der.hans--anonymous services--

[Eric]

> Why isn't that considered a "presence"? I can see problems with
> local taxes
> because everywhere you've been on vacation ( or as a traveling salesman )
> could then claim local taxes on everything. If, however, you travel around
> selling illegal drugs, then everywhere you go should be able to
> prosecute. In
> fact, if you're crossing state or federal borders to do so, the fed should
> be able to prosecute.

LONG ReSPONNSE

Well der.hans I will tell you that I am not an expert on this.  Not many
people are.  This is new territory in the legal field.  And most of what I
know about jurisdiction relates to *civil* jurisdiction.  However, I have
spent quite a few hours now on the specific facts of Sklyarov and this is
what I have so far.  Traditional personal jurisdiction does focus on where
you "go" as you stated above.  No doubt Arizona has jurisdiction over me
because I live here.  And if I am a business and I direct market to
California and commit a civil wrong against customer X, then that state has
personal jurisdiction over me even if I don't go there because I have
directed my activities there by soliciting customers.  In legalese this is
called having "minimum contacts" with a state.  In any given civil case, the
court will go through and do a "totality of the circumstances" analysis of
the facts: for instance, in my hypo above, they would say "Did Eric ever
send mail to customer X?" and "Did Eric send ever make telephone calls to X
in Calif.?" and they might say something like "Eric benefited from the laws
of California because those laws protected the mail he sent while it was in
transit within the borders of Calif" and "Eric benefited from the California
infrastructure when he made a telephone call to X and it is the taxpayers of
Calif. that support some of that telephone infrastructure."  Importantly a
court would also state something like "It is not unfair to subject Eric to
personal jurisdiction in this case because he was on *notice* that he was
dealing with the state of California: after all, he did purposefully direct
his activity to our state....Therefore this court does have personal
jurisdiction."  The important thing here is that in this silly example I
have given is this: I purposefully directed my activity to Calif. such that
I had notice that I might be subjected to the laws of Calif, and such that I
did have "minimum contacts."  Therefore, it is not unfair to find there is
personal jurisdiction because I was basically on notice that this could
happen.  If I did not want to be sued there, I should not have directed my
activities there and made minimum contact with Calif.

Think about how the Internet changes this.  If X runs a Web server at his
house in .de and makes the page free for all to see, then in a way X directs
"activities" to anywhere in the world.  Let's say that X writes a message on
his Web page, but X only intends for people in his neighborhood to see it.
Let's say X writes posts the code for DeCSS on his page.  Let's also say
that Y works for the RIAA and is browsing the Net one day from the .us and
comes across this page and reads it.  Let's further say that its clearly
illegal under .us law to post this code.  Lastly, let's assume this is a
civil case.

Can Y/RIAA sue X in US Federal court?  The answer in part depends on whether
X has minimum contacts such that personal jurisdiction is proper.  But why
should jurisdiction be proper under the analysis in the first paragraph?  X
did not purposefully direct his activity to the .us.  He only wanted his
neighbors to see it.  Certainly he must have been aware someone in the .us
would/could see the page.  But is this enough to put someone on notice that
they would be subject to civil suit in the .us?  If you say yes, then you
are also subjecting X to civil suit anywhere in the world where that page is
accessible inasmuch as other countries use the same jurisdictional
analysis..  Is this the kind of justice system we want?  Is it "fair," as I
have described in the first paragraph, to subject me to civil suit worldwide
 simply because my Web page was accessible worldwide?  This is where the
debate is.  Jurisdiction is based on notions of fairness because the Due
Process clause of the 5th Amendment of the US constitution.  And due process
is roughly/basically about fairness.  It doesn't seem as though the Internet
should change the basics of personal jurisdiction, and that is where courts
are struggling.

The whole analysis changes a bit when you talk about criminal cases.  Since
a criminal case involves the possibility of jail time, retribution, a
criminal record which makes it hard to get a job, etc.--in other words,
since the stakes are so much higher in a criminal case, it is thought that
the notion of fairness and the possibility of being subjected to suit are
that much more important.  This applies to Elcomsoft.  Since they were
selling products through the Internet, jurisdiction with them is tricky
because it will depend on the actual mechanics of the transaction--e.g.,
where was the Web server? Were they intending to sell to US customers? In
what sense did they "go" to the .us with the Internet.?  Etc.  But since
this is the first case where the criminal portions of the DMCA have been
used, no one can say how the jurisdiction part will play out.  In the end,
you may be right that Elcomsoft had a presence, meaning personal and subject
matter jurisdiction.  But I don't think we can say that for sure, just yet.
And the case is even more difficult because *Sklyarov* was not selling
anything.  He was just an employee! Corporations are legally separate from
the employees who work for them.  In what sense did he "go" to the .us with
this Web transaction?  Are we going to subject the janitor at Elcomsoft and
his family to jurisdiction?  No, why not?  Because he just an f'ing
employee.  So what if Sklyarov wrote the code?  Maybe someone else debugged
it?  Are we going to prosecute them too?  True, Skl. did come to the .us for
Defcon, so he was on notice he was subject to suit.  But has there even been
a crime? That is, does the .us have jurisdiction over the subject matter
that occurs in Russia?  Does the DMCA apply worldwide?

I'm going to stop now.  You get the idea.

Eric

>
> How is Skylarov's making "illegal"[1] software available in the .us not
> prosecutable? What if he'd been running a drug-selling LA gang from .ru?
> Would they be able to prosecute him ( providing they have evidence he was
> running it, etc. )? Ask Noriega if suddenly becoming politically
> incorrect,
> er, um running a drug ring from outside the .us can be prosecuted in the
> .us?
>
> > matter is even worse because this is criminal copyright, not fraud or
> > something.  US v. Sklyarov & Elcomsoft is a criminal case.  We
> shall see if
> > jurisdiction sticks, but if it does, its unprecedented as far
> as I know and
> > it's going to be very huge.
>
> I have no legal experience and you do, so I'll believe you. For
> the reasons
> listed above, however, it doesn't make sense.
>
> ciao,
>
> der.hans
>
> [1] I think we all agree the DMCA is wrong, heinous, borked and should be
> struck down by "lightning from the heavens|the hand of God|Scooby Doo|a
> yound Linda Carter as Wonder Woman|..." :).
> --
> # der.hans@LuftHans.com home.pages.de/~lufthans/ www.DevelopOnline.com
> #  Only wimps use tape backup: _real_ men just upload their important
> #  stuff on ftp, and let the rest of the world mirror it. --
> Linus Torvalds
>
> ________________________________________________
> See http://PLUG.phoenix.az.us/navigator-mail.shtml if your mail
> doesn't post to the list quickly and you use Netscape to write mail.
>
> PLUG-discuss mailing list  -  PLUG-discuss@lists.PLUG.phoenix.az.us
> http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss
>