William Patry comes from the same general compass direction as Lawrence Lessig (he recently ended his blog, partly for reasons that he felt that copyright has become broken). Patry has 26 years of legal practice in the field, has written one of the major treatises, has international copyright chops, and currently is counsel for Google. Not sure that he would let Google go.
There's a legacy issue here with corporate contracts management and contract drafting practices, that goes beyond the security and legal precedent issues with accepting signatures using any particular technology.
It is very common for contracts to specify fax as an approved form of written notice and to exchange signature documents. (I have worked in Fortune 500 companies with IT contracts written in the 70's and 80's -- many of these contracts are still active under the original terms, as modified. Most of these early contracts specified fax or facsimile as an approved method of written notice or signature.
Today it's common for commercial contracts to contain terms approving email as a form of notice.
Sprint did the same thing two months ago -- they involuntarily terminated customers who were calling customer service too much...to complain about the customer service.
Rule 34 is the rule on discovery and requests for production. The excerpt I cited was a response to a discovery request for the defendant to create a mechanism to store data and "create data" so the plaintiff could analyze it to see if the defendant's technology was infringing, IIRC.
That's a different litigation context than what's going on with the Torrent stuff.
The SonicBlue / ReplayTV case in 2002 involved an order by the court to ReplayTV to create the technology to record information about subscribers for purposes of determining how much usage was violating the TOS and the law.
From the defendant's brief in that case, which makes it quite clear that the information does not exist and would involve an affirmative duty to surveil:
Federal Rule 34 Neither Requires Nor Authorizes An Order To Create Records That Do Not Exist.
Not surprisingly, Plaintiffs cite no authority for such an order. It is well settled that a party is not required to create, either in paper or electronic form, data that does not currently exist within its possession. Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (party "cannot be compelled to produce documents which do not exist" ). Rule 34 "only requires a party to produce
documents that are already in existence." Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C. 2000) (emphasis added). "A party is not required 'to prepare, or cause to be prepared,' new documents solely for their production." Id. Plaintiffs misunderstand Rule 34 and the law relating to the discovery of data compilations. It is true that Defendants may be required to produce both hard copy documents, and electronic data, that are stored in Defendants' own files and computers. But, with the sole exception of the limited my.ReplayTV.com information discussed below, the information sought by Plaintiffs is not "electronically stored" on Defendants' computers. It does not exist anywhere yet. It does not even exist on individual consumers' PVR hard drives, much less on Defendants' computers. And if the information is created, and a program written to log it in the future, it would exist on a consumer's personal
property, not on ReplayTV's computers.
Rather, Plaintiffs are asking the Court to order Defendants first to write a program to implant in a consumer's ReplayTV unit in order to create and store the data, and then to write software to collect the data from consumers (without further notice to them) and disclose it to Plaintiffs. Neither Rule 34 nor case law obliges Defendants to take these extraordinary steps.
--originally provided by Mike Godwin in SonicBlue discussion, Cyberia-L
A contract is unenforcable unless both parties get some (roughly equal) benefit.
That would be a useful theory to argue if the doctrine of 'contracts of adhesion' were actually alive; it's been dead in the water for many years in most states. You won't find precedent following this line of reasoning since the early 70's. The legal trend is in the other direction -- mass market buyer beware. (And generally not a good idea to use Wiki as a definitive source of the state of the law.)
The best argument is that the terms were not part of the contract formation -- offer and acceptance (payment) were exchanged before they were ever presented and seen. This was a common-law principle crucial to the development of commercial law in most states, prior to the enactment of the uniform laws.
Another great argument is under the applicable state consumer protection act. We lawyers love these -- they address the various sketchy business practices that are used to entice consumers enter into transactions based on incomplete or misleading information. Lots of states provide for attorneys' fees and triple damages.
Another approach is to argue that EULA-type restrictions only can apply to services (licensed intellectual properties) and cannot apply to the goods. The hardware is a good, and after title passes to a good, you can't restrict use or otherwise affect the contract of sale. Software licenses are a service and the prevailing rule of law is that they are not subject at all to the UCC or UCC caselaw, even arguing by analogy.
