RE: [dvd-discuss] Internet: an independent country?

[microlenz(at)earthlink.net]

Good Points. Another one is that the courts and countries need to figure
out how to deal with the issue of the Internet. WRT to Elcomsoft, the
court  did not make the distinction between Elcomsoft-A corporation which
does something legal in Russia that is allegedly illegal in the USA and
Dimitri Skylarov who was an employee of that company AND only spoke about
his work in the USA. The First issue is dealt with routinely by the
customs department. and AFTER DUE PROCESS if the courts find that
Elcomsoft is indeed violating the law then it is the customs department's
duty to tell whomever is aiding Elcomsoft that they are to cease.
Elcomsoft does in Russia is outside the jurisidiction of the USA and its
court system but is not allowed to export it to the USA. As for the
latter, as a visitor to the USA, Dimitri does enjoy a large measure of FA
Protection Under the COnsititution. Presumably one reason that this has
always been allowed was the hope that other might learn to like it and try
importing it into their respective countries. Our current crop of
Legislators and Executators seems to have forgotten that. What they also
have forgotten is that nations have sovereighty and the right to grant
asylum.

Does DMCA violate international law? GIven the stifling aspect of it upon 
speech it violates US law. Is WIPO likely to take up the cause? WTO? I doubt 
it.



                      "Glendon M. Gross"                                  
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                      06/19/2002 02:29 PM                                 
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                          dvd-discuss                                     






I don't understand the logic behind the judge denying this motion.  It is
almost as if the DMCA is a new kind of "manifest destiny" that is being
used to impose U.S. laws and customs on the rest of the world.  The fact
that this was not a U.S. corporation should have exempted them from
prosecution, IMHO.

From the court decision:

"The court need not reach the issue of whether the Digital Millennium
Copyright Act has extraterritorial application
 because the trafficking conduct for which defendants have been charged
occurred in the United States. The conduct
 which underlies the indictment includes Elcomsoft's offering its AEBPR
program for sale over the internet, from a
 computer server physically located in the United States. Purchasers
obtained copies of the program in the United
 States. A copy of the program was sold to a purchaser in California.
Payments were directed to, and received by, an
 entity in the United States.
There is sufficient conduct occurring within the United States for there
to be subject matter jurisdiction over this matter on a territorial basis.
Defendant's motion to dismiss the indictment for lack of subject matter
jurisdiction is therefore denied."


This argument seems very short-sighted to me.  For example, if I were to
say that anyone doing business in the U.S. is subject to our laws, that
makes sense. But someone selling a product that was developed in another
country, having nothing to do with the U.S. except that the web server was
located here,  should not be subject to the same kind of jurisdiction. 
The law is obviously infringing on the rights of the citizens of other
countries. I wonder if the DMCA in itself violates international law? 
Even if it doesn't, foreign governments have reason to be concerned when
the Internet, which is supposedly an international resource, is being used
to cram U.S. law down the throats of citizens of foreign governments,
which are supposed to be sovereign.  The enforcement of the DMCA has
already lead to conduct which violates our own Bill of Rights.

This kind of narrow-minded decision making borders on despotism, and
concerns me a great deal.  It would appear
to have the potential to damage the very liberty that the internet is
celebrated for.  Who wants to invest in internet commerce when any little
country with obscure laws on its books could haul our citizens to jail
because something is being "trafficked" with on the internet that violates
that obscure law?  How are we to know that there is no law against what we
take as a matter of course in some obscure yet connected country?  As more
and more countries are developed and come online, this would appear to be
an issue that will need to be addressed again and again.  I am afraid of
the international precedent this case will set if it is not thrown out of
court.  And in view of this, it is no surprise that internet stocks are on
the decline.

--Glendon Gross


-----Original Message-----
From: owner-dvd-discuss@eon.law.harvard.edu
[mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Roy Murphy
Sent: Wednesday, June 19, 2002 9:26 AM To: dvd-discuss@eon.law.harvard.edu
Subject: Re: [dvd-discuss] Internet: an independent country?


'Twas brillig when Jim Bauer scrobe:
> Has anyone pursued the idea of the Internet being "independent"?
> Either as its own country (assuming one can have a country without
> land), or perhaps more like how Antarctica is handled.

I'm surprised that no one has brought up Elcomsoft.  They filed a
motion for dismissal for lack of jurisdiction on the basis that
activities took place on the internet.  Notable quote from the reply
brief: "The Internet is a Place Outside of the Territorial Jurisdiction of
the United States."

The motion was denied.

Elcomsoft Motion to Dismiss for Lack of Jurisdiction (Jan. 14, 2002)
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020114_elcom_dismiss_juris_mot
io n.html


ElcomSoft Reply to Government Opposition to Motion to Dismiss
Indictment for Lack of Jurisdiction (Feb. 25, 2002)
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020225_elcom_reply_to_opp.html

Order Denying Defendant's Motion to Dismiss Indictment for Lack of
Subject Matter Jurisdiction (Mar. 27, 2002)
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020327_dismiss_deny_order.html
-- Roy Murphy      \ CSpice -- A mailing list for Clergy Spouses
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