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Supremes Grant Stay in Pavlovich DVD CCA Case
endall writes "Sandra Day O'Connor granted a stay last week for DVD Copy Control Association so that the court could gather more information. She requested filings by later this week.
I'm guessing that this delays implimentation of the California Supreme court decision on the matter."
New York technology analyst Richard Doherty said companies have delayed many new products, services and forms of entertainment because of the DVD industry's problems.
Yeah, they sure did, like, the VCR, the Rio, PVRs, Napster, My.MP3.com, DVD copying software, all that stuff was delayed or killed by entertainment industry bullshit.
Oh wait, I forgot, only the content providers are allowed to come out with new technology, my bad! You know, like DivX.
Would it kill journalists to do a little research before submitting their stories to be run? Any actual examination of both sides of this debate should make it very clear that these court cases are not actually about a program that facilitates copying but about our access to information on the little plastic wafers we own. Outside of one or two pieces in Wired I haven't seen anybody get this right, but one would hope that Salon would be a little more with it than, say, CNN.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
First, the CA case is a trade secret case, not a DMCA case. But it will be lurking in the background.
Second, Justice O'Connor is responsible for granting the stay since the 9th circuit is her "territory" for these matters.
The next step is to see whether four justices want to vote for a grant of certiori to hear the issue of whether the due process clause of the Fourteenth Amendment permits this type of "universal jurisdiction."
As to the merits, the law is increasingly on Matt's side. For example, the Fourth Circuit (VA, MD, NC, SC...) recently determined that merely putting information (copyright infringement and libel cases) on the internet does not subject a person to jurisdiction. It requires some real purposeful availment of the forum (i.e. conduct directed towards CA). Pavlovich never availed himself of California law or directed his activities at California, thus under the majority of circuit law, he is not subject to personal jurisdiction in California.
The alternate view, from Australia and a few court decisions pertaining almost entirely to bad-guy cybersquatters, finds universal jurisdiction comporting with due process requirements from mere posting on the internet. Under this theory, you purposefully avail yourself of every forum by merely posting on the internet and assume you can be hauled into court anywhere.
While this may fly in Australia, due process under US law would have to be stretched beyond its limit to allow such jursidiction, and, as more and more of life becomes electronic, it would render the limits on personal jurisdiction in states entirely meaningless. Add to that the fact that the supreme court seems particularly unimpressed by foreign decisions.
The biggest problem for the DVDCCA is that this personal jurisdiction analysis is directed at the defendant, Matt Pavlovich. No matter how great DVDCCA's alleged harm, it is the Defendants' conduct that matters, the plaintiff's conduct is not relevant. He didn't take the information from CA but from third parties, and only has liability if he "should have known" it was a trade secret, had some sort of relationship with the DVDCCA, or actually misappropriated it himself.
Only the "should have known" theory applies here -- and it seems notoriously difficult for the DVDCCA to prove that this amounts to direct conduct aimed at CA.
So, in a nutshell, even if certiori were granted, it seems unlikely that the decision would be reversed, but rather it would be a good opportunity to settle the question that there is no "universal jurisdiction" in US courts over conduct on the internet unless it is aimed at or takes place in a particular state.
Anything in this comment constituting legal advice is false...
Anything in this comment constituting a disclaimer of legal advice is falser.
Because, once armed with a decision in their favor, the DVD CCA can use it to strong-arm ISPs and individuals and intimidate them into taking down the information. Even though a victory against one defendant in a tort case doesn't gurarantee victory against subsequent defendants, a win for the DVD CCA here could get a lot of fence-sitters -- as well as defenseless people -- to cave in.
Schwab
Editor, A1-AAA AmeriCaptions