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Joe Whitehat operates a web site devoted to exploring
network security vulnerabilities and other "hacking-related" issues.
Joe’s objective is to provide a public forum for members of the
Internet security field to share their knowledge of exploits and
vulnerabilities. Joe does not host programs on his server. Rather,
he provides links to programs of interest to the community. On one
of Joe’s pages, he provides a link to a program that is able to
defeat an access control measure on a new type of digital format.
The fact that the new access control measure is so easily defeated
is a topic of sincere interest in the research and network security
community because the weakness in the algorithm used in this measure
may be point to weaknesses in their own access control measures.
One day, Joe receives a certified letter demanding that he
delete the hyperlinked reference to the program from his website, or
face the consequences of "trafficking" in a technology that is for
use in "circumventing a technological measure that effectively
controls access to a work protected under the Copyright Act." What
is Joe supposed to do?
Joe would argue that he only provides a link to the site,
and that he can’t be responsible for the illegal acts of others. The
copyright owners aren’t charging him with copyright infringement,
but rather a highly controversial subsection of the DMCA, which bans
the act of circumventing, the development and trafficking of tools
used to circumvent, and trafficking in the tools that can infringe
on the work after it has been circumvented or accessed. Joe would
surely try to suggest that he is not "trafficking" in the program by
making the argument that it is not illegal for a newspaper to
publish the address of a store that sells obscene material. He, like
the newspaper, is merely pointing to the address where the illegal
contraband may be located. Unfortunately for Joe, a New York federal
District Court and a Second Circuit Court of Appeal has found that
under certain circumstances discussed below, the court can force Joe
to delete the links to the DMCA offending material.
This article will look at the court’s linking arguments and
suggest ways that web site owners can avoid falling into the
category of being a "trafficker" by following the rules set out by
the court. It should be stressed that this is only the current law
in the Second Circuit, which includes the states of Connecticut, New
York and Vermont. However, other jurisdictions could consider these
holdings "persuasive," which means that they don’t have to follow
the rules set out in the cases, but they can use them if they find
the application of the law was appropriate.
What Can you
Host on Your Website?:
The first thing to clarify is what you can have on your
website, and what you can link to. If you are a US-based website,
which means either a business or server presence located in a US
State or territory, then you likely will fall under some US
jurisdiction. Just because you are a "cyber" company with no
tangible assets does not mean that you are above US jurisdiction. As
the US Attorney has argued in the Elcomsoft/Sklyarov DMCA criminal
case, you can fall under US personal jurisdiction even if you are a
Moscow software development company with no assets, personnel, or
presence in the US. In that case, the Moscow-base company offered
software that potentially violated the DMCA anti-circumvention
provisions on an Internet server based in Chicago and entered into a
distribution agreement with a Washington state-based online software
distributor and transaction processor. The US Attorney argued that
the act of offering the software on the Chicago server, as well as
the distribution agreement that allegedly targeted US consumers, was
enough to bring criminal charges against the Russian firm. They
gained personal jurisdiction over the company when one of its
employees came to the US to speak at DefCon. If no one from the
company ever stepped foot in the US, they had no assets in the US,
and the program was legal in Russia, then the US government could
not have done anything against the Russian company. In order to
extradite someone from another country to the US, there must be a
bilateral treaty where the act was illegal in both countries and the
crime was committed in the requesting country by the defendant.
Since the program was arguably legal in Russia, extradition was not
an option.
The Broad
Rules of Thumb:
The first broad rule of thumb is that you should never
store on a website any content that could subject you to a lawsuit.
This goes for ISPs, discussion groups, as well as commercial and
private web sites.
Objectionable content can be defamatory, which can lead to
civil damages if the person can show that there is defamatory
language that tends to adversely affects one’s reputation, can be
shown to be "of and concerning the plaintiff," is published on the
Internet by someone who directly was responsible for writing the
statement or by a secondary person knew or should have known that
the statements were defamatory, and that there was damage to the
plaintiffs reputation as a result. Content can also infringe on
another’s intellectual property, such as copyright, trademarks and
patents. If you receive notice that there is infringing material on
your site, it is wise to pull it immediately and then seek counsel
from an attorney. Content can also be criminal if, for example, it
contains obscene material or malicious code. These are some of the
types of content that you should not reside on your server if you
are a US resident, US company, commercially target the US or have a
US-based server.
