Supremes Grant Stay in Pavlovich DVD CCA Case 83
endall writes "Sandra Day O'Connor granted a stay last week for DVD Copy Control Association so that the court could gather more information. She requested filings by later this week.
I'm guessing that this delays implimentation of the California Supreme court decision on the matter."
Consumer rights!? (Score:3, Insightful)
Now that we have our rights equated with money, it will all come down to who has more money, and no prizes for guessing who.
Re:Consumer rights!? (Score:1)
by RIAA math (Score:5, Insightful)
You seem to forget that corporate money is worth more in this instance because they are more likely to "donate it to particular political groups."
Being a minor, my "comsumer rights" are worth less than $0. Those of you whose opinions are affected by this probably vote Libertarian [lp.org] anyways.
Re:by RIAA math (Score:5, Funny)
In truth, they're talking about billions of dollars. It's just that some of these dollars spin REALLY quickly, so they're equivalent to three or four times as many [slashdot.org].
I left out the link (Score:2)
Re:wtf? (Score:1, Troll)
Re:by RIAA math (Score:1)
Re:by RIAA math (Score:1)
If there is one thing that you can take from this rant, it will be that no matter who you vote for, VOTE! Even if it is a write-in for your favorite comic book character. When the politicians only win by simple majorities and most votes go to write-ins will they begin to listen.
Re:by RIAA math (Score:2)
Re:by RIAA math (Score:1)
Re:Consumer rights!? (Score:2)
Only if the lefts are right angles...
Not necessarily... (Score:1)
Now, your statement says that "[Three lefts do make a right, ]if the lefts are right angles." That would mean that the eventual 'right' has to be 90, as well. I disagree, as that's not a given in the initial equation. Try, on the same axis, that a 'right' can be considered anything in the 0-90-180 arc, and therefore, the three lefts do NOT have to be right angles. However, too little or too much angle would result in non-right angle conclusion, therefore, each left-angle must be greater than 60, but no more than 120.
So hah. Or something.
Re:Not necessarily... (Score:2)
Re:Not necessarily... (Score:2)
hmmm (Score:5, Funny)
Re:hmmm (Score:2, Offtopic)
Re:hmmm (Score:2)
Moderation Totals: Offtopic=1, Troll=1, Funny=4, Overrated=2, Underrated=1, Total=9.
No matter where it ends up, you can say you have touched several people today in some small way!
Re:hmmm (Score:1)
Re:hmmm -- wow (Score:2)
Kudos to your current Moderation Totals: Offtopic=1, Troll=1, Funny=7, Overrated=2, Underrated=1, Total=12.
You need an Insightful, Informative, and Flamebait to collect all eight (are there more?). 8 points have been vaporized forever in this clash of titans. Not bad for your mere 20 words! What are the records here?
Re:hmmm -- wow (Score:2)
"The Supreme Court is structured like a geriatric Menudo."
Re:hmmm -- wow (Score:1)
I was really hoping for more pairs of overrated-underrated...
Just location? (Score:4, Interesting)
So it's basically a chance for the US SC to decide whether or not they agree with the Australian SC, which seems to feel that jurisdiction is wherever anything is read, not where it is published or intended to be read.
Or are there other issues I haven't mentioned here?
Re:Just location? (Score:2)
The internet raises some tough jurisdictional challenges. With respect to libel, it was pretty easy to say where the lies were published, as in you could potentially restrict where books or newspapers were sold. Lots of doctrine up to now has been based on notions of locality and community. But now, as I type these words, I could be speaking to any corner of the planet. The amount of harm these words cause (none I hope) will be exactly the same, but possibly everywhere. Someone with bad intent has unlimited reach; someone who means well can get tagged from anywhere. Intimidating, and potentially subjecting everyone to the worst crooks, strictest laws, and craziest plaintiffs on the planet.
These "just location" questions will be a lot bigger in the long run than the DVD stuff, maybe that's why the US SC is taking a sniff early.
Re:Just location? (Score:1)
My question to the more legally "competent to comment" /. readers is what is the normal rule of law for jurisdictions where the plaintiff and defendant are in different places?
Oh, really? (Score:3, Funny)
Even in haiku form [cmu.edu]?
Re:Oh, really? (Score:1, Interesting)
And what if someone makes an image of the US flag and xors the top line with the zipped file of the perl implementation? Would that image of the US flag be illegal?
Re:Oh, really? (Score:1, Funny)
Add the words "under God" in a comment to the code. Then watch the furor if the court decides to ban its publication.
No Doubt they'll ban haiku and novels next (Score:5, Interesting)
Too bad for them the constitution still provides a modicum of protection of my right to write, and publish if I so wish, a novel [expressivefreedom.org] that just so happens to contain not one, but TWO encodings of DeCSS (including the inspired haiku you point out).
