Pavlovich Jurisdictional Challenge Denied

The Sixth District Court of Appeals has denied Matt Pavlovich's challenge to being sued in California for the act of posting DeCSS on an internet web site. CNet has a blurb about it, or go straight to the ruling. The Court apparently believes that "open source" is shorthand for "pirate ring", as evidenced by their description: "At the time Pavlovich posted DeCSS on the Internet, he was a leader in the "open source" movement, the purpose of which was to make as much material as possible available over the Internet." Blatantly false statements like "Further; Pavlovich knew that his Web site allowed the illegal publishing and distribution of DVDs." do nothing to make me think the Court even understands what is alleged to have occurred. And since the Court describes Pavlovich's activities as "illegal", it appears to have already decided the main issue of the case itself (which has not yet been tried). Not good omens for the California DeCSS case. Below we have commentary from the attorney representing Pavlovich.

Appellate Court Issues Precedent Setting Ruling in Cyber-Jurisdiction ruling

The Sixth District Court of Appeals has issued its ruling in the jurisdictional case filed by Indiana student Matt Pavlovich, a foreign defendant in the California DVD case. You may recall that Pavlovich had moved the trial court to dismiss him from the main DVD action due to lack of jurisdiction. When the trial court denied his motion, Pavlovich filed a petition for Writ of Mandate with the Court of Appeals - that court summarily denied his petition. Pavlovich then turned to the Supreme Court for relief by way of a Petition for Review. In a rare move, all seven justices of the Supreme Court unanimously granted review and sent the matter back to the Court of Appeals with instructions that they re-consider the case. Following additional filings and oral arguments, today the Court of Appeals issued a published, written opinion again denying Pavlovich's petition. The Court's order will be available on our web site at www.legal.wao.com shortly, and is also accessible through the Court of Appeal's site.

Today's opinion dramatically increases the jurisdictional reach of California's court system, creating nearly limitless jurisdiction over internet disputes involving the motion picture industry, the technology industry, and any other industry reputed to exist in California. Because the exercise of jurisdiction is fundamentally a question of state power, we contend that this type of hyper-extension of California's long-arm statute violates the Constitutional safeguards found within the Due Process Clause of the U.S. Constitution. Because the decision affects the Constitutional Rights of U.S. Citizens everywhere, we are hopeful that the Supreme Court will again grant review of the Appellate Court's decision.

The underlying California Case:

Pavlovich, along with Andrew Bunner and some 500 other individual defendants, have been targeted by the Motion Picture Industry trade group DVD CCA in the California case. DVD CCA alleges that the defendants, who allegedly found the DeCSS information on the World Wide Web and then republished it, may not continue to publish the information based on California's Uniform Trade Secret's Act. Bunner claims that, like any other innocent republisher of information, he has a constitutionally protected right to publish this particular information and is not liable under the UTSA. Bunner, along with Amicus briefs from the prestigious IEEE and ACIS groups, also argues that the information he republished was properly and permissibly reverse-engineered and as such cannot be enjoined under the UTSA. In his papers, Bunner explains that Reverse-Engineering, along with the publication of technical discoveries, has long been a mainstay of innovation and evolution in the field of high-technology. Enjoining the publication of technical information, and stopping permissible reverse-engineering, would necessarily empower entities to use technologies like CSS to manipulate markets and bar consumer protections.

NEW YORK CASE:

The New York case continues through the appellate process. Appellants presented oral arguments before the appeals court and have recently responded to a number of written questions posed by the court. Additional resources are available at www.eff.org.

Resources:

HS Law Group's web site with information about the DeCSS cases:www.legal.wao.com

http://www.cryptome.org- tends to get the most recent filings fairly quickly

EFF Archive for DVD-CCA Cal. trade secret case: http://www.eff.org/IP/Video/DVDCCA_case/

EFF's DVD Archive: http://www.eff.org/pub/Intellectual_property/DVD/

Allonn E. Levy, Esq.

HS LAW GROUP a.p.c.
210 N. Fourth St. Fourth Fl.
San Jose, CA 95112

a new marketing angle?

[Dambiel]

now if we can just teach warez fanboys good programming, maybe we can tap a whole new market of emerging programmers...

dude, wanna join our 1337 open-source group?

We need to pick our fights

[NumberSyx]

Here is the problem, the EFF and the community at large have been fighting a defensive war, one in which we have no hope of winning, because our opponent hold all the cards. They get to say who get is sued/arrested and where the trial takes place, usually California, so they can miximize thier chances of getting a Judge they have already bought off.

What we need to do is take the fight to them. Bring a class action law suit against the MPAA, the DvD-CSA and the US Government for attempting to deny us our Contitutional Rights to Free Speech, Freedom of the Press and Fair Use. We can even use this new ruling against them and bring the law suit in any jurisdiction we want, say Moose Breath Montana, where they don't take kindly to big business or big government and they understand that the DMCA abridges the Freedom of Speech, Freedom of the Press and guts Fair Use.

It's being done

[Jetifi]

What we need to do is take the fight to them.

It's being done. Professor Felten (who wrote the paper on SDMI for an Information Hiding workshop) and the EFF are suing [eff.org]the RIAA. The RIAA are trying to get this dismissed, as it is exactly the kind of lawsuit they don't want. It's all very well to sue members of the "evil Open Source movement", or for that matter nasty hackers [2600.org], but a professor at MIT is a different matter.

Digital, Analog... Biological

[dethlejd]

How long, do you think, until it is illegal to remember what you watched in a movie? It is after all, quite easy to tell a friend about a movie (to sing a song, or describe a book); in essense, to make a biological copy and then transfer it to an unauthorized receipient.

- Jim

jurisdiction

[j0nb0y]

This is *screwed up*. If this is allowed to stand, then it will mean that all web sites in the US will have to conform to the state laws of *every* state if they want to avoid fighting off law suits. The death of the internet as we know it. Unless we all leave the US, which is looking more and more attractive everyday. I'll stick around long enough to see what happens though.

Corrections to Michael's Comments.

[David Hume]

Yes, I am a lawyer. No, I am not offering anyone legal advice. No, I do not currently practice law (though I do keep up). No, you most definitely may not rely on anything I say below.

Blatantly false statements like "Further; Pavlovich knew that his Web site allowed the illegal publishing and distribution of DVDs." do nothing to make me think the Court even understands what is alleged to have occurred.

If you read the Court's opinion, it is clear that Court perfectly understands what is alleged to have occurred. In the context of the rest of the Court's opinion, the statement "Furthermore; Pavlovich knew that his Web site allowed the illegal publishing and distribution of DVDs," clearly means, and is functionally the same as, the more precise statement "Furthermore; Pavlovich knew that [the tools or code distributed on] his Web site allowed the illegal publishing and distribution of DVDs." If you read the Pavlovich's deposition testimony quoted in the Court's opinion, it is obvious that the Court's statement is correct.

And since the Court describes Pavlovich's activities as "illegal", it appears to have already decided the main issue of the case itself (which has not yet been tried).

The Court has not "decided the main issue of the case" in any binding way. The Court of Appeal did not do anything improper. On the contrary, in making the statement Michael quotes above the Court of Appeal was acting properly, and in the same manner it does in every prejudgment appeal of a trial court's determination of personal jurisdiction. I'll try to explain.

Personal jurisdiction is not determined by the mere allegations of the complaint, but by the facts. According to the U.S. Supreme Court, personal jurisdiction in California is constitutionally permissible where intentional conduct outside of California is calculated to cause injury to the plaintiff in California. See Calder v. Jones, 465 U.S. 783, 791. Thus, parties submit admissible evidence -- e.g., affidavits, declarations, deposition testimony, etc. -- and the trial court must make a preliminary, non-binding determination of what the jurisdictional facts are prior to trial -- i.e., did the defendant in fact engage in conduct outside of California that was calculated to cause injury to the plaintiff in California? The preliminary determination of the jurisdictional facts is made by the trial judge and is NOT binding on the jury at trial. Where, as here, the defendant seeks an appeal (actually a petition for writ of mandamus) of the jurisdictional issue in order to get the case dismissed prior to trial, the Court of Appeal must necessarily review the trial court's (i.e., trial judge's) determination of the jurisdictional facts. Again, neither the factual determination by the Court of Appeal nor by the trial court is binding on the jury at trial. Indeed, said determinations are not even admissible as evidence at trial. The defendant starts the jury trial with an evidentiary clean slate.

Why is it done this way? For two reasons. First, to give the defendant a pre-trial opportunity to seek dismissal of the Complaint for lack of personal jurisdiction. Secondly, this procedure avoids what many on Slashdot might think of as an endless loop where: (a) you can't have a trial without first establishing personal jurisdiction over the defendant; but (b) you can't establish personal jurisdiction over the defendant until you determine what the facts are.

Is it any wonder?

[boinger]

I think this sort of twisted perception of technology is representative of the half-assed (at best) understanding of technology that is so prevalent in California. The Bay Area was for so long seen as some sort of geek mecca, and every kid who had a Commodore64 decided s/he could cut it with the Big Kids. It's no wonder to me that Silicon Valley is collapsing in on itself (from a tech industry standpoint) with all the idiots making a pain in the ass for the people who do know what they're doing.

I just moved back to Chicago after living in San Francisco for a year, and I really believe that about 20% of the tech professionals know what they're doing out there and they fight to hold everything together in spite of the 80% who stumble through their work.

While that's a bit offtopic, I do have a point. I found that many, many "professionals" tend to assume they know what they're doing with a minimum of information, much less familiarity with a given technology or product. It seems to me that the problem extends to the legal system. Some judge thinks that because he can open a Word document all on his own (and get keen virus to show to his judge friends) he knows what there is to know about the computer industry. It makes me mad, as a person with a strong desire to do my work correctly and efficiently. Maybe work ethic is too "old school"? *sigh*

It's bound to happen sooner or later...

[Wire Tap]

In A.D. 2001
DeCSS Case was beginning
Pavlovich: What happen ?
Lawyer: Someone set up you the lawsuit
Balif: We get justice !
Pavlovich: What !
Balif: All rise !
Pavlovich: It's you !
Judge: How are you pirate ring !!
Judge: All your bail are belong to us !
Judge: You are on your way to sentencing !
Pavlovich: What you say !!
Judge: You have no chance for appeal make your plea
Judge: HA HA HA HA ...
Pavlovich: Take off every 'open source'
Pavlovich: You know what you doing
Pavlocich: Move 'open source'
Pavlovich: For great decoding.

