Re: ITP: oms -- Open Media System DVD Player
On Wed, Dec 06, 2000 at 03:52:49PM -0700, John Galt wrote:
> On Wed, 6 Dec 2000, Brian Ristuccia wrote:
>
> > On Wed, Dec 06, 2000 at 01:22:58PM -0700, John Galt wrote:
> > >
> > > By the SDNY's injunction being as broad as it is, I would submit that
> > > libcss is under injunction. You know the text of the injunction,
> > > Brian--I've seen your comments on it on the harvard list. In fact,
> > > you could read that the injunction applies to every warm body on Earth and
> > > every program that looks like it could possibly transfer a bit off a
> > > DVD. The MPAA picked a good judge--he stayed bought. However, this is
> > > needless worrying about probability.
> >
> > An injunction applies only to the people named in it. Debian is not named in
> > this injunction. Software in the Public Interest is not named in the
> > injunction. AFIK, nobody that runs any of the Debian master or mirror
> sites
> > is named. So long as the package maintainer is also not named in the
> > injunction, nobody's violating the injunction.
>
> 1. The Remaining Defendants, their officers, agents, servants,
> employees and
> attorneys and all persons in active concert or participation with them who
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
> receive actual notice of this
> order by personal service or otherwise be and they hereby are permanently
> ^^^^^^^^^^^^
>
Injunctions don't apply to non-parties. If you weren't a party in Universal
v. Corley, the injunction doesn't apply to you. You'd certainly know if you
were a party, since you would have had to hire a lawyer, deal with all sorts
of volumous paperwork, and appear in federal court in New York. "All persons
in active concert or participation" is common statutory language intended to
prevent the parties to whom the injunction names from circumventing the
injunction by recruiting others to violate its terms in their stead. If
you've had no contact with the defendants after the injunction was issued
then this doesn't apply to you.
> enjoined and restrained
> from:
>
> By my read, they have to prove you in active concert. This could be
> done by providing proof that you supplied a copy of DeCSS for download,
> which the court defined as:
No. The only way to make the injunction apply to someone is to prove that
they had contact with the named parties after the injunction was issued and
agreed to violate the injunction on their behalf. Otherwise, civil courts
could effectively make up laws as they go along by issuing broad injunctions
and then publishing them widely.
> [some injunction text deleted - it's on the web]
>
> Since Debian has no commercial significance,
There are many who would beg to differ with you on that point. Last I
checked, thousands of Debian CD's were being sold by dozens of different
vendors.
> basically anything that could
> be used to circumvent CSS is enjoined. So the only thing lacking right
> now is service.
Whether they serve or don't serve notice of the injunction to the FTPmasters
is inconsequental since the injunction doesn't apply to them.
> How many John Does were listed and served in the Cali
> case?
The number of open Does is also inconsequential, since Debian's involvement
comes after those Does were named. You can't just fill in anyone's name for
a Doe - they're reserved for unique entities you don't know any other name
for at the time of filing.
> Do you really think that the DVDCCA is going to let the prospect of
> serving even thousands of FTPmasters sway them from tryng to extend the
> injunction they bought?
>
That service won't do any good. The DVDCCA must go back to court to get a
new injuntion that names Debian or the package maintainer. And that
injunction would be from a California state court and thus effective only in
California.
>
> > Immagine the following situation: A person in a group typically stereotyped
> > by media and law enforcement as "shady" is falsely accused of using and
> > distributing a packet sniffer tool for Microsoft Windows called wnsniff in
> > order to conduct or help others conduct unlawful wiretaps. A civil lawsuit
> > is filed in federal court. The person prepares for trial with inadequite
> > time and legal representation, faces a biased judge, and get enjoined from
> > using or distributing packet sniffers. The decision is appealed.
>
> You forgot that the injunction is overbroad, and quite possibly criminally
> so.
Broadness of an injunction beyond the scope of the court's power to enjoin
has no effect.
> Basically, all the MPAA needs to do is to associate Debian with the
> Open Source movement (there's a tough row to hoe...:)--remember that in
> the trial, Johansen's link to 2600 was because Johansen was a member of
> the Open Source movement, and the injunction magically includes
> Debian. It would be foolish to discount the possibility that it will
> happen.
>
You're not backing this up with any type of legal reasoning. Nothing the
copyright cartel does now can retroactively bind Debian with this
injunction.
> > Would Debian refuse to permit packet sniffers such as tcpdump and ethereal
> > in main just because they may be illegal for a small handful of people in
> > the US to use or distribute? Would someone trying to package an ethernet
> > sniffing library called libsniff see any trouble with their ITP? Of course
> > not. Let's be reasonable here.
>
> I never stated Debian shouldn't do it, just that it needs to be done with
> full knowlege of the consequences: and those consequences ATM are that
> there's a broadly worded injunction out there that may be construed as
> applying to Debian and the maintainer.
Can't be - unless the maintainer is surreptitiously packaging OMS on behalf
of Eric Corley.
> At this point, there's a value
> judgement to be done: does the potential harm outweigh the potential
> benefits.
Yes. Debian should stay well away from the slippery slope of prohibiting
things because someone _might_ sue. Everything we do incurs some sort of
risk of liability. If we avoided such risks altogether, Debian would have no
packages, no web site, no mailing lists, and no developers.
> I just see no point in making that judgement while under the
> delusion that the consequences won't happen, because they quite probably
> will.
The only problem that could occur is if copyright cartel members decide to
invoke a public relations disaster by suing a charity and/or its volunteers.
> [ other stuff about liability, C&D's, and debconf warnings deleted ]
Ominous text in the installer is not in order. We don't have ominous text
for packet sniffers or port scanners, despite the liability their use may
incur.
--
Brian Ristuccia
brian@ristuccia.com
bristucc@cs.uml.edu
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