The entire document is shared freely under the Creative Commons Attribution-ShareAlike License, with paper copies having already travelled throughout the world, and digital dissemination even wider.
Cry me a river for the DVD CSS thugs
Re:Oh, really? (Score:2, Interesting)
I say that the CSS algorithm is no longer a trade secret and since there is no way they will ever eliminate it from the net, and since they have the knowledge that thousands of people have it online and refuse to sue them, the argument that the other people are contributing to law infringement is absurd. Either sue everyone or sue no one. End of story.
Prosecute the New York Times too! (Score:2, Interesting)
Terminator (Score:4, Funny)
And the question is...... (Score:2, Insightful)
I doubt that the Supreme Court is going to answer the question on the legality of the DMCA or the issue of consumer rights versus the right of the MPAA to screw us.
where are the new products and services? (Score:5, Informative)
New York technology analyst Richard Doherty said companies have delayed many new products, services and forms of entertainment because of the DVD industry's problems.
Yeah, they sure did, like, the VCR, the Rio, PVRs, Napster, My.MP3.com, DVD copying software, all that stuff was delayed or killed by entertainment industry bullshit.
Oh wait, I forgot, only the content providers are allowed to come out with new technology, my bad! You know, like DivX.
Re:where are the new products and services? (Score:1)
Actually, DIVX is what you're porobably referring to. DIVX was the failed Circuit City rental DVD thing that sucked, hard.
DivX is the video codec, coined from cute creators who were poking fun at the disaster of the DIVX product. It was, at one point, named 'DivX
Re:where are the new products and services? (Score:2)
Yeah, and that switch from uppper to lower case is so much more erffective at that differentiation...
Re:where are the new products and services? (Score:1)
He probably was referring to technologies you conveniently overlooked, like Digital Audio Tape (DAT) which was killed
From the article (Score:4, Interesting)
``The future of digital delivery has been on hold ever since this case first came," said Doherty, head of The Envisioneering Group. ``They need to know it's going to be protected, it's not going to be ripped off seven seconds after being put on the Internet."
First: yes, companies have delayed products and forms of entertainment. Big deal. Companies delay products all the time for reasons that have nothing to do with tech.
Second: If you know your movie is gonna be ripped because you released a DVD, and you don't want that, don't release the movie on DVD. Don't blame someone else for your shortsightedness. There is no law, statute, regulation, or rule in this country entitling the entertainment industry to release XXX on DVD or Britney Spears on CD -- they do it as a calculated business decision. If they choose to release it anyway, they should (and do) expect it to be copied. Yes, it's against the law, but they know it's gonna happen, and so do courts and juries. Once enough people assume copying as a God-given right (and many younger people don't even know ripping nee copyright infringement is illegal), juries will overturn regardless of the law.
Why do they call it 'common sense', when it's so rare these days?
Half-assed reporting (Score:4, Informative)
Re:Half-assed reporting (Score:2)
No, it's not about that. It's about a program that decrypts the CSS on those little plastic disks that you have, and the laws that give encryption the same (maybe better) legal protection as the locks on your house.
And the case is about "is code speech?" in the same way that "George Bush sucks" speech or is it speech in the same way as "Sheetrock's SSN is XXX-XX-XXXX, his real name is XXXXXXXXX, his credit card number is XXXX-XXXX-XXXX-XXXX expire XX/XX [etc]".
Oh, and the case is also about "can the Australian court issue orders that are enforceable on US soil?"
The fact that said decryption algorithym can be used to read DVDs on Windows, Linux, or to make copies is largely irrelevant. Sure, the fact that it's a method of access for non-Windows non-Apple folks with a PC-DVD ROM drive gives DeCSS merit as a piece of software exempt from the DMCA, but I doubt that the court will rule on that at all--or if they do, that their ruling will make the FSF happy.
Re:Half-assed reporting (Score:4, Insightful)
This kind of reminds me of the whole problem a few years back when some pirate and thief invented something called a "printing press" that disrupted the information flow and control of the current powers and let people create their own independent information. The creation of the "stationers Guild" controlled use of the printing press so the powers that be (Church) didn't lose control of content creation and distribution.
I believe this is why the "freedom of the press" clause exists in the Bill of Rights. (Search for "licensing act" and "freedom of the press".) Not only can you "speak" with your voice, but you're allowed to use mechanical means to speak, as well. This is the same battle that was fought a few hundred years ago...
Re:Half-assed reporting (Score:1)
I'm confused about this. If the 'contract' I have entered into (not signed) can be broken by a scratch, I don't believe that it was a contract in the first place. I should be able to get the data from anyone else with the same DVD. If I haven't entered into a contract, then I should be able to back up my data anyway. At least that's what I think. I had a shot in the ass of prednisone because of a sinus infection, so my mind is a little loopy tonight. Or this morning. Whatever.
