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Elcomsoft Case Proceeds; U.S. Claims Jurisdiction
An anonymous reader sent in this Reuters article noting that the Elcomsoft case will go forward. Elcomsoft had asserted that the United States didn't have jurisdiction. This is not really ground-breaking news; Elcomsoft did sell its software to people in the United States and it's not surprising that a U.S. court would claim jurisdiction over this. Elcomsoft is also claiming that enforcement of the DMCA violates the Constitutional right to free speech, and that the part of the DMCA which prohibits distributing devices which circumvent protection measures is so vague that enforcement of it violates the Constitutional right to due process under the Fifth Amendment. (See EFF's archive for more.) One or both of these claims may have a greater chance of success than the jurisdiction claim.
I really hope sometime I get to see the dmca used by a consumer against the record/movie/big software industry. I'm not sure how it would best be done, but there has to be a way to make them hate it just as much :)
"I may disagree with what you have to say, but I shall defend, to the death, your right to say it." -Voltaire
even though the activity transpired over the Internet the United States still has jurisdiction.
This is definitely not good news. It means basically that you could even get extradited to be tried in the U.S. if they so request. Not particularly good news for a lot of people starting with Amsterdam's pr0n industry to the Norwegian DECSS guy...
So it looks like Alan Cox was overreacting: you don't have to avoid going to the States, the'll come after you if they really want. Not funny at all.
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Not to agree with much of the lawsuit and all, but it sounds like there are some valid reasons for a judge to go ahead with US jurisdiction. Servers physically located in country, funds sent from in country, funds received in country... Sounds like a "presence" existed in the country.
Now as for DMCA, don't get me started...
We can certainly hope. The claim that the US doesn't have jurisdiction doesn't discuss the constitutionality of the DMCA at all. Whereas the other claims directly challenge the DMCA, and if those claims are upheld set the stage for overturning that stupid law.
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Yes, the Internet itself transcends national boundaries by allowing users anywhere to access the information located in a server in one place. However, the one place the server was located was in the U.S. Also, a U.S. entity was involved in taking payments.
Physical removal of that server stops the flow of such information, unless of course, mirrors were set up elsewhere.
So it's clearly not a case of pure Internet jurisdiction, since the storage of the alleged infringing information was in the U.S. Think of the server as a lockbox.
Thus the judge was not infringing on some internet right.
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Jurasdiction has lately been a problem for the courts of the world.
Elcomsoft: a Russian company that sold product over the internet, and some (ok, most) of it's buyers were in the states.Yahoo France: an American company that peddled its wares to the French people of the world (mostly in France).
If the US can claim jurasdiction over elcomsoft, does it not follow that france can claim jurasdiction over Yahoo France? And if this is the case, do the American people not forfeit their right to cause an uproar when an American company is subject to non-American rules?
Food for thought.
Movie studios and record labels argue that the law is necessary to keep people from indiscriminate and unauthorized copying of films and music over the Internet, where digital material is so easily digested and transferred.
... Congress passes the new Super Special Saftey Congestion Act that would make it illegal to own, operate, or traffic in any vehicle which did not contain government approved GPS tracking systems. Representatives of the lawmakers stated that any car can be used as a getaway vehicle from a bank robbery or as a lethal weapon in a hit-and-run situation and that this law is necessary to keep people from indiscriminate and unauthorized driving of cars on the road.
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You can't have it both ways at once, and I think that's the defense plan.
If jurisdiction in this case is denied, then the case is won. If jurisdiction is allowed, then they have the right to claim constitutional rights in the U.S. since the courts operate under constitutional law.
Have you ever done business internationally? I have, and it is not at all surprising that a court in any country would claim jurisdiction over commerce in that country. You make this sound like some kind of evil power grab, when in fact it's just a rational way to do things. Somebody has to have jurisdiction. When I do business in China, I have to deal with Chinese law. When I do business in Britain, I have to deal with British law. Even if I never step foot in those countries.
