[linux-elitists] BusWeek: Don't judge eBook case by coverage
Karsten M. Self
Sat Jul 28 15:21:48 PDT 2001
Someone target the reeducation committee to Alex Salkever:
DAILY BRIEFING -- Don't Judge an eBook Case By Its Coverage
By Alex Salkever
COPYRIGHT, COPY WRONG? The rhetoric surrounding the case belies a
simple fact: Sklyarov may be a poor poster child for anti-DMCA
fervor. He does not deny developing software aimed at giving
consumers the capability to break copyright protections. That in
itself is not a crime. Where he may have gotten into trouble is by
allowing a company to offer the product for sale on the Internet.
``If you're marketing a product for the purpose of circumventing
copyright prevention mechanism and the technology does not have
other purpose, then there is a violation,'' explains Ian Ballon, an
intellectual property lawyer at Mannatt Phelps & Phillips and the
author of E-commerce and Internet Law.
Another beef activists have with the case is the fact that a Russian
national was arrested for work he performed in Russia, where the
DMCA does not apply. But [Havard Business School professor
Constance] Bagley and other attorneys say there is a legal precedent
for the arrest. In a 1997 case, U.S. v. Nippon Paper Industries, a
federal appellate court upheld a criminal price-fixing conviction
against the Japanese conglomerate, even though the decision-making
process occurred in Japan. The court based its ruling on the grounds
that the activity, though it may not have been illegal in Japan,
harmed U.S. consumers. Had ElcomSoft specifically warned downloaders
that this product was illegal in the U.S., Sklyarov might not be
sitting in jail.
Um...the lack of critical thinking skills these days is really getting
annoying. Corporate policies resulting in actions of the same company
in the US, vs. personal and corporate actions in a foreign country
resulting in presence of "illegal" software within the US, courtesy of
third parties? That's pretty tenuous. Try again, Constance. The
Nippon Paper case called for direct corporate influence and gain through
proxy actions in the US. Elcomsoft's actions would be treated as
illegal under US law, under the interpretation apparently at use in the
Sklyarov case, even if Elcomsoft's operations were contained entirely
within Russia. That's dangereous, transjursidictional, thinking.
Recent Developments in the Extraterritorial Application of U.S.
Joel Davidow (1)
Last edited: September 1997
A further prosecution against Nippon Paper Company, alleged a 1990
all-Japanese cartel, effectuated by means of sales to the U.S.
through trading companies, led to a surprising decision by a U.S.
District Judge dismissing the indictment on the theory that the
Sherman Act was not intended to authorize criminal prosecution of
foreigners for acts purely done on foreign territory.(15) The
Justice Department promptly appealed to the First Circuit Court of
Appeals, arguing that extraterritorial application is already
established by the Alcoa(16) and Hartford(17)cases, and that the
indictment, in any event, ADEQUATELY ALLEGES OVERT ACTS IN THE U.S.
BY THE TRADING COMPANIES SELLING THE PRODUCTS AT PRICES SET BY THE
On March 17, 1997, the Court of Appeals for the First Circuit
reversed the decision of the District Court and reinstated the
indictment. The court reasoned that since there was only one
jurisdictional test in the Sherman Act, namely effect on foreign
commerce, there is no basis for concluding that Congress intended a
narrower jurisdiction for criminal prosecution under the Act than
for civil prosecutions. The opinion stressed that all nine justices
of the Supreme Court in the Hartford case agreed that the Sherman
Act does apply to foreign cartels aimed at the United States market.
The opinion viewed as irrelevant the issue of whether the Japanese
price fixers sold directly to the U.S. market or through trading
companies, so long as higher prices for U.S. customers were an
intended or foreseeable result.
... a ruling in NPI's favor would create perverse incentives for
those who would use nefarious means to influence markets in the
United States, rewarding them for erecting as many territorial
firewalls as possible between cause and effect.(18)
Bad capitalist shill. No donut.
Karsten M. Self <firstname.lastname@example.org> http://kmself.home.netcom.com/
What part of "Gestalt" don't you understand? There is no K5 cabal
Free Dmitry!! Boycott Adobe!! Repeal the DMCA!! http://www.freedmitry.org
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