy. And is now being used by the marines to save lives!
On another note, this really isnt non lethal if you use it on a cliff/edge. It's worse than a gun!
Just ask wiley coyote.
Need I remind anyone that the *extension* of copyright (which is technically illegal, since it changes previous copyrights as well) was done to make the US in line with what Europe already does?
I personally think authors should be able to do what they want with their copyrights (like now, when they usually sell them to a publisher) but on their death (and not 70 years later) it reverts to their family, so they can do with it what they wish.
... I would hope not. As with the other story about China and Spam, suppose the Chinese pass a law saying that all spam will be punishable by death? Then, it would mean that the Chinese has jurisdiction if you sent spam over there. You have to remember that the door will swing both ways. But in this case, I suppose it will be a good thing.
"The defence is completely brain dead!"
Hello kettle! You're black.
By gum, you're right, pot!
Actually, in that case they were calling into question the logic behind certain zoning restrictions. Many municipalities have placed zoning restrictions over certain types of businesses based on the concept of "network effects". This was aimed at bars and strip clubs by saying that these businesses would attract unwelcome people into the neighborhood. These people would, of course, have the effect of depressing property values.
In the case of VoyeurDorm the argument was made that since the company "operated" on the Internet, the normal objection to these "network effects" was moot. No clientele were actually driving to the site to view this, in fact, they were sitting in the privacy of their own home watching via their computer.
So, this case wasn't about the law/lawlessness of the Internet, just that since the actual "business" didn't occur in the physical location in question, then restrictions based on physical location were moot.
--- I wish I could hear the soundtrack to my life. That way I'd know when to duck.
"if you do business with us, you abide by our laws"
problem is, that because of the internet, you can "do business" with the whole word. You're not sure of the citizenship status of all of your customers. They are doing business with you, by visiting your site. You may just have set up a bot to process orders and email out software. I think as the internet becomes more of a business force, more responsibiliy will shift from the seller to the buyer.
When in doubt, have a man come through a door with a gun in his hand.
why not make the internet a property of the united nations?
then the un sets the laws that affect the net and so on?
Corruption is making a joke out of US law. As the laws become more unjust, people will respect all law less.
During the short term, legal manipulation will be profitable for those who can offered the neccessary bribes. But in the long term the cost of prisons and police forces to bend the public to these laws will be unbearable.
And then perhaps the prison centers will have to become profit centers. I think China has been moderatly successful with incorporating prisons with Wal-Mart production facilities.
We certainly aren't moving in the direction of more freedom in this country. Consider the hardships your children are now facing in the future, and have a nice day.
Be careful what you create - even Bibles are illegal in some countries.
Well.. hrm.. there would be a small bunch of desperate freakos that would want to drive up and sneak in somehow ("Girl #7, I'm your biggest fan! *fap*fap*fap*"). In theory, they wouldn't be too dangerous, since the real sickos would be hunting more isolated prey far from any webcam.. but still.
-Billco, Fnarg.com
From the article:
'Katalov: "The DMCA is an unclear and vague law that may put legitimate businesses, technological innovations and innocent people in jeopardy."
'If the motion to dismiss is not granted, Katalov's lawyers intend to argue that the DMCA is "overly broad and vague in violation of the Due Process Clause of the U.S. Constitution." Pending the results of Monday's ruling, that hearing is set for April 1. '
In reality the argument that the Net is outside the jurisdiction of U.S. Law is ridiculous, and will get stomped down. However, their backup argument may be the stronge one, and how much irony would be involved when a Russian (former USSR) argues that a U.S. law is unconstitutional and wins in U.S. court?
Case Two: Same Scenario: Border Guards are both civilian
Case three. Russian Civilian border guard, shows the Ameriocan civilian border guard displays a poster filled with vile russian pr0n, which upsets the American.
Case Four: A russian civilian displays a poster across the border with information potentially illegal in the US. If it was easily readable, that would be one thing. If it was only so readable when you got ahold of a set of decent binoculars, etc that is another. (The american would have to make the effort to access the information)
"It is a greater offense to steal men's labor, than their clothes"
The case here is bloke followed the law in his country, got on plane to other country, was arrested. The Russian company (people operating in Russian) obeyed Russian Laws. Bloke arrested when entered the US, for breaking US law while in Russia,
Now explain where the difference is. Yahoo.fr obeyed French Law, parent company didn't, Bloke obeyed Russian Law, then went on holiday to US...
