[linux-elitists] BusWeek: Don't judge eBook case by coverage

Karsten M. Self kmself@ix.netcom.com
Sat Jul 28 15:21:48 PDT 2001

Someone target the reeducation committee to Alex Salkever:

    BusinessWeek Online
    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.
    Antitrust Law

    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.

    [Emphasis added]

    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 <kmself@ix.netcom.com>      http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?         There is no K5 cabal
  http://gestalt-system.sourceforge.net/           http://www.kuro5hin.org
Free Dmitry!! Boycott Adobe!! Repeal the DMCA!!  http://www.freedmitry.org
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