Jurisdiction Shopping

[Dave Rickey]

This is just a variant on the problem that comes up in a lot of IP law issues these days: The complainants can shop for their forums. In this case, they lobbied for a very strict Trade Secrets law that was specifically written to protect CSS in California (where the movie industry swings a lot of weight), and are now asserting that they may apply that law anywhere in the US if violations involve the internet.

The implications of this are just a reiteration on a small scale of the issues raised by the equivalent international agreements: Those who desire to restrict access to information are trying to leverage their control of local law-making bodies into the capacity for universal enforcement, because in a wired world if they can't enforce it everywhere, they can't enforce it at all.

Once upon a time, if you didn't like the way your local power structure ran things, you could leave. In some cases that might be very difficult, but it was always possible. Under "Universal Enforcability", everything on the Internet is theoretically subject to the *most* restrictive laws that can be found anywhere else on the internet.

The logical consequences have been pointed out before: Political speech of all but the blandest sort would be almost impossible, because between them virtually every possible ideology is deeply offensive or threatening in at least *one* nation on the planet. If US laws on pornography apply to the world then websites in Denmark (where 17 year-olds can legally be displayed, that's child porn in the US) have to be shut down. But if US laws apply, then so do Saudi Arabian laws, and even bikini "cheesecake" pinups are illegal. If French and German laws about display of a swastika apply, then so so those of Singapore, where "flipping the bird" at someone is potential jail time.

The alternative is that the laws of the most *permissive* jurisdiction apply, which would in practice mean everything was allowed (which is what we've gotten used to). That's unacceptable to those that would control what people would see and know.

In the long run, I'm pretty sure we're screwed. I don't see a meaningful stopping point on the slippery slope, and "Everything is permitted" will *not* be tolerated world-wide when you get to extreme cases like kiddie-porn and the manufacturing process for Sarin. Once you draw the line, it will keep sliding downhill until your only hope to stay out of prison is to either provide no information, or hope you never get noticed by a jurisdiction that thinks that those pictures of your girlfriend are obscene because she's wearing shorts and a halter-top. Oh, and you're a girl, too.

Of course, when studio execs are being hauled into foreign courts for violating local speech restrictions, they might start to think this precedent isn't such a great thing. But right now, they are spending a lot of money trying to cut their own throats.

--Dave Rickey

You're forgetting something important

[Perianwyr Stormcrow]

International law is like a playground where kids tell each other to do things, and then those so exhorted say "Oh yeah? Make me!" At best, it's favor-trading.

The executives so pushing are really banking on the current US position of international superiority.

A US studio executive will never be hauled into a foreign court. EVER. If such a circumstance came about, the US would scream bloody murder about sovereignty, jurisdiction, and what have you. However, if a citizen of another country breaks US law, the US then waves the flag of international cooperation. That's why things like the oft-mentioned Hague treaty on harmonizing international enforcement are so interesting- seeng through the glass of the playground, such initiatives are always one more powerful country trying to cow the others. You can be sure that if someone with enough money is bothered in the US, nothing will happen to them. Now, the US may offer up sacrificial lambs of less-powerful folks from time to time, which they couldn't give a damn about anyway, just so the US can enjoy the privilege of busting foreigners.

If the Saudis don't like US concepts of obscenity, tough. They can firewall off all non-Saudi sites. But if we don't like a site in Saudi Arabia, we'll go over there and give them cash to smash the writer, which they will happily do.

It's a Catch-22, and in a Catch-22, the side with the most power wins. There are no rules, really.

Injuriously Affecting

[__aaahtg7394]

"Because Pavlovich knew that California is commonly known as the center of the movie industry, and knew that Silicon Valley in California is on of the top three technology "hot spots" in teh country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through the use of his Web site, while benefiting him, were injuriously affecting the motion picture and computer industries in California." (page 10)

So, this begs the question: did Pavlovich actually republish or distribute DVDs, or just DeCSS? The court seems to think he was actively pirating movies with his buddies.

How the hell he injuriously affects the computer industry is an open question...

"Pavlovich cannot claim innocent intent ... Pavlovich knew ... that by posting the misappropriated information on the Internet, he was making the information available to ... users ... including users in California" (page 11)

Wow. This is getting a bit excessive. My understanding is that the Trade Secret information was misappropriated by someone else, which is how it got into his hands. The fact the Internet just happens to extend into California is unfortunate.

I can't wait for judges in the bible belt to start shutting down porn sites based on the fact that "making these sinful images is illegal, and by doing it via the Internet, those images are made available to users in "

sigh. this is getting more and more saddening as i read it.

Nothing to lose.

[Unknown Poltroon]

Its getting to the point where, ethically speaking, its time to start encouraging people to lie, cheat and steal everything not nailed down that they can get away with. I mean, why not? Companies are doing it, the courts are helping them, individuals may as wel go along with it.

Anonymous servers where art thou?

[Anonymous Coward]

I remember the early days of the WWW when anonymous servers were easy to find and were pretty much uncrackable. The original one in Finland shut down for reasons I can't remember. And some guys are currently setting up a data holding site on a "country" off of the British coast.

Why don't some of the open source advocates start creating a Gnutella-like p2p data storage facility, perhaps with solid crypto, where the machine's owner actually doesn't know what specific data really resides on his machine? Seems like if enough folks opted in with a small chunk of their hard drive, we could prevent things like DeCSS, RIASS/Napster, Dolby AC3, etc. from happening in the first place.

Additions and deletions could even be by mass vote where the stuff wasn't stored permanently (or was quickly deleted) if enough folks didn't agree it was important. Sort of like distributed FTP with crypto and voting for which files survived.

Re:Anonymous servers where art thou?

[meldroc]

Why don't some of the open source advocates start creating a Gnutella-like p2p data storage facility, perhaps with solid crypto, where the machine's owner actually doesn't know what specific data really resides on his machine? Seems like if enough folks opted in with a small chunk of their hard drive, we could prevent things like DeCSS, RIASS/Napster, Dolby AC3, etc. from happening in the first place.

That's already been done. It's called Freenet [sourceforge.net]. Everything is encrypted & anonymized, and users don't know what's stored on their machines.

Re:Anonymous servers where art thou?

[4of12]

where the machine's owner actually doesn't know what specific data really resides on his machine?

I sympathize, but I suspect such a solution would be attacked brick by brick.

So, where you might think it ludicrous in the recent case against 2600 for the DMCA to make it illegal to reference code in another place that makes it possible to circumvent some hide'n'seek'n'pay technology, here's one more ludicrous:

Suppose the Freenet collective held the web page that 2600 constructed.

I would not be surprised in the least if any and everyone participating in Freenet could be sued for conspiracy to ... violate the DMCA on the grounds that taboo information could be on your computer, just as much as child pornography could be stored on your computer.

Sigh.

Re:anon.penet.fi ?

[Gill Bates]

Press release is here [penet.fi]

They closed it down in 1996 (was it really that long ago?).

The ruling == Promotional Material for Califorina

[BigTimOBrien]

Read the ruling, and you notice about three pages of California marketing.

"Because Pavlovich know that California is commonly known as the center of the movie industry, and knew that Silicon Valley in California is one of the top three technology "hot spots" in the country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through the use of his Web site, while benefiting him, were injuriously affecting the motion picture and computer industries in California." p.10 of th 15 page ruling.

What?!?!!? That reads like a "Virginia is for lovers" marketing brochure. The most frightening phrase in that paragraph above in "or should have known". Are our courts set up to decide what a person should or shouldn't know?

Email reply from Sixth Clerk...

[alta]

Your e-mail relative to the case entitled Pavlovich v. Superior Court (H021961), has been received. Your comments about this court's decision in said case are well taken. However, you may want to send your comments about their need for an unbiased technical advisor by letter to the Santa Clara County Superior Court at 191 North First Street, San Jose, CA 95113. I suggested writing a letter because I don't believe they have a website at this time. Very truly yours, Willy Magsaysay Senior Deputy Clerk I'm all out of stamps, someone send a letter for me.

Mod UP!

[Billly Gates]

If any linux leaders or opensource guru's want to apply for a non technical advisor please do so with the link above. This would clear up the free software does not equal pirated software. I like the idea of coining the phrase non-profit software because it sounds better. Anyway we need someone who has a phd and is knowledgable in free software in the Santa Clara area.

hmm Doesn't linus have a PHD, is involved in free software development, and live in the area? I wonder if the court could pay him for his time. I know its alot to ask but as I see it, free software could be in alot of trouble depending on the outcome of this case. For example if the court mentions something about free software users being pirates, lawyers from Microsoft could use this to sue memebers of SAMBA and the MONO project.

Court does not get it

[Hilary Rosen]

I was under the impression that if a trade secret is revealed by reverse engineering, it loses trade secret protection. Where would we be today if IBM had claimed that the PC BIOS was a trade secret?

Re:Court does not get it

[Sloppy]

Where would we be today if IBM had claimed that the PC BIOS was a trade secret?

We'de be in a world with much more advanced personal computers, instead of hauling around 21-year-old legacies.

Cloning of the PeeCee did have some good effects, in how it commoditized them and made them cheap, but it also caused a shitload of stagnation and retardation. In some aspects, the "modern" computers of 2001 are shockingly primitive compared to many personal computers that were around in 1985.

DMCA to gun control analogy

[behindthewall]

Here's the most succinct way I've yet found of describing the hypocrisy of the DMCA within our society.

Under DMCA, one can be legally attacked for creating a device that might be used to break the law (outside of DMCA itself) by violating copyrights. Winners: Big corporations. Losers: Individuals and small companies.

At the same time, gun owners are working at, and succeeding in, making themselves exempt from liability for creating devices that may and are used to break the law. Winners: Big corporations. Losers: Small guys.

Copyright violation via "circumvention devices" may cost a content owner some revenue. (And to that, it's been argued that some violations may indirectly INCREASE revenue, e.g. Napster's influence on CD sales.)

Illegal use of firearms results in severe physical and emotional trauma, and often in death.

The big corporations have a monopoly on both IP and on immunity.

Well, it was more succinct in my head this morning when I was still bright-eyed, but you get the drift.

Fundamental problem

[mikethegeek]

Despite the fact that this ruling is completely contrary to the Constitution's exclusion of interstate powers from the states, this is going to be tough to fight.