Those are certainly the arguments that I would make, were I in this guy's place.
On the clickwrap/shrinkwrap enforceability issue -- a few states have tried to pass legislation 'propping up' clickwrap/shrinkwrap by declaring EULAs to be enforceable valid contracts even if they are not seen by the buyer prior to the opening of the package. AFAIK (IAAL) none of these statutes have been found valid in court, so the "clickwrap" issue is very much an open question. (There is another issue, which is whether any such legislation is preempted by the copyright and patent laws, since they are federal and they both were designed by Congress to supersede state laws covering substantially the same rights.)
Also, note that the computer industry has been actively lobbying to get their own uber-clickwrap law in place, called UCITA (Uniform Commercial Information Transactions Act). UCITA applies to all transactions involving "information technology" regardless of mode of delivery (allowing control of use of mixed goods/services contracts -- a book could be "licensed" and not sold, under UCITA). Here are some links to the text and articles and criticism of UCITA. Virginia and Maryland have passed UCITA, but it seems to have lost steam since then, no activity on further adoption since 2000-2001. The same issue above, about preemption by federal law, applies to UCITA as well (since whereever it has been passed, it's a state law).
Writing software under a Work For Hire type of contract makes you (if effect) a temporary employee of the customer. The customer is the default owner of the created property,...
IAAL.
Close, but not true.
So-called "work-for-hire" contracts don't make your work into "work for hire" if the facts and circumstances of creating the work are not the facts and circumstances of certain enumerated activities under 17 USC s. 101, definition of "work for hire".
I don't use these so-called "work for hire" agreement because they're dishonest--they imply that a hiring party can accomplish something by written contract with its non-statutory-employee workers (ie, contractors), that it cannot. Nevertheless these are extremely popular with hiring parties and lots of attorneys who apparently didn't bother to read the Copyright Act. ("Work for hire" is a term that only applies to copyright IP--other uses of it are extra-statutory and extra-judicial and just serve to keep those who don't RTFM under control by 'in terrorem' effect.)
It's even more dangerous to imply that a WFH contract can make you into an "employee" of the employer. Whether or not you are an employee or an independent contractor is an extremely complex area of law, involving at least four agencies (IRS, federal DOL, state taxing authority, state-level DOL). Each jurisdiction (federal, and each by state) has its own "facts and circumstances" test that determines whether you, in fact, are an employee, although being hired, compensated and treated as if you were a contractor. (Think about it...if the IRS just let people decide this by contract...no one would be withholding taxes for employment and they would have a massive compliance and enforcement problem on their hands, going after 280 million little contractors.) The IRS uses a "20 factors test" to determine whether a worker is, within a given structure and context, working as an employee or contractor.
In many cases, a worker can be found by the IRS to be a statutory employee, even if the hiring party has made the worker sign a "Work For Hire" agreement and even if the hiring party has 1099'd the worker. Also...in many cases state laws are even more restrictive: it is not unusual for the State of Michigan to find a worker to be an employee (ie, withholding required, IP automatically owned by hiring party) in cases where the IRS has no issues with the classification. (Michigan has one of the most pro-employment, restrictive tests in the nation.)
In fact, one of the reason the "my outside inventions and IP are listed here" clauses in NDAs and other hiring context agreements are used by hiring parties, is to prove that the worker HAS a life outside of the contract position--ie, to defeat a claim by a restrictive state agency that the worker is actually an employee and therefore withholding and worker's compensation insurance and a lot of other entitlements payments are owed. (Misclassification never penalizes the worker, it always penalizes the hiring party--which pays taxes, penalties and interest in the neighborhood of 40% - 200% of the hourly rate paid to the worker).
...great way to start building acceptance for DRM. Attaching a license electronically to the file (even the Creative Commons license) is still attaching DRM. Now, DRM is not all that bad: implemented properly (ie, let the marketplace make its own decisions whether or not to participate in DRM labeling) and it could save hundreds of millions in transactions costs on obtaining permissions. I would love to know what legal terms were attached to a particular item. The problem is, if DRM becomes a mandatory attachment for acceptance of files in general internet traffic (ie, they might not even be accepted without DRM as an email attachment), then fair use really will cease to exist.