An Eye for an Eye will make the whole world blind - Gandhi
The notion that a router is "extra-national" is as absurd as the notion of an airport being so.
This defense will be laughed out of court and not given more than ten minutes of argument.
you mean they must not wear clothes whilst using the internet for their nefarious business schemes/plots?
heh.
This suggests an intriguing idea: Internet Independent.
Prerequisites:
1) A declaration of an Internet Independent.
2) A declaration including extra-territorialism.
3) A declaration including openness and freedom.
4) A when connecting to the Internet is recognition of this declaration (#1).
5) subversion of this independence, may result in Internet sanctions(#2).
6) signing the declaration confers certain Internet Citizenship rights, and responsibilities(#3).
#1 I recognise this is difficult to achieve in practice, however two possibilities suggest themselves to me. a) This condition is included in any next-generation future-net system. b) This position is acheived progressively, over time, 'if you want to connect to the Independent Internet, you must recognise it's independence' as expressed in this declaration.
#2 Partial or complete disconnection from the internet, using a mechanism similar to the RBL. This could range from a the whole sub-net of a State to a single IP:Port.
#3 The responsibilities are those consistent with compliance with the declaration.
Why? I've always believed we need a Technocratic Meritocracy.
Another way to beat the DMCA:
Use NAFTA, chapter 11, which entitles any single investor in a business from one member nation to sue the government of another member nation for, pretty much anything which harms that business, including passing legislation, as I understand it. (from watching a TV show, I am not a lawyer.)
As one Canadian official put it (paraphrasing) if an American company sold breakfast cereal in Canada which contained plutonium, and we (Canada) passed a law prohibiting putting plutonium in food products, the Americans could sue us.
The scary part of this is that the arbitration is conducted behind closed doors by a committee. It basically undermines member nations soveriegnty, their power to make and enforce laws, and is a pretty terrible thing (according to the TV show I watched on PBS.)
On the bright side, maybe someone can use it to destroy the DMCA.
Here is NAFTA.
Enjoy.
kiddy porn is pretty much illegal in every country, so let's pick another topic.. how about marijuana... legal in many european countries. so the legal question is, let's suppose you sell weed online, to clients in the netherlands. but your servers are hosted in the US.. now which countries laws apply to your selling activity? etc.etc..
Yahoo.fr, the portion of Yahoo operating in France, complied with French law.
ElcomSoft, the portion of ElcomSoft operating in US, did not comply with US law. If the same portion breaking US law hadn't also been operating in the US, it would have been much harder to do anything about it.
(I say 'nominally' because you don't have to be a Supreme Court justice to work out that the original intention of the boy wonder at Adobe who decided it would be a good idea to use the US legal system to bully Sklarov was to (a) get even with him for exposing the weakness of the anti-piracy technology they put into the eBook, and (b) send a signal to anyone else who might consider doing the same that they'd find themselves up against the wall facing a bunch of deep-pocketed SOB's who are more than ready to fight dirty - you feelin' lucky today, ya' opensource punks?)
One other thing - the lawyer acting for ElcomSoft is quoted as saying that this legal argument is "novel". In the legal profession, isn't that a code word for "pull the other one, it has bells on it"?
I say its our internet. We invented it. If they don't want to play by our rules, they can disconnect.
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It is a good argument. If the Internet is to be subject to law at all, it should be international law.
Of course the USA has decided that they won't subscribe to the idea of an international court...
Here is a link to a (very) summerized verion of the DMCA. This shows how the Senator is making no mention of the SSSCA on his own web site where he proudly lists the issues he has worked on. Lots of other gigantic conflicts of interest can be found here as well. I'd list more, but I have to go to work so I can make money to buy things that violate the DMCA..
The case is one of several that pitted content providers, such as movie studios and record labels, against computer scientists, software programmers and civil libertarians, who argue that the DMCA leaves people with fewer rights online than they have in the outside world.
I really hate to frame it this way, but I'm left with no choice. One of the groups listed above brought you the internet, email, and spreadsheets. The other brought you "Spice World" and Christina Aguilera. I think we have a clear winner in the court of public opinion!
Programmers and Scientists be damned!
This comment is fully compliant with RFC 527.
