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CA Supreme Court Saves LiViD, Pavlovich 251

joebeone writes "The California Supreme Court has suprisingly ruled that Matthew Pavlovich is not within their jurisdiction in the DVD-CCA's suit against his posting of DeCSS in relation to the development of the LiViD DVD player for open operating systems. What's surprising? It's surprising that they held that his posting of DeCSS was not actionable... (however the use of the program by users to circumvent CSS could be under the DMCA)."
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CA Supreme Court Saves LiViD, Pavlovich

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  • Real Link is Here (Score:4, Informative)

    by mdechene ( 607874 ) on Tuesday November 26, 2002 @12:31AM (#4756570)
    Whoops. Should have previewed.

    Here it is [pyrorobotics.com]
  • Re:Not Actionable? (Score:5, Informative)

    by Lionel Hutts ( 65507 ) on Tuesday November 26, 2002 @12:33AM (#4756584) Journal
    "Not actionable" would mean that it is legal: that doing it does not expose you to suit. That is not at all what the court held: it held only that the California courts do not have jurisdiction.

    Par for the course for Slashdot reporting, I guess.
  • by MacAndrew ( 463832 ) on Tuesday November 26, 2002 @12:54AM (#4756677) Homepage
    At least it means little to the general cause of resisting the DCMA. It is very good news for the defendant (for the moment) and an interesting discussion of personal jurisdiction, if you're into that sort of this (I am).

    Personal jurisdictional is a constitutional question of due process, and governs whether a court may requires or permit a party to be joined in a legal action. Whether a court has personal jurisdiction is usually gauged by the party's contacts with the state, such as residence, committing significant acts there, consent to jurisdiction, and so on. If the court does not have jurisidiction, the case will be dismissed (at least as to that party) without addressing the merits of the lawsuit.

    That's what happened here. The court was quite explicit in its conclusion which questions it was or was not deciding. It is interesting speculation whether this decision is mistaken, and where the plaintiff might next sue, if at all, so as to be assured of personal jurisdiction. It is also possible that the plaintiff dropped the ball and could have persuaded the California court on jurisdiction had it adduced more facts regarding the defendant's actions.

    A parting caveat -- I just gave the opinion a power read and could be clueless on something important. However, the nature of the court's discussion is extremely familiar, and doesn't have a thing to do with DeCSS.

    We, however, emphasize the narrowness of our decision. A defendant's

    knowledge that his tortious conduct may harm industries centered in California is
    undoubtedly relevant to any determination of personal jurisdiction and may
    support a finding of jurisdiction. We merely hold that this knowledge alone is
    insufficient to establish express aiming at the forum state as required by the effects
    test. Because the only evidence in the record even suggesting express aiming is
    Pavlovich's knowledge that his conduct may harm industries centered in
    California, due process requires us to decline jurisdiction over his person.
    In addition, we are not confronted with a situation where the plaintiff has
    no other forum to pursue its claims and therefore do not address that situation.
    DVD CCA has the ability and resources to pursue Pavlovich in another forum
    such as Indiana or Texas. Our decision today does not foreclose it from doing so.
    Pavlovich may still face the music--just not in California.
  • Minor correction (Score:4, Informative)

    by cpt kangarooski ( 3773 ) on Tuesday November 26, 2002 @01:05AM (#4756712) Homepage
    The court did NOT say that Pavlovich's posting wasn't actionable -- they said that he is not within the jurisdiction of the California courts. Pavlovich may yet have to go to court, just in a different state. Other people who post DeCSS may be within California's jurisdiction.
  • by mdechene ( 607874 ) on Tuesday November 26, 2002 @01:06AM (#4756717)
    Now if NAV detects Open Office saved doc's as Viri, that's news
  • by Anonymous Coward on Tuesday November 26, 2002 @01:13AM (#4756740)
    Read the decision to the end. The court is making a ruling about its jurisdiction over someone who does not live in California.

    First of all, why is this in state court? This is in state court because the suit was based on revealing trade secrets in DeCSS. DMCA does not get involved.

    So the court has to figure out whether or not it has jurisdiction over someone who doesn't live in California. You can be sued for actions that take place outside California, if certain conditions are met. An obvious one would be if the majority of the harm were taking place in California. Another would be express intent to cause harm or to direct your actions at individuals in California.