Washington sucks. Once an idea is shot down, it shouldn't be legal to attach it to another bill.
Well, an "idea" is not a bill. There are many ways to implement an idea in legislation: some of which scratch certain backs, and some of which scratch others. Nice idea though!
I agree with you, I'm generalizing to oversimplify it on purpose....in reality it is nowhere near straightforward, as legal questions go. And, I think, a lot less straightforward, even, than your reply. So here's a more detailed example that shows exactly how contorted it can become:
Say I am Joe American making a contract with Svenka the Swede, for a monthly all-you-can-eat video feed subscription to a bestiality and pedophilia porno site. I happen to be sitting at my computer in my bar in Memphis, Tennessee (home of the most content-restrictive obscenity community standards in the United States).
The contract issues are relatively easy, aren't they? Svenka's contract is a standard subscription and license agreement that says that Swedish law "governs" and that the Convention on International Services and Goods applies (which, like the UCC in the US, "reads" in a whole host of default terms into the contract).
Oh, but wait a minute...Joe American happens to have purchased his subscription via Purchase Order form used by his business, Joe's Sleazy Porno Bar & Grill, and on the front of the purchase order it prominently states: IT IS A CONDITION OF ACCEPTING THIS ORDER THAT TENNESSEE LAW APPLIES TO THIS AGREEMENT AND THAT THE PARTIES AGREE TO EXEMPT THIS TRANSACTION FROM THE CONVENTION ON INTERNATIONAL SERVICES AND GOODS. ANY TERMS TO THE CONTRARY OF PURCHASER'S ORDER SHALL NOT BECOME PART OF THE CONTRACT, BUT SHALL BE NULL AND VOID. Or some such.
So now they are in the extremely-common situation where they have a "made" and performing contract, where the contract itself contains two conflicting statements about what's actually in the contract, and what's not. The Swedish contract says the CISG applies. The Tennessee purchase order says it knocks out other contract terms and that Tennessee law applies, or else there's no contract (commonly called a "blockbuster clause" in UCC lawyer parlance). And, as I said, the parties are actually performing the contract--Joe American is happily streaming hot horsey love and pediophilia into his bar TV sets, and Svenka is ringing up the kronor.
Just on the contract level, as I'm sure you know, it is usually even more complicated on the jurisdictional front: Svenka's contract provides for all disputes to be resolved in Sweden, while Joe's Purchase Order specifies courts in Memphis have to be used.
So now there's a problem with the wire transfer payments and Svenka turns off the feed, and Joe wants to go to court to enforce. He naturally chooses Memphis because it's down the street.
The Memphis court is going to apply Tennessee conflict-of-laws principles to determine a host of issues: A. whether it should apply its own conflict-of-laws principles, or those of another jurisdiction; B. whether it has jurisdiction (clearly it has personal jurisdiction over Joe, but not over Svenka, at which point it will consider whether Svenka has "minimum contacts" with the forum sufficient to submit her to the jurisdiction of the court; C. whether it is preempted from applying Tennessee conflict-of-laws and contracts law by a "higher law," ie, federal law or international treaty; D. whether the Purchase Order actually "knocks out" the terms in Svenka's contract requiring the application of the UN Convention on International Services and Goods under the UCC (question of treaty law); etc. Oh, and of course, since the contract is for illegal material, it might consider whether the contract is "void ab initio" for public policy purposes under either jurisdiction's laws, which might excuse it from having to reach any of these other issues.
And obviously, these are just the contract issues. Joe's contracting with Svenka and receiving the video feed may (indeed, would) subject him to US federal and Tennessee criminal laws on obscenity and distributing pornography to his customers. Svenka is theoretically on the hook for that too as a "co-conspirator", but she's not within the personal jurisdiction of the US federal or Tennessee cour
That works fine for contract law, but it won't affect the application of other laws. If one jurisdiction considers the transaction or event to be a crime...or a tort...or a violation of a regulation.
