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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.
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.
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.
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
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
"Elcomsoft had a US presence "
Presence means "physical presence". I don't believe that's true.
Perhaps I'm wrong. Where are their US offices located?
You were mistaken. Which is odd, since memory shouldn't be a problem for you
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.
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.
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.
If this DOESN'T hold up then China could pass whatever law they want and sue you for whatever (because one of your emails passed a chinese server for instance). Don't beleive it? I wouldn't beleive that you can't say "This product is dangerous to use, and here's why" in The Land Of The Free [tm]. And that, as you'd say, is absurd!
Tomorrow will be cancelled due to lack of interest
When the population begins to feel powerless within the system it means the system is breaking down. I'm advocating armed revolution and forced government restructuring. It's time the citizens of the US who actually CARE what happens get off of their asses and go do something about it.
Kintanon
Check out JoshJitsu.info for Brazilian Ji
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?