Judges by and large are VERY egotistical creatures, and they are not very likely to ever, even in a clear cut case, to ever ask the plantiff "why are we here, what gives this court jurisdiction?". This precedent, had it been ruled on properly, would have limited the power of the state judiciary.

The "eevil hacker" talk is only cover.

Careful...

[isa-kuruption]

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.

Open Source Defense Approach

[Adambomb]

One of the major problems the open source community has is its approach to defending its position and attempting to publicise itself is we can drone all day about how our products are free-as-in-GPL, and how much open sourced products help the user community, but the majority of judges and lawyers involved still won't know what all that means. Try explaining the difference between beer-free and opensource-free and you get a lot of eyes glazing over.

Secondly, many many lower court Judges have already been pre-conditioned by the media to automatically connect words like 'coder' and 'free software' with 'hacker' and 'piracy'. With Open Source not even being close to mainstream these days, they'll likely never know the truth without being part of the community. Compared to all the Joe Everymans out there, we make up a small minority. What people need to see are more win32 and macOS open source applications that they will use and understand.

Thirdly, the open sourced community has taken a strange legal approach in my point of view. With an ideal that is directly counter to most of the corporate world's ideology, Open Source needs to do more than fight the challenges are thrown at them with DMCA and DeCSS trials, We honestly need someone who can find a test case to bring to court that is so black and white under the law that the courts have to rule in our favour. Open Source has very few established precedents compared to Software Piracy and Malicious Hacking cases.

I may not have a Law degree, but I did stay at a Holiday Inn Express last night.

Defemation of Character?

[malkavian]

Hrmm.. It seems this judge has a weird view of Open Source in the statment that it has the objective of "making as much material as possible available on the internet".
I'd always thought it was about researching the bounds of computing and helping advance knowledge and understanding.
Now, if your average person accused another average person of this, it seems in the states, they'd jump up and down and scream slander, and defamation of character..
Isn't this just what's going on here, but nobody's pressing this issue?

Malk

Re:Defemation of Character?

[Ben Hutchings]

In general, what's said in a British or American court cannot be counted as libel, slander or defamation. Anyway, what's the sense in starting another court case when the existing one can be used to establish the truth of any allegations?

Lose-Lose

[Greyfox]

If dude goes to Calfornia to fight the lawsuit, the police there will pick him up immediately a-la Sklyarov. If he doesn't, the judge will automatically find for the plantiff and issue a warrant for his arrest. Talk about an ass-raping coming and going...

Thanks a lot!

[tb3]

Oh, thanks Michael. You coulda warned us that the ruling was a PDF file. Now I've got a virus on my machine!

(Joke)

Re:Thanks a lot!

[Stephen Samuel]

Since Judge Thomas Penfield Jackson had his hand slapped and judicial relief (by breaking MS in 2) set aside, could this judge also be excused by announcing verdict (illegal Internet activity) before trial?

Well, this is an appeal decision, not a trial level decision, so they can't quite be pulled off of the case, since they're technically not on it.

That having been said, I'm bothered by the fact that they seem to have declared him guilty, rather than just sayint that they're presuming that this would be the case IF he were guilty.

Territoriality (sp?) of the law, you're dead!

[mfarah]

The real issue here, other than the technology/law problems (DMCA, blah blah) is that this statement by the Court simply throws away any limits to its jurisdiction by territoriality.

I live in a small unimportant country: Chile. As you may remember, we had a BIG political problem following Pinochet's arrest in the UK two years ago. One important part of the problem was that Judge Baltasar Garzón wanted to put Pinochet in trial for alleged crimes commited in Chile (not in Spain), using spanish law (not chilean law) in a spanish court (not a chilean one). This implied that anyone could be subject to trial, regardless of the country, and regardless of wether the alleged crime was legal in the country it was commited in. For example: prostitution is legal here (burdels aren't though). Can a local prostitute be subject to trial in the USA (in any of the states where it's illegal) because he/she went on his/her "business" in a street in Santiago last night?

The legal position my country took in that matter (Pinochet must be subject to trial in Chile and only in Chile) was, obviously, completely ignored because it's a weak small country with no power whatsoever. What's interesting to see is this: the judge that carries the process against Pinochet sent last week a... er... subpoena to Henry Kissinger, for his alleged responsibility in events that occurred here in 1973 that are part of the trial. USA's response? A formal letter saying, roughly, "Fsck you".

And now, we see a Californian court doing pretty much the same. How much time will pass before indonesian courts begin targetting US citizens in USA for violating their strict decency laws? Or how much time will pass before a Bahamas court offers quick trials for any crime, for a price (you commit a crime, go there, purchase a trial process where you are declared innocent: when they arrest you later in your country, you'll simply walk away because you've been already tried and declared innocent)?

IANAL.

Re:Territoriality (sp?) of the law, you're dead!

[peccary]

The Spanish judge did not accuse Pinochet of violations of Spanish law, but of violations ofinternational law. Big difference.

This is what happens

[Johnny5000]

This is what happens when you get the rich, powerful companies feeding misinformation to the public, and to those in power. You've got plenty of people who believe that these companies are just looking out for us, and they wouldnt lie! Put a few of those people in high-ranking positions, and when the DVD people tell them that these hackers/pirates/whatever need to be locked up, the judges believe them.

Now we've got school textbooks being written and published by the logging, oil, chemical, etc industries. My sister's school uses them, and these books are so full of lies it's ridiculous. But, they've got the money and the power, and the ability to form public opinion.

On the bright side of this individual case, IANAL but I'm thinking that since this court ruling essentially declared the guy guilty without a trial, maybe he can use that to his advantage?

-J5K

Misunderstood intentions are to be expected

[Zenithal]

I don't think it is at all suprising that we see more and more confusion between open source, pirating, viruses, cracking, hacking and the like. We have to remember that the true meanings of all of these terms, and the hundred more we use each day are (largely) still belonging only to a small subculture.

Take these terms and give them to the general populous, including judges, and they are as forign as say chemical names are to non-chemists. Sodium chloride is not something the average person wants to sprinkle on fries... A hacker is not someone the average person wants protecting their private data. They want salt on fries, and a Computer Programmer / Data Security Expert for their data.

We as a community flant with and love the somewhat reckless nature of our subculture, fully knowning where its intentions and morals lie, but the average person does not. Most importantly, no matter how much we want to educate the average person on the nuances of our subculture, they won't learn it. Just like they'll never know what sodium chloride is.

Don't ever expect them to. It's not a failing, it's just reality.

And you're surprised?

[Wind_Walker]

I can't believe that anybody is surprised by this ruling. I mean, it's obvious to anybody who follows the tech news (especially slashdot) that the judicial system is completely blind when it comes to the true nature of technology and its uses.

I'm not at all surprised that judges think that open source enthusiasts are pirates; Think about the rallying cry, "Information wants to be free!" To the non-technical audience, that means "I don't want to pay for my information!"

Our only hope is to get this kind of stuff into mainstream media with the correct terms applied, so that the public can be educated.

Re:And you're surprised?

[SwiftOne]

it's obvious to anybody who follows the tech news (especially slashdot) that the judicial system is completely blind when it comes to the true nature of technology and its uses.

While I don't want to disagree that there are a lot of stupid decisions that have been made, have you READ the Microsoft decisions (Findings of Fact) [usdoj.gov] (Appeals court) [uscourts.gov]? Both Jackson and the Appeals Court (using Jackson's analysis) break down technology issues remarkably well.

They may not know it, but they're capable of learning it.

Re:And you're surprised?

[BilldaCat]

dude

they DONT want to pay for information. remember how many people said they wouldn't pay a dime for napster, and would just go get their mp3s elsewhere? it's not just open source enthusiasts, I think it applies to people in general .. why pay for something which you can get for free and next to no risk of consequences?

This si the problem

[www.sorehands.com]

This ruling has nothing to do with movies! This is saying, if you live in Florida, and you give someone an illegal copies of Windows, that since most computer companies are in California, then California has Jurisdiction.

This is justification of forum shopping, at it's worse!

Re:And you're surprised?

[-Harlequin-]

I'm not at all surprised that judges think that open source enthusiasts are pirates; Think about the rallying cry, "Information wants to be free!"

To the non-technical audience, that means "I don't want to pay for my information!"

You're right. Perhaps we should consider changing the phrase slightly.

"Information seeks freedom"?
"Information wants to be freed"?
"Information wants liberty"?

These are much harder to misunderstand, albiet not as aesthetic as the original to those of us who understand it.

Comments?

This is like the "free vs. libre" problem

[Perianwyr Stormcrow]

We're hampered by our own language and the concepts which many of us revel in.

"Free" vs "Libre" is the oldest conceptual problem of open source, and perhaps one of the subtlest tendrils that materialism has in our hearts. Free of cost is a very different thing from free of restraint (although they often coexist.) This is an obvious idea, with observation. But compare careful, rational examination with the deluge of advertisements proclaiming "FREE! FREE!" when what they give is usually the antithesis of freedom. At best it's the freedom of the streetcorner pusher, from whom the first one's free, but after that...

It's quite certain that many "hacker" types enjoy the idea of being on the edge of outlawdom, laughing at laws and dancing over restrictions. Our most popular images are those of the late-night network wanderer, the Gibson-Sterling high-tech low-life, the gleeful anarchist subverting whole structures but by money and influence with small, deliberate acts.

The life of freedom is one we envision, yearn for, and often claim, through these deliberate acts. However, the model of freedom in a society constrained by irrational laws is the outlaw.

When you believe in your heart of hearts that you are a free spirit, don't be surprised when the Man, who lives on restriction, treats you like an outlaw. An out-law- one outside of the laws. Laws are, to their proponents, like a planet's atmosphere. Inside, the only possible conception of life. Outside, the brutal vacuum.

It is possible that the establishments which we rail against are finally listening to our message- which is, simply that the world of information is changing, and with that change our physical world will be transfigured.

Perhaps they've decided they don't like our future.

We haven't proven that the restrictors, the fencebuilders have lost the mandate of heaven. Yet.

Re:People understand "free vs libre"

[logicnazi]

This begs an interesting question. What is the governmental motivation to prevent us from copying Xerox's printer driver if in fact it will be duplicated by open source advocates. As the goal of copyright is to encourage innovation by rewarding those who create it seems it is no longer working. For one if open source people are willing to create said driver/OS/whatever without the protection of copyright then it appears the incentive is no longer needed. In addition should the day ever come when open source software is a real competitor to the closed source software then the incentive is gone as well b/c who will purchase a product that costs money when they can buy one that does it for free. In this case copyright is merely forcing us to do duplicate work.

