Slashdot Mirror
Elcomsoft Case Will Proceed
An Anonymous Coward writes "Reuters, via the NY Times (free registration required) reports that Elcomsoft's final motions to dismiss were denied. Apparently code *is* protected speech, but... not protected from the DMCA. But most interesting to me was this part: 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.' The EFF has the whole scoop as usual." There's a Wired story about the decision, and the judge's order is available.
I guess it was because they were selling the software in the United States.
Apparently not.
"The right to fair use is present but more difficult to use; that does not mean it isn't present."
Uh, yea. Okay.. when are our judges going to get their tongues off the corporate dicks and balls of America?
Fucking disgusts me.
My reality check bounced.
Gagging a person doesn't violate their free speech.
After all, they only have to struggle a little harder to express themselves
</sarcasm>
Where do they get these judges?
"It is a greater offense to steal men's labor, than their clothes"
For one they do business here in the U.S. which makes them liable to comply with all pertinet U.S. Laws and Regulations. This is nothing new - U.S. company's are also held by the laws of foreign governments when they do business there. The classic example I can think of is a few years ago (1998?) compuserve was forced by the German government to filter out some types of websites (nazi, some porn, etc) that it deemed harmful. Now, obviously, that would be in direct conflict with the U.S. 1st ammendment but it was on German soil which means the German government can do whatever they want to a U.S. company and make them obey whatever laws. You can substitute whatever company/country into that situation but the basic premise is the same.
It is also much like the fact that you must, as a U.S. citizen traveling/living/studying/working abroad, obey the laws of the country that you staying in. Remember 5 or so years back when those 2 american teenagers where flogged in Singapore (truly a happy place to live...) for grafiti and people raised such an uproar? Well the U.S. government didn't do anything - it was quite legal and proper for Singapore to enforce it laws upon them.
Here's an analogy you may find interesting:
"The DMCA (Dealer Mechanic Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their vehicle (because it states that you can only seek repairs or purchase parts from the dealer where you purchased your car),' the judge wrote in a 35-page opinion. 'The fair user may find it more inconvenient to engage in certain fair uses with regard to their modern vehicles, but nevertheless, fair use is still available, for a price."
or...
"The BMCA (Book Maker Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their books (because it states that you can only open the cover of the book using a special decoder tool that must be registered and periodically renewed by the book publisher),' the judge wrote in a 35-page opinion. 'The fair user may find it more burdernsome to engage in certain fair uses with regard to their book collection, but nevertheless, fair use is still available, as long as the book publisher remains in business."
When as these idiot judges going to learn? Either we have a first sale doctrine...or we don't. Why do such backward-thinking judges somehow decide that just because we are selling very long numbers instead of books and cars that putting rules and restrictions on ANYTHING AS PART OF A SALE is effectively doing away with this longstanding legal precident?
The day will come when matter can be easily replicated and all book publishers and car makers are going to be able to see are blueprints, designs, and other electronic information. All these companies are doing is ensuring that people turn to back alley and underground channels. But I understand their Chicken Little approach to intellectual property and the back-ass-wards way they follow it.
What I don't understand is judges...who are put in our system of government to provide a check and balance to stupid laws...basically deciding that a small risk to corporate profits outweighs a society-wide consequence to freedom of access to information. WHO IS PAYING THESE PEOPLE OFF?
- JoeShmoe
.
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Well the U.S. government didn't do anything - it was quite legal and proper for Singapore to enforce it laws upon them.
Clinton talked and talked and talked to Singapore's government and convinced them to reduce the punishment from eight lashes with the cane to four. This I clearly remember. Although you're right -- Singapore had every right to enforce its laws, and probably should have given them all eight lashes. What I don't understand is why (as in the Singapore case) the US doesn't like other countries enforcing their laws on US citizens while (as in the Sklyarov/Elcomsoft case) it is so zealous about enforcing its own laws on citizens/corporations from other countries.
I pledge allegiance to the flag...
of the Corporate States of America...
Sig: What Happened To The Censorware Project (censorware.org)
Hey. Just a couple of days I donated $20 to the EFF (grad student budget constraints).