If you sell something directly to our citizens, you should expect to comply with our laws. If you don't want to accept that, then don't do business with the United States (or any other country that has laws you don't like). The Internet complicates things in some interesting ways by making it easier to conduct international business, but it doesn't eliminate all other rules. If you want to do business with U.S. citizens while violating U.S. law, don't:
Now, don't get me wrong.
I believe that holding an individual employee of a foreign company criminally libel for his company's allegedly illegal acts is a bad idea. (legally questionable and sets a bad precedent for the treatment of U.S. business people overseas)
I hope that the DMCA gets overturned on other grounds. I think it's both bad public policy and bad law.
But the argument that "because you use the Internet no nation's laws apply" doesn't fly.
** The opinions expressed here are my own, and do not reflect those of my employers - past, present, or future**
When did you EVER hear of a US federal judge ever ruling that he didn't have jurisdiction?
Rarely (if ever) happens. I do think the Constitutionality question is their best defense. "Fair use" is derived from the Constitution's own copyright provisions.
Also, the main intended use of Elcomsoft's product (access to e-books for the disabled) would seem to fall under the DMCA's own interoperability clause. Not to mention, the lack of such features may make E-books illegal under the Americans with Disabilities Act (but I'm unsure of this)
However, the "interoperability" provision of the DMCA was TOTALLY blown off by his Imperial Highness, "judge" Kaplan in the DeCSS case, when such a clause would seem to make it legal to circumvent CSS for the purpose of making a Linux DVD player (which is why DeCSS was written).
One of the worst problems with the DMCA and the DeCSS case is not just that it's a bad law (it's worse), but that the courts have let the IP cartels pick and cboose WHAT parts to enforce and what parts to ignore. They are getting the most favorable interpretation of the DMCA possible, while ignoring the parts that temper this and make at least a token attempt at "fair use".
IMO, this may eventually make it easier to strike the whole thing down. The more extreme and umprecedented the DMCA is interpreted, the more likely it is to be an obvious clash with the Constitution.
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Seems that the jurisdiction argument is pretty weak. Just a smokescreen?
Elcomsoft is also claiming that enforcement of the DMCA violates the Constitutional right to free speech, and that the part of the DMCA which prohibits distributing devices which circumvent protection measures is so vague that enforcement of it violates the Constitutional right to due process under the Fifth Amendment.
Amen and hallelujah! There's a big difference between the manufacturer of a tool that can be used to break into cars and the person who uses that tool.
Die, DMCA! Die! Die!
So The french gov can't take yahoo to respect Anti racism local law. But DMCA has to be respected by outside company on a pure US law. Since the US law has precedent and can judge crime done on Internet in its own country, then I do not see why (beside applicability) french law can't apply for a crime done in France. Beware Yahoo.com, and other company, the US govt may just have set a nice precedent for tons of lawsuit.
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I believe the US courts have the right to hear the case, based on the amount and nature of the US activity of Elcomsoft. That's pretty clear and straightforward. I also believe that Russia and perhaps other countries would also have the right to take legal action as well, if any of their laws were broken.
It's pretty simple. Elcomsoft's e-commerce was taking place in the US, using US servers and US companies to do the transactions. Should the US not have jurisdiction over operations taking place in the US just because the company in question is headquartered in another country? What if Enron or the like moved their headquarters to Bermuda - should they then not be liable in the US for ripping off people in their US operations? There are countless cases where foreign companies with operations in the US have been taken to court in the US, so this is nothing new. Who would want it any other way, aside from those who would benefit from skirting the US legal system?
This is all aside from the legitimacy of the case itself. I think the DMCA is a steaming pile of bits and needs to be obliterated, and that the case against Elcomsoft is garbage. To determine the truth of that belief, the case has to be heard in the first place. And it needs to be heard in the country where the alleged lawbreaking actually transpired.
surprising? no. Correct? Well, what about Yahoo! vs. France? And does that mean that next time I buy something at Amazon, I can sue them in a german court according to german consumer protection laws if I feel like it?