The second broad rule of thumb in light of the holding in
the Universal et al. v. Reimbursed et al case, is that you should be
very careful when you provide a hyper link from you website to
another site that might contain any "actionable" or legally
objectionable content. In Reimerdes, the Motion Picture Association
of America sought to prohibit Eric Corley from hosting and linking
to a program that threatened the viability of their DVD access
control measures. Corley was a print and electronic publisher of the
well-known "hacker" magazine 2600, which provides extensive
research, news and other articles on phreaking, hacking, cracking,
and network security. In November 1999, Corley posted a copy of the
decryption program "DeCSS" on his 2600.com website and also provided
many hyperlinks to other server sites that hosted DeCSS. The
District Court in New York issued a permanent injunction that barred
Corley from posting DeCSS on his website or from "knowingly linking
via a hyperlink to any other website containing DeCSS. Corley sought
appellate review of the lower court holding, where the Second
Circuit Court of the Appeals upheld the trial court link injunction.
This case is a good case to discuss because Corley lost on every
point in two federal courts.
What Can You
Link To and Why:
1. Never Taunt
the Court or the Plaintiff:
In the 2600 case, there are three words that seriously
impacted their defense – "electronic civil disobedience." The trial
court referred to that statement three times in the ruling, each
time with an increasing distaste for the defendant. When the court
issued a preliminary injunction prohibiting Corley from hosting the
DeCSS program on his site, he encouraged visitors to download the
program from other servers via hyperlinks on his site as a sign of
"electronic civil disobedience." To make matters worse, Corley wrote
on the website "We have to face the possibility we may be forced
into submission. For that reason it’s especially important that as
many of you as possible, all throughout the world, take a stand and
mirror these files." In the plaintiff’s brief, it was also noted
that Corley defied "the authorities to shut down his site promoting
the free copying of DVDs, stating that ‘there is no lawyer that can
prevent us,’ and announced: "Notice: The DVD Copy Control
Association are c---suckers!" The court also noted that Corley
placed the hyper links to the mirrored sites only after he ensured
that the other sites were in fact the posting DeCSS code.
The court was not amused. Judge Kaplan wrote that the
"defendants obviously hoped to frustrate plaintiff’s recourse to the
judicial system by making effective relief difficult or impossible."
Those are strong words that you don’t want to ever have a judge make
about your actions. In other words, Judge Kaplan said that by
encouraging others to download DeCSS on other sites as an act of
disobedience, Corley was trying to get around the system to harm the
plaintiffs. The judge ensured he had the last laugh.
It is important to understand that Corley could have been
liable for money damages. The MPAA sought damages pursuant to 17
U.S.C. Section 1203(c) and (b), which would have been statutory
damages of $2,500 per offer of DeCSS! These damages could have been
"incalculable," as Judge Kaplan explained. However, because the
defendants had no assets to speak of, and that the damage amount was
too speculative to calculate, the court held that there was an
inadequate remedy at law and therefore injunctive relief was the
only available remedy.
The most obvious lesson to be learned from the above
reaction is that you should never taunt the court’s ability to
comprehend the technology or enforce judgements. Judges unofficially
use what is called a "smell test" to size up the character and
motive of the parties in an action. When there are signs that one
side is acting in a cocky, arrogant, and underhanded sly manner, the
courts are not going to be favorably predisposed to that party, to
say the least. While Corley’s exasperation with the situation he
found himself in with the MPAA is understandable, in the end it was
counterproductive because the court saw it as evidence of his intent
to violate the DMCA and recognition on his part that the program was
controversial and legally questionable.
