Court blocks state DVD-cracking suit (News.com) [LWN.net]

What The Judges Didn't Say

Posted Nov 26, 2002 21:18 UTC (Tue) by ncm (subscriber, #165) [Link]

I read through the decision, and the dissent.

Remarkably, the judges never mentioned any of the following key facts that should have completely changed the nature of the (original) proceedings:

The DeCSS was already posted on hundreds of web sites all over the world long before it was posted on the LiViD site. Posting it on the LiViD site cannot reasonably be claimed to have had any substantial effect on anybody, beyond minor convenience for LiViD developers.
Nobody has shown that the CSS was illegally reverse-engineered. It's specifically allowed to reverse-engineer in Norway despite any contractual agreement. In any case there was no contractual agreement, just a click-wrap button which there is no evidence anybody clicked. Once a trade secret is out, it's out, and anybody is free to use it. DVDCCA likes to pretend, and seems to have confused the judges into believing, that something illegal occurred in Norway. The worst anybody has come up with is that nobody knows (despite what Norwegian law says) what a Norwegian court would actually decide.
These judges insist that LiViD was "aimed at" the movie and electronic industries, despite that it has been explained that it was, rather, aimed at benefiting legitimate owners of DVDs, who have a Uniform Commercial Code right to watch the movie they have bought. That some movie or electronics companies might have been affected was of no interest to the LiViD project.
Nobody has shown that these companies have been affected in any way. Certainly lots of movies are being released on DVDs, and lots of DVD players are being sold.

The judges wrote lots that wasn't germane to the question of jurisdiction. Much of it was false or misleading, revealing confusion in the minds of the judges. The dissenting judges were even more confused than the deciding ones.

The false assumption that the reverse-engineering was illegal, tainting DeCSS, matters a lot. If there was no wrongdoing, then there is no remaining trade secret, and DVDCCA has no standing, so jurisdiction is moot.

The claim that posting DeCSS was meant to harm companies in California, rather than (as in fact) to help people in other places, matters too. If California companies are only incidentally affected, then they cannot claim jurisdiction in California. That DeCSS was already posted in hundreds of other places means the notion of any one posting being "aimed at" anyone is ridiculous.

I respectfully disagree...

Posted Nov 27, 2002 16:34 UTC (Wed) by jvotaw (subscriber, #3678) [Link]

I read the majority opinion (but not the dissent), and must respectfully disagree with a few of your points about the majority opinion.

Considering other evidence

Although I am not a lawyer, I believe that the judges were following procedure: the issue was not the guilt or innocence of Pavlovich but rather the appropriatenss of California for the trial. The two issues are handled separately: only after jurisdiction is decided is guilt or innocence considered.

It would not have been appropriate for the judges to consider the legality of reverse-engineering, prior availability of the source code, etc. -- all of these are arguments about guilt or innocence, not about the procedural detail of where the trial should be held.

"Aiming"

I do not believe the majority of judges held that Pavlovich's actions were "aimed" at anyone in California: in fact, I believe they found the opposite to be true, which was the basis for their judgement.

The method they used to determine "aiming" is a sliding scale, based on the interactivity and commercial aspects of the web site. On one end of the scale would be a commercial, interactive website -- I imagine something like Amazon.com. On the other end of the scale is a passive, non-commercial web site, simply providing information for those who found the site. The more commercial and interactive the website, the more of a right the "consumer" has to sue the site's operators in the consumer's local court.

The judges ruled (correctly, I think) that LiViD was a passive, non-commercial web site, and thus the DVDCCA could not sue them in California court. (The judges also mentioned that the DVDCCA is actually a third party in this case: the movie studios are being affected, and technically the DVDCCA is not a movie studio.)

To put it more simply, I believe this hinges on a matter of intent: did Pavlovich intend his web site to specifically act on someone in California? No.

Downsides

Still, there are several downsides to this ruling:

1. It does not establish Pavlovich's innocence or set any precedence on reverse engineering or the DMCA.

2. The ruling was close: 4-3.

3. Even the majority opinion seemed to suggest that Pavlovich had done something wrong: it closed by saying that he may well still "face the music" in another jurisdiction.