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Re: ITP: oms -- Open Media System DVD Player

On Wed, Dec 06, 2000 at 06:49:28PM -0700, John Galt wrote:
> 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.

Even if it's meant to apply to nonparties, it's without force. No court can
bind nonparties by injunction.

  It is an "elementary" rule of civil procedure and due process that a court
  cannot enter a judgment against someone who "has not been made a party by
  service of process." Zenith Radio Corporation v. Hazeltine Research, 395
  U.S. 100, 110 (1969); Hansberry v. Lee, 311 U.S.  32, 40-41 (1940);
  Pennoyer v. Neff, 95 U.S. 714 (1878)); Chase National Bank v. City of
  Norwalk, 291 U.S. 431, 438 (1934); Project BASIC v. Kemp, 947 F.2d 11, 19
  (1st Cir. 1991) ("... non-parties are generally not bound by court orders
  because they have not had their day in court; in other words they have not
  had their opportunity to challenge the order's validity," citing G. & C.
  Merriam v. Webster, 639 F.2d 29 (1st Cir. 1980)) See Alemite Manufacturing
  v. Staff, 42 F.2d 832, 833 (2nd Cir. 1930)(Learned Hand) ("[N]o court can
  make a decree which will bind any one but a party."). The Supreme Court
  has just reaffirmed the fundamental nature of this element of due process,
  unanimously, and held that even where there is a close identity between
  the party and the nonparty, the nonparty still is entitled to due process.
  Nelson v. Adams, __U.S. __, 120 S.Ct. 1579 (2000).

(From http://cp.waldo.net/ctappbr/, a filing in a similar case where
plaintiffs and the district court judge asserted that an injunction bound
non-parties. The federal appeals court, of course, did not agree:
http://www.aclu.org/news/2000/n103100.html. This example is of particular
importance, because the appellants went as far as filing briefs in the
original trial, were served with copies of the injunction, and were still
not bound).

> > 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?

Federal judge or not, you can't just make up the law as you go along. The
judge can order and enjoin all sorts of stuff, but it's purely masturbatory
if what's ordered or enjoined is beyond the court's jurisdiction.

> > > [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?

If I give you a gold bar and then you sell it for a ton of money, it doesn't
somehow decrease in commercial significance. Free Software, just like free
Gold, is still worth money even when it's given away gratis. You're
forgetting that the "Free" in "Free Software" is about freedom, not about

> [discussion of some 40 does in california state civil DVDCCA lawsuit omitted]
> The presence of 40 of them is an indication that the DVDCCA is willing to
> "go the extra mile" though.

It's a scare tactic intended to silence people for fear of being assigned to
one of the Doe slots. 

> [ discussion of (useless) service of FTPmasters deleted] 
> 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.

Yes, but here on -legal, we're smart enough to realize that the license on
foobar which says you must not distribute GNU bash under any circumstances
has no binding on anyone's ability to distribute GNU bash. The district
court judge is not talking to us in this injunction. This order doesn't
apply to us any more than the license on foobar applies to GNU bash. 

> [ discussion of shady person with sniffer, broadness beyond the power to
>   enjoin, and MPAA associating Debian with Open Source omitted ]
> > 
> > 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.  

Yes, but never to bind non-parties. Sure words that attempt to bind
non-parties might get added, but they are without force of law. 

> [ discussion about not packaging packet sniffers, slippery slope of
>   omitting packages, and copyright cartel suing charaties omitted ]
> > > [ 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.

If you read the DMCA carefully so is DeCSS, but it's still the subject of
liability for Eric Corley. Unfortunately, it's possible to be sued over just
about anything...

Brian Ristuccia

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