We should realize that copyright/patent laws are not inalienable rights but rather privleges granted to encourage innovation and thereby total utility. The current effect of copyright in the computer world is to force the same type of software to be written over and over rather than merely once and reused. A possible solution to this issue is to require software to be patented ( instead of copyrighted) only for a short term of 3-5 years and as a condition of said patent readable source code to be made availible (just like with normal patents the way the device works must be made availible as a condition of granting the patent). There would still be a significant incentive to create computer products but unnatural monopolies based on standards control would have a harder time flourishing in addition to the clear benifit of more free software around.

In terms of music and britney spears we should ask the same question. Does the utility associated with the incentive to produce music outweigh the clear disutility of not being able to freely trade and listen to music? I think the answer in this case is no. If Britney got no royalty money off CDs being a pop star would still be financially advantageous enough to her and to her backers for her to continue producing music. The money from concerts alone would make a profit.

In fact given the huge number of bands that exist and play without money from CDs and the fact that many very popular bands start this way with little hope (at their inception) of achieving a hit single we should assume that the copyright protection in music is a fairly minor incentive. Given this analysis it is highly reasonable that we should be able to freely take music (although this analysis would probably not apply to books or other non-performed material).

Finaly about the point of "freeing other peoples work without their consent" I would point out again that their is no inherint right to control your intellectual property. Unlike regular property when someone else uses your IP nothing is taken from you. In fact copyright laws take freedoms away from society as a whole in return for the promise of greater productivity. If this promise is not met then we should abolish copyright laws int hat area.

Re:People understand "free vs libre"

[bockman]

We should realize that copyright/patent laws are not inalienable rights but rather privleges granted to encourage innovation and thereby total utility.

Are they? I've read this sentence many times, and I admit that it sounds nice. I understand the principle behind it: intellectual products are born out of a sea of free [or maybe collectively-owned] other products : what we learn at school, what we listen around, what we discuss with other people, what we read on books and on the internet. It is this pool of common knowledge that makes today science and technology possible (and music and books and many other aspect of today culture).

But then I try to apply the old rule "Do upon others ...". I believe I have the right to decide what others should do with my work. I am not talking of silly patents on general purpose ideas, but of the actual finished work, like a book, a song or a piece of software. If I decide to add it to the pool of common knowledge, I want the right that nobody can spoil my gift : this is what free software licences attempt to prevent. But I also want the right to decide to keep my work for myself, or allowing people to use it in change of money. It is un-social, it might be unethical, but I still consider it my right ( as I consider my right not to give half of my money to the beggars I meet every day).

Therefore I respect such right in others, too. I don't copy software illegaly(not a big effort today, thanks to free software people). I don't copy music illegaly (but my very limited musical needs are easily satisfied by listening to the radio). I don't pirate videos (though I'm tempted).

Sure, consumers have right, too. But they are more pressing for first-need items (instruction, food, shelter) than for products of the entartainement industry.
I also understand fair use - but I don't think it should be envorced by law, except for few exceptions. It should be enforced only by eductated consumers, via market laws.

When faced with an unfair licence, I consider as my only options either accept it or not to buy ithe item covered by such licence. If Hollywood industry decided that only blond-haired 2-meter-tall people can whatch their movies, I would consider it their right to do so, albeit I would encourage my blond 2M tall friends to boycot them. I would still consioder wrong to copy their movies to allow bald short people to watch them.

Re:People understand "free vs libre"

[Tackhead]

> I cherish the old RMS ethic:
> Xerox: You can't copy our printer driver.
> RMS: Okay, then I'll write my own printer driver, operating system, editor, and compiler. Who wants to help me?
>
> But now it's just:
> RIAA: You can't copy our Britney Spears tunes.
> Slashdotters: Yes we can! All your bits are belong to us!

But what other alternative do we have when confronted with this:

Dolby: You can't copy our AC3 decoder
FreeBSD: Okay then, I'll write my own decoder.
Dolby: No, you can't do that either! (All your hardware are belong do us!)

Two wrongs may not make a right. But neither do three.

Courts are not blind, they are owned...

[Alan Cox]

People on the net understand that bad guys 0wn boxes and consider themselves cool. They seem to forget that bad corporations 0wn courts and do far more evil things. There is no remotely possible way an honest judge could have reached the conclusions he/she did

Re:And you're surprised?

[Frank T. Lofaro Jr.]

The intellectual property cabal already has plans in place for "re-educating" the children in "how respecting intellectual property rights is good for us all".

Scary indeed, but true.

Usurp the movement

[Stephen Samuel]

If the IP cabal is going to teach kids to 'respect IP rights', just tag onto their coattails by making it clear that keeping Free software Free is alse about respecting IP rights as well. The author of Free Software gets paid back by having the work that others do folded back into his work. The expectation is that, in many cases, the improvement will get back to him. If not, the net benefit to society will get to him/her indirectly.

People who think that Free Software doesn't have a cost/payment associated with it, don't understand Free Software.

Help from MS?

[carrier lost]

"And since the Court describes Pavlovich's activities as "illegal", it appears to have already decided the main issue of the case itself (which has not yet been tried)."

This is basically the substance of Microsoft's appeal to the Supreme Court concerning its monopoly conviction. Perhaps Pavlovich could get some advice from Bill's lawyers?

:)

MjM

Throw A Rock, Get Sued

[Artagel]

Looking at quotes of the defendant's testimony, he admitted to an awful lot.

If you are standing in Nevada, and throw a rock and hit someone standing in California, why can't a California court hear it? It seems sense to me. If you could throw the rock from Indiana, that doesn't make any logical difference to me.

Our hero admitted that he knew what he was doing would hurt people in California. He threw the (figurative) rock anyway. Maybe he thought it was legal to throw the rock. It looks like he testified that he even knew (or suspected) it was illegal to throw the rock. Maybe he was right, maybe he was wrong -- he isn't a lawyer after all.

A guy who says he got hit with a rock does not have to prove his whole case to get into the courtroom door. He has to allege that he got hit by a rock, and then prove it at trial, not at the beginning of the case.

I think that the real indignation being voice in this thread is with the ALLEGATIONS. That is, I have not seen one post that said the ONLY complaint the poster had was that the case wasn't decided in Indiana. The decision was the California was a POSSIBLE place to hear the dispute.

Since the defendant lives in Texas now, I really don't see why Indiana would be such a better place apart from the fact that the movie industry is probably strong in California and weak in Indiana. On the other hand, would you rather have this case in front of a Palo Alto jury or a Bloomington jury?

If the whole point is that the defendant didn't do anything wrong, which is the thrust of 90% of the posts -- fine -- prove it up and get the case dismissed.

I'm not sure that this is any worse than Panavision v. Toeppen. I thought that the jurisdictional issue in the Toeppen case was decided wrong, but I can't fault the state court for getting to the result it got to in view of that.

(There are real problems with American personal jurisdiction law, entirely the fault of the Supreme Court in cases that have absolutely nothing to do with Open Source. Volkswagens, The National Enquirer, Burger King restaurants, divorce cases, tag-you-are-it games and etc., etc. The rest of America lives with those problems too.)

Re:But he didn't...

[Artagel]

The judge does not know, and cannot know whether it was throwing a rock illegally or handing a rock legally until the law suit is DECIDED.

It is illogical to say that the law suit cannot be FILED because the plaintiff is wrong. If the plaintiff is wrong, PROVE the plaintiff is wrong. You prove things in courts. The judge hears a lawsuit to figure out who is right and who is wrong without assuming the final conclusion.

Jurisdiction is not about who is right or wrong. It is about whether the judge has the power to EVEN LISTEN to the parties. The defendant was saying that the judge in California was not allowed to read one word the plaintiffs wrote or hear one word they spoke about this matter. The defendnat's statement was not "what I did was legal" it was "what I did was beyond your reach no matter how bad it was or how badly people were hurt or how badly I intended it or how illegal it was because you cannot reach ME."

Of course, the position in this discussion is that open source programmers get to tell judges that they are beyond the reach of a judge because they are open source programmers and that when they say they are beyond the reach of a court or are right the judge has to rule in his favor. Hah.

Re:But he didn't...

[Squirrel Killer]

Of course it's illogical to say that a suit can't be filed beacuse the plaintiff could be wrong. So the question becomes "Who has jurisdiction?" It seems to me that even if someone throws a rock from NV into CA, the proper jurisdiction to try them is NV.

A guy walks into a CA hospital with a rock lodged in his head, and blames a guy in NV. NV guy says that he's never set foot in CA and the CA guy asked for the rock. Since this would be a criminal case, presumtion lies with the NV guy (innocent until guilty and all that), and baring evidence that he threw the rock in CA, would be tried in NV, not CA. However due to the diversity of the litigants, this theoretical case might qualify for federal jurisdiction. IANAL YMMV TNSTAAFL.

I'd dispute your characterization of Pavlovich's motion to quash. It's not "I don't care who I hurt, you can't touch me!" It's more along the lines of "Everything I did was in IN, why should I be forced to defend myself 1500 miles away in CA?" (Ignoring that he now lives in TX.)

Presumption of innocence is the governing spirit in jurisdiction (or at least ought to be). If you want to sue me, fine, but you need to come to me to sue me. Should a FL vacationer sue in FL courts because he slipped on a AK store's floor?

-sk

Re:But he didn't...

[Artagel]

The principle of jurisdiction (in this country) is to be sure to afford legal recourse to wronged people. BIGCORP builds a catapault in Indiana, aims it at Joe and Jane in California, and smashes poor Joe and Jane to jelly. Joe's and Jane's poor orphan child Joey can sue BIGCORP in California, but can't get to Indiana. In your world, suit over, BIGCORP gets to cackle at Joey and how powerless California's courts are over BIGCORP. We don't have different laws for different people, do we? Let's not confuse the jurisdiction issue with whether Indiana is a better location than California for the suit. The question that was litigated is whether California is a possible location, irrespective of the rest of the universe. There are law professors that want to do some sliding-scale facts-and-circumstances case-by-case jurisdictional stuff. All of this requires the principle that the courthouse doors are opened or closed depending on who you are. Anyone who thinks that such rules favor LITTLE PEOPLE in the long run are smoking something with quite a bit of kick.

Re:But he didn't...

