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Update To Pavlovich DeCSS case; Stay Lifted
MeanMF writes "Update to this article:Infoworld reports that the Justice O'Connor of the U.S. Supreme Court has lifted the temporary stay on the California Supreme Court's ruling that Pavlovich can not be tried in California courts. That ruling can now take effect. More from the EFF."
When reading tidbits like this, it's important to keep in mind that Sandra Day wasn't giving any clues as to the Supreme Court's take on the merits of the case. It looks to me like a purely procedural question, that of personal jurisdiction -- does the California court have the right to drag someone from Texas into Court there. Nothing to do specifically with DeCSS at all.
Still, it's always nice to see things get just a little bit harder for the entertainment industry.
Hopefully DeCSS will be one more in a series of flops that will lead the media industries to more reasonable, consumer based, less technologically heavy handed solutions. I wonder how much marketing all these court cases from the MPAA and the RIAA could have bought, how much talent could have been found and promoted.
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When I grow up, I want to be a kid again.
Much better to defend others I guess...
(No, it's not a criticism, just an observation)
"I think its time for this witch hunt to stop. DeCSS is available all over the world. The only people benefiting from this are the trial lawyers being paid tremendous amounts of money by the entertainment companies"
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I would like to know why O'Connor acted. Perhaps she wanted some research done, or perhaps she floated the case by other Justices without getting a bite. It takes four Justices to grant certiorari and hear the full case.
:)
To label personal jurisdiction a procedural question is misleading. Things like filing dates for briefs are classically procedural. But personal jurisdiction goes to constitutional due process and the very life or death of entire classes of cases. PJ over Web disputes will prove to be as critical issue as the free speech question at the heart of this DMCA case. What good is free speech in the U.S. if you can be charged in some country antagonistic to the concept (Singapore, China, others).
Here, PJ appears decides the case for now. PJ is not a question of the rights of the CA court, but its power, and fundamental fairness to the defendant ("traditional notions of fair play and substantial justice"). If the party has not had or consented to contact with the forum, it is a violation of substantive due process to impose jurisidiction. You don't have to visit the state to get into trouble there. Yet it is important also to consider fairness to the plaintiff, who may have been injured by something really foul done by the defendant -- they're not all as sympathetic as Pavlovich.
Already, the U.S. is already indirectly disagreeing with Australia over this point, a recent Fourth Circuit case. Note the heavy hitters who participated in that appeal --- NYT, WP, DJ, and others. It's not just little website operators who are worried.
The questions can become quite difficult and are the sort of stuff law professors use to torture their students now that thumbscrews are banned. How much "contact" is enough? Is passing over California in the Space Shuttle or ISS enough for them to nail you court? (Don't laugh, I bet this will comes up some day: picture astronaut Francine is on break sitting at his console typing away decryption codes while zipping over dozens of states and countries... for that matter, who has jurisdiction and whose laws apply the first time two pieces of space stuff whack into each other? The first fender bender will be messy.)
Anyway, I'm skeptical whether California got PJ right here -- in an analytical sense that will carry the day for eventual federal standards -- but for all intents it appears the CA aspect of the litigation is dead. Sooner or later, this jurisdictional question will land squarely in the U.S. Supreme Court.
Just thinking out loud...
The DVD CCA obtained a preliminary injuction aginst all defendents that prohibited them from posting DeCSS on their web sites. The CA Supreme Court ruled that CA did not have jurisdiction over Pavlovich. This means that Pavolich can post DeCSS without violating any court orders. O'Conner's stay basically put the CA decision on "temporary hold". Which meant that the CA preliminary injuction still applied to Pavolich until the SCOTUS sorted it out. By lifting the stay, it means that Pavlovich can once again put DeCSS on his web site without violating any court orders.
if the people in question are not earning money as a result of making avaialable information on CSS, they may not be subject to trade secret violations
Not necessarily true. There is another recent case, although under a different statute, that ruled that although the person who violated the law did not receive direct compensation, he was still subject to the law since people who received the information would economically benifit.
unless you are legally involved with the company holding the trade secret, (via NDA, ...the fact that you are publicising what that company considers to be a trade secret is an indication that it is not a secret in any sense of the word.
Not quite true. If it becomes public knowledge through illegal means, you can be barred from using the information. Let's say an employee violates their NDA and posts Coke's "secret formula" on their web site. Pepsi could be legally barred from using the formula even though they violated no laws when they obtained it. The rational for this is that Pepsi would be profing from an illegal act even though they did not commit it themselves.
Which brings up the validity of the EULAs. (An issue that even the courts are divided on.) The CCA DVD's position is that the defendents knew or should have known that the only way to create DeCSS was to violate the EULA's prohibition against reverse engineering. If EULAs are not valid contracts, then the CCA DVD's case evoperates.
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