Slashdot Mirror
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.
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?
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.
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"
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!
ElcomSoft and other Internet-based companies don't exist in some otherworldly realm...
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. 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.
ElmcomSoft already has a plausible argument: It "did nothing wrong and merely created a program that lets people who purchase eBooks to use them in reasonable and legal ways for personal use." When lawyers start bring forward novel and dubious arguments to bolster their case, it makes you wonder if their fundamental case is sound.
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!
"The article stated that Elcomsoft did not prohibit access for american people so it is subject to the US law"
This is slashdot, not a law court, so please save the spin. Elcomsoft had a US-based server, a US-based sales office and was actively marketing to US customers, including sending their employees to conferences located in the US.
If you want to do all of that stuff in order to garner US Dollars from US customers, I recommend you contact a US-based lawyer to determine what your legal obligations are. Otherwise, stick to worrying about the Dutch authorities.
>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.
No US court would admit this. But unless the company actually sent goods to the US on its own, I fail to see how they're liable. If the product was ordered online by an US citizen, this US citizen should be guilty for importing such a software. If the mere fact of offering a product online makes one liable to proesecution under US law, why then is yahoo for example not liable to prosecution under french law?
Simple answer: You cannot force the laws of 200 countries on everybody. That just won't work. No sane, intelligent person could think otherwise. Or can they?
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.
SO, sure, people in other counrties should be held accountable to our laws.... That's the most chauvinist US-centric remark I've seen on here for a LONG time! As a citizen of the EU (which isn't actually a nation at all, so I'm a citizen of the Netherlands really), I have every right to buy sell or use DMCA-circumventing devices. I can sell them to US-citizens too. Why should I be held responsible if a tourist from the US buys a DMCA-circumventing device from my computer shop in Amsterdam, gets on a plane, and gets busted when he uses his new device in his NYC home? Do you really think I should be punished for selling a perfectly legal (in Amsterdam) device to a paying customer?? No way. I'm no legal expert, but I don't think anyone's going to bring punishment to my web shop either. I do not have any laws to abide by other than Dutch law since that's where my business is. I don't have to abide by US trade embargos either. I can ship as many ipods to Iraq as damn well pleases me, as long as the Netherlands don't have a similar embargo in place (which I think they have). What you do with my goods after you leave my shop (be it web or tangible) is your responsibility, not mine. I had a discussion on this subject with an experienced lawyer, and he said I'd almost certainly win in such a case unless the product I'm selling was clearly only usable for illegal purposes or there was great likelihood for the product to be used in illegal ways. So no, I'm not allowed to sell machine guns, but a hunting rifle is okay (when the customer has a proper permit, taking local gun laws into account) even though a hunting rifle may just as well be used to shoot people. If I were you, dear US-citizens, I'd move! The "Home Of The Free" myth has turned around on you, you've been overtaken by many European countries when it comes to civil liberties.
Learn from the mistakes of others. There isn't enough time to make them all yourself.
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."
So, did Adobe & Herr Ashcroft sue in Russia, where Elcomshot is located? Hmmm...I guess not!Will this judegement have an effect on Elcomsoft - most certainly.
The sad part is that the US is the 600 lb. gorilla, that goes about terrorizing the rest of the world. Since we're an economic super-power, the rest of the world has no choice but to acquiese, or get a proverbial load of cold water dumped on their economy.
Look at Pakistan. Frankly, most of the population doesn't really care for the US, and in fact, many activly hate us. But (Dictator Musharraf - GWB's best friend nudge-nudge wink-wink) knows that the US will crush him unless he prostrates himself and his country to the demands. If he whores himself to the US, he gets economic aid, and lots of goodies, plus the US will ignore how he obtained and maintains his power/position.
I guess we need to get used to the US taking a "screw the rest of the world" position. It's not new, and it's not going away anytime soon. I, being a beneficiary (sort-of) of this behavior, have a very hard time accepting that I can't get my government to treat other nations with the respect and dignity that we expect from them.
Elcomsoft's dead and lifeless body will probably be the result. It's probably not fair. We (the US) would certainly be offended to be treated equally, but that won't help.
[Hangs head dejectedly and sighs]
What prevents an indian tribe from growing hemp? I thought they were sovereign nations.
Jesus was all right but his disciples were thick and ordinary. -John Lennon