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The Courts Government News Your Rights Online

ElcomSoft Lawyer Says Internet Outside U.S. Law 276

Posted by michael from the trying-hard dept.
NetRanger writes: "ElcomSoft, the company that employed Dmitry Sklyarov, has fired its opening shot, asking the court to dismiss the charges. Their argument: since the Russian company is based on the Internet, it is outside the jurisdiction of the DMCA. This is rather interesting if it holds up, because it would set a precedent which would allow other countries to tell the DMCA to just go away. If not, ElcomSoft could be out $2.25 million dollars, and the USA could find itself cold-shouldered by a lot of countries with less draconian copyright laws." Wired has another story.
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ElcomSoft Lawyer Says Internet Outside U.S. Law More

ElcomSoft Lawyer Says Internet Outside U.S. Law

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  • Hopefully... (Score:5, Insightful)

    by anonicon ( 215837 ) on Tuesday March 05, 2002 @08:53AM (#3111863)
    This case will be decided for Elcomsoft. If they lose, it means that being on the Internet holds you liable to *any* countries' commercial laws (this is a commercial case) if one of their residents buys one of your businesses' products.

    I wonder if U.S. businesses would enjoy being constrained to French, Chinese or Uzbekistani commercial law if a resident there buys their product.

    • Re:Hopefully... (Score:4, Informative)

      by CaptainAlbert ( 162776 ) on Tuesday March 05, 2002 @09:23AM (#3111960) Homepage
      > I wonder if U.S. businesses would enjoy being
      > constrained to French, Chinese or Uzbekistani
      > commercial law if a resident there buys their
      > product

      See This page [cptech.org] which explains the negotiation of the Hague convention on jurisdiction and foreign judgments in civil and commercial matters.

      I wonder if U.S. citizens would enjoy being constrained to French, Chinese or Uzbekistani civil law if a U.S. business takes a dislike to them.

      Now start writing to politicians. :-((

      • Personal Jurisdiction on the Internet (Score:4, Informative)

        by Eppie ( 553278 ) on Tuesday March 05, 2002 @02:08PM (#3112903)

        American civil procedure provides for jurisdiction over foreign companies that do business in America. The theory is that if you come to America and avail yourself of our markets, resources, society, labor, and laws, you are bound to obey our laws. This does not mean that you can be sued in New York if you offer goods for sale in China and some American happens to buy them while on vacation in Beijing. It does mean, though, that if you knowingly advertise in America, ship goods to America, or provide services to American clients, you can be sued in America for violating American law.

        On the Internet, this analysis is a little complicated because websites are accessed internationally, and it is difficult to detect what country people are really browsing from. Still, efforts can be made to exclude certain jurisdictions. For example, Lindows.com [lindows.com] used to have a message [google.com] on their website that refusing to do business in Washington state. This is because they were trying to avoid being dragged into court by MSFT in Washington state.

        There is plenty of caselaw on this emerging area of law:

        • A Blue Note jazz club in Missouri was sued by the Blue Note jazz club in New York. A NY court held that the Missouri club's website, though viewable from NY, did not create jurisdiction in NY because the club was a strictly local Missouri operation. (Bensuan Rest. Corp. v. King, 126 F.3d 25)
        • Likewise, Cybersell of Arizona sued Cybersell of Florida for trademark infringement and was denied jurisdiction because Cybersell of Florida was not really offering its services to Arizonans. (Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414)
        • OTOH, Zippo (the company that makes lighters) sued Zippo.com (a company that provided fast news updates) in Pennsylvania. Since Zippo offered its news service to netizens across the land, including PA, they were adjuged to be doing business in PA and thus were amenable to suit.

        As the cases make clear, there is a sliding scale that stretches from (1) passive website relating to local activities to (2) interactive website offering services to anybody across the land. Elcomsoft sounds a lot more like Zippo than it does the Blue Note jazz club in Missouri. If they are offering their services to Americans and offering downloads to Americans, they have to expect that they might be sued by Americans in America.

    • If they lose, it means that being on the Internet holds you liable to *any* countries' commercial laws (this is a commercial case) if one of their residents buys one of your businesses' products.

      I wonder if U.S. businesses would enjoy being constrained to French, Chinese or Uzbekistani commercial law if a resident there buys their product.

      What makes you think that they aren't? Of course if you sell in France, China, or Uzbekistan those sales are going to be governed by the laws of the country. Sales to other countries, on the other hand, aren't so constrained.

      This admittedly gets interesting on the Internet, where you may not be aware where you're selling to. A race to the bottom can be avoided, though, since an offended country has to sue in the jurisdiction where the business is located for their judgment to have any effect.

      • Re:Hopefully... (Score:3, Interesting)

        by GSloop ( 165220 )
        So, did Adobe & Herr Ashcroft sue in Russia, where Elcomshot is located? Hmmm...I guess not!Will this judegement have an effect on Elcomsoft - most certainly.

        The sad part is that the US is the 600 lb. gorilla, that goes about terrorizing the rest of the world. Since we're an economic super-power, the rest of the world has no choice but to acquiese, or get a proverbial load of cold water dumped on their economy.

        Look at Pakistan. Frankly, most of the population doesn't really care for the US, and in fact, many activly hate us. But (Dictator Musharraf - GWB's best friend nudge-nudge wink-wink) knows that the US will crush him unless he prostrates himself and his country to the demands. If he whores himself to the US, he gets economic aid, and lots of goodies, plus the US will ignore how he obtained and maintains his power/position.

        I guess we need to get used to the US taking a "screw the rest of the world" position. It's not new, and it's not going away anytime soon. I, being a beneficiary (sort-of) of this behavior, have a very hard time accepting that I can't get my government to treat other nations with the respect and dignity that we expect from them.