Contracts only go so far, m'friend.
But this kind of raises an interesting question. When a company operates accross many countries, which country's law do they uphold?
Juris (the law) + diction (the power to speak the law).
There is an entire meta-category of legal principles called "conflict of laws" that courts consult to determine which location's law to apply. The real answer to this question involves applying conflicts-of-laws principles recursively from several points of view and determining what you can get away with. Some relevant questions:
A. Where are you worried about being subjected to the legal system? ie, where is the court that you are afraid of, located? (IF NO ASSETS IN JDX -> "don't worry")
B. What is it you are worried about, which might be enforced in that location? (location's criminal law, my contract terms)
C. Does the location have conflict-of-laws principles that apply? (consult local law expert about local law)
D. If so, are the location's laws and principles seeking to be applied as "controlling" in a conflict-of-laws context? (a jurisdiction may have extensive regulation in a particular area--in such cases, another jurisdiction's courts will defer to that jurisdiction's power to "speak the law" on that issue)
E. If so, is it likely that a court in Home Jurisdiction will throw you on your tuckus if you ignore Other Location's quirky laws? (generally not, if the court is here in the US--we're a bunch of imperialist Hague-hating lex Americana types).
So there's the process...imagine what it costs to pay a lawyer type to figure all that out, for each contract, for each jurisdiction on the globe.
And...(meta-meta) each jurisdiction has its own conflict-of-laws principles.
B.I. (before Internet) it was a lot easier to figure out which law to apply, because events and transactions all occurred in one place--Joe bought a screwdriver from Bob, at Bob's store in Peoria. Now Joe is buying porno from Svenka in Uzbekistan.
The "wider problem" here isn't only the US-centric serving-up of DRM...it's the US-centric view completely. You make a contract with a citizen in another country, the contract is governed by...the other country's laws. Doh.
That being said, I agree this was a failure, but not of the U.S. governemnt.
Every institution is only as strong as its weakest link. In most cases, the weakest link is/are the many people who work for it.
Rules aren't self-enforcing. At any moment, 50% of the people in the US could start arbitrarily disregarding traffic laws, and we would immediately have real chaos on our hands. We forget how much we rely on others to do the expected thing, or the right thing (without realizing there really is no enforcement mechanism).
It's disconcerting to know how little control we have (none, actually) over our data--depending on strangers to "do the expected thing, or the right thing" to protect us from something that could screw up our lives so completely (identity theft).
Slashdot Mirror
William Patry comes from the same general compass direction as Lawrence Lessig (he recently ended his blog, partly for reasons that he felt that copyright has become broken). Patry has 26 years of legal practice in the field, has written one of the major treatises, has international copyright chops, and currently is counsel for Google. Not sure that he would let Google go.
It is very common for contracts to specify fax as an approved form of written notice and to exchange signature documents. (I have worked in Fortune 500 companies with IT contracts written in the 70's and 80's -- many of these contracts are still active under the original terms, as modified. Most of these early contracts specified fax or facsimile as an approved method of written notice or signature.
Today it's common for commercial contracts to contain terms approving email as a form of notice.
Sprint did the same thing two months ago -- they involuntarily terminated customers who were calling customer service too much...to complain about the customer service.
That's a different litigation context than what's going on with the Torrent stuff.
The SonicBlue / ReplayTV case in 2002 involved an order by the court to ReplayTV to create the technology to record information about subscribers for purposes of determining how much usage was violating the TOS and the law.
From the defendant's brief in that case, which makes it quite clear that the information does not exist and would involve an affirmative duty to surveil:
Federal Rule 34 Neither Requires Nor Authorizes An Order To Create Records That Do Not Exist.
