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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.
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.
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.
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.
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!
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
"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
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.
Be careful what you create - even Bibles are illegal in some countries.
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
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?
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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