:CueCats, all donated $20 to the EFF, or other organizations, suddenly we might be able to buy some justice as well.
I'll tell you something, laws can be bought ("donations" to lesiglators), and court cases can be bought (better lawyers cost more). It seems like big business, etc., always win these things, but the reason is because they have the money to do the buying.
If us, the regular people, those who want to own what we pay for, who want the right to watch our DVDs with the player we choose, to save our e-books on to a different medium, to uninstall parts of the operating system that we don't want, to take apart our
So forego a couple of extra beers, a couple of rounds of pool, StarWars tickets, etc. and dontate a couple of bucks. Maybe then we can see a difference.
Just an idea.
The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.
... most people would rather avoid breaking the law than possibly landing in jail. In this case, most people would rather not exercise the full extent of their fair use than put in the effort to sidestep the DMCA. There is no difference, the DMCA "silencing effect" is an affront to free speech. I think the fact that a person intelligent enough to become a judge used this argument shows he has ulterior motives.
I'm sick of that argument. It's just not valid, if you make something "difficult" enough, people won't do it. And if people won't do it, it's equivalent to banning it. That it could be done "in theory" or by "people who are willing to put in extra effort" is irrelevant.
In fact, all laws work on a relative disincentive principle
Websurfing done right! StumbleUpon
It was also found that someone putting a foot up Judge Ronald Whyte's ass will in no way eliminates or substantially impair his ability to walk. The esteemed judge may find it more difficult to engage in certain quick strides but nevertheless, walking will still be possible.
Fair use doesn't mean that one can hire monks to scribe
I take this from the EFF Supplemental Letter Brief in Corley v. Universal appeal
Unfortunately, the courts so far seem to be holding the opposite :-(
Sig: What Happened To The Censorware Project (censorware.org)
If you substitute 'book' for 'computer' and 'printed text' for 'computer data' it becomes pretty obvious just how stupid DMCA, SSSCA, CBDTPA, and all the DRM schemes are.
We're getting screwed because so many people find "computer bytes" to be myterious and magical. A byte is very much like a letter on a piece of paper. If it's legal to do something with a piece of paper, it should be legal on a computer.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Where do they get these judges?
From the Chilling Effect School of Law, of course!
"Einstein argued that [...] God is not capricious or arbitrary. No such faith comforts the software engineer." ~ Brooks
Along this line, every digital program is a number in base 2. If one were to write a program A that outputs the number for Windows XP, and then write a program B that outputs the number for A, would program B be legal?
Program B does nothing but output a number. The number it outputs is not copyrighted.
What if you wrote a program that produced the number for the Windows XP binary minus seven? Would a program that adds seven then be copyrighted by microsoft?
Similarly,does a software binary copyright also cover the infinite number of programs that output that binary? Also, does copyright cover stuff like program B giving control over the infinite number of programs, that can be produced by the infinite number of programs, that can be produced by an infinite number of programs....
If the government actualy accepts code as speach, then software companies are screwed. They would have to outlaw every number, because it could be used as a key to generate the source code for Windows XP.
bash-2.04$
bash-2.04$yes "Don't you hate dialup connections?"| write USERNAME
JUDGE Says: 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.'
Fair use is still available.. well yeah! through elcom software program!! right?
I vaguely remeber but the point is it was nothing more than talk, nor would it ever be anything more than talk.. maybe a few vague threats about foreign aid or something but the general point that clinton probably made was just to do this to be nice and show a good image to the American people so they wouldn't stop buying products, doing business, etc.
What is clear is that the U.S. would never have done anything *real* to stop him from getting punishment. They would only attempt to talk the punishment down.
For those unclear on the concept, posting the story here so people don't have to register is not fair use. How ironic.
-a
How to rationalize theft.
If elcomsoft has a registered business entity in the USA, it can be attacked.
If they do not have such an entity, then it is thier distributor who has been importing and trafiking in illegal, DCMA violating software. The Distributor hosted it on its server, took money for it and comitted the crimes.
If the latter is the case, all Elcomsoft has to do is stay in Russia and no one can touch them.