Not surprisingly, Plaintiffs cite no authority for such an order. It is well settled that a party is not required to create, either in paper or electronic form, data that does not currently exist within its possession. Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (party "cannot be compelled to produce documents which do not exist" ). Rule 34 "only requires a party to produce documents that are already in existence." Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C. 2000) (emphasis added). "A party is not required 'to prepare, or cause to be prepared,' new documents solely for their production." Id. Plaintiffs misunderstand Rule 34 and the law relating to the discovery of data compilations. It is true that Defendants may be required to produce both hard copy documents, and electronic data, that are stored in Defendants' own files and computers. But, with the sole exception of the limited my.ReplayTV.com information discussed below, the information sought by Plaintiffs is not "electronically stored" on Defendants' computers. It does not exist anywhere yet. It does not even exist on individual consumers' PVR hard drives, much less on Defendants' computers. And if the information is created, and a program written to log it in the future, it would exist on a consumer's personal property, not on ReplayTV's computers.
Rather, Plaintiffs are asking the Court to order Defendants first to write a program to implant in a consumer's ReplayTV unit in order to create and store the data, and then to write software to collect the data from consumers (without further notice to them) and disclose it to Plaintiffs. Neither Rule 34 nor case law obliges Defendants to take these extraordinary steps.
--originally provided by Mike Godwin in SonicBlue discussion, Cyberia-L
That would be a useful theory to argue if the doctrine of 'contracts of adhesion' were actually alive; it's been dead in the water for many years in most states. You won't find precedent following this line of reasoning since the early 70's. The legal trend is in the other direction -- mass market buyer beware. (And generally not a good idea to use Wiki as a definitive source of the state of the law.)
The best argument is that the terms were not part of the contract formation -- offer and acceptance (payment) were exchanged before they were ever presented and seen. This was a common-law principle crucial to the development of commercial law in most states, prior to the enactment of the uniform laws.
Another great argument is under the applicable state consumer protection act. We lawyers love these -- they address the various sketchy business practices that are used to entice consumers enter into transactions based on incomplete or misleading information. Lots of states provide for attorneys' fees and triple damages.
Another approach is to argue that EULA-type restrictions only can apply to services (licensed intellectual properties) and cannot apply to the goods. The hardware is a good, and after title passes to a good, you can't restrict use or otherwise affect the contract of sale. Software licenses are a service and the prevailing rule of law is that they are not subject at all to the UCC or UCC caselaw, even arguing by analogy.
Those are certainly the arguments that I would make, were I in this guy's place.
On the clickwrap/shrinkwrap enforceability issue -- a few states have tried to pass legislation 'propping up' clickwrap/shrinkwrap by declaring EULAs to be enforceable valid contracts even if they are not seen by the buyer prior to the opening of the package. AFAIK (IAAL) none of these statutes have been found valid in court, so the "clickwrap" issue is very much an open question. (There is another issue, which is whether any such legislation is preempted by the copyright and patent laws, since they are federal and they both were designed by Congress to supersede state laws covering substantially the same rights.)
Also, note that the computer industry has been actively lobbying to get their own uber-clickwrap law in place, called UCITA (Uniform Commercial Information Transactions Act). UCITA applies to all transactions involving "information technology" regardless of mode of delivery (allowing control of use of mixed goods/services contracts -- a book could be "licensed" and not sold, under UCITA). Here are some links to the text and articles and criticism of UCITA. Virginia and Maryland have passed UCITA, but it seems to have lost steam since then, no activity on further adoption since 2000-2001. The same issue above, about preemption by federal law, applies to UCITA as well (since whereever it has been passed, it's a state law).
Close, but not true.
So-called "work-for-hire" contracts don't make your work into "work for hire" if the facts and circumstances of creating the work are not the facts and circumstances of certain enumerated activities under 17 USC s. 101, definition of "work for hire".
I don't use these so-called "work for hire" agreement because they're dishonest--they imply that a hiring party can accomplish something by written contract with its non-statutory-employee workers (ie, contractors), that it cannot. Nevertheless these are extremely popular with hiring parties and lots of attorneys who apparently didn't bother to read the Copyright Act. ("Work for hire" is a term that only applies to copyright IP--other uses of it are extra-statutory and extra-judicial and just serve to keep those who don't RTFM under control by 'in terrorem' effect.)