Potential Cert Petition (Score:5, Informative)
Second, Justice O'Connor is responsible for granting the stay since the 9th circuit is her "territory" for these matters.
The next step is to see whether four justices want to vote for a grant of certiori to hear the issue of whether the due process clause of the Fourteenth Amendment permits this type of "universal jurisdiction."
As to the merits, the law is increasingly on Matt's side. For example, the Fourth Circuit (VA, MD, NC, SC...) recently determined that merely putting information (copyright infringement and libel cases) on the internet does not subject a person to jurisdiction. It requires some real purposeful availment of the forum (i.e. conduct directed towards CA). Pavlovich never availed himself of California law or directed his activities at California, thus under the majority of circuit law, he is not subject to personal jurisdiction in California.
The alternate view, from Australia and a few court decisions pertaining almost entirely to bad-guy cybersquatters, finds universal jurisdiction comporting with due process requirements from mere posting on the internet. Under this theory, you purposefully avail yourself of every forum by merely posting on the internet and assume you can be hauled into court anywhere.
While this may fly in Australia, due process under US law would have to be stretched beyond its limit to allow such jursidiction, and, as more and more of life becomes electronic, it would render the limits on personal jurisdiction in states entirely meaningless. Add to that the fact that the supreme court seems particularly unimpressed by foreign decisions.
The biggest problem for the DVDCCA is that this personal jurisdiction analysis is directed at the defendant, Matt Pavlovich. No matter how great DVDCCA's alleged harm, it is the Defendants' conduct that matters, the plaintiff's conduct is not relevant. He didn't take the information from CA but from third parties, and only has liability if he "should have known" it was a trade secret, had some sort of relationship with the DVDCCA, or actually misappropriated it himself.
Only the "should have known" theory applies here -- and it seems notoriously difficult for the DVDCCA to prove that this amounts to direct conduct aimed at CA.
So, in a nutshell, even if certiori were granted, it seems unlikely that the decision would be reversed, but rather it would be a good opportunity to settle the question that there is no "universal jurisdiction" in US courts over conduct on the internet unless it is aimed at or takes place in a particular state.
Anything in this comment constituting legal advice is false...
Anything in this comment constituting a disclaimer of legal advice is falser.
Re:Potential Cert Petition (Score:2)
Despite the hype on Slashdot, that's not what the outcome of the Australian case was at all. Rather than go back into the murky details, I'd direct your attention to the search feature and suggest you read the ruling, including the court's comments again before sowing this type of hype.
Other than that, good post.
Re:Potential Cert Petition (Score:4, Insightful)
If the California court was wrong and mere posting (publication) is enough, then the DVD case becomes essentially a speech case. A question: If "purposeful availment" or any standard more than "mere posting" carries the day, does that mean different rules for the electronic and print versions of the New York Times? (Or any other publisher.) Would editors say, "Well, that story's a little hot, put it in only the web edition"? Perversely the more international of the two versions would get the greater protection. What if they post on the web to avoid the law of a particular country where the print edition is not sold, while also providing translation into that hypothetical country's unique language?
I'm sure these and other Q's have already been played with, and perhaps soon will in the SC. Should be fun, from a distance.
Re:Potential Cert Petition (Score:1)
In that case, a connecticut newspaper, aimed at a connecticut audience, posted an article purportedly libeling the warden of a virginia prison. But the court found that the existence of a web site was not enough -- the web site must somehow be directed towards the forum that wants jurisdiction over the defendant.
As to the actual conduct, the newspaper obviously knew that the article discussed the virginia warden. But the article does not, in itself, confer jurisdiction.
The defendant must somehow have enough contact with Virginia to permit jurisdiction: the test is "minimum contacts" sufficient to "comport with traditional notions of fair play and substantial justice."
To find these contacts, the court looked to the web site (the source of the contact) - not the article (the source of the lawsuit). The web site was directed at a connecticut audience, only advertised to a connecticut audience, and the newspaper had no contacts at all with virginia. Thus, the newspaper web site has no minimum contacts with virginia with which to support personal jurisdiction over the defendant newspaper for posting the article.
If the newspaper had been a physical paper (it is, in fact also a physical paper) then the same analysis would be applied. The article would not be enough, unless the newspaper undertook affirmative acts (such as having paying customers in the forum state) to take advantage of the forum.
This has two practical effects. First, it doesn't prevent someone from suing a defendant--it just requires them to sue where they actually conduct their activities.
Second, this result actually means that internet publications will be treated the same as print publications, at least within the united states.
This obviously creates a problem, especially in the speech areas, with varying European and British laws. Americans certainly do not want to be subject to British libel laws unless they direct something to Britain, not just for posting things for an american audience.
So take the Gutnick case from AU. Under the 4th Circuit test, if the purportedly libelous statement was posted in the East Asian edition of the WSJ (which includes Australia) then it would (in this hypothetical) be more likely to meet the american minimum contacts standard. This is simply because the speech was directed at the forum state, and thus the author should expect to be responsible for posting targeted at that forum.
