Re: [dvd-discuss] DeCSS - the saga continues

[Tom <tom(at)lemuria.org>]

On Wed, Dec 12, 2001 at 08:01:47AM +0100, Tom wrote:
> On Tue, Dec 11, 2001 at 06:39:41PM -0800, James S. Tyre wrote:
> > 2. Whether the issuance of a preliminary injunction to
> > stop the dissemination on the Internet of a computer program that
> > knowingly contains stolen trade secrets violates the First Amendment."
> 
> which they still have to prove. I for one, wasn't aware of either Jon
> nor the "trade secret" status before they hit me with their laughable
> injunction attempt.

I guess I should explain. In my book, before they even get to ASK for
an injunction, there's a LOT of things they have to prove or show to be
reasonably likely the case:

- That there was a trade secret in the 1st place. This is the only
  thing I believe they have done.
  
- That it was acquired by non-kosher means. The string of evidence fo
  this is pretty long in itself, starting by showing WHO acquired it
  and how. AFAIK Jon himself was NOT the one doing the reverse-
  engineering.
  Given the legislation headache, I believe (IANAL) they also need to
  show that the method (HOW) was actually improper WHERE USED, i.e. in
  the country where the RE was done. Which brings us full circle to
  the WHO (and adds a WHERE).
  
- If that is established, they have to show that the parties they are
  seeking an injunction against are working in concert with the
  violator of the trade secret. IANAL, but unless I'm horribly
  mistaken, once it's out, it's out and your trade secret status goes
  poof. You can seek legal remidies only against those who broke the
  secret, not those who later talk about it.
  
- And even if they by some magical means manage to show that(*), one of
  the prerequisites of an injunction is, so I learned during this
  trial, that the sought relief can be demonstrated to be effective
  in that it has a chance of reaching its goal. With the jurisdiction
  question as it is, you'd have to have your head pretty high up your
  ass to believe that whatever the Cal court rules would have any
  immediate or even short-term effect in the 20 or so other countries
  they have victims, pardon me, defendants, in. I for one would appeal
  any enforcement of a California county court on me in Germany up to
  the german supreme court on grounds of being unconstitutional
  (national souverinity and all). That means another 5 years or so
  before lemuria.org is shut down, if ever.

(*) (which they can't, because it ain't true - most of the early DeCSS
mirrors never talked to Jon or MoRE, many hadn't even heard about them.
am I acting "in concert" with someone if I pick up a paper he's written
from the local library and copy a few for my friends?)



In face of all this, how comes the court even CONSIDERS this ridiculous
request? Next time someone posts a flame about me, I'll go to my local
court and request that he shut down the internet 'cause that's the only
way to prevent the spread of the libel posting.


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pub  1024D/D88D35A6 2001-11-14 Tom Vogt <tom@lemuria.org>
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