[Squirrel Killer]

Huh?!? In your world, lawsuits can be filed wherever the plantiff wants. Is it right that the initiator of a law suit force the defendant to come to them to defend themselves. Assuming Bigcorp doesn't do buisness in CA, why should they have to spend all kinds of money to defend themselves anyplace someone feels like suing them?

Let's personalize it. You've insinuated that I'm smoking something. If I were a prick, I'd call that libelous (actually, if I were a prick, I'd call it slander without knowing the difference) and sue you. Because we're playing by your rules, I get to sue you in the Iowa court system. Hrm...that means (assuming that you don't live near Iowa and that you want to be there to know how the suit's going) that you get to foot the bill not only for the legal expenses you're going to rack up, but also airfare, housing, lost wages, etc...

Check out this site [nolo.com] for a plain English review of jurisdictional rules, it's not complete, but it's servicable. The law is supposed to be blind to big guy vs. little guy conflict and the defendent is presumed to be innocent until proved otherwise by the plaintiff/prosecutor.

BTW - In your example, it's unlikely that little Joey would be without a lawyer for very long. Most attorneys would jump at the chance to represent such a client for a percentage of the settlement.

-sk

Note: I've been using the whole rock thing as a metaphor for any actions taken outside a jurisdiction that have an effect within it. A real rock, or Bigcorp's giant catapult assult would constitute a criminal assult and battery. IANAL and I doubt my observations would hold in such a case.

Re:But he didn't...

[Artagel]

I am very sorry I drafted the previous posting poorly. Absolutely no personal attack was intended.

My intention was to insinuate that certain law professors were smoking something. My point is that there are SOME people who want the doors to courthouses to be more open to some people than others. I think that the law professors who think that it is even *possible* to have them be more open to poor people than rich people are not connected to reality regardless of the purity of their motives.

My point in offering the point about law professors was to admit that your views are clearly within the NON-JUDICIAL spectrum of thought. Quite frankly, the United States is the most plaintiff-friendly legal system in the world that I know of. Part and parcel of that is a very low level of contact required for anyone to sue anyone. The jurisdictional part of that development well precedes the litigation explosions of the 80s and 90s.

Nevertheless, although close to the line (and I can't really say how the Supreme Court would rule on this one) the court's opinion is not unreasonable in light of existing Supreme Court precedent.

The Nolo page is quite correct that "minimum contacts" is the standard. Throwing a rock at someone standing in a state would clearly be a "minimum contact" with the state. When a guy named Toeppen put a picture of Pana, Illinois on a web page at the domain panavision.com he got himself locked into personal jurisdiction in California under the "minimum contacts" standard. (Personally, I hate that case.) Although not the Supreme Court, the 9th Circuit is pretty much the same thing for California purposes.

There is a 9th Circuit copyright case that very strongly protects the right to reverse engineer under the copyright act. The merits of the defense can be very strong. If jurisdiction (in a vacuum) exists in both California and Indiana (and the defendant has never said that the ONLY problem is that the case is not being heard in Indiana) then resolving the tension is covered by the doctrine of forum non conveniens, not personal jurisdiction.

This is really run-of-the mill law. People in tons of non-Internet industries have been facing it for decades. If the defendant wins the personal jurisdiction issue, then he gets dead-meat sued in Indiana, for what now would be trivial savings. (Live in Texas. Defending in Indiana is cheaper than defending in California?) When is the best time to confront the merits rather than run away based on legal technicalities that cannot be avoided indefinitely?

The "American Rule" of legal costs is that each party bears his own costs. It makes it easy for a plaintiff to bring a suit fearlessly. Sometimes the little guy benefits, and sometimes he is oppressed. But this is not a debate about the "loser pays" European rule.

Federal Issue, not States'

[jmoloug1]

This story was posted last night. [slashdot.org] My post from that article follows:I would hope that a federal judge would exempt this guy from the case if he were to appeal it. This is clearly an interstate law enforcement issue, which is solely the role of the federal government. What is legal in one state but illegal in another opens you up to completely unreasonable attempts at applying jurisdiction. Making an analogy to the physical world, suppose I pollute the Colorado River in Nevada or Arizona within levels granted by a state permit, but a California permit would be more stringent, and that pollution then enters California territorial waters. The State of California has absolutely no jurisdiction whatsoever, so why do they think they do in this case? Doing so is a violation of the US Constitution.

interesting...

[dhamsaic]

"The very significance in it has held that persons like Pavlovich in various parts of the country are subject to jurisdiction in a California court if they did what Pavlovich did," said Robert Sugarman, an attorney at Weil, Gotshal & Manges and a legal counsel for the DVD CCA. - from the cnet article.

What this attorney is saying, both here and by representing the DVD CCA in this case, is that it's okay for a man who committed a "crime" outside of California to be tried in California, because it's against California's laws.

I wonder if he'd be singing the same tune if China passed a law carrying the death penalty for being an attorney and started coming after him...

California law applies everywhere?

[Eric Green]

Following the reasoning, it appears that the California appeals court held that California law applies everywhere. By their reasoning, I could be arrested here in Arizona for breaking a law in California, even though I've never been anywhere near California!

I can't see how such a ludicrous proposition would survive appeal. On the other hand, given the current state of this country (which allows jack-booted thugs to steal people's homes and cars with only a mockery of "due process" by merely alleging "someone with that much money must have gotten it by selling drugs"), I'm not so sure. Judges have ruled that civil forfeiture (taking of property from people who have not been found guilty of any crime) is legal, so they may very well "buy" California's argument that they have jurisdiction over the whole wide world.

-E

Re:interesting...

[__aaahtg7394]

What this attorney is saying, both here and by representing the DVD CCA in this case, is that it's okay for a man who committed a "crime" outside of California to be tried in California, because it's against California's laws.

This is the real crux of the issue. The court is rather illegally overextending its jurisdiction. I have every confidence that the Supreme Court is going to lay the proverbial smack down on this decision, as judges really aren't stupid, there are just some that are exceedingly ignorant or biased (welcome to America, where our system is _designed_ to allow an individual representative of government to what he feels is right, even if it goes against everybody else... it's a feature, not a bug)

The absolute best case scenario is going to be knocking down the trial in California and having someone bring up the charges in Indiana. This is highly inconvenient for Pavlovich, as he lives in Texas now, but would be required to show for trial in ?Chicago? (not familiar where the court for my area is).

From the ruling, the problematic section of text: "The question in this case is whether California's long-arm statute reaches owners, publishers of those Web sites when, in violation of California law, they make available for copy or distribution trade secrets or copyrighted material of California companies. We hold it does." (Page 4). The whole ruling reads as a fan-boy decision in favor of California's Great Movie and Computer Industries. It also lists off some rather, uh, disparate, "related" cases.

Anyway, I said it before, and I'll say it again: I have every confidence that the Supreme Court will tell the California court they can't do this. This is America, where our system is _designed_ to allow an individual representative of government to what he feels is right, even if it goes against everybody else... it's a feature, not a bug!

Re:interesting...

[Malcontent]

Man you have a lot of faith in the supreme court. After what they did in the last election nothing they did would suprise me again.

Do you know movies are made in California? :)

[JohnDenver]

It gets a lot worse...

The Long Long Arm of the Low [arentfox.com]

Basically in this case, the judge applied the "effects test" set forth in the Supreme Court case Calder v. Jones, 465 U.S. 783 (1984)(reporter and editor, both Florida residents, were subject to personal jurisdiction in California for a defamatory article they had written in a national magazine about Shirley Jones, who lived and worked in California, on the grounds that the allegedly tortious actions were "expressly aimed at California")

The reasononing is, if the defandants actions are not "random, fortuitous, or attenuated" the court reasons they can exercise it's jurisdiction.

In Pavlovich's case, he was guiltly of targeting California because he held the common knowledge that the major studios are located in Holywood, and that Silicon Valley is considered to be a software and hardware center.

Have fun reading the rest... :)


"Q. . . . Are you aware -- do you have any understanding where the major motion pictures studios [sic] are located?

"A. [by Pavlovich]. By 'major' I'm just going to go out on a limb here in that you mean some of the larger motion picture producers or production companies.

"Q. That's correct. The sort of plaintiffs that were the plaintiffs in the matter that you were just an expert witness in.

"A. Okay. That makes a lot of sense. Yeah, they make a lot of movies in California, Hollywood, yeah.

"Q. Right. So what's your understanding of the term 'Hollywood'?

"A. Hollywood is the big area in California where they make a lot of movies and a lot of movie stars live and whatnot.

"Q. Is it fair to say that Hollywood, California is the center of the motion picture industry?

"A. I wouldn't know. Whether or not like all their offices and buildings are there, I don't know specifically, but I guess the general common idea is that Hollywood is the area for that . . . ."

As to California's dominance in the computer industry, Pavlovich testified in the same deposition, as follows:

"Q. Do you have any understanding of whether or not a significant number of hardware manufacturers are located in California?

"A. [by Pavlovich]. I believe . . . there is a lot of technology companies out in California . . . . Yeah, there's several hardware manufacturers located in California.

"Q. Have you ever heard of Silicon Valley?

"A. Yes.

"Q. What does that refer to?

"A. That's an area where there is a lot of technology-related companies, software writers, hardware manufacturers, programmers.

"Q. And that's in California; is that correct?

"A. Yes.

"Q. Based on your expertise in the computer industry, is there another state besides California that you could name has more or a higher concentration of hardware manufacturers?

"A. I don't know the exact numbers that are in the Silicon Valley. You know, I do know there is a lot now in Texas. We have got the Silicon Triangle is what we call it. There's three major cities in Texas with a lot of technology and telecommunications companies. Whether or not - I don't know the numbers between the areas, but there is a lot of technology hot spots around the world.

"Q. What would you describe as the top three technology hot spots in the United States?

"A. Silicon Valley, Texas, and - I have no idea where I'd get the third one from.

"Q. And as far as - for lack of a better term, hot spot of technology, is Silicon Valley - it's your understanding that Silicon Valley is such a hot spot of technology with respect to hardware or software and programmers? Is that the things you identified before; is that correct?

"A. Yeah."

Because Pavlovich knew that California is commonly known as the center of the movie industry, and knew that Silicon Valley in California is one of the top three technology "hot spots" in the country, he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through the use of his Web site, while benefiting him, were injuriously affecting the motion picture and computer industries in California. The question is whether Pavlovich's lack of physical and personal presence in California incapacitates California courts from jurisdictionally reaching him through its long-arm statute. We hold it does not.

