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Censorship

CPHack Appeal Denied 23

Hugh D. Hyatt writes: "Paraphrasing BNA Internet Law News: The appeal by several people posting mirrored versions of the Cyberpatrol hack has been rejected due to a lack of standing. The case had the potential to provide insight into free speech and copyright issues on the Internet with several high profile briefs filed as part of the case. So far there's been no media coverage but the case itself can be found here". Keep in mind that this appeal was filed by people not involved in the original case against Skala and Jansson, and this is a technicality judgment rather than an examination of the merits of the case. The court makes clear that the appellants were NOT affected by the original judgment and hence cannot be considered to be bound by it (or appeal it) - similar reasoning would also be applied in other cases such as the DeCSS suits, so this is a good look at what standing those mass-mailings of MPAA threat letters really have in law.
"The coin, however, has a flip side. A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication. See id.; see also Alemite, 42 F.2d at 832 (declaring that a decree which purports to enjoin nonparties who are neither abettors nor legally identified with the defendant "is pro tanto brutum fulmen," and may safely be ignored). This tried and true dichotomy safeguards the rights of those who truly are strangers to an injunctive decree. It does not offend due process."
My Latin is a little rusty, but "pro tanto brutum fulmen" seems to mean something like "the court's heavy thunderbolt only reaches to a limited extent".
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CPHack Appeal Denied

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  • by Anonymous Coward
    It seems to me that CPHack is just exposing another of the millions of holes in censorware already, and the lawsuit surrounding it is just bullshit.

    The lawsuit's not "just bullshit", because Mattel won. It is now a precedent that courts will follow in subsequent cases.

  • In Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir. 1930), the court held that a former employee of a defendant under an injunction could not be held in comtempt for acts performed independently of his former employer. Judge Learned Hand wrote:

    [N]o court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court.

    He cites abetting someone or acting as their agent as the only exception:

    [T]he only occasion when a person not a party may be punished is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has the power to forbid, an act of a party. This means that the respondent must either abet the defendant, or must be legally identified with him.

    IANAL, but it seems to me that all this means my mirror site [robinlionheart.com] is not affected by the injunction at all. I've never been in contact with Eddy and Matthew. They are not trying to circumvent the permanent injunction, nor am I colluding with them to do so. So as far as contempt of court goes, I'm in the clear.

  • And this IS abuse. If you don't have a lawyer, it's difficult to find out his opinion. If you do have one, he can only guess (well, it's an expert guess) what a court's decision would be. So it is intimidation by threat under cover of law. And that it is frequently without any legal backing just makes things worse. You should be able to sue a company over something like that, but I sure don't believe I've ever heard of a successful case.
  • It's got the word "hack" in it! It must be bad!
  • It wouldn't fit. Damn 120 char limit. I had to fiddle with the words a bit just to get the quote itself in the box. =(
  • Just in case you don't already have a copy of CPHack et al, here it is:

    diddl.firehead.org/censor/cyberpat rol 4 [firehead.org]

    Have a nice day.

    -----
  • "Interesting. So say the same scenario happened, but I was incorporated. Now, if I understand it, corporations are seperate legal entities. So, if they take the corporation to court and the court tells the corporation to cease and desist, what's to stop me from creating a new corporation and continuing to do what I'm doing (ad infinitum)?" ..... I think that's the interesting thing said by the judges, and how it might relate to other 'massive' letter campaigns by lawyers at RIAA, MPAA, etc. IANAL, but what I'm getting from the appeal is that, in your case above, you WOULD be subject to the any injunctions, etc, because of your close relationship to your corporation, no matter what other corporation you started to circumvent an injunction. OTOH, I also got that they were saying that if a party is NOT working in concert with the party to which the injunction applies, then they are not impacted by the courts ruling in a specific case. For an example, if reading correctly, if you post something and an injunction is against YOU, then it also applies to all your friends you called to say 'copy this so we can still violate a copyright if there's an injunction'. In that instance, the 'friends' could be a party to the case, but would also be under the injunction issued by the judge. If, however, a whole 'bunch' of people copied this on their own, or from another place, and posted it on the board, with no action, suggesstion, request, etc, from the original defendant, then they would NOT be under the injunction issued by the court. (and all the letters the lawyers wrote would be best put to use in place of that 1919 sears catalog in the outhouse.) Again, IANAL, but if any out there, that seems to be the substance of their comments? correct? Just as an outsider, I find the reading of this very interesting. While many (on both sides of a case) seem to think the courts can't handle cases in these 'modern' times, these judges sure seem to know what they're dealing with. They limit things to exactly what they want, know the repurcussions of getting drawn into areas they don't believe should be addressed (like 1st amenedment. they KNOW this is a can of worms, and sure found it just wasn't the subject to broach in this appeal and weren't about to get out the can opener. And to me, that made a lot of sense.)
  • I know this is a tad offtopic, but here's an idea for when you get a Cease-and-desist letter. Send back something like this:

    "Because my time is very important, use of this E-Mail box carries a $500 bill per use. You are hereby required to pay me $500 or send me a retraction. And if you do neither, you will be hearing from my lawyer."