A long standing American ideal, back from the founding fathers is Manifest Destiny. Which basically says Americans are "better" then people from other countries therefore making it their God given right to take over the world. Reminds me of the racial supremacy of the Nazi party, but the Americans have the power now to fulfill that dream.
called the WCLO World CopyRight Law Organization in order to get Laws like the DMCA enforced everywhere.
then they can inform the RIAA and MPAA that they will be protected by US copyright law only if they do business in member nations.....how soon do you think nations outside the WCLO would want to join? or perhaps they will jhust form their own industries, and then we will have an entertainment cold war.....movies and music from WCLO would not go to the other side and the other ide would not send their movies and music over to the WCLO nations.
I am the Alpha and the Omega-3
HOST a (Linux, South Africa) /dev/hda2 (200)
HOST b (Linux, Australia) /dev/hda3 (200)
HOST c (Linux, USA) /dev/hda2 (200)
and put a Network RAID (5) on that, where my data will be stored from the legal point of view?
If they lose, it means that being on the Internet holds you liable to *any* countries' commercial laws (this is a commercial case) if one of their residents buys one of your businesses' products.
Don't forget the Yahoo case, in which France is suing Yahoo because the U.S. site is selling Nazi memorabilia, a violation of French law. Criminal charges are being brought against the former CEO.
For the book says, "We may be through with the past, but the past ain't through with us."
Their argument: since the Russian company is based on the Internet, it is outside the jurisdiction of the DMCA. This is rather interesting if it holds up, because it would set a precedent which would allow other countries to tell the DMCA to just go away.
Not to mention that it would legalize cocaine trafficking for internet based companies. Give me a break. It isn't going to happen.
American civil procedure provides for jurisdiction over foreign companies that do business in America. The theory is that if you come to America and avail yourself of our markets, resources, society, labor, and laws, you are bound to obey our laws. This does not mean that you can be sued in New York if you offer goods for sale in China and some American happens to buy them while on vacation in Beijing. It does mean, though, that if you knowingly advertise in America, ship goods to America, or provide services to American clients, you can be sued in America for violating American law.
On the Internet, this analysis is a little complicated because websites are accessed internationally, and it is difficult to detect what country people are really browsing from. Still, efforts can be made to exclude certain jurisdictions. For example, Lindows.com used to have a message on their website that refusing to do business in Washington state. This is because they were trying to avoid being dragged into court by MSFT in Washington state.
There is plenty of caselaw on this emerging area of law:
As the cases make clear, there is a sliding scale that stretches from (1) passive website relating to local activities to (2) interactive website offering services to anybody across the land. Elcomsoft sounds a lot more like Zippo than it does the Blue Note jazz club in Missouri. If they are offering their services to Americans and offering downloads to Americans, they have to expect that they might be sued by Americans in America.
hi, :)
so, let me get this straight.
1) DMCA says you cant publish information which will allow someone to violate a copyright.
2) Fair Use Act says you're allowed to copy copyrighted material for backup purposes. From what I understand, you are also allowed to copy the material to be used in another format. i.e. copy CD to MP3 (?), DVD to VHS (?), etc.
3) If it's legal to copy something from one format to another, and the company providing the original content prevents you from exercising your rights under Fair Use, shouldnt there be a large contingent of class action suits against the content providers for actively and intentionally limiting your legal rights?
4) perhaps there should be a suit against the media providers to force them to provide format exchangers as a courtesy to their customers?
sTc
Most things worth doing are worth doing twice. -- me I think or was that my boss' methodology?
The U.S. won't be a superpower for long if it passes laws like the SSSCA. Other countries, unfettered by this tripe, will speed right into the 21st century while we continue to try to pull everyone back into the 20th. It's a sure-fire recipe for becoming the 'superpower that was', the 2nd-rate backwater that used to be great but now is largely ignored by anyone who wants to live in the present and look to the future.
Max
My god carries a hammer. Your god died nailed to a tree. Any questions?
methinks you have something on the brain...
cLive ;-)
-- Trinity in high heels carrying a whip: The donimatrix - there is no spoonerism
From what I understand, as long as the nude image is "artistic in nature" and not lewd or depicting sex, sexual situations, or abuse... then the pictures are allowed to have in the USA and to be seen in the USA...
Or massive conventional armaments...
You should really look up what 'begging the question' means. It does not mean 'leads to the bigger question of.' Begging the question is the "fallacy offounding a conclusion on a basis that as much needs to be proved as the conclusion itself."
I can take this even further.
The US gives itself the right to go into any country and kidnap someone they feel has broken US laws and to top it all off, but Im pretty sure they wouldnt allow it the other way around.
The US also gives themselves the right to attack any country which holds one of their soldiers prisoner because of a crime he commited.
