Re: ITP: oms -- Open Media System DVD Player
On Wed, 6 Dec 2000, Brian Ristuccia wrote:
<schnip>
> 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
"common statutory language" has never been a justification on -legal
before, and I don't think it should be now. If it was written, it was
meant.
> 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.
Isn't that what the SDNY is doing, making things up as they go along?
> > [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.
The commercial significance attaches after it leaves Debian's hands. If I
give you something for free, and you then sell it, is that proof of it's
commercial significance to me?
> > 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.
The presence of 40 of them is an indication that the DVDCCA is willing to
"go the extra mile" though.
> > 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.
That's just it: by the exacting reading of the injunction that is the
hallmark of -legal, it is nowhere stated in the injunction that the
Judge's intent is to only enjoin people already served. It is not "who
have been already served" it is "who recieve actual notice of this order
by personal service": an open-ended proposition.
> >
> > > 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.
The problem here is that the Court seems to have an idea of "beyond the
scope" that starts well beyond where it looks as if you're postulating it
does, and the Court seems to be winning ATM.
> > 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.
That's just wrong. Pre-existing court orders are amended all the time,
sometimes with a hearing and sometimes in chambers.
> > > 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.
Value judgement made.
> > 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.
Nothing ELSE has stopped them...
> > [ 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.
BTW, port scanners and packet sniffers are explicitly legal under the
DMCA--security exception.
>
--
Pardon me, but you have obviously mistaken me for someone who gives a
damn.
email galt@inconnu.isu.edu
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