        Elcomsoft's dead and lifeless body will probably be the result. It's probably not fair. We (the US) would certainly be offended to be treated equally, but that won't help.

        [Hangs head dejectedly and sighs]

    • Re:Hopefully... (Score:4, Insightful)

      by warlock ( 14079 ) on Tuesday March 05, 2002 @09:26AM (#3111968) Homepage
      Er, no, your logic is at fault. If the case is decided against Elcomsoft, it would only mean that those operating outside the US and offering goods and/or services to US citizens would have to take into account US law on top of whatever local (to the company) laws apply, or they may get into legal trouble.

      This will be a serious problem for many companies selling their goods/services online, since it will be a tough choice between ignoring the US market (which IMHO would be the prudent thing to do) or attempting to comply with the laws of say, both the EU and US (which are oh so often incompatible). The problem is tougher when it comes to services and not shipping tangible stuff, since the customer has no incentive to provide real information. Suppose that elcomsoft puts up a site where you can post your eBook and it is processed for a fee. How are they supposed to discriminate against US residents and not allow them to use that service? Would a simple "I acknowledge that performing this action is not against any local laws" checkbox suffice? I really doubt it, because if it was that simple they could put a similar notice on their software, basically saying "you might have bought this software, but by installing it on your computer it becomes a copyright circumventing, DMCA violating tool, which you wouldn't want to do if you happen to be anywhere near, or plan to visit the US".

      I wonder what's next if Elcomsoft looses, and ceases sales to the US. Let's say that someone takes a short trip to Europe and buys the DMCA-violating software off the shelf and imports it to the US. Since the case decided that it doesn't matter where the transaction takes place, would Elcomsoft be held liable because a US citizen imported software that violates US law? What if my cousin (US citizen) requested that I (EU citizen) buy this and FedEx it to him? Would I risk being prosecuted in the US for trafficking illegal software next time I visit him?

      It should be up to the person purchasing the goods/services to determine if he has the right to import such material, but a decision like that would be unacceptable for the big US corporations I guess.

      • What if my cousin (US citizen) requested that I (EU citizen) buy this and FedEx it to him? Would I risk being prosecuted in the US for trafficking illegal software next time I visit him?

        The simple answer is that no one knows, there are a whole bunch of opinions on the matter, even lawyers who specialise in this sort of area seem to disagree. Alan Cox even stopped distributing [theregister.co.uk] details of the security fixes to the kernel to US Citizens, and resigned [newsforge.com] from the USENIX ALS committee, citing that "...it has become apparent that it is not safe for non US software engineers to visit the United States".

        I was recently offered a job in the States and the DCMA, amougst otehr things, was certainly a factor that I weighed up when I turned it down.

        Al.
    • Maybe they should change their name to 'Elbonia-Soft.'

    • If they lose, it means that being on the Internet holds you liable to *any* countries' commercial laws (this is a commercial case) if one of their residents buys one of your businesses' products.

      Don't forget the Yahoo case, in which France is suing Yahoo because the U.S. site is selling Nazi memorabilia, a violation of French law. Criminal charges are being brought against the former CEO.

    • I hope Elcomsoft wins, but not through this means ("we're in Russia so we don't have to obey U.S. law when we sell into the U.S."). If this argument holds up, there are a number of vile and disreputable people who would gleefully defraud and otherwise harm U.S. citizens by selling fraudulent or defective products into the United States, then claim that because they're based in Russia or Switzerland or England, they don't have to obey U.S. laws.

      As it is now, if you sell into a country, you are implicitly agreeing to obey that country's laws in all of your activities within that country. If you don't want to obey that country's laws, don't sell into that country. That's why Microsoft can't just move to Canada to avoid U.S. anti-trust legislation -- they'd have to stop selling to U.S. customers too. I'm sure we don't want to give Microsoft a new "out" for wriggling out of anti-trust liability!

      -E

  • Go elcomsoft (Score:2, Interesting)

    by Fred Millington ( 444639 )
    I think they are right to a point. The net is global so one country shouldnt be able to put on trial an offender from another country...but, this is a very tricky subject and begs the questions, who/what should set the laws for the net, if indeed there should/are to be any?

    • I know this will never ever in a million years happen but.....

      How about an elected council? Elected by every Internet user, with data supplied from census reports so as to prevent people from voting more than once?

      The elected council could be part of the UN and represent the Internet as a "virtual country" to the rest of the world.

      With this whole "New Deal" and Wal-mart potentially sitting on the UN, I think having Internet representation would be a good idea :-)

  • Outside the US. (Score:3, Insightful)

    by autopr0n ( 534291 ) on Tuesday March 05, 2002 @08:53AM (#3111865) Homepage Journal
    Well, ElcomSoft being outside of the US might not have to pay the fine, but I suppose they could be bared from doing business in the US, and possibly have any US assets ceased.

    On the other hand:

    If not, ElcomSoft could be out $2.25 million dollars, and the USA could find itself cold-shouldered by a lot of countries with less draconian copyright laws

    Fortunately, most of the rest of the world is moving towards the same kind of draconian copyright laws. And by "fortunately" I mean "unfortunately"

  • Not gonna happen (Score:2, Insightful)

    by InfinityWpi ( 175421 )
    For exactly the same reason Congress never votes itself a pay raise or declares they don't have the power to do something, no court is going to declare that the US doesn't have jurisdiction over the 'net. Those in power almost universally refuse to castrate yourself.

    • See this article from the New York Times: Florida Community Can't Shut Down 'Voyeur Dorm' [nytimes.com] - October 5, 2001; upheld in the Supreme Court as cited in Wired - Court Rejects VoyeurDorm Case [wired.com], February 25, 2002.

      Granted, it's limited to the discussion of zoning laws in a local jurisdiction, but the courts seem to have held that businesses that only conduct commerce on the Internet are not limited by the regulations of the locations in which elements of the business are physically located.