    So anyways, precedent this, precedent that--what it boils down to is that the plaintiff says Pavlovich is under Californian jurisdiction because he "should have known" that his actions might cause harm to the California film industry. The court finds this incorrect for a number of reasons.

    1) Pavlovich wasn't trying to do business, but was merely operating a "passive" website of information for those who wanted it. He could hardly be said to be targeting Californians.

    2) The court had no evidence of any particular harm anyone in the film industry had suffered as a direct result of Pavolvich's posting.

    3) The court had no evidence that any Californian had even looked at his website (!).

    4) The plaintiff organization didn't even exist when Pavlovich's site went up!

    5) The court found extremely silly the argument that because the film industry is predominantly based in California, a harm against the film industry is predominantly felt in California, and thus Pavlovich targeted California. There's a funny bit in there about getting sued in Idaho for harming the potato industry.

    6) The most important thing, I think, for webheads and sysadmins is that the court ruled that merely posting information does not mean that you had express intent to injure, even if others take that information and use it injuriously. Now, the court was ruling in a very narrow situation, which is that if an unsolicited third party were to come along and injure the plaintiff with DeCSS in California, that would not place Pavlovich under California's jurisdiction.It's not a ruling on whether or not Pavlovich would be liable if he had lived in California. But because of the test the court used to determine jurisdiction, they're also implicitly ruling that posting information is not the same as intending it to be misused (though they're not ruling that you can't be liable).

    But, you have to remember certain things. One is that you can't encourage people to use information inappropriately (duh!). You oughtn't use it to solicit business. You oughtn't keep records of who looks at it.

    Whether he would or wouldn't have won on the merits of the case is another question. One thing that wasn't clear (to me) from the decision was whether he had the information himself or merely linked to it. Also, was the DMCA even law in October 1999? I can't remember.
  • Say what? (Score:3, Informative)

    by LostCluster ( 625375 ) on Tuesday November 26, 2002 @01:21AM (#4756763)
    What ruling did you read? The phrase "rouge software pirates" does not appear anywhere at all inside it. You better watch out, they may sue you for libel for making up that quote.

    This case isn't about Open Source at all. All this ruling said is that CA was the wrong state to sue this defendant.

  • by chill ( 34294 ) on Tuesday November 26, 2002 @01:21AM (#4756764) Journal
    I looked it up: (http://www.dvdfourm.org) and there are NO per-unit fees. Buy book, sign the NDA ($10,000) and someone could legally release a binary-only DECSS plugin. Yes, it could be given away freely -- just no source.

    Personally, I think RedHat, Lindows & the others should do this for the people who just want to play their movies without getting into religious debates over licenses.

    Hell, $10,000 isn't lunch money if spread between SuSE, Mandrake, Red Hat, UnitedLinux, IBM, etc.

    -Charles
  • by vinsci ( 537958 ) on Tuesday November 26, 2002 @01:27AM (#4756778) Journal
    The Ogle DVD Player home page is here [chalmers.se].

    For Windows, there's the full-featured FusionsSoft DVD Player which is described as published under the GPL license, but where is the source? The indicated home page [chez.com] of the project is constantly over its monthly bandwidth quota. The last version available seems to be from July, 2002, version 5.0.0.1.

    The binaries for FusionSoft DVD Player can be found here [pctip.ch]. Gut again, since it's GPL, the sources should be somewhere. The program itself is multilingual, although you may have to do some german to download it and some french during the installation.

  • by Anonymous Coward on Tuesday November 26, 2002 @01:36AM (#4756810)
    Livid was fully functioning as was DeCSS BEFORE nov 30th 1999.

    DMCA does not cover software or hardware created BEFORE the begginning of 2000.

    This is a fact.

    DMCA will NEVER have any bearing on the original frozen sources of Nov 1999 Livid and livid is now "clean" of any tainting from the XING key anyways.

    Current versions use brute force key cracking,a s do other DVD ripping source examples.

    DMCA start date was a few months too late.

    Too badfor DMCA but its a fact, the origianl aguments were NEVER about DMCA they were about theft of XING key using a debugger violating the click-wrap license.

  • by Featureless ( 599963 ) on Tuesday November 26, 2002 @02:16AM (#4756942) Journal
    Pavlovich lives in Texas. The DVD-CCA (the particular media-industry front organization prosecuting Pavlovich) sued him in California ("playing hardball" - forcing him into a more expensive long-distance defense), making a specious argument that "because he knew DeCSS would harm industries based in California," that state has jurisdiction.

