CA Supreme Court Saves LiViD, Pavlovich

joebeone writes "The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction in the DVD-CCA's suit against his posting of DeCSS in relation to the development of the LiViD DVD player for open operating systems. What's surprising? It's surprising that they held that his posting of DeCSS was not actionable... (however the use of the program by users to circumvent CSS could be under the DMCA)."

Comments

Re:Not Actionable?

[Lionel Hutts]

"Not actionable" would mean that it is legal: that doing it does not expose you to suit. That is not at all what the court held: it held only that the California courts do not have jurisdiction.

Par for the course for Slashdot reporting, I guess.

Sorry guys, this means little

[MacAndrew]

At least it means little to the general cause of resisting the DCMA. It is very good news for the defendant (for the moment) and an interesting discussion of personal jurisdiction, if you're into that sort of this (I am).

Personal jurisdictional is a constitutional question of due process, and governs whether a court may requires or permit a party to be joined in a legal action. Whether a court has personal jurisdiction is usually gauged by the party's contacts with the state, such as residence, committing significant acts there, consent to jurisdiction, and so on. If the court does not have jurisidiction, the case will be dismissed (at least as to that party) without addressing the merits of the lawsuit.

That's what happened here. The court was quite explicit in its conclusion which questions it was or was not deciding. It is interesting speculation whether this decision is mistaken, and where the plaintiff might next sue, if at all, so as to be assured of personal jurisdiction. It is also possible that the plaintiff dropped the ball and could have persuaded the California court on jurisdiction had it adduced more facts regarding the defendant's actions.

A parting caveat -- I just gave the opinion a power read and could be clueless on something important. However, the nature of the court's discussion is extremely familiar, and doesn't have a thing to do with DeCSS.

We, however, emphasize the narrowness of our decision. A defendant's
knowledge that his tortious conduct may harm industries centered in California is
undoubtedly relevant to any determination of personal jurisdiction and may
support a finding of jurisdiction. We merely hold that this knowledge alone is
insufficient to establish express aiming at the forum state as required by the effects
test. Because the only evidence in the record even suggesting express aiming is
Pavlovich's knowledge that his conduct may harm industries centered in
California, due process requires us to decline jurisdiction over his person.
In addition, we are not confronted with a situation where the plaintiff has
no other forum to pursue its claims and therefore do not address that situation.
DVD CCA has the ability and resources to pursue Pavlovich in another forum
such as Indiana or Texas. Our decision today does not foreclose it from doing so.
Pavlovich may still face the music--just not in California.

Re:Microsoft has a Monopoly because of such ruling

[chill]

I looked it up: (http://www.dvdfourm.org) and there are NO per-unit fees. Buy book, sign the NDA ($10,000) and someone could legally release a binary-only DECSS plugin. Yes, it could be given away freely -- just no source.

Personally, I think RedHat, Lindows & the others should do this for the people who just want to play their movies without getting into religious debates over licenses.

Hell, $10,000 isn't lunch money if spread between SuSE, Mandrake, Red Hat, UnitedLinux, IBM, etc.

-Charles

but Ogle and FusionSoft DVD lives on?

[vinsci]

The Ogle DVD Player home page is here.

For Windows, there's the full-featured FusionsSoft DVD Player which is described as published under the GPL license, but where is the source? The indicated home page of the project is constantly over its monthly bandwidth quota. The last version available seems to be from July, 2002, version 5.0.0.1.

The binaries for FusionSoft DVD Player can be found here. Gut again, since it's GPL, the sources should be somewhere. The program itself is multilingual, although you may have to do some german to download it and some french during the installation.

Article Summary is WRONG! DMCA date invalid!

[Anonymous Coward]

Livid was fully functioning as was DeCSS BEFORE nov 30th 1999.

DMCA does not cover software or hardware created BEFORE the begginning of 2000.

This is a fact.

DMCA will NEVER have any bearing on the original frozen sources of Nov 1999 Livid and livid is now "clean" of any tainting from the XING key anyways.

Current versions use brute force key cracking,a s do other DVD ripping source examples.

DMCA start date was a few months too late.

Too badfor DMCA but its a fact, the origianl aguments were NEVER about DMCA they were about theft of XING key using a debugger violating the click-wrap license.

Decoding the legal fine points

[Featureless]

Pavlovich lives in Texas. The DVD-CCA (the particular media-industry front organization prosecuting Pavlovich) sued him in California ("playing hardball" - forcing him into a more expensive long-distance defense), making a specious argument that "because he knew DeCSS would harm industries based in California," that state has jurisdiction.

The lower courts in California agreed. However, the quality of jurisprudence is fortunately a little higher in the California Supreme Court. They kicked it back. Now DVD-CCA will have to start over in another state (probably Texas, or potentially Illinois - where Pavlovich may have done some of the LiViD work while in school).

The case is far from over, in fact, it's just getting started, and it's anybody's guess what will come of it. One hopes one of these will find its way to the USSC while there's still a few shreds of dignity left at that bench; in which case, the DMCA would get the treatment it deserves. But it would depend on many things...

Specifically, with respect to the jurisdiction (which is an interesting, if academic, question), the California supremes held:

The exercise of jurisdiction over a nonresident defendant comports with these Constitutions "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice."

They go on to indicate their position:

According to DVD CCA, California should exercise jurisdiction over Pavlovich because he should have known that third parties may use the misappropriated code to illegally copy movies on DVD's and that licensees of the misappropriated technology resided in California. In other words, DVD CCA is asking this court to exercise jurisdiction over a defendant because he should have known that his conduct may harm--not a California plaintiff--but industries associated with that plaintiff. As a practical matter, such a ruling makes foreseeability of harm the sole basis for jurisdiction in contravention of controlling United States Supreme Court precedent. (See Burger King, supra, 471 U.S. at p. 474.)

Indeed, such a broad interpretation of the effects test would effectively eliminate the purposeful availment requirement in the intentional tort context for select plaintiffs.
[emphasis theirs]

Very simple, actually.

I expect the DVD-CCA's attorneys to get their law on ghetto-style; that means every nasty trick they can think of to rack up costs and price Pavlovich out of the fight. Home-court advantage has a nice synergy, too.

What I find interesting are the series of decisions supporting them which led up to this ruling. Perhaps one of the biggest weaknesses of the legal system is that there is no good way to handle bad judges once they get into the system.