      Also, it's a messy can of worms, but they have definitely found that the Internet is a 'place' different from physical space, so the Elcomsoft lawyers have just made the next step.

      Gonna be fun to watch!

      • Actually, in that case they were calling into question the logic behind certain zoning restrictions. Many municipalities have placed zoning restrictions over certain types of businesses based on the concept of "network effects". This was aimed at bars and strip clubs by saying that these businesses would attract unwelcome people into the neighborhood. These people would, of course, have the effect of depressing property values.

        In the case of VoyeurDorm the argument was made that since the company "operated" on the Internet, the normal objection to these "network effects" was moot. No clientele were actually driving to the site to view this, in fact, they were sitting in the privacy of their own home watching via their computer.

        So, this case wasn't about the law/lawlessness of the Internet, just that since the actual "business" didn't occur in the physical location in question, then restrictions based on physical location were moot.
    • For exactly the same reason Congress never votes itself a pay raise or declares they don't have the power to do something, no court is going to declare that the US doesn't have jurisdiction over the 'net. Those in power almost universally refuse to castrate yourself.

      Except that the Courts are constrained by this silly little thing called the Law. Any court decision has to be based on the law as it currently stands, and on precedent, which there is very little of regarding this matter. A court decision not based on these will be overturned at some point. The process will just proceed very slowly.

      Congress, on the other hand, is constrained by nothing except their own largesse. They can make whatever laws they've been told to by their contributors, and if nobody is paying attention, have a good chance of being re-elected simply because they're an incumbent. In theory, there's a system of checks and balances with respect to the other branches, with elections being the ultimate check on a congressman's preformance. But the Congress acts like it is answerable to no one, especially on Internet issues. By the time the checks start working, the damage is already done.

      I'm not saying that this case will definitely have a sane outcome. I'm simply saying I have more faith in the Courts than in Congress, and you shouldn't compare the two on the Clue Meter.

      • Are we talking about the same court system? I'm talking about the one that has tons of flaws, from teh guy in Massachusettes who lets rapists go free because teh 14-year-old victim will get over it, to the Supreme Court that butts into Florida's election system and forces a winner. At least the people in general accept that Congress is out for money... but a court system out for power? They may be bound by Congress' laws, but they get to interpret them...

  • DO YOU KNOW WHERE YOUR HOSTING SERVICE IS? (Score:5, Interesting)

    by kir ( 583 ) on Tuesday March 05, 2002 @09:03AM (#3111892)

    You know, this is pretty interesting. As we know, ElcomSoft had all or some (I can't remember) of their website hosted in America. They may have known that, but will everyone? If a Russian (or French or Japanese or whatever) registered company is providing web hosting services from Russia but colocating in the states, how is a customer to know where their data physically resides (aside from tracking down the IP's physical location)?

    The internet, in a lot of ways, is a huge mesh. I live in Tokorozawa, Japan, but my domain is hosted in the states (I'm not even sure where - Florida I think). Does my content fall under the DMCA even if I setup through a Japanese company, pay in yen, and admin through a .jp URL?

    • I totally agree. The US cannot argue that just because the servers were hosted on US land they should fall under US jurisdiction.

      If they did, we will see a rise in hosting of servers in "nationless" sites such as The Principality of Sealand [sealandgov.com]

    • IMHO, this ("Do you know where your hosting service is?") is becoming an increasingly important question... especially since I want to switch ISPs. ;-) Since my "Ask Slashdot" submission on jurisdiction-shopping was rejected, maybe I can get away with trying it here...

      Anyone know what's a good country to use for web & email hosting? Some desirable traits:

      • Not have anything like DMCA or WIPO treaty (sorry, USA)
      • Strong crypto is legal (sorry, France)
      • Not have pro-censorship laws (sorry, Germany, Australia, USA)
      • Not have weird libel laws (sorry, UK)
      • Searches and siezures only done with a warrant (sorry, USA)
      • Not take Scientologists and their kind seriously (sorry, USA)
      • etc
      ...Yet still be fairly well-connected. Is there any such place?
      • That sounds rather like Canada. We have this newfangled 'lectricity thingy, and we're right excited about it too!

        In all seriousness, there's quite a few hosters up here, some of whom are even doing some funky stuff (virtual linux servers on big iron, kind of thing). Don't quote me, but I think easyhosting is up here, and possibly netnation, although I've seen both companies act like idiots. :) Buyer beware!
      • Well, if you're willing to pay some real money, try sealand. Or there might be a company that'll resell space on it's machines located there.

      • Re:DO YOU KNOW WHERE YOUR HOSTING SERVICE IS? (Score:5, Informative)

        by Novus ( 182265 ) on Tuesday March 05, 2002 @02:55PM (#3113242)
        Anyone know what's a good country to use for web & email hosting? Some desirable traits:
        • Not have anything like DMCA or WIPO treaty (sorry, USA)
        • Strong crypto is legal (sorry, France)
        • Not have pro-censorship laws (sorry, Germany, Australia, USA)
        • Not have weird libel laws (sorry, UK)
        • Searches and siezures only done with a warrant (sorry, USA)
        • Not take Scientologists and their kind seriously (sorry, USA)
        • etc
        ...Yet still be fairly well-connected. Is there any such place?

        Disclaimer: I am not a lawyer. This is based on my interpretation of Finnish law, based on published cases and sites like this. [cs.tut.fi]

        • Finnish copyright law is kind of nice; it has lots of free use provisions (e.g. the right to copy and convert copyrighted material that you have bought the right to use as necessary to use it (irrespective of license agreements)).
        • The EU in general seems not to recognise software patents, AFAIK.
        • Strong crypto is completely legal in Finland; I regularly use military-grade PGP at school to send in assignments.
        • Censorship in Finland is mostly limited to broadcast media (e.g. TV).
        The rest of your points I'm not too sure about, but I have not heard of any nasty cases regarding them.

