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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.
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.
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.
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.
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.
By what authority can a US court decide what laws should apply to the Internet?
Somewhere in the heavens... they are waiting.
"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
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
so the question becomes:
did the seller (elcomsoft) export software from russia to the US, or did the buyer import software from russia into the US..?
There is ofcourse another problem with your pickpocket reference: pickpocketing is illegal in both britain and france, elcomsoft's product is only questionable in the US, not in russia(it's perfectly legal in most countries, although certain uses may not be)
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
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?
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
This is precisely the "problem" which the Hague Convention on Jurisdiction and Foreign Judgments is designed to "solve". Once it is in force the USA can simply write to whichever country the De Beers directors happen to be residing in and that country HAS enforce the judgement of the US courts.
I confidently predict that this will only work one way round. The first time that a court in somewhere like China tries to enforce a ruling on a US citizen they will claim protection under some clause of the US constitution and nothing will happen. Perhaps I'm just an old cynic.
Be careful what you create - even Bibles are illegal in some countries.
IANAL. This is my opinion only.
In your example, YOU send kiddy porn from finland to the US. This could be viewed as a deliberate act. It's illegal in both countries, so your example is not a good one. Let's tweak it. You have a photo of a nude woman on your web page. It's not even a hardcore pr0n photo. Just a nude woman. Someone in, say, a islamic country takes offense. The photo he just downloaded from your website violates his local law. On your next trip to eastern Africa, you are arrested and flogged in public.
Is this fair? Certainly not! Of course the internet is not a "palce" devoid of any laws. The tough nut is: Whose laws apply? The only sane solution is that the laws of each individual's location apply to this individual. The internet cannot make a user liable under the laws of all 200 something nations on this planet. That's just insane.
So barring any international treaties (of which I am not aware), the DMCA has absolutely no effect on what goes on in Germany, Russia, or Republic of Madagascar. The US is free to make up their own laws, but please don't push them down the throats of everybody else.
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.
Ah, if only the real world was so black and white. When you say "kiddie porn", you invite us to consider morally reprehensible images of pre-teens and agree with you by reflex.
Now let's discuss a relevant example. You get sent a posed image of a nude 15 year old girl from Japan. Is that illegal?
Well, it's not illegal in Japan. Age of consent is 13, with protections against exploitation. Argue the morality of that, but not the legality (unless you want to argue exploitation, but we'll assume a clued up 15 year old who's making money, it does happen). Where does the illegality start? When the packets cross US borders? When they enter equipment owned by a US company, even if that's in Japan? Is the act of sending the material outside of Japan illegal? Illegal in who's jurisdiction? Is it illegal for you to keep the images ("of course!" to quote you). Are you beholden to report the receipt to US law enforcement, and if so on what grounds? Should US law enforcement try to have the sender extradited? Should they try to prosecute the sender's associates in the USA?
This case isn't black and white. If you want to discuss it, bring your wisdom to bear on the above example rather than setting up a strawman.
If you were blocking sigs, you wouldn't have to read this.
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?
No, you're not a cynic, you're realistic. As a US citizen, even I find this to be bad policy. It will be biased in favor of the USA, and while my government officials may find that wonderful, it's going to result in long-term anti-US sentiment. Afghanistan will be the least of our worries. Not to mention that countries are soverign! Why would they put up with such disrespect?
My Greasemonkey scripts for Digg &
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
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