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Elcomsoft and the independence of Cyberspace. Remember John Perry Barlow's A Declaration of the Independence of Cyberspace? Back in the mid-90's, the Declaration struck a responsive chord with phrases like:
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
These strong words have taken on a dated feel for some time as the world evolved and governments proved unwilling to give up their "tyrannies" so easily. One would think that the Elcomsoft case would have been one of the final nails in the Declaration's coffin. After all, Dmitry Sklyarov certainly discovered that there were "methods of enforcement" worthy of fear. 25 years in jail is a potent threat.
So it is more than interesting to see that Elcomsoft, in the preliminary stages of its trial for violating the DMCA, is taking an approach that is seemingly inspired by Barlow's Declaration. Consider this Wired News article, which contains a preliminary hearing quote from Elcomsoft attorney Joseph Burton:
Burton said that the Internet is an international, "ambient" realm, meaning that it is "everywhere and nowhere" and that it "transcends the idea of being only physical." Therefore, he said, conduct that occurs on the Internet is "extraterritorial" of U.S. laws, specifically the Digital Millennium Copyright Act, the 1998 law that Elcomsoft is charged with violating.
Wouldn't it be nice if this view were upheld by the court? Perhaps even more than the net as a whole, the free software community likes to see itself as independent of country, company, or location. Where, exactly, was the Linux kernel developed? Who owns KDE? Whose laws govern Gnutella? Wouldn't it be nice if free software, by virtue of its "extraterritorial" nature, could be free of the increasing number of ill-advised and truly obnoxious laws being passed worldwide?
Meanwhile, back on Earth, things just aren't going to happen that way. It is a rare government that will willingly give up its coercive power over anything - much less anything as fundamental and important as the net. Elcomsoft has also not helped its case by selling the Advanced eBook Processor via a server in Chicago. That bit of U.S. presence may well prove enough to allow the court to ignore much of Elcomsoft's motion to dismiss.
And that is unfortunate, because the jurisdiction issue really does matter. The U.S. would like to export its laws worldwide, and some of those laws are repressive in a big way. Dmitry Sklyarov or Johan Johansen should be able to write code in their home countries without fearing U.S. laws. Kernel hackers should be able to document security fixes without risking a stay in the U.S. prison system. American citizens, who have no desire to be bound by Chinese, Iranian, French, or even Canadian laws have no right to impose their legal code on conduct that occurs elsewhere. One can only hope that a U.S. court will eventually come to that conclusion; unfortunately, the Elcomsoft case appears unlikely to be the one that brings such a ruling about.
No GPL test case, for now. MySQL AB certainly does not believe that software companies are beyond the reach of U.S. copyright law. The company traveled across the ocean from Sweden in an attempt to obtain a couple of injunctions against NuSphere. The company's first argument, based on trademark law, was successful. But MySQL AB's attempt to deprive NuSphere of its right to distribute MySQL as a result of past GPL violations was not. Is this a defeat for the GPL?
The truth is that there has been no ruling on the GPL at all. MySQL AB was seeking a preliminary injunction which would take place before the real trial. Since the trial itself has not yet happened, the standards for preliminary injunctions are high: the party requesting the injunction must demonstrate that it will suffer immediate and irreparable harm if the injunction is not granted. MySQL AB was not able to convince the judge that this harm would happen, so no injunction was issued for now. The issue will probably be revisited when the full trial begins.
See also: the FSF's press release on the results of the preliminary hearing.
Digital rights management - on both sides of the Atlantic. The Senate hearing on digital rights management took place on February 28 - just as the previous LWN.net Weekly Edition hit the net. The reports from that hearing are not good. It was a showcase for the U.S. motion picture industry, which was able to press forward its agenda without any real discussion.
As an example of the level of the debate that took place in that room, see Mike Godwin's report:
Consumer and civil-liberties groups were not represented on the witness list, but they were in the room, as were representatives of many companies that would be affected by schemes like the one that might be mandated by Senator Hollings. Most audience members were visibly amused or distressed when [Disney CEO] Eisner confessed that the only reason he could think of for Michael Dell not to build in ubiquitous copyright-policing functions in his products was that Dell wants to sell his products to infringers.
The situation was bad enough that Intel VP Leslie Vadasz felt the need to send out an open letter to Senator Hollings clarifying Intel's position:
What the content community fails to recognize is that these utilities - the ability to copy content, remix and manage it and port it to other storage media for personal use in a protected fashion - are features that consumers have come to expect. The ability to rip, mix and burn in a protected manner is not piracy, it is simply fair use of content as permitted by law.
It is nice to see Intel standing up for fair use, at least, but one should not be too encouraged. Intel is happy to work on digital rights management schemes; the company would just rather do it without the threat of MPAA-written legislation.
Those who see this kind of stuff as a uniquely American sort of craziness would be well advised to not be too complacent. This Politech posting describes a meeting of a European Commission working group on digital rights management systems. Enthusiasm for such systems runs high there as well, and the composition of the people invited to the debate is not much different.
Also available is this working paper (in PDF format) describing the EC's approach to digital rights management. It starts by listing all of the usual problems associated with DRM systems: vulnerability, ease of use, fair use, privacy, etc. But, no matter:
The Commission Services should continue to encourage all players to develop operational, open, and interoperable DRM solutions and to deploy them rapidly.
March 7, 2002