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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.
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.
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
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!
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
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.
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?