        Finland is quite nicely connected, especially in urban areas (and university campuses). Consumer broadband is a bit on the expensive site but becoming widely available.

  • This is stupid (Score:3, Insightful)

    by Anonymous Coward on Tuesday March 05, 2002 @09:06AM (#3111899)
    It doesn't matter if they're doing business over the Internet, they still have physical employees, servers, and customers. And if those happen to be in country x, than that company can and should be accountable to country x's laws. And in this case, they had an employee in the US, servers in the US, and were going after customers in the US.

  • A US Court (Score:2, Insightful)

    by Ford Fulkerson ( 223443 )
    By what authority can a US court decide what laws should apply to the Internet?
    • One obvious argument is that employees, corporations, boxes and wires located in the US are within its jurisdiction.

      The notion that a router is "extra-national" is as absurd as the notion of an airport being so.

      This defense will be laughed out of court and not given more than ten minutes of argument.

  • ISOS (Score:2, Insightful)

    by inerte ( 452992 )
    "Our position is, regardless of where the Web site was, if the (alleged) criminal activity occurred on the 'Net, it's outside the jurisdiction" of the United States, he (Burton) added.

    He does have a point here. Imagine the Worldwide Operating System [sciam.com] in use. If you are downloading an illegal archive from other 200 computers, all those servers/temporary hosts deserve to be punished?

    Or is DRM hardware/memory protection, in this case, on a system that's not even designed yet, a solution?

    Nope.

    It's not the weapon that makes one a criminal.

  • Internet outside U.S. (and all) jurisdiction? (Score:4, Insightful)

    by CaseStudy ( 119864 ) on Tuesday March 05, 2002 @09:14AM (#3111933) Homepage
    This argument is so spurious it doesn't deserve its own article. ElcomSoft and other Internet-based companies don't exist in some otherworldly realm; they exist in real-world people and goods, and do business with other real-world people and goods. If enough such business is done in the U.S., the company will be subject to U.S. law. Simple, and certainly nothing new.
    • But what is "inside" the US?? Transactions took place ON the internet. The buyers didn't have to go to stores in the US because they do not sell or market the product. They received letters and sent letters from and to US citizens... so what? I am daily bombarded with SPAM from US domains (and many others btw). Does this imply that if a Ducth law (i live in the Netherlands) is apllicable to the companies SPAMming me? If so i will see if i can bring them to justice...

      As for the argument deserving his own article.. yes it is. The outcome of this case implicates alot. If i write a program which in some obscure way violates US laws it would be nice for me to know what that implies for me. Am i, or am i not, subject to US law..

      The article stated that Elcomsoft did not prohibit access for american people so it is subject to the US law.. is this necessary then?

      I mean, does the US citizens like to be a subject to the chinese law if they buy directly over the internet (or on the internet)? The implications are going much further then that.. If people outside the US are subject to US laws then the same goes the other way around.. or are we looking at a country who wants their laws to be forced onto others without any repercussions?

      • The article stated that Elcomsoft did not prohibit access for american people so it is subject to the US law.. is this necessary then?

        Where a similar argument was used against a US based company a US court basically said "tough". If France cannot tell Yahoo! how to conduct their business it's the height of double standards for the US to tell any European company what they can and can't do.

    • ElcomSoft and other Internet-based companies don't exist in some otherworldly realm...

      Exactly. A business case that's based on finding loopholes in U.S. laws resembles offshore banks whose sole purpose is evading U.S. tax laws instead of supplying normal banking services. If foreign companies who do business in the U.S. are not bound by the same laws as U.S. companies, U.S. companies are put at a substantial disadvantage for obeying the law.

      ElmcomSoft already has a plausible argument: It "did nothing wrong and merely created a program that lets people who purchase eBooks to use them in reasonable and legal ways for personal use." When lawyers start bring forward novel and dubious arguments to bolster their case, it makes you wonder if their fundamental case is sound.

      • Re:Internet outside U.S. (and all) jurisdiction? (Score:5, Insightful)

        by gorilla ( 36491 ) on Tuesday March 05, 2002 @10:21AM (#3112205)
        Doing something which is legal in virtually every country in the world except for the US isn't "finding loopholes in U.S. laws". As ElcomSoft have pointed out, under Russian law, making a copy is explictly required, and as eBook's aren't copyable, then in Russian law it's Adobe who are in the wrong.
      • i wonder how a judgement against Elcomm would affect the porn sites (and phone services) that host from netherlands, where the legal age limit is lower and the laws less strict. After all, they operate in the US at least as much as Elcomm did - they maintain billing servers in the US, they have employees there, they advertise in US magazines, and they target customers in the US.
    • Seems the working definition is "whatever the US government wants at the moment".

      If it helps the US government's interests for something to "exist" in the US, it is.

      If it harms the US government's interests for something to "exist" in the US, it isn't.

      Pax Americana! All roads lead to New York.

  • typical (Score:2, Insightful)

    by Anonymous Coward
    typical americans...

    they think everyone has to abide by thier laws

    • If you do business in this country, you are expected to obey the laws. One of the preconditions for doing business in any locale is to find out what the law is before you begin doing business (ie., sales, manufacture, etc.).

      IF Elcomsoft tried to sell their product to U.S. citizens and the product was illegal under the provisions of the DMCA, then they broke the law, plain and simple.

      You may sneer at our laws all you want, but that still does not give you the right to break them here without expectation of reprisal, regardless of intent.