2. Write all
copy and messages with careful deliberation:
Whenever you are writing copy for a website, you
unfortunately always have to consider how that text would look in
the courtroom as "Exhibit 659." Also, with much of the Internet
cached on the Way Back Machine and other archives, not only your
present words, but all of your past online statements can be used
against you. So the words used on a web site, even if taken down by
you at a later time, could be cached somewhere on the Internet.
Also, prosecutors and lawyers have become savvy at
researching newsgroup archives and discussion groups for written
statements that can be used against you. Whenever you submit
comments on Slashdot or your favorite newsgroup, you need to think
about the consequences of the statement. Is it an opinion that, if
used in court, could weaken a position about actions on your
website? Most laws require some form of intent, knowledge or notice,
and barring some statement made on the witness stand or in a
deposition, they need to prove it by bringing in other statements or
actions to show you intended the consequence of your "wrongful"
actions. For example, in order to prove that you developed a piece
of software to duplicate copyrighted music, your argument that there
are significant non-infringing uses of the program is shot down if
there is a newsgroup discussion where you brag about how the program
is going to bring the music monopoly to its knees. In the Napster
saga, Judge Patell found that internal e-mails indicated that the
Napster founders had copyright infringement as the motive for their
program. A document authored by co-founder Sean Parker mentioned the
need to remain ignorant of users' real names and IP addresses "since
they are exchanging pirated music." The same document stated that,
in bargaining with the RIAA, Napster will benefit from the fact that
"we are not just making pirated music available but also pushing
demand." Judge Patell found that "these admissions suggest that
facilitating the unauthorized exchange of copyrighted music was a
central part of Napster, Inc.'s business strategy from the
inception." Like diamonds, digital messages are forever.
By now you should be aware that linking to anything on
another site that could get you in trouble if it was located on your
own site is a dangerous activity. But it doesn’t mean that all links
to online contraband should be banned. If that were the case, then
there would be a great "chilling effect" on web-based communication
because hyperlinks lie at the heart of the web’s interactivity. The
courts have been concerned that such a blanket ban would be
unconstitutional because it would be a form of prior restraint, or
communication that is prohibited even before it is made. For
example, the court in 2600 was concerned that "legitimate" news
outlets, like the New York Times, would be liable for links on their
website that discussed controversial subjects. The trial court in
2600 developed a simple formula to guide courts and web site owners
through this potential minefield. The Court of Appeals hinted that
the 2600 linking formula was even too rigid and that they would be
willing to work with a more "chilling" formula.
3. The 2600
Linking Test:
Judge Kaplan developed a simple linking formula to help
determine when links to "contraband" should be restricted or banned
and to limit the potential for a chilling effect on "legitimate"
links by the media. He required that there should be clear and
convincing evidence that those responsible for the link:
- know at the relevant time that the offending material is
on the linked-to site
- know that it is circumvention technology that may not
lawfully be offered and
- creates or maintains the link for the purpose of
disseminating the technology.
know at the
relevant time that the offending material is on the linked-to site
The court held that Corley violated each of these elements
of the test. First, Judge Kaplan held that he was aware at the
relevant time that the offending material was on the linked-to site
because he checked on the DeCSS availability before he placed the
link from 2600. Obviously, if you provide a link that directly
points to the .exe, .tar or .zip file, you are aware that the
material is on the linked-to site. If it deep links to a page that
only contains the material, that is also an inference that you were
aware that the material was located on the site at the relevant
time. However, if it points to a home page on a web site that has a
lot of other content, hopefully legal, then you might be in a gray
zone where the court will apply the "smell test."
The lesson here is to be careful how you link to the other
web site. A disclaimer that states you have no affiliation,
financial or otherwise, with the 3rd party websites, and that you
have not checked the links for the any actual offending material
might be helpful. However, the courts don’t pay a lot of attention
to self-serving disclaimers if there is other evidence to the
contrary. For example, how much credence do you think a court is
going to give the KaZaA peer-to-peer file trading program when it
states in its license agreement that "KaZaA does not condone
activities and actions that breach the copyright of artists and
copyright owners - as a KaZaA user you are bound by the KaZaA Terms
of Use and laws governing copyright in each country." I would not
like to be the defense counsel trying to argue in good faith that
KaZaA is totally oblivious to any copyright infringement going on
because of their software and that those who wanted to use the
software to infringe have read the license terms and declined from
using the software for fear of violating the terms of the license.