Instant access provided by the Internet is the functional equivalent of personal presence of the person posting the material on the Web at the place from which the posted material is accessed and appropriated. It is as if the poster is instantaneously present in different places at the same time, and simultaneously delivering his material at those different places. In a sense, therefore, the reach of the Internet is also the reach of the extension of the poster's presence.

Re:Do you know movies are made in California? :)

[Richy_T]

Q. . . . Are you aware -- do you have any understanding where the major motion pictures studios [sic] are located?

That would be India I believe.

Rich

Do you know licensors only operate in California?

[Sloppy]

he knew, or should have known, that the DVD republishing and distribution activities he was illegally doing and allowing to be done through the use of his Web site, while benefiting him, were injuriously affecting the motion picture and computer industries in California.

Hollywood is well-known for being where a lot of studios, actors, etc. are, but this is completely irrelevant because the only possible "injuriously affected" party in this particular case, is the company who lost its trade secret: DVD CCA.

DVD CCA is a very tiny and super-specialized part of the motion picture industry, and Yes, it happens to be in California. But since it really only deals in licensing issues and is not directly involved in any movie production, its location is not common knowledge, nor do the any of Pavlovich's answers to the lawyers questions, suggest that he knew where they were. It is purely a licensing company, and unlike the situation with movies, California is not generally known as being a licensing center.

Heck, if in late 1999 someone asked me where DVD CCA was, after blankly asking "who?" I would probably guess Japan, or maybe Delaware as the "corporate trick answer."

Bollywood and Taiwan

[Merk]

Unfortunately Pavlovich, like most Americans, is very America-centric. If he had thought things through he might have noted that far more movies are made in India (Bollywood) than in Hollywood, and that most computer manufacturing occurs in Taiwan or other locations in south-east Asia.

If pushed he could have admitted that there is a cultural bias suggesting that Hollywood is the source of all movies and Silicon Valley the source of all technology. But he would have been clever to follow that up with "You have identified that I am an expert witness, and as such I would have to note that I realize that California is a major player, but by no means the center of motion picture activity or technology".

I dunno, probably a decent lawyer would have trashed him no matter what he said, but it sure seems to me like he walked into that one. But then again, it must be hard to believe what they're trying is actually legal.

Hollywood, protector of Intellectual Property?!?!?

[Bobo the Space Chimp]

> If he had thought things through he might have
> noted that far more movies are made in India
> ...than in Hollywood, and that most computer
> manufacturing occurs in Taiwan or other locations
> in south-east Asia.

Do you know what's the most hideously two-faced thing Hollywood is doing in all this?

The reason movies are centered in Hollywood is because all these suddenly noble, intellectual property rights-protecting Big Studios located themselves in southern California around the turn of the century because they wanted to violate Tom Edison's movie patents, and wanted, literally, to be able to make a run for the border [tacobell.com] at a moment's notice.

The Big Studios got their start, and built their industry, in Hollywood because of, and by way of, violating someone else's intellectual property!!!.

Not at all.

[CaseStudy]

What the attorney is saying is that there is sufficient contact with California to give jurisdiction. Long-arm statutes haven't caught up to the Internet yet.

Constitutionality and States' Rights

[einhverfr]

I think that this law is suseptible to being overturned on appeal if it is being applied in this way. The basic problem is that matters of interstate trade are the responsibility of the federal government, not the states. I.e. a state cannot pass ways which govern trade between states and then enforce them (with the limited exception of laws which govern importing certain material into a given state).

I think that this represents serious constitutional difficulties and cannot be seen as within the states rights. Note this is not the DMCA which is a federal law, this is a case of non-Californians being tried under California state law for actions they did not commit in that state. Unlike the Skylarov case, the Constitution has some strong things to say about this case.

Globalization

[Havokmon]

Look out United Nations! Here's comes California!

"Today the United States of California declared war on Italy. Last week, California sued Italy for defmation, claiming an Italian government official posted a joke on the internet regarding 'Surfers and Marijuana'."

RIAA and MPAA want this to be INTERNATIONAL.

[Maul]

Note: The following contains sarcasm. ^^;

Having California laws being valid in every other state isn't enough. Afterall, they need to punish the evil haxors in other countries.

Afterall, even huge industries with billions of dollars that can afford to pay crappy actors millions to appear in movies can't afford even ONE evil teenager possibly circumventing region coding so they can watch a DVD they bought here in their own country, where said DVD isn't commercially available.

To think that these villains would even get the idea that they could do whatever they wanted with something they paid money to buy is absurd. How dare they believe that they have any rights whatsover?

There's word for this kind of thing

[hey!]

"At the time Pavlovich posted DeCSS on the Internet, he was a leader in the "open source" movement, the purpose of which was to make as much material as possible available over the Internet."

Hmmm. There's a word for this kind of statement, and it's ugly:

slander.

What do our friends at opensource.org make of this? Doesn't this consititute recklessly negligent defamation? What do you do when the source of this is the courts?

A leader in the "Open Source" movement, eh?

[jd]

And who, exactly, are these followers he is leading?

Look, I -KNOW- Blake's 7 is popular with the Californian courts, but they don't need to do a re-run of episode 1. Really. And they can take off those fake eye-patches, too.

Seriously, this "attitude" is getting perilously close to defining "Open Source" and "Free Software" as a cult with terrorist leanings. And once you go there, it wouldn't take much to have it outlawed entirely, on national security grounds.

Let's play through this little tale of paranoia, and see where it takes us... Let's say that the movie industry could maintain a de-facto monopoly not, as Microsoft has done, through buying or pushing the competition out, but through declaring competition to be not only illegal, but a threat to American interests.

(If this seems like a big jump, think about what it means to be "a leader of the Open Source Movement", where said movement is about traffiking illegal goods on the Internet. It's not openly said, but what's the difference between this and racketeering?)

The RIAA and MPAA should be applauded for this tactic. They have avoided the pitfall the Microsoft blundered into, by using the legal system itself to crush and destroy any who stand in their way.

But, in California, "Open Source" may be declared an illegal activity, through this action. If the courts decide that it IS solely for traffiking in illegal goods, it looses all Constitutional protections.

Again, let's imagine that this comes to pass. What would be the result?

First, Linus Torvalds would have a price on his head. He and his family would need to evade police and bounty hunters, in his flight to a more civilised State. He might well leave the country altogether.

Richard Stallman wouldn't run. If he lived through the arrest (always difficult, for popular figures, anywhere in the world), he can expect some brutal treatment. The taller the hero, the more vicious the bludgeoning.

Companies openly involved in Open Source would have three choices. Relocate - and fast!, hope that their size makes them unpopular targets, or stand up in opposition. This last option sounds like the sensible one, at first, but when there is a "legitamate target" that anybody can spew all their hate at, entirely legally, I can easily see it rapidly escalating from protests to running battles, to what would amount to a gang war, with California on one side, and the Open Source advocates on the other.

Don't take this attitude lightly. From the UK's "Potential Subversives" to the American's anti-war protestors, confrontations have historically become extremely volatile, with significant body-counts. Until I've seen some reason to believe otherwise, I think I would HAVE to assume that the California situation could become -literally- deadly at any time. To not assume that is to ignore history. And given the choice of being overly-suspicious, or dead, I'll take the overly-suspicious any day.

Re:A leader in the "Open Source" movement, eh?

[Billly Gates]

"First, Linus Torvalds would have a price on his head. He and his family would need to evade police and bounty hunters, in his flight to a more civilised State. He might well leave the country altogether"

Hehe. ohh please. Go away.

I believe Hollywood has some better and more attainable goals for piracy protection. Mainly lobbying laws to block isp's from content it finds offense and strengthening international trade laws. Their is no way in hell that anything you described above could possibly happen.

The Supreme Court would come down quite heavily if such a decision ever occurred by the California state courts. You also need to be proved guilty and have a search warrant to obtain evidence to be prosecuted by. Its illegal for hollywood to hire bounty hunters ot hurt someone. Their bounty hunters mainly are gumshoes who send nasty letters and obtain information to RIAA/MPAA legal teams for possible civil lawsuits and not criminal ones. They want to sue and shutdown ftp sites with mp3's as well as file-swapping service companies. Not open source programmers.

Unless FBI agents find some pirated dvd stacks in linus's house which by the way needed a search warrant in the first place I may add, linus would never be charged with anything.

Remember the Sony case against emulators? It failed because there are some legal uses for it. Linux and non-profit software (not unpaid software) have existed since the dawn of the pc and will not be outlawed. I do believe the term free is bad and sounds suspicious to those untechnical but non-commerical or non-profit sounds legit and its more of the truth of most open source apps. Even before shareware most apps were actually free in the pc and academic world. It was Microsoft that changed that.

But this guy did brake the law. He put an illegal link under the DMCA (which I don't think his action should be illegal, but it is) and he is being punished for it. Think linking is legal? Go read the law. We all hate the dmca but its the law of the land and without borders due to international trade laws, weither we like it or not. It will always be the law of the land until its appealed. But Hollywood doesn't give a crap about software hobbiests. They care are bearshare and mp3 warez sites and so on. Their lawyers used the term free as in not wanting to pay to piss of some ignorant judges in this case.

Re:A leader in the "Open Source" movement, eh?

[PCM2]

Jesus. This may just be the winner for "most operatic comment posted to Slashdot."

You're not secretly Jon Katz, are you?

Jurisdiction Shopping

[webmaven]

This case reminds me of the 1994 case US vs. Thomas [eff.org], where a California couple operated a BBS (called Amatuer Action) whose content was legal within CA, but a DA in Tennessee dialed up from within his jurisdiction, declared that they had violated his local community standards, and had them picked up in California, and transported to Tennessee, where they were convicted of 11 counts of obscenity. They lost their appeal.

Does anyone know what happnned after that?

your .sig

[anomaly]

"Let me get this straight -- you think there's an invisible man in the sky who gives a fuck about what you do?! -G"

Invisible man? No.
Transcendant being who created everything, including me? Yes.

In the sky? No.
Non-material yet omnipresent? Yes.

Who [cares] what I do? Yes.

Kyras, why are you so angry at God?

God loves you and longs for relationship with you. If you want to know more about that, please contact me at tom_cooper at bigfoot dot com.

Re:your .sig

[marxmarv]

Kyras, why are you so angry at God?