    I've noticed that it also works exceptionally well with spammers as long as they are not forging their email address.



    Kris
    botboy60@hotmail.com
    Nerdnetwork.net [nerdnetwork.net]
  • It seems to me that CPHack is just exposing another of the millions of holes in censorware already, and the lawsuit surrounding it is just bullshit. Currently, at the forefront of robotics and AI research, rodney brooks has build a robot that has not even matched the intellegence of a 2 year old. Even so, thousands of incredibly stupid people trust this crappy software to watch their kids, hour after hour, day after day.

    This disgusts me.



    Kris
    botboy60@hotmail.com
    Nerdnetwork.net [nerdnetwork.net]
  • In order for that complaint to be upheld against everyone else, Mattel would have to complain in court against everyone else. This isn't like a criminal case where someone is prosecuted for breaching a specific piece of legislation, this is a case of Mattel pointing to a couple of discrete individuals and saying to the court, "Help us out with these guys, stop what they're doing," and the court has done precisely that without stopping anyone else from doing whatever it is that they happen to be doing.

    Interesting. So say the same scenario happened, but I was incorporated. Now, if I understand it, corporations are seperate legal entities. So, if they take the corporation to court and the court tells the corporation to cease and desist, what's to stop me from creating a new corporation and continuing to do what I'm doing (ad infinitum)?

    --
  • I'm Not a lawyer or anything, but i have no idea what this means.

    "To state the obvious, a dictum is not a holding -- and the Dopp dictum may be no more than mere buzznacking. "

    That is a quote from the article! Maybe i have a 47th chromozone or something, but i have no earthly idea what that means.
  • by Anonymous Coward
    close, michael, but not quite right. 'Pro tanto brutum fulmen' basically means 'For those in a similar situation, this ruling is but an empty threat (innocuous thunder)'.
  • by newt ( 3978 )
    No, what it;s saying is if someone else is convicted of a crime, you can't appeal their case on the grounds that you may later be convicted of the same crime.

    Let's get our terminology right here: Nothing about this case or the CPHack case involves a "crime". It was a civil case brought by Mattel against the authors of the CPHack paper, and doesn't concern any criminal law whatsoever.

    So, the original poster who said:

    ... this ruling makes very little sense to me. I mean, is it really trying to say that if one person does something illegal and ends up in court, and then other people do exactly the same, only the first person can be found guilty of that crime?

    ... is slightly misguided, because nothing "illegal" has been done, no "crime" has been committed, and nobody has been found "guilty" of anything -- What has happened is that Mattel has made a complaint, and that complaint has been upheld in court.

    In order for that complaint to be upheld against everyone else, Mattel would have to complain in court against everyone else. This isn't like a criminal case where someone is prosecuted for breaching a specific piece of legislation, this is a case of Mattel pointing to a couple of discrete individuals and saying to the court, "Help us out with these guys, stop what they're doing," and the court has done precisely that without stopping anyone else from doing whatever it is that they happen to be doing.

    - mark

    -----

  • I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.

    If you say so. Such an interpretation is just that -- one of several possible readings from obiter dicta. It isn't binding precedent for the proposition that two parties do not have "direct interaction" with the named defendant.

    While I'd like to believe that what you say is true, the devil is in the details. Different cases with subtly different facts may well yield different results. This is why the decision to intervene in cases where broad equitable relief is sought is often a Hobson's choice.
  • 2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).

    Right, but "acting in concert", according to the opinion, is equivalent to "aiding and abetting" the actual defendent. I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.

    The idea is that if the named party acts by way of an abetter that this is really the same as the party acting, so that the side was represented. If Courts don't properly construe the intimacy required, then there is danger, yes. But it will always be true that there is danger if Courts make mistakes. Appeals cover this and due process should prevent two distinct interests from being treated as one.
  • by dirk ( 87083 )
    Now I believe that the entire CPHack case is wrong and that the defendents shouldn't be found guilty, but this ruling makes very little sense to me. I mean, is it really trying to say that if one person does something illegal and ends up in court, and then other people do exactly the same, only the first person can be found guilty of that crime?

    This seems to me to be morally indefensible. Copycat crime is just as wrong as the original and its perpetrators should suffer the same consequences as its originator. This seems to me to be just another crazy court decision in modern day America, land of the "free".


    No, what it;s saying is if someone else is convicted of a crime, you can't appeal their case on the grounds that you may later be convicted of the same crime. These people weren't involved in the case at all, they were never mentioned, and the case was specific to Skala and Jansson. These people can't appeal the case because it doesn't apply to them. They would have to be taken to court and founbd guilty in a seperate trial (in which this case could be used as a precident), and they may win or lose that trial. Yo simply cannot appeal until you yourself has been found guilt.

  • I've found my new sig quote.

    I think is the perfect way to summarize the great gulf that lies between the law and the citizens who are expected to know, understand and follow it.