Do they really think that people who are willing to infringe on the
copyrights of others are going to comply with the terms of a license
agreement that denies the very infringing function of the software
itself?
know that it
is circumvention technology that may not lawfully be offered
However, it is the second prong of the test that the court
just almost ignored. Corley argued that he didn’t know that the
software was unlawful, but because of the statements on the website,
that argument was not taken seriously. Amazingly, Judge Kaplan
satisfied this prong by noting that "[t]hey now know that
dissemination of DeCSS violates the DMCA." His own test requires
knowledge at the time the offense was committed that there be clear
and convincing evidence that the defendant "knew" that it can not be
lawfully offered. When Corley posted the link, there was a huge
debate about whether the program was illegal because the DMCA’s
anti-circumvention provisions had not been interpreted by a court.
Nevertheless, Judge Kaplan reasoned that since they now know it is
illegal, that satisfied the element that they also knew it at the
time they posted it.
In the Elcomsoft case, it submitted a motion arguing that
its program, AEPBR, was legal in Russia, provided significant fair
uses to legitimate users and that Section 1201(b) was
Constitutionally vague because it was unclear that their program was
illegal. They did not market the program as a way to defeat access
controls on the Adobe E-book reader. The court will decide on the
merits of the motion ironically on April Fools Day 2002.
The lesson here is that there should be no reference on the
website that you are aware that this specific piece of software is
likely to be illegal. Links to cracking software, serial number
lists, trojan programs and other malicious code should be avoided
because there is a high inference they are illegal in Europe and the
US. But programs in the gray zone, like AEPBR and DeCSS, are
arguably questionable and the court is going to look for admissions
by you or the website that recognizes its questionable legal status.
creates or
maintains the link for the purpose of disseminating the technology
Finally, the court had an easier time justifying the last
prong – that the link was created for the purpose of disseminating
the technology. Corley stated that was his intention on his website.
4. Link to
Pages that Contains A Lot of Legitimate Content
The court, in a footnote, commented that "deep links to a
page containing only DeCSS located on a site that contains a broad
range of other content, all other things being equal, would be more
likely to be found to have linked for the purpose of disseminating
DeCSS." However, the court seemed to infer that a link to a "home
page of the linked-to site" would be less likely to be found a
dissemination.
5. Don’t
Advertise the Link as a Way to Get Around a Law:
The court noted that sites "that advertise their links as a
means of getting DeCSS presumably will be found to have created the
links for the purpose of disseminating the program." This was the
case on 2600.com, and the court came down hard on Corley as a
result. Remember that the courts are going to look hard at your
motivation for posting links or hosting software. The court in 2600
wanted to draw a line between "legitimate" news sources, such as the
New York Times, and hacking sites, such as 2600. The court
recognized that legitimate network security boards and web sites
provide a significant role in promoting scientific dialog, research
and development. There is nothing wrong with strongly criticizing
ideas and laws. That is protected speech. However, if that critical
speech is combined with links to "illegal" contraband as a way to
resist the ideas or laws, then the court could view that as an
intent to traffic in the contraband. But if the site seriously
discusses the program and provides a link to another "serious"
website that contains the program without a deep link directly to
the program, then the court may view the link in a more
speech-protected manner. The website should be devoid of all
references to supporting hacking, cracking, etc… - check the
metatags and archived versions of the website!
7. "Add Your Own Link" Scripts:
There is code that allow users to automatically submit
links to a site without the involvement of the website owner. This
might place the website in the bulletin board status where the court
will look at the extent of editorial discretion to see if and when
the bulletin board operator was on notice of infringing material. If
no discretion is exerted, then the operator is likely put on notice
when he receives a take down notice informing him of the offending
material. It is wise to pull the content immediately and then try to
sort out who is wrong. It could be argued that the same applies to
links automatically submitted and posted on the site without the
owner’s involvement or awareness.