Because this God is surrounded by busybody intolerant sadistic hypocrites who anthropomorphize the aether, can't mind their own business, and try to force their product down people's throats when they don't even use it themselves? Matters not if the guy in the middle is 110% holy and right if you have to literally fight your way through assholes to get to him. God judges those outside the church -- not you.

-jhp

Re:your .sig

[anomaly]

I would have taken this offline, but your email address is unpublished here.

With all due respect, it seems you have great cause to be upset with the busybodies. People can be jerks. I can't argue with you there.

Why are you angry at God?

I don't understand why you said "God judges...not you"
I agree with that.

"There is one lawgiver and one judge." I'm not him.

Respectfully,
Anomaly

Re:Other Implications

[Matthias Wiesmann]

No, the plan is that US law is applied everywhere, not the other way round.

People from any country should be held by three laws, US law, international law, and national law. Of course people from the US are only subject to US law.

Where is the part that is difficult to understand? Quite simple, really it's called the new world order.

Re:Other Implications

[cyberdonny]

> How does this work for people out of the country?

Not at all, until they are foolish enough to set foot into the US, for a conference for example...

Re:Civil Disobedience - expect to be punished

[Skapare]

The case is not about the DMCA. The DMCA is its foundation, but the case is about tort. The MPAA is suing, not trying to put him in jail. They are suing under terms of California law which a person not in California would not be expected to do.

Of course he was doing wrong things under terms of the DMCA, and surely there are laws in Indiana that provide for recovery of losses and damages. But the DMCA is federal law and this is crossing state boundaries. It should be in federal court. Alternatively the MPAA could sue him in Indiana.

The problem with having a California court conducting trial is that they will not be working with the laws that actually applied to the person they are suing. While the laws in Indiana may well be similar, the court will not be able to argue any details that may come up regarding what actually applied to a person in Indiana.

Courts are most definitely not doing their job if they are not in a position to interpret the laws as they apply (and Indiana and United States laws apply here).

So tell me why it is the MPAA cannot sue this guy in Indiana?

Wrong!

[DreamingReal]

Evidently, you're not a first year poli-sci major, nor have you ever taken US History.

The job of the courts is most certainly not to enforce the laws - we have law enforcement groups for that. The job of the courts is to weigh the evidence and decide if a law has actually been broken.

Additionally, the courts may also decide on the legality of the laws. Congress may pass a law saying I may not spread peanut butter on my head and dance the Cha-Cha on my front lawn, the President may sign it, and the police may enforce it, but the courts decide whether or not it violates my Constitutional rights (which it would almost invariably would). Go buy a book on US Government and look up Separation of Power in the index.

he had a pretty good idea of what DeCSS could do and why other website operators were having it taken down by the MPAA. He knew what he was doing.

[snip]

... civil disobedience does not come without a price. If you aren't willing to take the punishment for standing up against unjust laws, then you really shouldn't be breaking the law in the first place.

What do you think he's doing? He's standing up for his Constitutional rights. The DVD-CCA does not have a valid case for the following reasons:

• Pavlovich's freedom of speech
• Pavlovich's freedom to reverse engineer
• Pavlovich's freedom to distribute trade secrets that have become public (e.g. once they become public they are not longer protected as "trade secrets")

... all of which have strong support in past judgements. So contrary to what you say, he is standing up against an unjust law, not to mention, the ludicrous idea that the California court system has jurisdiction outside of California.

(BTW: You have the lamest sig I've ever seen. What are you? 14? Grow up.)

Re:Civil Disobedience - expect to be punished

[netwiz]

It is not the job of the courts to make the laws (as any first year poli-sci major, or, for that matter, almost anyone who's taken US History will tell you). The job of the courts is to enforce the laws, and under the DMCA, the actions of Mr. Pavlovich were unquestionably illegal.

No, the job of the courts is to interpret the law, and to determine if the laws made are valid. The Executive branch is the section of the US government that enforces the law. The cops (FBI, ATF, Secret Service, whoever), did their job by enforcing the law, and forcing this case to go to trial. The court's job now is to determine whether or not the law was broken, and, should the defense mount an "unconstitutional" argument, determine whether the law is valid in the first place.

Re:Civil Disobedience - expect to be punished

[Meddel]

Actually, that's not correct either. The job of The Supreme Court is to determine the validity of laws. Your average Circuit court just decides whether you've broken a law, without regard to the validity of that law. That's why only the Supreme Court can declare a law unconstitutional, and circuit courts aren't blasting acts of Congress left and right.

The jury can (and should) judge the law

[Strange Ranger]

More people need to know this:

The jury has the right to judge the law.

Quoted from here. [faqs.org]

Fully Informed Jury Association's 'Jury Power Page' [fija.org].
Also, Whitten's _Citizen Rule Book_ has good info on your rights and responsibilites as a juror.

When you sit on a Jury, you have more power than as almost under any other capacity as a citizen, 1000 times more power than when you vote. You have more power than the judge, than the legislators, than the police. You have a right and a duty to judge the facts according to the law, AND TO JUDGE THE LAW ITSELF!

Jury Nullification is when a jury nullifies bad law. A jury can say "not guilty" for ANY reason, especially if the jury thinks the person violated a law, but finds that the law was a bad one.

Research what happened to Edward Bushnell, who sat on the jury of William Penn, accused of practicing an illegal religion.

Also research how Jury Nullification helped eliminate prohibition. (Well, of course I mean *alcohol prohibition*. we still have prohibition today, just a different kind!)
-end quote.

Image what a fully informed jury could do for cases like Pavlovish's, Dmitry's, 2600's, etc, etc.

Re:This is false?

[Stonehand]

I'd have to disagree.

My understanding is that the CSS protection on a DVD is supposed to block unauthorized *playing*, not duplication. In other words, to mass-duplicate CDs, a byte-by-byte duplicator suffices, and the CSS (or DeCSS, for that matter) is irrelevant.

What DeCSS infringes upon is access control from the player point of view; it allows unauthorized *playing* of DVDs on devices that weren't licensed to as CSS decoders. In other words, he might be nailable under DMCA (circumvention of digital access protection method), but it's irrelevant from a *duplication* point of view.

Re:This is false?

[7-Vodka]

I'm giving up 4 moderator points for this idiot.

List of things which are used to pirate DVDs:

1. DVD media
2. DVD press

List of things which 'could' be used to pirate DVD's:

1. DVD media
2. DVD press
3. Sony VHS tapes
4. digital tapes
5. DeCSS
6. Paper + Pen
7. Lot's of T-shirts with 1's & 0's
8. Spoken 1's & 0's
9. electron spins
10. collage of peas and corn
11. 10^10 monkeys on 10^10 typewriters
12. peeing on sand
13. if you can think of it...

See the difference?

How does DeCSS support these illegal acts?

[coyote-san]

Maybe I'm an idiot, but precisely how does DeCSS support these illegal acts?

Does DeCSS enable me to copy a DVD? Nope - any bitwise copy program will produce a copy identical to the original. Assuming there isn't some issue with the physical media (e.g., how some CD players can't read CD-R media) that copy can be used anywhere. Pirates don't need DeCSS to produce their bootleg copies.

Does DeCSS enable me to *distribute* a DVD? Of course not - distribution either means taking those bootleg discs to a mail box or a bitwise copy (see above) to a server somewhere on the net. Pirates sure as hell don't need DeCSS to distribute their bootleg copies.

What illegal act does DeCSS enable? Exactly one - circumvention of the "country code" so that a DVD produced for the US market can be viewed in Europe. These codes, it should be noted, were created solely to create artifically limited markets so the studios can make more money.

In contrast, any reasonable analysis must consider the legal uses of this software. Namely, the ability of people to view DVDs they legally purchased in the time/manner/place they prefer. The fact that this is even an issue says just how screwed up the current legal environment is. It's one thing for THX to insist on certain standards for commercial theaters who wish to use their logo, it's another for a studio to insist on the OS and, to a lesser extent, computer hardware of any person who wishes to view a DVD they legally purchased (or rented) from the corner store.

Re:How does DeCSS support these illegal acts?

[Erasmus Darwin]

Does DeCSS enable me to copy a DVD? Nope - any bitwise copy program will produce a copy identical to the original. Assuming there isn't some issue with the physical media (e.g., how some CD players can't read CD-R media) that copy can be used anywhere.

I used to argue that as well, until someone else told me that the blank DVDs that you buy apparently have the "key" portion of the disk made unusable. Also, last I heard, the burnable DVD media is significantly smaller than the commercially pressed DVD media, which means you'd have to either reduce the size of the copy or split it across multiple DVDs (both of which would require decoding it, first). Another poster has already pointed out the DVD rip->DivX issue, which is also worth considering. While there are alternatives (such as video out on the DVD player to video in on a video capture card), DeCSS makes it faster, easier, higher quality, and cheaper. Remember that piracy isn't just about being able to make copies -- it's about being able to make copies cheaply. Overall, DeCSS can (and almost certainly does) assist in pirating DVDs. However, the important issue is that it's not exclusively a pirate tool, any more than a port scanner is exclusively a cracker tool.

DeCSS doesn't decrypt DVDs *people* decrypt DVDs

[konmaskisin]

At home I have numerous knives, blunt objects, and potentially lethal chemicals that could be used to murder people. From TV I know that I can construct a bomb using the fertilizer I possess (well I might need a bit more). But there is no evidence I will ever engage in these activities and I mostly use my knives for spreading peanut butter and scraping muck off the inside of the microwave. Nonetheless, using the DVD CCA's logic I should be jailed as a potential criminal or at least tied up in expensive court cases for years to come *just in case* ... Maybe I've had violent thoughts or dreams involving the use of knives? (I have but they were the result of watching too many movies "Falling Down" especially spawned a number of these).

What the industry fails to see is that what most people want from DeCSS is to be able to view, backup and edit/play with DVD's they *own*. They don't want to redistribute, sell or "pirate" this content. In the case of renting a DVD it would be nice to be able to view it on a platform of my choice. The fact that DeCSS is used in criminal activity has no bearing on these activities. In fact it still appears that no courts have heard any cases dealing with actual criminal "piracy" issues involving DeCSS at all and as the cases go forward it seems more and more obvious they have no understanding of the how concept of "reverse engineering" applies to what they consider "criminal technology".

What the courts need to ask themselves as a "test" perhaps is: "what's so hard about "pirating" DVDs *without* DeCSS?" After all one can just get a DVD burner/copier - sure these are expensive but you can make a lot of money with one ;-) Or for that matter just watch the DVD on your sanctioned operating system or industry approved player and make a copy of it using your VCR.