The opposite result would be rather dangerous: Imagine Slashdot, and any slashdot poster, subject to Saudi Arabian censorship laws. Or more deviously, American discussions of foreign policy and intelligence on web sites such as crytome.org subjected to the official secrets act. Imagine the effect on the NY Times if William Safire knew that the NYT was now subject to libel suits in Singapore for postings directed at the United States complaining about Singapore's government. Such a stifiling of commerce, speech and internet development wouldn't solve anyone's interest.
Now, about your hypotheticals:
(1) The Fourth Circuit test actually applies the same minimum contacts analysis to both physical and internet speech.
(2) If, as you suggest, a translation into a hypothetical country's unique language is included on a web site, that would be a strong indicator that the newspaper intended to target that forum, and would support (but wouldn't be definitive) of minimum contacts. For example, the LA Times serves a city with a large hispanic population. If it were to publish articles in spanish on its web site, that would not mean the LA Times was focusing its web site at Spain, Argentina or even Mexico.
Re:Potential Cert Petition (Score:2)
The analysis you describe is pretty much as I would expect. There will be no bright line, always discomfiting in free speech.
Funny you mention Singapore, you probably know of the numerous libel run-ins the Int'l Herald Tribune -- backed by NYT -- has had there. e.g., Safire column [sfdonline.org]
One thing I can predict is that many law professors will use this problem to roast poor law students over the Socratic fire of hypotheticals.
Trying to put cat back in bag? WTF? (Score:1)
Why are they taking up the court's time requesting a stay for that? It's not like said program isn't posted in a million other places...
Re:Trying to put cat back in bag? WTF? (Score:3, Informative)
Because, once armed with a decision in their favor, the DVD CCA can use it to strong-arm ISPs and individuals and intimidate them into taking down the information. Even though a victory against one defendant in a tort case doesn't gurarantee victory against subsequent defendants, a win for the DVD CCA here could get a lot of fence-sitters -- as well as defenseless people -- to cave in.
Schwab
Re:Trying to put cat back in bag? WTF? (Score:2)
Because, once armed with a decision in their favor, the DVD CCA can use it to strong-arm ISPs and individuals and intimidate them into taking down the information.
Actually, no, they can't. All they'll do is succeed it into more of a free speech issue. And I don't mean some legal, bullshit free speech issue, I mean a "My drunk skinhead neighbor is going on about niggers again, but I'm glad I know he's a racist" issue. Any such decision by the courts to stifle expression simply drives people underground. And nobody can do underground data quite like geeks can. Stop by DataFetish [datafetish.com] and try to find the DeCSS code. There are so many ways information can be encoded and obfuscated that the only effective legal decision is to completely take away all a citizen's rights.
Re:"Pablovich" sounds like some Russian dude... (Score:1, Offtopic)
After reading so many of these, I'm wondering... Should it have taken a whole hour and twelve minutes for this to happen?
*ducks the mod-gods*
Compounded Joke Rule (Score:2)
The first joke may or may not be funny.
The second joke is only funny if it is funnier than the first joke, and only by the amount it is "more funny".
The third and subsequent jokes are only funny if they are funnier than the sum of previous jokes.
Once you've gottent to the 500-something-th iteration of a joke, it's _JUST_NOT_FUNNY_ANYMORE_!
That recurring straw man (Score:5, Insightful)
Why should we change the Internet so you can better peddle your wares on it, Mr Doherty? It wasn't meant for this. And please, stop this straw man that your fight is to enable the "future of digital delivery". It's not, for it's obviously independant of any plans in that direction.
Alpha Video (Score:1)
Copyright extremists shouldn't control information (Score:2)
What about the other delay? (Score:2, Interesting)
Why hasn't anyone done a study to see how many potential product-buyers have delayed buying new technology because of digital restrictions? Isn't the negative economic impact ensuing from the introduction of digital restrictions just as important for groups like the FTC to consider as the industry mantra that the lack of DRM is an economic hindrance?
I for one still use analog VCR and audio tapes because I just don't want the digital hassles. To me, the existence of DRM is just as much a drag on the economy as its absence.
Jurisdiction (Score:4, Insightful)
The comment of Pavlovich's attorney is misleading (quoted who knows how far out of context): the question is not whether California might be an inconvenient forum, but whether the federal Constitution even allows it to be the forum, as Justice O'Connor perhaps suspects it might.
I'm surprised that this is being handled as an emergency stay instead of the ordinary certiorari route, which is slow but the routine. Usually this emergency one-Justice power only gets mentioned when executions are imminent.
in other words... (Score:2)
Stay withdrawn (Score:1)
Last Post! (Score:1)
-- Albert Einstein
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