International law has no meaning whatsoever because powerful countries can just decide to circumvent them.
That is the reason you will never see a US citizen tried for war crimes even though over the past 30 years no country has committed more of them.
Seems the working definition is "whatever the US government wants at the moment".
If it helps the US government's interests for something to "exist" in the US, it is.
If it harms the US government's interests for something to "exist" in the US, it isn't.
Pax Americana! All roads lead to New York.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey
Countries would just not join this grand organization, and copy things all they wanted to. Essentially, it would be no different from today, except that the US government would have an actual puppet forum through which to bitch.
Hell, China would join the organization and copy all they wanted at the same time. China is like that.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey
so, this is a russian company.. what's to keep them from just saying 'piss off' if they lose this and are required to pay the $2mil? What is the DCMA to them?
I think the case has to be decided on who is buying vs who is selling. If there's a company abroad that offers what I want, and I contact them over the internet, and buy from them, then I would say that their locality has jurisdiction.
But if the company, despite being based abroard makes every effort to trade in-country (sales and shipping office, billing service), then I would say the sale is being made internal to the country for jurisdiction purposes.
So in this case, since they are selling via a US based entity, then the "we're not a US company" argument really isn't going to cut it.
But if you were mail ordering it from Russia, I would feel they might be justified in using this argument.
just my two cent-penny-euros.
Imagine the Internet as a big series of clear plastic pipes that carry water all around the world. The water represents the flow of ideas and information.
Country "A" decides that all its citizens should have brown water, so they put brown food coloring in the pipes that come into the country.
Because there are so many pipes going in and out of Country "A", there's no way to keep just that area's water brown. Eventually all the water in the global system will become brown because of Country "A".
Country "B" has residents who hate the brown water. Now, either Country "B" has to pony up the money to install filters at all its incoming pipes, or the citizens have to get used to the water. Either way, Country "B" has had its rights trampled on.
The same effect will happen if a individual countries' laws are allowed to affect the entire Internet; those who have no residence in a country will suffer from someone's self-centeredness. Either there needs to be:
(A) A central Internet authority approved by all nations, or
(B) People need to leave the Internet alone before all the water turns brown.
-- We live in a world where lemonade is artificial and soap has real lemon.
Are you suggesting even for a minute that the U.S. are consistent in how they treat other countries, and how they expect to be treated themselves by the very same countries?
The #1 rule of United States Foreign Relations: The American Way Is Correct.
*bah*
As it is now, if you sell into a country, you are implicitly agreeing to obey that country's laws in all of your activities within that country. If you don't want to obey that country's laws, don't sell into that country. That's why Microsoft can't just move to Canada to avoid U.S. anti-trust legislation -- they'd have to stop selling to U.S. customers too. I'm sure we don't want to give Microsoft a new "out" for wriggling out of anti-trust liability!
-E
Send mail here if you want to reach me.
IANAL, but it seems to me this case is about the U.S. Government versus Elcomsoft. Dmitry Sklyarov was in jail because of this DMCA thing. Sure Adobe whispered in the ear of some Feds to get it going, then backed down when the PR was bad. But now ElcomSoft is being tried for a crime. This is not a civil matter, it's criminal one. The plaintiff is the US Government. That's what makes the DMCA so incidious... it makes creating/using/distributing certain software a crime!
Methinks the confusion around application of commercial/civil law here is that Adobe was involved (at first), and that a fine is being proposed. I assume the fine is on the table since you can't throw a company in jail. If found guilty, the fine would be paid by ElcomSoft to the US Government! Sure, Adobe might go after them separately... in civil action. Remember how OJ was found responsible for wrongful death, civilly, although not guilty of murder, criminally? In the former he was assessed damages, in the latter he escaped jail or the death penalty. Big difference.
Anybody want a peanut?
If I were a judge, I'll treat an internet transaction just like a phone transaction.
You do business with a foreign company. Buy an illegal good; illegal where you live at least.
Are you suing the foreign company for selling illegal goods or you're suing your citizen for buying an illegal good?
Don't know, and I'll would like to know the answer.
Simply put, US courts do not have jurisdiction over any thing outside of the US.
If Elcomsoft and all its assets are outside the US, a US court can rule anything it wants -- but the ruling won't get enforced.
They could rule that Elcomsoft be made to pay money, but that ruling is unenforcible unless Elcomsoft has assets in the US.
The US courts only have legitimate jurisdiction over things done in the US, where the perpretrator is in the US.
