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.

Comments

DO YOU KNOW WHERE YOUR HOSTING SERVICE IS?

[kir]

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?

Re:More Likely

[BadDoggie]

If I was a pick pocket who could reach from Britain to France to pick a Pocket, where does the crime take place?

Great analogy, actually. Nice thought experiment. I had to go over it a couple times.

The base crime -- theft of property -- occurs in France. There are UK laws and treaties which may cover your general participation in a crime. However, the central crime took place in France and, but for the EU, the UK police wouldn't give a rat's ass/arse... at least until France made an extradition request. If you don't agree, consider that without the pickpocketing, no other charges can or do exist, except perhaps Excessive Flexibility and Grievous and Malicious Reaching.

At this point, your extradition trial should ideally take into consideration whether or not what you did in France is also illegal in France. However, the UK & France are both in the EU and would have to extradite. So let's try this a bit differently:

Say you also stand in Norway and instead of dipping your hand in a Frog pocket, you go one country over and there, raise your right arm about 30-40 degrees above horizontal while yell the old mid-20th century chant. Germany has strict laws against this and would scream for extradition. Norway is not in the EU, so they are not bound to extradite, as would be the UK. This is certainly not illegal in Norway and Norway may well refuse to extradite you for the crime committed in Germany.

This is where we already have precedents in the US, and specifically with these laws. Where Denmark was required by the EU to extradite Gary Lauck to Germany even though they (Denmark) have no anti-Nazi laws of their own, the US could and did not extradite Lauck. They wouldn't even run him for mail fraud because what he was sending (he was the central source of neo-Nazi propaganda) was perfectly legal to send in and from the USA. No extradition. There's also no shutting down of neo-Nazi sites hosted in the US depite Germany's repeated requests, so all the little bastards get cheap and legal US hosting. They can only then be tried in Germany if it can be proved that they, within German (or EU) borders, were responsible for the site. ISPs don't give out customer info, not in the US and not in Germany.

Because this is the US' official position on this subject, they cannot claim that a Russian and/or his company can be held liable for doing something which is legal within their own country's borders , even if doing so violates the laws of the US, Q.E.D.

woof.

This took too long to write and no one's gonna see it. Bah.