    The lower courts in California agreed. However, the quality of jurisprudence is fortunately a little higher in the California Supreme Court. They kicked it back. Now DVD-CCA will have to start over in another state (probably Texas, or potentially Illinois - where Pavlovich may have done some of the LiViD work while in school).

    The case is far from over, in fact, it's just getting started, and it's anybody's guess what will come of it. One hopes one of these will find its way to the USSC while there's still a few shreds of dignity left at that bench; in which case, the DMCA would get the treatment it deserves. But it would depend on many things...

    Specifically, with respect to the jurisdiction (which is an interesting, if academic, question), the California supremes held:

    The exercise of jurisdiction over a nonresident defendant comports with these Constitutions "if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate ' "traditional notions of fair play and substantial justice."

    They go on to indicate their position:

    According to DVD CCA, California should exercise jurisdiction over Pavlovich because he should have known that third parties may use the misappropriated code to illegally copy movies on DVD's and that licensees of the misappropriated technology resided in California. In other words, DVD CCA is asking this court to exercise jurisdiction over a defendant because he should have known that his conduct may harm--not a California plaintiff--but industries associated with that plaintiff. As a practical matter, such a ruling makes foreseeability of harm the sole basis for jurisdiction in contravention of controlling United States Supreme Court precedent. (See Burger King, supra, 471 U.S. at p. 474.)

    Indeed, such a broad interpretation of the effects test would effectively eliminate the purposeful availment requirement in the intentional tort context for select plaintiffs.
    [emphasis theirs]

    Very simple, actually.

    I expect the DVD-CCA's attorneys to get their law on ghetto-style; that means every nasty trick they can think of to rack up costs and price Pavlovich out of the fight. Home-court advantage has a nice synergy, too.

    What I find interesting are the series of decisions supporting them which led up to this ruling. Perhaps one of the biggest weaknesses of the legal system is that there is no good way to handle bad judges once they get into the system.
  • by Thagg ( 9904 ) <thadbeier@gmail.com> on Tuesday November 26, 2002 @02:54AM (#4757057) Journal
    The ruling was 4-3 in favor of the defendant, which is as close as it can get -- and the majority went out of their way to show how narrowly this ruling should be interpreted.

    The defendant, Pavlovich, had several things in his favor. The DVD CCA, which brought the suit, claiming that Pavlovich should have known that they would be harmed, didn't even exist when the DeCSS code went up on Pavlovich's web site. The MPAA claims that they sent a 'cease and desist' letter to Pavlovich, but can't find a record of that, so the judges ignored it. And, the CA Supreme court majority recognizes that the DVD CCA could very easily try the case in Texas, so it's no real loss to them to do so.

    If any of those three conditions wouldn't have happened, this would likely have been tried in California. It was really really close.

    thad
  • by Sontas ( 6747 ) on Tuesday November 26, 2002 @04:04AM (#4757283)
    You are partially right. The $10,000 you mention is for the DVD-Forum specifications. These do not have anything to do with CSS. No where in the specs do they mentions CSS except to note the inclusion of encryption bits in the PES packet headers and some CGMS bits in the IFOs. To license CSS requires going through DVDCCA which is a much higher dollar investment. It also doesn't have per unit royalties associated with players (there are per unit royalties on css encrypted discs, however), but the one time fees for getting CSS licensing for a player are in the area of $1 million last I heard. This is put in escrow/trust, so it isn't money spent so much as money you may lose if you fail to meet the licensing requirements, i.e. your keys are in plaintext in the app someplace.

    Many companies have invested in linux DVD player software development, but few have released publicly or have wide use bases. None are free as there are per unit royalities associated with ac-3 and mpeg-2 decoding (Dolby and MPEGLA collecting, respectively).

    So it isn't as simple as RedHat and others dropping some money in a bucket. Companies are afraid of their software getting hacked, losing their shirts due to piracy of the non-free software, running into myriad problems with driver and hardware support which they tolerate in Windows (because of the market and OEM demand), having to deal with frequent kernel version changes (thus potential kernel module issues), and in also having to support their product on a historically "difficult" to use and administer OS.

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