The US gov't trying to enforce its laws on a Russia-based company would be like China trying to prosecute me in America for "treason against the Chinese government (criticism)".
social sciences can never use experience to verify their statemen
As I understand it (and I'm Australian, so forgive my lack of knowledge of the finer details), under the DMCA both the sale and posession of so-called "infringing" devices is illegal.
;-)
Now, consider the act of a sale over a shop counter, where one side is in Russia, and the other in the US. Say, somewhere up over the Bering Strait...
Is selling the product illegal in Russia? No.
Is owning the product illegal in the US? Yes.
So why prosecute the maufacturer/seller? Why not prosecute the purchaser?
This is why the DMCA is fscked - it takes an action which *may* be illegal in the US, and tries to make it, by force of dick-waving, illegal in places where that law has no jurisdiction. As many people have already commented, imagine the outcry if some other country tried to do this in reverse...
The internet is merely the enabling device - the counter where you place your money and grab your goods, if you will - in the transaction. And it should be treated as such.
(Kinda like drug paraphenalia in this part of the world. It's illegal to own, on either side of the counter, but it's not illegal to sell
What part of "a well regulated militia" do you not understand?
Hmm, so ElcomSoft is being prosecuted by US laws. How did ElcomSoft get the software - did Adobe sell it to a Russian customer? If so, and if ElcomSoft could be sued under US laws, then couldn't Adobe be sued under Russian laws for not providing the means of making copies?
The uestion logically becomes who is responsible. The person requesting the information or the person who legally provided it on the other side of the planet. It all comes down to the government doing somthing it is lothe to do: 1) Crack down of the demand side or 2) make it legal.
"God fights on the side with the best artillery." - Napoleon, Marshal of France - speaking truth to power
Everyone who's commented (so far) upon the basis on which the US will exert jurisdiction over Elcomsoft has cited the physical presence of Elcomsoft's servers in the US.
While that much is unobjectionable (to me at least - if you have a physical presence in a jurisdiction you should expect to be regulated by that jurisdiction) - how about effects jurisdiction ?
AFAIK, the US (and the EU in antitrust cases) are perfectly willing to claim jurisdiction where (1) the act was not done within their territory and (2) the actors have no physical presence within their territory. The (3)rd basis of jurisdiction they call "effects jurisdiction" - the right to regulate anything that has an effect within its territory. That's the basis on which the antitrust suit against De Beers was - De Beers doesn't sell in the US (they do their distribution elsewhere, it's imported into the US by other companies), and has no physical presence in the US. But since their actions affect the price of diamonds in the US, voila ! effects jurisdiction.
In the same way, let's assume for a minute that Elcomsoft didn't have servers in the US, and didn't sell software to US citizens. If they sold software to bypass Adobe's copy protections in Russia, the market for Adobe's software in Russia would be affected. Then the share price of Adobe, a US company, would be affected. Voila ! effects jurisdiction.
That's the objectionable thing. Every conceivable action has an effect somewhere else (even if it's not substantial. Butterflies anyone ?) Therefore, the US is essentially claiming the right to regulate anything anywhere.
Of course, this isn't new. Same old, same old thing which the US has been doing forever (or at least since it became a superpower - I guess the Native Americans never acted this way)
Not selling; crypto isn't absolutely essential (well, it is for the link, but not for the storage). It's the right to crypto that is important.
I just want to find someone who is fairly trustworthy. I figure that if, as late as 2002, there are any jurisdictions that still don't have these problems, then maybe I don't have to worry as much about them in the future.
On the other hand, if a jurisdiction currently has laws (or pending laws) against certain types of software, hate speech, porn, crypto, etc. then they obvously have some political and philosophical problems, so there's no telling what they might outlaw tomorrow. Do I want to set up a site, and then next year have it all become illegal because of my opinions, or the length of my hair, or the color of my skin, or the openness of my OS, turns out to be the "horseman of the apocalypse" du jour? No. I would rather preempt the chilling effect and take care of it in advance. Finding a trustworthy jurisdiction before I do anything that might get me in trouble, seems the way to go.
Then maybe, after that, I can just enjoy my life without having to constantly look over my shoulder all the time to see what the congresscritters are trying to outlaw today, to see if I'm on the list. Aren't you getting tired of it? I sure am. It shouldn't be a constant never-ending seige. I guess I'm trying to opt-out of the "eternal vigilance" situation. At heart, I'm still a lazy American. :-)
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