Why do you need DeCSS to do any of this? What does DeCSS have to do with criminal activity? DeCSS is neither sufficient or necessary to engage in criminal "content piracy".

What these kinds of cases and issues do for me is to make me into motivated consumer: motivated to not consume any hollywood produced or distributed media (this is easy - in fact it is **soo** easy to do without that crap and save your money and brain for something useful); and motivated to support *any* alternative. Home made Ogg/Tarkin based media distributed over the net anyone? I'm in ...

Let us all remember now what Francis Ford Coppola said about film as an art form and the day the "a fat kid in Minnesota makes a movie with a video camera". I will do everything I can to hasten the day when that art form can undo Jack Valenti and his ilk.

Hollywood delenda est ...

Re:This is false?

[agusus]

Hell, maybe we should start sueing everyone who figures out how to copy files by right clicking them and picking "copy" in Windows.
No, you got that wrong... don't sue the people who copy the files, sue the company that made the copy mechanism!
Therefore Microsoft produces software that can be used to illegally reproduce and distribute copyrighted material and therefore is in violation of the DMCA. Quick, someone send this to the judges on the MS case... we may still have a chance for that XP injunction! ;)

Hmph.

[Russ Nelson]

Hmph. Eric Raymond, I, RMS, and Bruce Perens are all over 40 years old. Many of the most basic RFCs are over twenty years old and were written by twenty-somethings (do the math). OSI's lawyer, Larry Rosen, was a programmer before he was a lawyer, and he could just as likely be a judge as a lawyer. Eric Raymond's wife is angling for a judgeship, and she's over 40. And anybody over 40 likely has net-savvy children. So age is no barrier to having a clue.
-russ

Inquisition USA: you could be next.

[kurt1992]

OK, but that's not the point. The point is we're entering into a cultural battle between the old-line politicos, old-money and anyone who fully understands that the Athlon box on their desk can do a lot of things that a state-sanctioned entertainment device, such as a television, cannot.

Increasingly, the answer of the old boys network that runs America is to use the court system they run to throw tech professionals in jail, for trivial offenses. While you may not post DeCSS, other legitimate things you do in the course of sysadmin, security audits, app development, whatever, are increasingly going to be bordering on civil and *criminal* offenses.

Look at the Khafka-esque persecution of Skylarov, Randall L. Schwartz and others. This is the Spanish Inquisition, USA circa 2001. This is getting to be like McCarthism, and rapidly so. How about that dude in Georgia who is facing 20 years for using spare cycles to crunch numbers in a university lab?

If you are hanging out on slashdot, you may know enough to be a "suspect." Just being here may make you a suspect. Suspect of what? In this era, it doesn't seem much to matter.

Re:So are LINKS to child porn legal?

[MattW]

Yes, links to child porn should be legal. Links to ANYTHING should be legal. Of course, in the case of child porn, a link database would make it all the easier for prosecutors to put the perpetrators in prison.

Re:Well..

[Anonymous Coward]

Let me get this straight. You think that me here in Texas should have to worry that a fictional story dipicting criminal acts in Cambodia justify Cambodian officials dragging my ass there and executing me for treason is justifiable? I live in Texas for a reason. I don't like California laws. But now it doesn't matter because their jurisdiction is apparently over me.

But DeCSS is NOT patented! It's a TRADE SECRET!

[Anonymous Coward]

When you patent something, you must make a full description of the code or device and place it on public file in the patent office. If you want to keep your code s3cr33t, like the formula for Coca Cola, you can, but you have zero protection if your secret is leaked because you WAIVED YOUR RIGHT TO PROTECT IT BY NOT PATENTING IT!

Now the genie is out of the bottle.

Too bad.

Re:I'm a little confused

[ajakk]

The entire court ruling is dealing with that issue. A court must have "personal jurisdiction" over a defendant to hear a case. The main requirement to have personal jurisdiction over someone is that the defendant must have had minimum contacts with the state. The level of minimum contacts has been very hard to determine in the age of the Internet.

The court decided that the defendant knew that his actions would hurt someone in California (the huge tirade about where Hollywood is). By putting the DeCSS code on the net, the defendant broke California law, and could be prosecuted.

The California judicial system can enforce its ruling by getting Texas or Illonois to enforce it. The States have to give "full faith and confidence" to other states judicial rulings.

Licensing: The future.

[Perianwyr Stormcrow]

Most companies are slowly coming around to the idea that selling things to people is a dead-end. What's FAR more profitable is never selling anything- just loaning your property out to people.

Microsoft's biggest challenge right now is simply how to make money off of Office. Office worked great 5 years ago, and I'm still using my copy from that time. How does Microsoft get my money, then? They can't do it by improving Office- Office is *done*. The answer? Make me pay even though nothing has been improved. Make me pay even if I never upgrade my work machine.

The subscription model. It's a train that even companies selling physical objects got onto long ago. A unnamed company that I recently talked to offered me an improved method for packing the merchandise I ship. I requested further information, and it turned out that they never sell anything- they rent the machine that seals the packing units, and the materials that they work with. The monthly rent was pretty high, and one could never own the equipment. This struck me as a remarkably forward-looking and stable business plan. They aren't required to win the customer's trust and approval all over again every year.

Who can blame businesses if they want to get onto this train?

So?

[Gorimek]

Without the tax, they could have charged 1.07 themselves, and made more money.

Re:I hate comments like:

[am 2k]

The movie industry and DVD CCA argued that DeCSS could be used to illegally copy DVDs...

That sentence is really amazing, since you can copy DVDs without DeCSS, just by byte-copying. You only need DeCSS if you want to view the data on your computer or convert it into some other format.
So it's very obvious that they don't have a clue.

Re:If you play with fire...

[KFCKilla]

"They bought their tickets. They knew what they were getting into...I say let 'em crash!" --Airplane

Just because there's a known risk of danger doesn't make one dumb for still proceeding, especially in the case of civil disobediance. Would the US be better off if instead of sympathizing with Civil Rights activists being sprayed with fire hoses, we took a "they should've seen it coming" stance? I think not.

Re:Not Fit to Govern/Adjudicate

[Ravensfire]

I think you're going a bit far with this statement.

The civil law exists to provide a consistent means to resolve disputes. By its very nature, interpretation of law is slow to change. This is NOT a bad thing, but it does have consequences. People make decisions based on how the law is interpreted, imagine the chaos if interpretations changed radically every 5 years or so.

Any society where the laws are created by elected people will have laws that reflect both the majority and vocal minorities. Having said that, the past 10 years or so have been ruled by those vocal minorities with lots of money - problem there.

These laws are indeed being written by people who don't completely understand in impact of the growth of the internet and in information exchange. Most copyright/patent laws were originally created to protect the rights of the creator. Not to guarantee profit, or income, but to guarantee that the creator can control what they have created.

I don't see a problem with this general goal. Some people will be foolish, and try to maintain complete control - let them. Someone will create an alternative. I DO have a problem with people creating means to circumvent an attempt at control. Thats just my view.

Others will take their creations, and let everyone use them or modify them. Over time, these creations will evolve faster and better fulfill the needs of consumers.

When we as members of society hold the juidicial system in contempt, we are only hurting ourselves. Whether we like it or not, this is the system we live in, and this is the system that defines the legal structure we deal with. It is to our benefit that we continue to educate these people as to the impact of new technolgy. We CANNOT tell them that this or that is wrong.

I personally believe that from the appellate level up, judges tend to be highly educated people who think quite a bit about the overall impact of their rulings. If we can help them to understand the issues involves, and the impact of new technologies, I firmly believe that they will begin to alter their decisions.

American society is always changing, but it has always been done in a fairly slow manner. Rapid changes in our society (60's and 70's) have resulted in conflict and chaos. We are now seeing that on the internet and will continue to do so for a few years at least.

Okay, long ramble, and somewhere along the line my thoughts shifted - sorry. We're in a period of change - it's gonna be ugly. You can fight the system two ways - Directly, and get rejected, or Indirectly, with education and persuasion.

Decide soon.

-- Ravensfire

Re:Not Fit to Govern/Adjudicate

[Skapare]

Most copyright/patent laws were originally created to protect the rights of the creator. Not to guarantee profit, or income, but to guarantee that the creator can control what they have created.

I disagree (but you are close). These laws were written to provide for the benefit of the nation the advantage of having people pursue the creation of those kinds of works that can be copyrighted, and those kinds of inventions that can be patented. By providing a mechanism of protection for the recognized owner of what we today call "intellectual property", this was supposed to encourage people to pursue these arts which can cost them in money and burdens to do. For example an inventor of a new machine may have to invest in research and development. An artist may have to create his works without spending time in employment and hence have no other source of income.

It is the nation that is supposed to benefit. If what is produced is worthless, we might not buy it. So there is no guarantee of income at all. If no one wants it, no one pays for it, and the inventors and artists of worthless junk get nothing. What the law provides for is protection that someone else will not steal that which is worth something, and this would supposedly encourage these pursuits and the nation would benefit. So you are right that there is no guarantee of profit. But the purpose is for the benefit of the nation, not the creator/inventor.

That is how it was supposed to work. Today things are changed somewhat. Patents are being issued for obvious ideas and concepts to any comer who has the filing fee. Copyright owners are now being given protections in law to allow them to exclude people of the nation from enjoying the benefits of the works even if they are willing to pay the demanded price while threatening these very people with jail for even trying to enjoy the works after they have paid the price.

Today, much of the technology and some of the art being created would be created anyway without any intellectual property protections to encourage it. Much of Open Source is that way (consider, if you will, that the lack of the laws would be somewhat equivalent to having the modified BSD license as your only choice). Even many technology companies are only patenting simple things they invent only to be sure someone else doesn't get the patent first and attempt to enforce them from using what they invented. Most patents go entirely unenforced, only protecting the owner from someone else getting the patent. For the government, this is just a filing fee cash cow.

The way the laws are working today is twisted, and headed in the direction of being outright evil. It needs to be changed (not discarded as some suggest, just fixed). Patent examiners need to be knowledgeable about their trades to properly recognized obvious claims. Copyright laws need to provide better protections for us to have and enjoy (which does include making sure the true creators are not shafted which would end up with less art for us all) what art we choose to buy.

Don't expect the Republicans to do this as this is the kind of thing big business and megacorporations like to have. Don't expect the Democrats to do this as this is the kind of thing that helps enhance big government and keep the ever increasing government payroll flowing.