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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)."
I have heard lots and lots of this stuff for the US but what about Canada?
Can I play DVDs under Linux in Canada with LiViD legally?
On another topic that other law that was mentioned here last week I think it was, would help the use of the program in the US i think
What we see depends on mainly what we look for. -- John Lubbock Now search for that bug slave!
What does this mean exactly? That Posting DeCSS to the internet isn't bad enough to be sued or whatever? Or is it something more specific to this case, like his posting to the internet doesn't put him under the jurisdiction of Cali courts?
autopr0n is like, down and stuff.
I find it disgusting that the only legitatment DVD player for PCs is for Windows, and that there is no open source alternative, for those who don't wish to spend money for a bloated operating system that makes my purchases obsolete in a week's time.
So how are we to play DVDs in our *nix Operating systems? We're not, we're suppose to buy Windows, and shell out extra money for a DVD player. This makes a purchase of a DVD drive useless for an open source based PC.
On the other hand, maybe we should keep it quiet.
Whoops. Should have previewed.
Here it is
Karma: Not Particularly Funny.
Is it just me, or does it seem like this whole lawsuit to stop DeCSS became a moot point the second the DeCSS code hit the net?
Once the code was published, Pandora's proverbial box was opened. They can never shove it out of view again.
Today, DeCSS based players abound aplenty. And there are rippers and other tools based around the code. Even if they win the case in court, they've lost in the court of real life.
Brought to you by Frobozz Magic Penguin Fodder.
While I always hate to see soem "bad guy" get off on a technicality, here's a case where one of the good guys squeaked by for similar reasons.
The key to winning the case was that Pavlovich did not know that DVD CCA is based out of California (until after they sued him), and because he did not know this, certain legal tests fail, and he cannot be pursued as the suit was filed.
Yes, there were many other deep, legal issues, but thisone appears to be the main reason.
Maybe he learned something from Bill Gates, who did a fabulous job during this legal battles to convince the judge that he could not remember a single thing. What lessons are our higher courts teaching us?! I thought learning from the past was a good thing, but apparently forgetting the past is much safer.
Yes, it's true. This man has no dick.
This is an unset area of law, based around the passage of a law surrounding a group of poorly-understood-by-the-general-populace and very new concepts. You will get inconsistent rulings on this subject, and will continue to do so for a very long time. Conservative judges, and corrupt judges with entertainment-industry links, will uphold the DMCA above and beyond the language in the DMCA itself. Liberal judges, and judges who actually understand the technical issues enough to see the DMCA is in fact about as direct a violation of constutional rights as you can get, will say the DMCA can't be enforced. None of this will be resolved until the supreme court picks up a DMCA case and strikes the DMCA down. (If the supremes uphold the DMCA, you will continue to get inconsistent rulings, as judges and juries alike look at the law, go "this is rediculous", and N-U-L-L-I-F-Y..)
just distribute and talk about it. oops.
I am the Alpha and the Omega-3
There are DVD players for Linux. The problem arises when you realize the DVD consortium wants a license fee ($10,000, I think) for each type of "product" such as a software player.
In theory, someone could pay the $10K and release a closed-source plug-in for Ogle/MPlayer/Xine. However, I'm not sure if there are per-unit fees associated. There probably are and I don't think the consortium makes allowances for free software.
Learning HOW to think is more important than learning WHAT to think.
MHO. YMMV. Any resemblance between this post and real persons, or reality in general, was accidental.
We need to be extremely careful moving forward. Challenging such things as DeCSS and DMCA with the term 'open source' leads, just as it did here, to the ideal that the open source community is simply a group of software pirates.
There must be a point made, whether by press release or otherwise, that Open Source does not in anyway support the copyright infringement of any commercially available (or, for that matter, freely available) software. We need to make it clear that we are not advocates of breaking the law, as this judgement seems to suggest.
However, saying that "I am not guilty of copyright infridgement because I work for the open source community" is not a valid arguement. This is probably why it has been associated with piracy. Again, we must make the difference clear to everyone so they don't get the wrong impression.
On a similar note, since the Judges of the court obviously do not understand what Open Source is and labeled "us" as "rogue software pirates", is there any legal action we can take against the court in a defamation of character suit? It's obvious they have just degraded us and our cause without a viable reason.
Welley Corporation - SLM Scammers
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.
The court did NOT say that Pavlovich's posting wasn't actionable -- they said that he is not within the jurisdiction of the California courts. Pavlovich may yet have to go to court, just in a different state. Other people who post DeCSS may be within California's jurisdiction.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
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
Learning HOW to think is more important than learning WHAT to think.
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.
Trusted Computing FAQ | Free Dawit Isaak!
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.
Nope, it's had this case been filed in a Federal Court his fat would have bene grim. DMCA is a federal law, it's up to the federal courts to enforce it.