It's even more dangerous to imply that a WFH contract can make you into an "employee" of the employer. Whether or not you are an employee or an independent contractor is an extremely complex area of law, involving at least four agencies (IRS, federal DOL, state taxing authority, state-level DOL). Each jurisdiction (federal, and each by state) has its own "facts and circumstances" test that determines whether you, in fact, are an employee, although being hired, compensated and treated as if you were a contractor. (Think about it...if the IRS just let people decide this by contract...no one would be withholding taxes for employment and they would have a massive compliance and enforcement problem on their hands, going after 280 million little contractors.) The IRS uses a "20 factors test" to determine whether a worker is, within a given structure and context, working as an employee or contractor.
In many cases, a worker can be found by the IRS to be a statutory employee, even if the hiring party has made the worker sign a "Work For Hire" agreement and even if the hiring party has 1099'd the worker. Also...in many cases state laws are even more restrictive: it is not unusual for the State of Michigan to find a worker to be an employee (ie, withholding required, IP automatically owned by hiring party) in cases where the IRS has no issues with the classification. (Michigan has one of the most pro-employment, restrictive tests in the nation.)
In fact, one of the reason the "my outside inventions and IP are listed here" clauses in NDAs and other hiring context agreements are used by hiring parties, is to prove that the worker HAS a life outside of the contract position--ie, to defeat a claim by a restrictive state agency that the worker is actually an employee and therefore withholding and worker's compensation insurance and a lot of other entitlements payments are owed. (Misclassification never penalizes the worker, it always penalizes the hiring party--which pays taxes, penalties and interest in the neighborhood of 40% - 200% of the hourly rate paid to the worker).
Bad cut and paste on my part. But here's the same hot breaking news from 2003 and from 1997.
Here's the same story from the 20th Century
...great way to start building acceptance for DRM. Attaching a license electronically to the file (even the Creative Commons license) is still attaching DRM. Now, DRM is not all that bad: implemented properly (ie, let the marketplace make its own decisions whether or not to participate in DRM labeling) and it could save hundreds of millions in transactions costs on obtaining permissions. I would love to know what legal terms were attached to a particular item. The problem is, if DRM becomes a mandatory attachment for acceptance of files in general internet traffic (ie, they might not even be accepted without DRM as an email attachment), then fair use really will cease to exist.
Well, an "idea" is not a bill. There are many ways to implement an idea in legislation: some of which scratch certain backs, and some of which scratch others. Nice idea though!
Say I am Joe American making a contract with Svenka the Swede, for a monthly all-you-can-eat video feed subscription to a bestiality and pedophilia porno site. I happen to be sitting at my computer in my bar in Memphis, Tennessee (home of the most content-restrictive obscenity community standards in the United States).
The contract issues are relatively easy, aren't they? Svenka's contract is a standard subscription and license agreement that says that Swedish law "governs" and that the Convention on International Services and Goods applies (which, like the UCC in the US, "reads" in a whole host of default terms into the contract).
Oh, but wait a minute...Joe American happens to have purchased his subscription via Purchase Order form used by his business, Joe's Sleazy Porno Bar & Grill, and on the front of the purchase order it prominently states: IT IS A CONDITION OF ACCEPTING THIS ORDER THAT TENNESSEE LAW APPLIES TO THIS AGREEMENT AND THAT THE PARTIES AGREE TO EXEMPT THIS TRANSACTION FROM THE CONVENTION ON INTERNATIONAL SERVICES AND GOODS. ANY TERMS TO THE CONTRARY OF PURCHASER'S ORDER SHALL NOT BECOME PART OF THE CONTRACT, BUT SHALL BE NULL AND VOID. Or some such.
So now they are in the extremely-common situation where they have a "made" and performing contract, where the contract itself contains two conflicting statements about what's actually in the contract, and what's not. The Swedish contract says the CISG applies. The Tennessee purchase order says it knocks out other contract terms and that Tennessee law applies, or else there's no contract (commonly called a "blockbuster clause" in UCC lawyer parlance). And, as I said, the parties are actually performing the contract--Joe American is happily streaming hot horsey love and pediophilia into his bar TV sets, and Svenka is ringing up the kronor.