This should be a serious lesson for all commercial entities that sell or want to sell software to US Persons:
Use external servers and payment services to sell your software
do not incorporate in the USA
do not allow your staff to travel to the USA, for any reason.
In this way, you can sell your software to Americans, and remain insulated from the American state.
Free speech vs. Copyright:
Freedom Of Speech And Injunctions In Intellectual Property Cases (Mark A. Lemley, Eugene Volokh)
Fair Use in terms of First Amendment:
Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question
General Digital Copyright:
Selected Papers by Pamela Samuelson
These are good background to understand the concepts. Don't believe everything you read on Slashdot (though this sentence is one of the things you should believe :-) ).
Sig: What Happened To The Censorware Project (censorware.org)
Sig: What Happened To The Censorware Project (censorware.org)
There's no need to go to the NYT for this story (or any of the other stories linked here that I can remember.) NYT doesn't have a monopoly on reprinting Reuters feeds. Try Yahoo for instance.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
One thing I don't understand about this case is the fact that Elcomsoft is based in Russia. What gives the US the authority to prosecute a foreign company under US law?
The US has a very long history of simply ignoring the concept of something outside their borders being outside of the jurisdiction on any US court. About the only notable exception is where US people and corporations stand accused of violating human rights.
Singapore had every right to enforce its laws, and probably should have given them all eight lashes. What I don't understand is why (as in the Singapore case) the US doesn't like other countries enforcing their laws on US citizens while (as in the Sklyarov/Elcomsoft case) it is so zealous about enforcing its own laws on citizens/corporations from other countries.
Basically appears to be that the US likes to consider itself superior and look down on other nations. Rather than seeing them as peers.
Also Sklyarov is not Elcomsoft. Whilst there might be a case against, the actions taken against Sklyarov basically amount to kidnapping.
Ok, now we're on the slippery slope, because now we can encrypt any digital content without preventing fair use. The judge is speaking about electronic books, but this argument applies to audio, video, and so on...
The point which the US judiciary appears to be missing is that the special catagory of "digital content" has been invented out of thin air.
The US Congress simply does not have the authority to make a law which treats copyrighted material differently depending on media. About the only permitted variation would be different terms for different times of works, so long as terms are limited.
How come the large software companies get away with stealing stuff all the time but when a little Russian company like Elcomsoft does something people go ape shit and try to throw them in prison.
Except they didn't throw the company in jail they (illegaly) threw an employee, who wasn't even on the sales staff, in jail.
You don't see anyone trying to throw Bill in prison like they did to Dmitry Sklyarov.
It would make far more sense to jail Mr Gates over the conduct of Microsoft. Since he is an executive director, who has control over what the organisation does. AFAIK Mr Sklyarov did not set Elcomsoft's sales policy.
There are levels of distinction and laws which forbid certain types of speech. In general, "personal" speech (non-commercial) enjoys more Constitutional protection than commercial speech. For example, it is illegal for companies to misrepresent or lie about their products. There are laws about what descriptive phrases or words can appear on product labels (i.e. "low-fat", "fat-free").
Even personal speech is not protected 100%. Libel, slander, harassment, assault, death threats, etc. are all illegal, and the First Amendment does not protect them. Other things and actions which could be defined as "forms of expression" (I use the term loosely) like child pornography and public nudity can also be made illegal, and are not considered protected.
That said, I disagree with most of the judge's arguments here. Especially the part about "fair use" not being interfered with because it is still "possible" to excercise fair-use rights, it's just harder. *That* is a slippery slope indeed. You could argue that, because it is theoretically possible to take a random clump of matter and rearrange the subatomic particles contained within it to form an exact duplicate of a "protected" work, it is perfectly all right to do away with every other concievable method of duplicating said work for fair use. Sure, it's more difficult to construct a duplicate from the subatomic level, but hey, it's still *possible*, right?