  • It will never work... (Score:3, Insightful)

    by SkyLeach ( 188871 ) on Tuesday March 05, 2002 @09:16AM (#3111938) Homepage
    To concede this is to concede that the courts (of which the Judge is a representative) have no jurisdiction over companies doing business in the United States unless they have a physical presence in the US.

    No sane educated person would even begin to believe the court would self-sacrifice like that.
    • >To concede this is to concede that the courts (of >which the Judge is a representative) have no >jurisdiction over companies doing business in the >United States unless they have a physical >presence in the US.

      >No sane educated person would even begin to >believe the court would self-sacrifice like that.

      No US court would admit this. But unless the company actually sent goods to the US on its own, I fail to see how they're liable. If the product was ordered online by an US citizen, this US citizen should be guilty for importing such a software. If the mere fact of offering a product online makes one liable to proesecution under US law, why then is yahoo for example not liable to prosecution under french law?

      Simple answer: You cannot force the laws of 200 countries on everybody. That just won't work. No sane, intelligent person could think otherwise. Or can they?

  • We've seen this before... best of luck (Score:3, Interesting)

    by Indras ( 515472 ) on Tuesday March 05, 2002 @09:17AM (#3111939)
    Actually, this plea is along the same lines as whether or not satellites can be taxed as property [thepoliticaledge.com]. It's still a question of whether or not new technology can be thought of in the same manner. Nobody on the internet knows, or cares, where a website is stationed (and many times, it's not in just one location). People really start to see the internet as its own entity, separate from everything else. Same with the satellites. Kinda hard to put property taxes on something that is so far away from the earth's surface that it can't be seen.

    I don't know how this will turn out any more than the rest of us (unless you're closely involved in the case and can tell how well their argument is being presented, or what kind of defense they're facing), but I wish them the best of luck.

  • More Likely (Score:3, Interesting)

    by Alien54 ( 180860 ) on Tuesday March 05, 2002 @09:20AM (#3111950) Journal
    the Judge will be very amused by the argument, compliment them on how clever it is, that then say something like that
    even if the Internet is physically removed from the US, or is not attached to the US, etc. the people and companies doing things on the Internet do have physical real world assetts such as buildings, bodies, etc.
    In other words, since you need meat space assets to do things on the Internet, then the law can grab the meat space assets. This is law being applied to an alternate dimension, the Internet dimension, if you will, which has it's own analogies to the Physical world, but which does not always connect to it.

    Given that the points which are relevant are where this touches the physical world, such as computers. If I was a pick pocket who could reach from Britian to France to pick a Pocket, where does the crime take place? On Planet earth, obviously, but it could be argued that it takes place in France, not Britain. Since the events started in a meat space location, and ended in another meat space location, with meat space consequences, the intermediate media might not be relevant. On the other had, if you could have something that never originated in meat space, and never connected to meat sdpace, then the argument might have merit.

    hmmm, this argument may not have the results that the Russians want.

    • Re:More Likely (Score:3, Insightful)

      by radja ( 58949 )
      so the question becomes:

      did the seller (elcomsoft) export software from russia to the US, or did the buyer import software from russia into the US..?

      There is ofcourse another problem with your pickpocket reference: pickpocketing is illegal in both britain and france, elcomsoft's product is only questionable in the US, not in russia(it's perfectly legal in most countries, although certain uses may not be)

      //rdj

    • Re:More Likely (Score:5, Interesting)

      by BadDoggie ( 145310 ) on Tuesday March 05, 2002 @10:03AM (#3112123) Homepage Journal
      If I was a pick pocket who could reach from Britain to France to pick a Pocket, where does the crime take place?

      Great analogy, actually. Nice thought experiment. I had to go over it a couple times.

      The base crime -- theft of property -- occurs in France. There are UK laws and treaties which may cover your general participation in a crime. However, the central crime took place in France and, but for the EU, the UK police wouldn't give a rat's ass/arse... at least until France made an extradition request. If you don't agree, consider that without the pickpocketing, no other charges can or do exist, except perhaps Excessive Flexibility and Grievous and Malicious Reaching.

      At this point, your extradition trial should ideally take into consideration whether or not what you did in France is also illegal in France. However, the UK & France are both in the EU and would have to extradite. So let's try this a bit differently:

      Say you also stand in Norway and instead of dipping your hand in a Frog pocket, you go one country over and there, raise your right arm about 30-40 degrees above horizontal while yell the old mid-20th century chant. Germany has strict laws against this and would scream for extradition. Norway is not in the EU, so they are not bound to extradite, as would be the UK. This is certainly not illegal in Norway and Norway may well refuse to extradite you for the crime committed in Germany.

      This is where we already have precedents in the US, and specifically with these laws. Where Denmark was required by the EU to extradite Gary Lauck to Germany even though they (Denmark) have no anti-Nazi laws of their own, the US could and did not extradite Lauck. They wouldn't even run him for mail fraud because what he was sending (he was the central source of neo-Nazi propaganda) was perfectly legal to send in and from the USA. No extradition. There's also no shutting down of neo-Nazi sites hosted in the US depite Germany's repeated requests, so all the little bastards get cheap and legal US hosting. They can only then be tried in Germany if it can be proved that they, within German (or EU) borders, were responsible for the site. ISPs don't give out customer info, not in the US and not in Germany.

      Because this is the US' official position on this subject, they cannot claim that a Russian and/or his company can be held liable for doing something which is legal within their own country's borders , even if doing so violates the laws of the US, Q.E.D.

      woof.

      This took too long to write and no one's gonna see it. Bah.

      • Or consider the case of two border guards on a shared Island in the Bering Straights. One half the Island Is US, One half the Island Russian. While standing at the border chatting, one guard reaches across the border into the pocket of another to pick the pocket. You pick the which side does the picking.

        Case Two: Same Scenario: Border Guards are both civilian

        Case three. Russian Civilian border guard, shows the Ameriocan civilian border guard displays a poster filled with vile russian pr0n, which upsets the American.