Only if you're a German Conusmer. If you live in Germany / German lands (like an embassy) or if Amazon ships to you from Germany (or ships to you in germany), then the laws might apply.
of course, americans being what they are (single-languaged, specifically) they don't understand what "quid pro quo" means and are perfectly happy to apply the argument only single-sided. (i.e. US jurisdiction everywhere, but not vice versa)
You're horribly misinformed. The basic principle of international jurisdiction is affect--Elcomsoft did something that affects America in a clear and direct fashion (selling us stuff.) We can bring them to trial for it.
If they don't like it, they can just stay away from the US, completely. I think there's a little island somewhere that would also like to stay completely away from the US.
And for the record--yes, the US gives quid pro quo to other nations. Remember the kid who got canned? The US military person who's in a Jappanese jail for rape? There are bunches and bunches of exchanges--both ways--that happen every day. We just don't hear about it because they're so boring.
Bullshit. There are numerous official repercussions to taking a public anti-government position. You can legally be denied a security clearance. You can legally be detained for questioning. You can legally be denied visas, passports, and (if not a citizen) naturalization or work permits.
And if you want to talk about being put to death, consider this. According to Amnesty International there are 86 countries whose governments regularly put people to death, and 109 that do not. In these 109 countries you can be said to have the inalienable right to life. As a simple matter of fact, not opinion, on which of these lists is the U.S. registered?
Yes, the U.S. is a free country. It scores a 1 (the top score) on the Freedom House survey. But so do 28 other nations. 45% of the world's population is free. Freedom is in no way uniquely or even especially an American characteristic.
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Please, this is bull-fucking-shit.
The company is based in Russia. The US has no jurisdiction over an entity in Russia, and trying to claim so is violating the sovereignty of the Russian people.
Trying to "fine" this Russia-based company is absolutely outside of US jurisdiction. Presumably, their funds are in Russia. That being so, the US cannot fine them. A US judge could not enforce a fine against a Russia-based company, because no US entity has any jurisdiction in Russia.
Now, if the court wants to require that Elcomsoft close down their US servers, or perhaps take actions specifically against parts of Elcomsoft within the US, that, they have jurisdiction to do. For example, they'd have jurisdiction to shut down Elcomsoft branches in the US, to shut down Elcomsoft servers in the US, etc.
Whether or not such is constitutional, is another question alltogether.
Preventing them from distributing that software IS a violation of THEIR free speech rights; not to mention a violation of consumer's rights to fair use. I feel strongly that eventually the DMCA will be ruled unconstitutional, if not by this judge, then down the line by the Supreme Court. The DMCA is destined to fall before the Supreme Court. When it does, if the USSC has any worth and deserves any respect at all, the DMCA will be declared unconstitutional.
But constitutional issues aside, the current issue is a very troubling issue of sovereignty. What I fear is that this fuckwit of a judge is going to try to fine the company in Russia, which is beyond any US court's jurisdiction (because the company's funds/money are in Russia, no US court has the jurisdiction to demand anything be done with those funds).
If the ruling this fuck of a judge made is left untouched, it creates huge problems for us. It would, in effect, mean that if I made a website criticizing the Chinese government, China could bring charges against ME -- a US Citizen -- for violating China's laws. That's what this is really about. The US is trying to enforce ITS laws on foreign entities/citizens.
What fucking bullshit.
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Rights are not granted by the Constitution; they are enumerated by it.
Think about it for a moment. The Founding Fathers went into it with the attitude that [people] are granted certain inalienable rights by their Creator . This means that there are certain rights which are never to be infringed upon by governments, and that all people have these rights merely by drawing breath. This presumption is embodied in the 9th amendment.
Just felt like I needed to say that.
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Isn't that kinda like saying you support some dictator because he makes the trains run on time?
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