As for the whole IP market...what all of this boils down to is that companies who make their living "selling" intellectual property are losing their control over the distribution. The trouble is, almost all IP is abstract. It's just a bunch of ideas. There is no physical component to sell. In theory, in a true free market, it would be impossible to sell ideas, because they are not limited resources. Yes, it is possible to run out of NEW ideas...but once an idea exists, it could, in theory, be distributed to every being on this planet with no limitations. Everyone can possess the same idea without taking it away from anyone else.
Those who sell IP have always relied on the fact that in order to spread those ideas reliably, a physical medium is neccesary...and since this physical medium is a limited resource, it can be sold. Books, music cassettes, VHS tapes...they are all physical, limited objects. If you have a book, you can't give it to your neighbor and keep reading it yourself at the same time...so if you both want to read it, you both have to buy a book. Duplicating the book yourself is certainly possible. You can memorize it, transcribe it, or even photocopy it. But these methods are all expensive in terms of time or money, and the results are not as reliable. IP merchants were able to use these physical limitations to exert control over the market and artificially inflate the price of their ideas.
The digital age, however, in one swift stroke, has destroyed that physical limitation which allowed IP to be sold like it was a limited physical resource. Now, suddenly, it is fast, easy, and cheap to take a single copy of an Intellectual Property and make hundreds, thousands, even millions of copies of it...copies that are indistinguishable from the original.
For humanity, this is a wonderful thing. Now ideas can be shared with millions of people at a tiny fraction of what it would cost a decade ago, with no need to worry about having to tie them up in artificial physical limitations. But for those companies who have been profiting for years on the artificial scarcity of IP in the physical world, it's an absolute nightmare. Their control is gone. Their entire business model is crashing and burning around them. That's why they are buying Congressmen and new laws like they're on clearance at Wal-Mart. They aren't concerned about this new world of almost limitless, extremely low-cost distribution of IP. They aren't apprehensive. They're freaking terrified.
The trouble is, all of these IP merchants are obsolete. They're outdated. They're not needed anymore...or won't be needed for much longer. They're going the way of the horsed carriage and the typewriter. Or, at least, they should be. But they're putting up one hell of a fight. They don't like this brave new world, so they're doing their damndest to reverse the progress we've made to reach this point. I don't think they will succeed in the long run. They can't undo what's been done, no matter how much money they throw at Congress and the lawmakers. Eventually, they will wither away and die, or adapt to the new environment. But I fear that they are going to make the transision as painful for everyone around them as they can before they do.
It's really unfortunate. Here, we have the ability to pass ideas in many formats (verbal, audible, visual) to a vast number of people at once at a relatively low cost. It's the next best thing to matter replication. But a few greedy corporations, trying desperately to hold on to a dying business model, are trying to destroy this ability, or at the least, to cripple it, reduce it to a fraction of it's current usefulness...all in the name of their own profit margins. Sad, sad times...
DennyK
Is code speech? I don't know. Can you copyright it? Apparently every company that has EVER written software thinks so. It's the very foundation of the software industry business model. The ability to copyright code is a basic assumption. Time and time again courts have found for the holder of the copyright in code theft cases. I think sufficient legal precident exists that says that code is speech.
Since code is speech, for the most part the DMCA should simply not apply. Most attempts to limit speech fail miserably; witness attempts to enforce COPA, video game age restrictions (in most juristictions,) and even virtual kiddie porn. If even kiddie porn is protected speech except under the narrowest of circumstances, source code should be a no brainer. The DMCA obviously is in conflict with the first ammendment. Had Elcomsoft simply copyrighted their source code and published as a book (A trick Zimmerman sucessfully used to get around the PGP restrictions in the USA) the question probably would never even have come up.
Furthermore, the assumption in the industry, again bourne up by legal precident, is that the source code copyright extends to binary executable files. If I put the Windows binaries up on a 31337 W4R3Z site, Microsoft will come after me for copyright violations, and they'd win. If I tried to argue that copyright did not apply to the executables, I'd get laughed out of court. This despite the fact that the opinion in Congress is currently that all code, source or binary, comprises a machine and has no speech component and may be arbitrarily restricted. If it is not speech, copyright must simply not apply. If copyright does not apply, the entire software industry is will bring lobbyists to bear faster than I can hit submit on this post.
obDisclamer: I am not a lawyer. But I watched most of the Ally McBeal episodes.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
If Elcomsoft loses and the judge imposes a huge fine and Elcomsoft refuses to pay. What happens then?