The DVDCCA took a winning case to a wrong court and lost. However, it doesn't prevent them from learning from this mistake and trying again.
The honorable Judge J. Baxter writes in dissent: ...
The record indicates that, by intentionally posting an unlicensed decryption code for the Content Scrambling System (CSS) on their Internet Web sites, defendant and his network of ``open source'' associates sought to undermine and defeat the very purposes of the licensed CSS encrytion technology
Wow! Makes free software sound like the mafia. (Those are his quotes around open source, btw.)
I think we (open source) have a major PR problem with the judiciary to address.
-- p
KISSING?! DANCING?!
/. right?
You do realize this is
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.
Want to Know How to Cheat the GPL? Read On!
Remarkably, the judges never mentioned any of the following key facts that should have completely changed the nature of the (original) proceedings:
- The DeCSS was already posted on hundreds of
web sites all over the world long before it was
posted on the LiViD site. Posting it on the
LiViD site cannot reasonably be claimed to have
had any substantial effect on anybody, beyond
minor convenience for LiViD developers.
-
Nobody has shown that the CSS was illegally
reverse-engineered. It's specifically allowed
to reverse-engineer in Norway despite any
contractual agreement. In any case there was no
contractual agreement, just a click-wrap button
which there is no evidence anybody clicked.
Once a trade secret is out, it's out, and anybody
is free to use it. DVDCCA likes to pretend, and
seems to have confused the judges into believing,
that something illegal occurred in Norway. The
worst anybody has come up with is that nobody
knows (despite what Norwegian law says)
what a Norwegian court would actually decide.
-
These judges insist that LiViD was "aimed at"
the movie and electronic industries, despite that
it has been explained that it was,rather, aimed
at benefiting legitimate owners of DVDs, who
have a Uniform Commercial Code right to watch
the movie they have bought. That some movie or
electronics companies might have been affected
was of no interest to the LiViD project.
-
Nobody has shown that these companies have been
affected in any way. Certainly lots of movies
are being released on DVDs, and lots of DVD
players are being sold.
I don't know whether to chalk up these omissions by the judges to malfeasance or incompetence. (Might as well assume both.:-)This opinion really isn't very helpful. Others have pointed out that it only means the DVDCCA won't be able to sue in California, and that's correct so I'm not going to revisit the issue. However, there's a more important point that seems to be going unnoticed.
The Court went out of their way to note that it's only the DVDCCA that's being effected by the ruling; something that quite rightly should be done when the ruling is premised upon personal jurisdiction. In addition to saying that the DVDCCA probably can sue (just not in California), the opinion also says (although not quite as directly) that the movie studios probably could sue in California. And they could get not only Pavlovich, but pretty much anybody that posts DeCSS.
DVDCCA couldn't get jurisdiction because they couldn't prove that Pavlovich knew (or should have known) his actions might: 1.)hurt them, and 2.)hurt them in California. This is certainly right, as the DVDCCA didn't even exist as an entity when Pavlovich posted the code and they were never able to show that prior to the suit he had any idea where they were based. However, major movie studios in Hollywood did exist, and I doubt the Court would be willing to accept the notion that Pavlovich didn't know that Hollywood studios just happened to be located in Hollywood, CA. Had the plaintiff in the suit been a major studio (like Universal or Disney), you can bet the decision would have been the other way around.
Tuck
Tuck's Journal.
Case history:
- DVD CCA (Delaware corp w/HQ in CA) sues Matthew Pavlovich (individual in Iowa) for "misappropriating trade secrets" (DeCSS), and posting them on the LiVid website, seeking an injunction.
- MP files a motion contending CA has no jurisdiction.
- Appeals court overturns, and eventually gives a statement why the trial court should have jurisdiction.
- (This decision) CA Supreme Court decides the trial court doesn't have jurisdiction after all.
Summary of decision:- CA may exercise personal jurisdiction "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" ' ".
- The "minimum contacts" test must be administered on a case-by-case basis -- it's not mechanical.
- There are three tests by which a court may exercise specific jurisdiction over a nonresident:
- the defendant purposefully availed of forum (CA) benefits;
- the controversy is related to the defendant's contacts with the forum;
- the assertion of jurisdiction comports with "fair play and substantial justice"
- It's not enough to show defendant knew his actions would cause harm in CA. Plaintiff has to establish that CA bears the brunt of the harm. There are several pages showing they don't.
- Pavlovich posted on a "Web site accessable to any person with Internet access. Pavlovich never worked in CA. He owned no property in CA, maintained no bank accounts in CA, and had no telephone listings in CA. Neither MP nor his company solicited or transacted any business in CA. The record also contains no evidence of any LiVid contacts with CA." The site was links only, no interactive features. There's no evidence that anyone in CA even visited. One interesting argument: he couldn't have known he'd be harming plaintiffs in CA since the DVD CCA were formed two months after the links went up.