    - JoeShmoe

    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= -
  • It seems plain to me this is abuse of the legal system on the part of Mattel/Microsystems. We're right back where we were, unsure if we're legally OK or not. I have no idea of where we'll go from here. But I do know that I'm more frustrated with the American legal system than I've ever been.

    This isn't a bad decision. It makes it clear that anybody not being sued by Mattel cannot be affected by the outcome of this particular lawsuit. Since you have no legal liability here, you don't get any legal rights to contest the outcome of the suit. This also means that no matter what the court finds, it does not apply to you. If you don't have the opportunity to defend yourself, you can't have any legal liability in a lawsuit (there may be exceptions, but this isn't one of them). The only thing you have to worry about is the legal precedent that will be set. But you will still have to be the defendant in a lawsuit before anything can be done to you.

    You also have to remember that a cease-and-desist letter doesn't mean anything by itself. Corps sometimes use these for documentational purposes before a lawsuit is filed (to show they tried to do something before filing to resolve the problem). Sometimes these are nothing more than idle threats to try to frighten people into obedience and the companies know that they have no chance at winning a real lawsuit. Talk to a real lawyer to see what they think of the letter you have received.

  • The danger of rulings that include is that it can be used to intimidate others. This is exactly what Mattel, MPAA, RIAA wants!

  • by Masem ( 1171 ) on Saturday September 30, 2000 @02:21AM (#743263)
    NAL myself, but reading through the article, the "Dopp Dictum" is basically a quote from a prior summary judgement, specifically stating that under certain cirumstances, when a judge's statements (not necessary a court order) includes binding actions on people not involved in the original case, then those people may step in to appeal the decision. In this case, the CPHack judgement included actions of others that posted the CPHack to the net, but no actions were taken against them. However, since they were mentioned, those people followed through on the appeal, but as this judgement ruled, there wasn't a strong enough case for that appeal to continue, only the original defendants could do so.

    "buzznacking" means "irritating", or probably in this case, using minor and inconsequental details of other cases to purposed extend the original case and be annoying to the legal system; nothing illegal about doing it, but the case has no merits being based on the technicality of the Dopp Dictum.

  • This really disgusts me. First we're told by Mattel that we have to cease-and-desist (I've gotten good at spelling that in the past few months), given a little legal piece of paper that says that we are legally obliged, by the word of the court, to take down our websites.

    Then we're told, months later, that the case-and-desist doesn't apply to us, because our names didn't specifically appear on that piece of paper. So do we have to abide by that piece of paper? Nobody's saying. But can we fight it? No, we can't. We are bound to a ruling over which we have no input. Parties, yet nonparties.

    It seems plain to me this is abuse of the legal system on the part of Mattel/Microsystems. We're right back where we were, unsure if we're legally OK or not. I have no idea of where we'll go from here. But I do know that I'm more frustrated with the American legal system than I've ever been.

    I figure pretty much anybody that gets a cease-and-desist should have a say in the resulting legal case. I guess that must be unreasonable, but I definitely don't understand why.

    -Waldo
    cp.waldo.net [waldo.net]
  • by YIAAL ( 129110 ) on Saturday September 30, 2000 @04:21AM (#743265) Homepage
    If you get one, send a copy to the bar ethics committee in the state from which it is sent. Suggest that, though you are not a lawyer, it appears that the lawyer who sent the letter may be engaging in misrepresentation of the law, or perhaps even extortion. Suggest also that this is bad for the reputation of lawyers in general. Ask that they investigate the matter. Copy that letter to the lawyer from MPAA.
  • by werdna ( 39029 ) on Saturday September 30, 2000 @03:19AM (#743266) Journal
    Since it is plain beyond cavil that the sesquipedalian judges of this court opted to opine with grandiloquence, vel non, rather than plain English, I summarize for the rest of us in "abcedarian" form:

    Look, you just can't appeal a case unless you are a party.

    Really.

    Well, almost always (as we always say in the law, "it depends").

    Thus, if someone you know or share an interest with has been sued, you have two choices:

    1) Make a motion to become a party (legally, to "intervene"). If you are not permitted to intervene, then you will be able to appeal. If you are permitted to intervene, you will become a party, with the upsides and downsides of being on the shooting end of the case. By intervening, however, you give up the right in many cases to later challenge the jurisdiction of the court.

    2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).

    Of course, you could decide for yourself that you weren't acting in concert with the party, but if you are wrong, you face the business end of a contempt hearing. Nasty horns of a dilemma, to be sure. However, I believe the court stated the law correctly.

    For those who want to know what is this "standing" thing:

    Standing is the legal status of being able to address a court as to a particular case or controversy. Standing is necessary, but not sufficient, for the court to have jurisdiction. If you don't have standing, you can't play, because the court doesn't have jurisdiction to listen to you. To have standing to join a trial court case, you need to show a nexus to the issues. To have standing to join an appeal, you need to be a party in he decision appealed.

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