Do the Americans lock up any Elcomsoft employees in the USA at the time?
Do they issue extradition warrants to the Russian authorities?
Do they try to force the Russians to sieze the assets of Elcomsoft in Russia?
Something else....?
Thanks,
If we just sit and watch, it'll be like that in 30 years. I'm not going to just sit and see it happen. I hope, neither will you.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
> The public will never have anything of their
> own and all property will be at the disposal of
> the very select few at the heads of business.
> Maybe if we can present this to polititions, of
> any party, we can create a new "Red Scare".
I doubt it - this argument for socialism has been around for ages. In fact, it appear in some form in the books by Lenin and Marx. The argument is basically: (restated but NOT supported by me)
"Pointing out capitalism's advantages over socialism is futile because capitalism turns *into* socialism once the market winners dominate so strongly that they become impossible to compete with (which must happen eventually - competitions are always eventually won). So, since you wind up with socialism either way, better have it controlled by a government that is involved with the people than by a random corporation that happened to do well in the markets in the transition period. Although the goverment might be corrupt, the corruption will consist of nothing more that people trying to get benefit for themselves; but that is what corporations will do, meaning that even a 90%+ corrupted goverment will do less looking out for itself than a corporate winner would."
But what I find really scary is the Judge's stated rationale that speech is conduct! Short of fraud and inciting violence, it is not, and never shall be. The fundamental purpose of the 1st Ammendment is to make this clear and to keep meddlesome officials from interfering with speech they don't like.
This is in for Appeal.
...is really addicted to soap operas. This way, when he buys his new HDTV and compatible recording device he finds himself unable to record his favorite soaps. I also hope he scratches every single DVD he owns and accidently buys a few from another marketing zone.
On the Fifth Amendment and due process argument, Elcomsoft argued that the DMCA is too vague because it doesn't explain which devices are legal (because they are primarily designed to enable allowed fair uses) and which are not. The Court recognised the difference (explicit in the DMCA) between bypassing protection to simply obtain raw access to content, and bypassing protection to make a specific fair use of the content. The distinction is that in the latter case, the act of bypassing is allowed. However, it is still (explicit in the DMCA) illegal to make or traffic in a device to do this. Now, there's a quandary. You can obtain a bypassing device, and you can use it to make a fair use of the content, but you can't make or supply the device.
The government argued that there was no vagueness because all tools that allow bypassing a protection mechanism are banned, even those which it would be legal to use. The judge (believe it or not) agreed!
On the First Amendment, the court agreed that both source and object code is speech (nice), but then it gets nasty, citing from case history:
Yes, there it is. "Governmental interest" trumps free expression. Or: "I think what the Consitution meant to say was...". For those who missed it, the Consitution is aimed primarily at limiting the powers of government. Government cannot trump the Consitution, and especially it cannot do it whenever it feels like it simply by passing a law. Bear in mind that any law passed by Congress must surely qualify as "substantial governmental interest" (otherwise why did they pass it? They were bored?), and so any law that does not directly limit freedom of expression trumps the First Amendment. Appalling.
As regards to lumping the rights of copyright holders and the promotion of electronic commerce together (as mentioned in the EFF report, which I assumed was hyperbole), the court does do this several times, and claims that Congress did as well. Yes, that's right, copyright is now merely a mechanism to further commerce (and not to put content into the public domain, the actual intention). Viewed like this, there is of course no reason why copyright should ever expire, or why there should be any fair use rights other than perhaps the right to produce commentary for positive review. Negative criticism, parody and academic study do not contribute to "furthering commerce".
Further, the court finds that the government has a "substantial and legitimate interest" in "promoting commerce" (note: "promoting", not "protecting"), and that "The absense of effective technological restrictions to prevent copyright infringement would inevitably result in even more rampant piracy, with a corresponding likely decrease in the willingness of authors and owners of copyrighted works to produce them in digital form or make the works available on-line.". This effectively validates the DMCA and confirms that "promoting commerce" trumps fair use. This is a speculative conclusion based purely on subjective unsubtantiated material provided by the government, a conclusion that a higher court could well rip to shreds.