        Case Four: A russian civilian displays a poster across the border with information potentially illegal in the US. If it was easily readable, that would be one thing. If it was only so readable when you got ahold of a set of decent binoculars, etc that is another. (The american would have to make the effort to access the information)

  • Outside France... (Score:5, Insightful)

    by MosesJones ( 55544 ) on Tuesday March 05, 2002 @09:21AM (#3111954) Homepage

    If Yahoo aren't constrained by French laws then the obvious result is that US laws don't apply in Russia. Unless of course the judiciary are bigotted hypocrits who feel that their laws should apply to everyone.

    Personally I'm betting on the later as I don't have a great deal of faith in the US system being consistent as its record is that it protects US interests rather than rules according to law. You could say "well so they should" but the effect of that is to mean that US courts are biased, and to be contraversial.... racist, as they judge an applicant by their nationality.

    • Unless of course the judiciary are bigotted hypocrits who feel that their laws should apply to everyone.

      I think you said this as a joke, I think you need to take a long hard look at recent (internet/dmca) ruleings in the U.S. :-)

    • Actually, Yahoo makes a perfect example for this. In that case, the Yahoo France site properly and promptly complied with French law. Yahoo's complaint was that France then went after the US-based Yahoo.com site and were trying to make them comply with French law as well.

      If ElcomSoft only had assets in Russia than there would be a good case that US laws don't apply to them. The US could probably try to get them on some Import violations for sending copies of the software into the US, but it would have to be proved that the DMCA applies in cases like that. Since it appears that ElcomSoft has a physical presence (servers and employees) within the US then they have to abide by US laws. (It would be even more interesting to see if they have a US-based business entity as well.)

      • Yahoo.fr is a subsiduary of Yahoo, therefore Yahoo has a physical presence (servers and employees) within France.

        So where is the difference ?

  • De Beers a classic example (Score:4, Informative)

    by tapiwa ( 52055 ) on Tuesday March 05, 2002 @09:28AM (#3111974) Homepage
    The US cannot continue to try and impose its laws on the rest of the world. The De Beers example is a case in point.

    For years the directors of DeBeers have been unable to travel to the US due to outstanding anti-trust caes's against them.

    Still they continue to trade, and travel the rest of the world. This article [american.edu] tells how previous cases against the company have failed. Now, having realised how futile their attempts are, they are trying to play nice [ft.com] with the company.

    The US can declare jurisdiction over the entire internet, but unless they do a Noriega, and go in and kidnap a few people, the laws will not mean much unless people visit the US.
    • Antitrust is a special case, because the free market is compromised. In most cases, a company conforms to the law of the jurisdiction or doesn't do business there. If there are multiple companies, some will conform in order to profit form that market, while others won't in order to profit more in other markets.

      This doesn't work in the De Beers case because there aren't really multiple companies. Thus the U.S. and anywhere else they've violated antitrust law are forced to choose between compromising their laws or forgoing the product altogether. Since the latter just leads to black markets, they've opted for the former. Moral of the story: it's nice to have a ridiculous amount of market power propped up by a government willing to keep you in place.

      In most cases, though, the concept of "if you do business with us, you abide by our laws" holds.
      • "if you do business with us, you abide by our laws"

        problem is, that because of the internet, you can "do business" with the whole word. You're not sure of the citizenship status of all of your customers. They are doing business with you, by visiting your site. You may just have set up a bot to process orders and email out software. I think as the internet becomes more of a business force, more responsibiliy will shift from the seller to the buyer.

    • Re:De Beers a classic example (Score:4, Insightful)

      by HuskyDog ( 143220 ) on Tuesday March 05, 2002 @10:13AM (#3112175) Homepage
      The US can declare jurisdiction over the entire internet, but unless they do a Noriega, and go in and kidnap a few people, the laws will not mean much unless people visit the US.

      This is precisely the "problem" which the Hague Convention on Jurisdiction and Foreign Judgments [slashdot.org] is designed to "solve". Once it is in force the USA can simply write to whichever country the De Beers directors happen to be residing in and that country HAS enforce the judgement of the US courts.

      I confidently predict that this will only work one way round. The first time that a court in somewhere like China tries to enforce a ruling on a US citizen they will claim protection under some clause of the US constitution and nothing will happen. Perhaps I'm just an old cynic.

      • The first time that a court in somewhere like China tries to enforce a ruling on a US citizen they will claim protection under some clause of the US constitution and nothing will happen. Perhaps I'm just an old cynic.

        No, you're not a cynic, you're realistic. As a US citizen, even I find this to be bad policy. It will be biased in favor of the USA, and while my government officials may find that wonderful, it's going to result in long-term anti-US sentiment. Afghanistan will be the least of our worries. Not to mention that countries are soverign! Why would they put up with such disrespect?

    • Citing De Beers as an example doesn't exactly arouse sympathy in me.

      De Beers is one of the most manipulative, monopolistic, thug-like conglomerates in the world today. While I'm surprised at how well they managed to turn something of no inherent value into something of incredible value, I find their practices rather dubious and worthy of careful scrutiny.

      They gather several dozen tons of diamonds every year -- and do you ever wonder why diamonds still cost so much? Thank De Beers for that. Not to mention their continuing contribution to political strife in Africa, use of intimidation tactics to discourage competition, etc. etc.

      Sorry for the rant, I just think people should consider where diamonds come from before they assign them so much artificial value.

  • Interview with Dmitry Sklyarov (Score:4, Interesting)

    by Anonymous Coward on Tuesday March 05, 2002 @09:42AM (#3112033)
    Is here [dpds.net].


    Q: Which brings us to the DMCA, a law you believe hurts the public without
    preventing illegal copying. What's your objection?