- DVD CCA claims CA has jurisdiction because "he should have known that third parties may use the misappropriated code to illegally copy movies on DVDs and that licensees of the misappropriated technology resided in CA". [emphasis orig] Accepting this argument would lead to a ruling "in contravention of controlling US Supreme Court precedent". It would give CA jurisdiction over far too many tort cases.
- Nevertheless, "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 CA."
Justices Brown, Kennard, Werdegar, and Moreno voted to overturn, Justices Baxter, George, and Chin dissented.This post expresses my opinion, not that of my employer. And yes, IAAL.
> > This is another important step on the long road to overturning the DMCA.
> No... no, actually it's nothing of the sort. As the majority's concluding words said, Pavlovich may still have to face the music, just not in California.
This has a significant impact on the logistics of DMCA suits. It means that these plaintiffs in similar actions will have to determine the appropriate jurisdiction for for their suits and will not always have the home court advantages (mostly of pushing up the costs of defendants who have to travel from other jurisdictions). While not a major victory over DMCA, this is a definite victory in constraining DMCA's implementation.
I don't know how widely this ruling will apply. IANAL, but my understanding is that this would only definitely apply within that specific jurisdiction, but that other jurisdictions would be very likely to accept the same argument when it is presented to them.
You are partially right. The $10,000 you mention is for the DVD-Forum specifications. These do not have anything to do with CSS. No where in the specs do they mentions CSS except to note the inclusion of encryption bits in the PES packet headers and some CGMS bits in the IFOs. To license CSS requires going through DVDCCA which is a much higher dollar investment. It also doesn't have per unit royalties associated with players (there are per unit royalties on css encrypted discs, however), but the one time fees for getting CSS licensing for a player are in the area of $1 million last I heard. This is put in escrow/trust, so it isn't money spent so much as money you may lose if you fail to meet the licensing requirements, i.e. your keys are in plaintext in the app someplace.
Many companies have invested in linux DVD player software development, but few have released publicly or have wide use bases. None are free as there are per unit royalities associated with ac-3 and mpeg-2 decoding (Dolby and MPEGLA collecting, respectively).
So it isn't as simple as RedHat and others dropping some money in a bucket. Companies are afraid of their software getting hacked, losing their shirts due to piracy of the non-free software, running into myriad problems with driver and hardware support which they tolerate in Windows (because of the market and OEM demand), having to deal with frequent kernel version changes (thus potential kernel module issues), and in also having to support their product on a historically "difficult" to use and administer OS.
If you steal something then someone else is deprived of the use of that object.
Calling copyright violations theft _is_ a wordgame. Illegally copying a movie or music is not theft. It is a copyright violation. A copyright violation is a violation of an exclusive right of a state granted temporary monopoly. It is not depriving someone of their property.
The ??AA's want you to think it's theft. They want you to think it's their real property. They want these terms for two things; to scare people away from illegally copying of copyrighted materials and (which is far worse) to indoctrinate the public and new generations into believing that IP is real property on equal footing with physical property. Because if people think it's real physical property then it's much easier to garner support against any proposals to reduce the length of copyright. After all, it's easier to argue against a government seizing their property than to argue against the government reducing their monopoly.
Dont call it theft. Dont call it property. Copyright violations are copy right violations, not theft.
(I certainly agree that there is no moral highground in copy right violations either, but there is a moral highground in arguing for the reduction of state granted monopoly time as opposed to arguing for seizing property after a certain time.)
Even more than that. Civil disobedience means that you explicitly break a law that you consider wrong, and do so in public or with a maximum of publicity and turn yourself in. The point is you want everyone to know that you broke the law because you consider it wrong, because you want it changed. This means you are ready to accept any actions (prison, etc.) on the authorities part.
Read some books about Gandhi to understand how the principle works.
Idempotent operation: Like MS software, wether you run it once or often, that doesn't make it any better.
See how easy it is to fall for that? You're _still_ not stealing. If you steal an orange it's theft. You are denying the store the due profits they would get for that property which they had purchased. If you steal a CD, same thing. You are denying the store the ability to sell that CD to someone else.
If you copy, you _may_ be denying them income attributed to their government granted temporary monopoly, if you had planned on purchasing that item rather than copying it. Since the very income they are counting on from _you_ depends entirely on _your_ intent, it becomes an impossible construct. They are not prevented from selling it to someone else just because you committed a copyright violation (they may be if you mass-distribute it, which is why, while still not theft, that is even more frowned upon in law tho).
It is technically a copyright violation. A copyright violation and nothing else. Not theft, not murder, not piracy, nor arson. It may have factors in common with any and all of them, but it is _not_ any of them.
It is a violation of a government granted exclusive monopoly, granted for a limited time to promote creativity, it is not depriving someone of property, not even property they would otherwise have obtained.
A violation is a copyright violation, period.