Other spurious conclusions: the defendants argued that the DMCA "effectively eliminates fair use" (my emphasis). The court ruled that "the DMCA does not "eliminate" fair use", and goes on to say that fair use is still possible by transcribing by hand. But note that the court only considers fair use for written works, which are at issue here. How do you transcribe a video clip?
The court makes this assertion again when considering whether Congress exceeded its authority when drawing up the DMCA, and again asserts that the DMCA does not prohibit fair use - but again only gives a counter example for textual works. Even the point about the DMCA preventing copying once the work is in the public domain is rejected: the court agrees that it would still not be legal to make or traffic in (and therefore obtain) a device to access the content, but once again asserts that this does not prevent copying, which is true only for transcribable text.
Basically, Elcomsoft are boned, and they're boned right from the start here, because while denying the dismissal, the court has stated clearly that all circumvention devices are illegal, even if they are primarily designed for legal fair use purposes. This one's going to have to go to a higher court, and as an aside, we really need a DMCA challenge that's not based on text, so it can be shown more clearly that the DMCA does "effectively eliminate" both fair use while under copyright, and full use when in the public domain.
IANAL, but then again, bear in mind that lawyers (like judges) deal only in what's legal, not what is right. This court has pointed out that the DMCA is stupid, but then asserts that just because it's stupid, it's not wrong, because Congress fully intended for it to be exactly that stupid. Go figure.
If you were blocking sigs, you wouldn't have to read this.
turn it around:
"The right to fair use is present but more difficult to use; that does not mean it isn't present."
Ok, your honor, we'd like you to submerge you in this tank of water and seal it shut.
For you see, the ability to breath is going to be difficult, but that does not mean it is not present.
There is O2 in air and water, so, by your logic you should be able to breath water because what you need is in the water.
There is an argument that...ahem...holds water.
.
Have you read the moderator guidelines? Well, have you, PUNK? (and I want a Karma: Gnarly option)
So what we've got here is, if you can program it yourself, exercise your fair use rights as much as you wish but try and pass your tool to others and watch out. You're in violation.
Because that's exactly what's it will be. Give me an example of any program that will not be a violation of 1201(b). We've already been told by the courts and the copyright office that developing a tool to view DVDs under linux isn't protected. One says the affected population is too small and the other says the copyright owners don't have to cater to every Tom, Dick and Harry out there. Under this interpretation the only ones who will have fair use will be the technologically savy.
However, I will say this. His discussion of what is fair use is concise, and understandable. Unfortunately, he brings up a telling point.
Which, in my cynical mind, means big companies get to sue, sue, and sue some more while the little guy can only hope that some organization like the EFF will back them lest they go broke defending themselves. Eh, time will tell.
I don't want knowledge. I want certainty. - Law, David Bowie
Civil disobedience
It's more like saying that it's a felony to manufacture a key to open the door to a car that you own; the key is a means to excercise a legal right, or perhaps an expression of the means to do so, but it is not a sandwich board for expression. What is this guy smoking?
I won't even mention the fact that he's on flimsy ground saying that fair use is possible; how, by retyping it yourself? What if audio or video were protected instead of text? And what happens when fair use is made impossible by technology, in his view? Does the law magically change? Does he suddenly reverse himself? Can fair usage be flat outlawed as long as it's "content neutral"? This judge may be really trying hard to avoid setting precedent by ruling with sophistry. Or, perhaps, letting the trial proceed so evidence can be presented so that he can rule on an actual point of law, but I doubt it.
On the other hand, his characterization of code as speech which nonetheless does not enjoy the full protection of speech is, er, interesting. He sounds like the kind of retard who finds it acceptable for the NYTimes to post links to DeCSS code, but illegal for 2600 to do so. The amount of contradictions and hypocrisy engendered by the DMCA is sufficient evidence that it's the kind of law that has no place in a free republic.