    A: It's the anticircumvention parts of the law that concern me the most. It
    goes beyond protecting copyrights. It goes beyond prohibiting copyright
    infringement -- which of course was already illegal before we had the DMCA --
    by outlawing certain technologies and certain kinds of discussions.

  • EU law to follow (the DMCA) (Score:2, Insightful)

    by jeks ( 68 )
    Having studied some United Kingdom and European Union patent laws at university, it seems obvious EU will have to follow suit. Looking back at the 1973(?) patent act of UK it seems obvious that software was intentionally not covered by patent law. However, when a software product developed in England was later patented in another country, it would prohibit the original English inventor to export to that country. Hence, with various vague arguments and precedent cases the law changed to include the notion of a patent "governing an invention which can be translated to a software program".

    Hence, as long as US copyright and patent law is as aggressive as it currently is, EU and the rest of the world will have to follow to some extent to remain competitive in the international market. I can't see ElcomSoft getting away with their argument as it would lead to a severe split in any Internet related trading crossing the aformentioned "law boundary".

  • Canadian ISPs (Score:3, Interesting)

    by EvilAlien ( 133134 ) on Tuesday March 05, 2002 @09:48AM (#3112065) Journal
    A similar problem faces Canadian ISPs.

    They would love to be able to tell complainants citing the DMCA to just go away (i.e., some user on a broadband service puts up a server on their DSL or cable line to distribute warez, mp3s, etc, and the right-holder in the US calls/writes to demand the user be shut down). Usually, copyright from one country is not in force in another, you need to establish copyright under both legal codes. The efforts of rightsholders in the US to enforce their law in other jurisdictions muddies these waters considerably.

  • Ummm.. yeah... (Score:4, Interesting)

    by macpeep ( 36699 ) on Tuesday March 05, 2002 @09:49AM (#3112070)
    Kiddy porn isn't illegal on "The Internet" so it's fine to do it there. Right? Of course not!

    Why do people think that the Internet is somehow a different place, outside of all nations. It's not. It's made up by servers and cables that are on the territories of real nations. It's used by people and companies who live in real nations. These people and companies are bound by normal laws. If I send kiddy porn from Finland to the USA over the Internet, why should it be any different than if I send it with normal mail and the pictures are physical?

    Same thing in this case! The defence is completely brain dead!

    • Re:Ummm.. yeah... (Score:5, Insightful)

      by Bartmoss ( 16109 ) on Tuesday March 05, 2002 @10:37AM (#3112274) Homepage Journal
      IANAL. This is my opinion only.

      In your example, YOU send kiddy porn from finland to the US. This could be viewed as a deliberate act. It's illegal in both countries, so your example is not a good one. Let's tweak it. You have a photo of a nude woman on your web page. It's not even a hardcore pr0n photo. Just a nude woman. Someone in, say, a islamic country takes offense. The photo he just downloaded from your website violates his local law. On your next trip to eastern Africa, you are arrested and flogged in public.

      Is this fair? Certainly not! Of course the internet is not a "palce" devoid of any laws. The tough nut is: Whose laws apply? The only sane solution is that the laws of each individual's location apply to this individual. The internet cannot make a user liable under the laws of all 200 something nations on this planet. That's just insane.

      So barring any international treaties (of which I am not aware), the DMCA has absolutely no effect on what goes on in Germany, Russia, or Republic of Madagascar. The US is free to make up their own laws, but please don't push them down the throats of everybody else.

    • Re:Ummm.. yeah... (Score:5, Insightful)

      by Rogerborg ( 306625 ) on Tuesday March 05, 2002 @10:57AM (#3112382) Homepage
      • Kiddy porn isn't illegal on "The Internet" so it's fine to do it there. Right? Of course not!

      Ah, if only the real world was so black and white. When you say "kiddie porn", you invite us to consider morally reprehensible images of pre-teens and agree with you by reflex.

      Now let's discuss a relevant example. You get sent a posed image of a nude 15 year old girl from Japan. Is that illegal?

      Well, it's not illegal in Japan. Age of consent is 13, with protections against exploitation. Argue the morality of that, but not the legality (unless you want to argue exploitation, but we'll assume a clued up 15 year old who's making money, it does happen). Where does the illegality start? When the packets cross US borders? When they enter equipment owned by a US company, even if that's in Japan? Is the act of sending the material outside of Japan illegal? Illegal in who's jurisdiction? Is it illegal for you to keep the images ("of course!" to quote you). Are you beholden to report the receipt to US law enforcement, and if so on what grounds? Should US law enforcement try to have the sender extradited? Should they try to prosecute the sender's associates in the USA?

      This case isn't black and white. If you want to discuss it, bring your wisdom to bear on the above example rather than setting up a strawman.

    • How about other the countries that the data is being routed thru in the process of being led to the usa?
      Would they be able to prosecute you?

  • lCD (Score:5, Insightful)

    by cgenman ( 325138 ) on Tuesday March 05, 2002 @09:51AM (#3112073) Homepage

    If the courts find that the U.S. can hold foreign companies to US copyright law because they transact over the net, the ramifications go much father than just businesses. This means that China (under US interpretation of law) can hold the Founder of FaLun Gong guilty of breaking their intellectual property laws. The average person won't be able to buy controversial items (such as satanic verses, hitler's smoking jacket, DVD's of any kind) because of the expense involved in maintaining dozens of country / locality / product type blacklists as well as location verification. In short (and probably in redundant) this will dumb down the net to the LCD. Basic Yahoo vs. France stuff.

