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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.
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.
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.
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
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.
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.
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
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.
Be careful what you create - even Bibles are illegal in some countries.
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.
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.
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..
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
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."
Actually, I'm pretty sure the charges levelled against him were all related to the act of creating the circumvention device, which was done exclusively in russia. All he did in the US was demonstrate it and talk about it. Which is not illegal. He was arrested for creating the device, not selling it.
Kintanon
Check out JoshJitsu.info for Brazilian Ji
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?
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
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?
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
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
Yes, I had heard that - but that shouldn't affect the EFF's efforts. I don't think they need to be involved in "the saving of Elcomsoft", but maybe there is a case for them to be involved in one of the world's most famous "electornic frontiers" cases. Just because Elcomsoft is a spam tool manufacturer, that doesn't mean that the EFF should let the DMCA be further established in a precedent-setting case.
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. :-)
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.