Expanding a vast wasteland since 1996.
Reminds me of a song:
You have the right to free speech
As long as you aren't dumb enough to actually try it.
--The Clash, Know Your Rights
Viv
Gmail invites for ip
What Elcom needs to do is get charges brought up against Adobe in Russian court. IANA(Russian)L, but I recall from an earlier article regarding this whole fiasco that Russian law falls very heavily on the side of consumer rights, and that under that legal framework Adobe's ebook encryption is actually illegal. Elcom's product was created for, and within, that legal framework.
I understand that the US has determined it has jurisdiction because they were able to purchase Elcom's product in the US from US based vendors. Fine, I can accept that; but turn about is fair play. Obviously Adobe ebooks are available in Russia, or Elcom's product wouldn't exist. I say that Elcom should use the same tactics against Adobe in Russia that Adobe has used against them here in the US.
And yes, I'm aware of Adobe's statement that they don't want Elcom prosecuted, and I think it's a bullshit PR stunt. If I shoot somebody, the fact that I didn't want them to die does not excuse the fact that I pointed the gun at them and pulled the trigger. Adobe is clearly trying to restrict the rights of the Russian people, and should be punished to the full extent of the law.
Under capitalism man exploits man. Under communism it's the other way around.
Well...when I said "in the end," I was thinking of the really big picture. The technology to do this is out there, and it would be very difficult for even the megacorps and the government to make it vanish entirely. I, too, can easily see how the government could become as oppressive as you say...but even if they do, it's very unlikely that such a regime would last forever, or encompass the entire human race. Our lives may well suck, and maybe the lives of our children, but the technology to exchange information will probably survive somewhere, somehow, and will eventually be put to use when the current regime fails, or when those who dislike it do indeed find somewhere else to go.
The corporations are doing their best to retard our development of information distribution, or even set us back several years, and they may succeed for a while, unfortunatly. But eventually, every regime changes, or falls, or loses some of its subjects to a "New World", wherever that may be. Sadly, that doesn't neccesarily help those of us in the here and now...
DennyK
Let's see those megacorps pay for an amendment to the Second Law of Thermodynamics to survive the impending heat death of the universe! Take that, Rosen! You lose! You lose!
GMFTatsujin
Capitalism always turns into socialism does it? So all we have to do is wait and all of a sudden we'll have a healthcare free at the point of delivery, an end to poverty, equal pay for equal work, etc?
... I suspect it will as groups, be they businesses or collectives, in competition will ultimately have a winner and a loser, and the winner will then yield undo power over the loser ... ergo, authoritarianism emerges once again.
... until perhaps the supreme court hears the case (and even then, unlike 20 years ago, we can not count on a fair or sane decision).
Or are you another moron confusing "Socialism" with "Dictatorship"?'
Well, he's not exactly a moron for doing so. He is but a symptom of how effective 60 years of propoganda equating socialism with communism, and communism with authoritarianism, has been in the United States. You are likely a victim of similar disinformation, perhaps equating americans with uneducated bozos, Germans with Nazis, or some other equally absurd notion that has been pounded into your head by your regional media since birth. We are all of us victims of such things, and learning to recognize and repair these blindspots is a challenge we all face, and will likely continue to face all our lives.
It is interesting that the argument that capitalism always leads to a form of authoritarianism is gaining some very significant credibility with the current trends WRT copyright trumping free speech[1], wholesale corporate buyouts of governments both within and outside of the USA, the formation of unelected, transnational authorities such as WIPO and the WTO that have been given the authority to repeal local laws (and have used it, for example to remove one of California's environmental laws).
Communism may or may not tend toward authoritariansim (there was an anarchistic form of communism that worked for a number of years in Spain, until it was absorbed and legislated out of existence by the capitalist authorities, with the support of the authoritarian communists of eastern Europe who saw their own arguments in favor of authoritarianism threatened)
So I think economic systems are orthogonal to authoritariansim vs. liberal democracy or republicanism, and they all likely tend to lead toward a small, privileged class excersizing inapprpriate authority over the rest of humanity.