Just on the contract level, as I'm sure you know, it is usually even more complicated on the jurisdictional front: Svenka's contract provides for all disputes to be resolved in Sweden, while Joe's Purchase Order specifies courts in Memphis have to be used.
So now there's a problem with the wire transfer payments and Svenka turns off the feed, and Joe wants to go to court to enforce. He naturally chooses Memphis because it's down the street.
The Memphis court is going to apply Tennessee conflict-of-laws principles to determine a host of issues: A. whether it should apply its own conflict-of-laws principles, or those of another jurisdiction; B. whether it has jurisdiction (clearly it has personal jurisdiction over Joe, but not over Svenka, at which point it will consider whether Svenka has "minimum contacts" with the forum sufficient to submit her to the jurisdiction of the court; C. whether it is preempted from applying Tennessee conflict-of-laws and contracts law by a "higher law," ie, federal law or international treaty; D. whether the Purchase Order actually "knocks out" the terms in Svenka's contract requiring the application of the UN Convention on International Services and Goods under the UCC (question of treaty law); etc. Oh, and of course, since the contract is for illegal material, it might consider whether the contract is "void ab initio" for public policy purposes under either jurisdiction's laws, which might excuse it from having to reach any of these other issues.
And obviously, these are just the contract issues. Joe's contracting with Svenka and receiving the video feed may (indeed, would) subject him to US federal and Tennessee criminal laws on obscenity and distributing pornography to his customers. Svenka is theoretically on the hook for that too as a "co-conspirator", but she's not within the personal jurisdiction of the US federal or Tennessee cour
That works fine for contract law, but it won't affect the application of other laws. If one jurisdiction considers the transaction or event to be a crime...or a tort...or a violation of a regulation. Contracts only go so far, m'friend.
Juris (the law) + diction (the power to speak the law).
There is an entire meta-category of legal principles called "conflict of laws" that courts consult to determine which location's law to apply. The real answer to this question involves applying conflicts-of-laws principles recursively from several points of view and determining what you can get away with. Some relevant questions:
A. Where are you worried about being subjected to the legal system? ie, where is the court that you are afraid of, located? (IF NO ASSETS IN JDX -> "don't worry")
B. What is it you are worried about, which might be enforced in that location? (location's criminal law, my contract terms)
C. Does the location have conflict-of-laws principles that apply? (consult local law expert about local law)
D. If so, are the location's laws and principles seeking to be applied as "controlling" in a conflict-of-laws context? (a jurisdiction may have extensive regulation in a particular area--in such cases, another jurisdiction's courts will defer to that jurisdiction's power to "speak the law" on that issue)
E. If so, is it likely that a court in Home Jurisdiction will throw you on your tuckus if you ignore Other Location's quirky laws? (generally not, if the court is here in the US--we're a bunch of imperialist Hague-hating lex Americana types).
So there's the process...imagine what it costs to pay a lawyer type to figure all that out, for each contract, for each jurisdiction on the globe.
And...(meta-meta) each jurisdiction has its own conflict-of-laws principles.
B.I. (before Internet) it was a lot easier to figure out which law to apply, because events and transactions all occurred in one place--Joe bought a screwdriver from Bob, at Bob's store in Peoria. Now Joe is buying porno from Svenka in Uzbekistan.
The "wider problem" here isn't only the US-centric serving-up of DRM...it's the US-centric view completely. You make a contract with a citizen in another country, the contract is governed by...the other country's laws. Doh.
Damn, now my faith in justice *is* restored. 'Bout time some judge splains to those lawyer-types how important it is to play nicely in the sandbox.
That being said, I agree this was a failure, but not of the U.S. governemnt.
Every institution is only as strong as its weakest link. In most cases, the weakest link is/are the many people who work for it.
Rules aren't self-enforcing. At any moment, 50% of the people in the US could start arbitrarily disregarding traffic laws, and we would immediately have real chaos on our hands. We forget how much we rely on others to do the expected thing, or the right thing (without realizing there really is no enforcement mechanism).
It's disconcerting to know how little control we have (none, actually) over our data--depending on strangers to "do the expected thing, or the right thing" to protect us from something that could screw up our lives so completely (identity theft).