    Of course, it would be a shame if this were the case to set a prescedent, as many articles [wired.com] have pointed out that Elcomsoft ran a server out of Chicago, communicated with US customers in english, and was quite aware of the law. Yes, this is why their approach is so novel: they are arguing that the infrastructure of the net on the US soil is not under US law. Novelty is no substitute for intellectual prowess. They really haven't a snowball's chance with that line of legal reasoning any more than an indian tribe who asserts sovereginity and tries to grow hemp. It's that specific that makes it so sad that this case will be applied overly broadly to anything American corporations don't like. We own our net, so QED we own yours.

  • The test of any Jurisdiction is can the Court exerted its Authority over that Jurisdiction.

    The Internet has repeatedly demonstrated than National courts cannot (PGP, DeCSS, et.all), as worst they can only exert their authority over a small proportion of it.

    If they cannot exert their authotity over it, then defacto, they have no Jurisdiction.

  • Think it through (Score:3, Insightful)

    by Arsewiper ( 535175 ) on Tuesday March 05, 2002 @10:20AM (#3112203)
    This whole notion of worldwide law enforcement (aka xenophobia). What's to stop Russia or China making a law stating that all software and media must be open source and copyright free if sold or marketed over the internet.

    Be careful what you create - even Bibles are illegal in some countries.

  • From the article:
    'Katalov: "The DMCA is an unclear and vague law that may put legitimate businesses, technological innovations and innocent people in jeopardy."

    'If the motion to dismiss is not granted, Katalov's lawyers intend to argue that the DMCA is "overly broad and vague in violation of the Due Process Clause of the U.S. Constitution." Pending the results of Monday's ruling, that hearing is set for April 1. '

    In reality the argument that the Net is outside the jurisdiction of U.S. Law is ridiculous, and will get stomped down. However, their backup argument may be the stronge one, and how much irony would be involved when a Russian (former USSR) argues that a U.S. law is unconstitutional and wins in U.S. court?


  • This suggests an intriguing idea: Internet Independent.

    Prerequisites:

    1) A declaration of an Internet Independent.
    2) A declaration including extra-territorialism.
    3) A declaration including openness and freedom.
    4) A when connecting to the Internet is recognition of this declaration (#1).
    5) subversion of this independence, may result in Internet sanctions(#2).
    6) signing the declaration confers certain Internet Citizenship rights, and responsibilities(#3).

    #1 I recognise this is difficult to achieve in practice, however two possibilities suggest themselves to me. a) This condition is included in any next-generation future-net system. b) This position is acheived progressively, over time, 'if you want to connect to the Independent Internet, you must recognise it's independence' as expressed in this declaration.

    #2 Partial or complete disconnection from the internet, using a mechanism similar to the RBL. This could range from a the whole sub-net of a State to a single IP:Port.

    #3 The responsibilities are those consistent with compliance with the declaration.

    Why? I've always believed we need a Technocratic Meritocracy.

  • Just use NAFTA, chapter 11. (Score:2, Insightful)

    by Anonymous Coward

    Another way to beat the DMCA:

    Use NAFTA, chapter 11, which entitles any single investor in a business from one member nation to sue the government of another member nation for, pretty much anything which harms that business, including passing legislation, as I understand it. (from watching a TV show, I am not a lawyer.)

    As one Canadian official put it (paraphrasing) if an American company sold breakfast cereal in Canada which contained plutonium, and we (Canada) passed a law prohibiting putting plutonium in food products, the Americans could sue us.

    The scary part of this is that the arbitration is conducted behind closed doors by a committee. It basically undermines member nations soveriegnty, their power to make and enforce laws, and is a pretty terrible thing (according to the TV show I watched on PBS [google.org].)

    On the bright side, maybe someone can use it to destroy the DMCA.

    Here is NAFTA [google.org].

    Enjoy.

  • Here [216.110.42.179] is a link to a (very) summerized verion of the DMCA. This [senate.gov] shows how the Senator is making no mention of the SSSCA on his own web site where he proudly lists the issues he has worked on. Lots of other gigantic conflicts of interest can be found here as well. [opensecrets.org] I'd list more, but I have to go to work so I can make money to buy things that violate the DMCA..
  • called the WCLO World CopyRight Law Organization in order to get Laws like the DMCA enforced everywhere.

    then they can inform the RIAA and MPAA that they will be protected by US copyright law only if they do business in member nations.....how soon do you think nations outside the WCLO would want to join? or perhaps they will jhust form their own industries, and then we will have an entertainment cold war.....movies and music from WCLO would not go to the other side and the other ide would not send their movies and music over to the WCLO nations.
    • Countries would just not join this grand organization, and copy things all they wanted to. Essentially, it would be no different from today, except that the US government would have an actual puppet forum through which to bitch.

      Hell, China would join the organization and copy all they wanted at the same time. China is like that.

  • Their argument: since the Russian company is based on the Internet, it is outside the jurisdiction of the DMCA. This is rather interesting if it holds up, because it would set a precedent which would allow other countries to tell the DMCA to just go away.

    Not to mention that it would legalize cocaine trafficking for internet based companies. Give me a break. It isn't going to happen.

  • DMCA vs. Fair Use ? (Score:5, Insightful)

    by MyNameIsMok ( 462188 ) <sillytenant.yahoo@com> on Tuesday March 05, 2002 @02:11PM (#3112933)
    hi,
    so, let me get this straight.
    1) DMCA says you cant publish information which will allow someone to violate a copyright.
    2) Fair Use Act says you're allowed to copy copyrighted material for backup purposes. From what I understand, you are also allowed to copy the material to be used in another format. i.e. copy CD to MP3 (?), DVD to VHS (?), etc.
    3) If it's legal to copy something from one format to another, and the company providing the original content prevents you from exercising your rights under Fair Use, shouldnt there be a large contingent of class action suits against the content providers for actively and intentionally limiting your legal rights?
    4) perhaps there should be a suit against the media providers to force them to provide format exchangers as a courtesy to their customers? :)
    sTc

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