The only real defense against an emergent authoritarianism has nothing to do with the economic system in place, so long as it is not a centerally managed one. It has everything to do with a strong constitution that places strict limits on government, a government that adheres to that constitution, a relatively open and uncorrupted fourth estate (journalism), and an educated populace who gives a damn.
Unfortunately, we only have a strong constitution that limits government. We do not have a government that obeys that constitution, nor do we have a relatively open and uncorrupted fourth estate (a handfull of companies controls virtually every media outlet in the western world, troublesome books are routinely privished[2], journalists routinely threatened and/or bought off to silence stories[2], and editorial revisions which routinely change the meaning within the story are but a few examples of how dysfunctional the fourth estate has become). What is more, we do not have an educated public, nor do we have a public which gives a damn.
[1]The First Amendment guaranteeing free speech must always trump copyright, just as any amendment modifies the original document and/or any preceeding amendments. But then, the courts have by and large stopped even paying lip service to the constitution, so this minor fact is unlikely to get in the way of upholding a flagrantly unconstitutional law
[2]c.f. Into the Buzzsaw - 18 Award Winning Journalists expose the myth of a free press (including several Peabody award winners, a Pulitzer Prize winners, and several other well known and widely respected journalists)
The Future of Human Evolution: Autonomy
Yes, different types of speech are protected differently. Some things are deemed to have expressive value while also having a non-expresive component. I figured this out by reading legal briefs and court judgments.
There is a concept of something called "pure speech" which would probably encompass any written or recorded form of human language, but not necessarily computer code. Pure speech is the most protected form of speech, and the courts usually view political expression as the most important form of pure speech. Things like paintings are highly expressive, also, but probably not considered "pure speech." Gun shows have been defended on the basis of free speech. The idea is that gun shows have some expressive value, but they are certainly not pure speech. Burning the US flag is a political statement which has been ruled to be protected by the first ammendment. In the Viet Nam war era, a case arose where someone was arrested for wearing a shirt that said "Fuck the draft" into a court. Eventually it was ruled that this was protected expression.
Another important concept in free speech cases is whether a plaintiff's request seeks to impose a prior restraint. A prior restraint, for example, would be a case where a plaitiff tries to get a court to issue an injunction ahead of time to block the publication of some material. The courts take a VERY dim view of prior restraint on pure speech. On the other hand, libel and slander laws merely seek to hold speakers acountable AFTER they speak, and this doesn't run afoul of the first ammendment.
Believe it or not, judges are NOT idiots, and free speech is a concept they tend to understand fairly well. They may not always be technologically up to date, of course.
MM
--
By including this sig, the copyright holders of this work or collection unreservedly place it in the public domain.
If code is protected speech, then the DMCA (or at least portions of it) is unconstitutional. I don't see how it can be any more complex than that. Constitutional rights have always been held at higher priority over laws passed by Congress.
How can the DMCA trump the First Ammendment in this way? It seems to me like the judge is saying, "Well, even though code is speech, and speech is guaranteed under the 1st. Ammendment, because the DMCA is so popular with all the companies that gave money to the Senators who appointed me, screw civil liberties and everything this country was founded on. Now shut up and face my wrath, you evil Russian communist/terrorist hackers!"
This case has been sickening from the moment it started. If anything, it has displayed how justice in the US is not blind. Elcomsoft is a small Russian firm, and is likely to be totally screwed over by this. A huge company from the US would get a slap on the wrist fine and be let off for the same thing, if it was even prosecuted in the first place.
"You spoony bard!" -Tellah
War is peace.
Slavery is freedom.
Ignorance is strength.
20 January 2017: the End of an Error.
>So, if students got voting rights, they would
>actually have to listen to students, and that is
>obviously quite scary.
Young, educated people participating in democratic processes scares who? Why?
-fb Everything not expressly forbidden is now mandatory.
Was Sklyarov? Did he personally sell the software? No. It was the company he worked for. When France made M$ pay a few million francs, I doubt the idea of arresting whatever Microsoft programmer happened to be at hand crossed their minds.
Dyolf Knip