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.

Comments

What if ElcomSoft loses?

[Dimensio]

What if, after every challenge and appeal, they are found guilty of violating the DMCA. What if after the judgement all employees bog off back to Russia, including Dimitri. How is the US going to enforce a judgement against them?

Non-infringing use?

[kefoo]

ElcomSoft's program, sold briefly on the Internet last year, allowed people using Adobe Systems Inc.'s eBook Reader to copy and print digital books, as well as transfer them to other computers and have the computer read them aloud.

Wouldn't that be considered "substantial, non-infringing use", something which has been used to defeat these kinds of cases in the past?

legal question

[dan501]

I'd like elcomsoft to win and the dmca to be smitten as much as the next guy, but...

On what grounds does elcomsoft qualify for consitutional rights? I mean, it's not a US citizen or a US corporation.

Now, I guess it's weird to think about trying a foreign entity under US laws in the first place. And even weirder to try someone under US laws without US contitutional rights applying, but I thought the constitutional rights that are granted are granted to US citizens (and now corporations), not to the world at large.

Re:legal question

[Sir Tristam]

...the constitutional rights that are granted are granted to US citizens...

All right, TIME OUT! It makes me want to scream every time I hear somebody talk about their rights that are granted by the Constitution (or Bill of Rights). This is a very important point when talking about your rights: No rights are granted to US citizens by the Constitution and the Bill of Rights. Zero. Zip. Not a one. Nada.

If you haul out a copy of the Bill of Rights (or search on Google if you don't have a paper copy handy), read them very carefully. Look a the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Does it say, "the people shall have the right to peaceably assemble"? No, it says that Congress can't make a law abridging that right, implicitly assuming that the people have that right. Or the rights catch-all amendment, the Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The framers of the Bill of Rights, and the Constitution, and the Declaration of Independence believed that rights were granted by a higher power than man or government, and as such could never be granted or taken away by man or government. The Bill of Rights was written, not to grant rights to citizens, but to put boundaries on the powers the government would try to excercise. When you talk about "rights granted by the Constitution", you are actually belittling your rights, as you are saying that they were granted to you by man and thus could be taken from you by man. They can't be; they can only be given away, but that's the road you're starting down when you don't properly recoginze the origin of your rights.

So, properly recognizing the source of rights as above man or government, is it particually surprising that a foreign entity could offer a First and Fifth Amendment argument in a case? It's not to me. I would view a refusal to allow such an argument as a major threat to the rights of all US citizens, as it would be an implicit assertion that the rights guaranteed by the Bill of Rights are granted (and thus can be taken away) at the US government level.

We now return you to your normal, light, funny Slashdot, already in progress. Time in.

Chris Beckenbach

Is this a surprise?

[nuggz]

This isn't a surprise.
The US will do what they please, it is one of the reasons people get pissed off.

The journalist (Pearl?) in pakistan, they want to extradite the accused to the US.
The crime was murder in pakistan, why extradite to the US? Because he was an American?

US citizens and the US government want everyone to follow US laws and courts. They are using their power and influence to make countries comply (Ukraine).

Is this really a shock to anyone?

Although this is somewhat poorly worded it isn't intended as a troll, sorry I'm an engineer not an editor.

Challenging Jurisdiction...

[Anonymous Coward]

was a waste of time. There was no way a US court would not grant jurisdiction over a defendant who sells products in the US.

Their other claims are also pretty far fetched. The best Constitutional attack on the DMCA is that its anti-circumvention measures are written to apply to all types of material, not just copyrightable material. That probably goes beyond the scope of what the Constitution allows.

Free speech: We already have the trade off of a loss of free speech in exchange for the protection of original works. This is basically the same thing as saying that the DMCA steps outside of the boundaries of copyright.

I'd need to look into it more to say what they were trying to do with due process.

Re:I'm waiting to see the DMCA used for the consum

[Anonymous Coward]

I really hope some Russian court drags an American company over to defend themselves writing software that breaks Russian law. Or China. Then things will change.

Adobe files aren't really copy protected

[Eric Damron]

This should be an interesting case that, hopefully, gets the law off the books due to being unconstitutional.

I don't really understand how the DMCA can apply here. Adobe's PDF files are in no way protected from copying by their "protection." You can easily copy the entire file just as you would copy any other file. Correct me if I'm wrong but I believe that it only prevents you from printing the file. So, does AEBPR circumvent copy protection or just re-enable needed functionality?

Re:Pattern emerging...

[ignavus]

The US has the size, the geographical isolation, and the natural resources to be very powerful. It is able to defend its freedoms, where many smaller countries (eg Denmark next door to Germany in 1939) could not. It has even (thankfully) aided some of those other countries to recover their freedom, after neighboring bullies opppressed them (see WWI and WWII). It was not unique in assisting the liberation of the world at those times, but its sheer size and economic power made its help very advantageous.

However, that does not mean that US political culture is the most open and morally and politically free in the world. Nor was it the first country to embrace many of the freedoms it does possess (consider the abolition of slavery and female suffrage - both done elsewhere earlier).
Nor does it mean that the US has always promoted those freedoms in other countries - it has on a number of occasions promoted tyranny *as a replacement to* democracy - and has happily kept its hemisphere secure at the cost of democracy in other nations.

Overall, the US's freedom has been a very good thing, but we should not make the mistake of thinking that it is the most free, the source of freedom, or the embodiment of freedom. It is simply the most powerful of the relatively free nations.