However, this is not an advisable approach because the
court is likely to see through this if it was developed to avoid
notice. Website operators do have some responsibility for the
content of their sites. It would be risky to test the court’s
interpretation of your intent.
8. To "href" or Not to "href=":
In the two 2600 opinions, the court went into extensive
discussion about the Constitutional protection and status of
hyperlinks. Specifically, Corley argued that the links are
constitutionally protected expression and the court must apply the
highest form of First Amendment scrutiny. Judge Kaplan noted that a
hyperlink contains both speech and non-speech elements. A hyperlink
"conveys information, the Internet address of the linked webpage,
and has the functional capacity to bring the content of the linked
webpage to the user's computer screen." Judge Kaplan concluded that
a hyperlink is content- neutral because it is performs a function
without regard to the speech component of the hyperlink. Basically,
if a prohibition is content-neutral, the court applies a less
rigorous test than it does against restrictions placed on the
content of the speech. Content neutral means that Congress isn’t
trying to restrict speech based on a message, but rather time, place
or manner of the speech and it applies to all relevant messages,
regardless of what is said. One way to think about neutral content
is whether the law treats a sign that is in English the same as a
sign written in Swahili. If it bans all signs regardless of the
message, the court will apply something called the O’Brien test. The
court will look at the regulation to see if it served a substantial
governmental interest and the regulation was unrelated to the
suppression of free expression. In other words, does the restriction
on the neutral speech involve a substantial government interest and
that the purpose of the law is not to restrict certain speech.
Judge Kaplan was looking at the impact of the injunction on
the hyperlink ban and determined that a hyperlink is functional more
than expressive because the point of the "href" code that creates
the link is meant to provide instructions to the browsers and
servers to deliver a specific page located on another server.
Both the trial court and the appellate court made a huge
issue that hyperlinks make "the materials … available for
instantaneous worldwide distribution" and that "the linked web site
is just one click away." What would happen if the website merely
provided the URL without a hyperlink? In reality, the court might
find it two identical in purpose. But the functionality h as been
taken out and perhaps the URL is more like protected speech. Some
news organizations have already begun to refer to the URL without
hyperlinks.
However, the appellate court asked the plaintiffs whether
banning the hyperlinks would permit the court to issue an injunction
prohibiting a newspaper from printing addresses of bookstore
locations carrying obscene materials. The concluded that there is a
distinction between the two medias because the police can seize the
obscene material before the newspaper publishes the address of the
bookstore. However, if "obscene materials are posted on one web site
and other sites post hyperlinks to the first site, the materials are
available for instantaneous worldwide distribution before any
preventive measures can be effectively taken." Following the court’s
logic, merely posting the URL without the hyperlink tags would still
allow near "instantaneous worldwide distribution" compared to the
bookstore.
9. Using a
Search Engine to Query 3rd Party Websites
There are many "hacking" and network security websites that
employ search engines to locate material on other servers. This
might actually trigger a very interesting area of the DMCA – the
safe harbor exemptions of 512(a) for information location tools. The
concept here is that the website only provides for users to chose
the terms they are looking for on 3rd party websites that are beyond
the control of the website. In 2600, the court’s hyperlink
conclusions were based around the website’s knowledge that the
offending material is located on the 3rd party site, that it knows
that the material is not lawful and the link was created for the
purpose of disseminating the technology. However, a search engine
that queries another site could eliminate the "knowledge"
requirements and the purpose of dissemination because there is no
way that the website could know in advance what the user would be
looking for on a 3rd party site.
Under the Information Location Tools safe harbor located in
17 USC Sec. 512, a web site can be shielded from application of the
DMCA. Here is an edited version of the safe harbor.
Information
Location Tools.
A service provider shall not be liable … for infringement
of copyright by reason of the provider referring or linking users to
an online location containing infringing material or infringing
activity, by using information location tools, including a
directory, index, reference, pointer, or hypertext link, if the
service provider –
(1) (A) does not have actual knowledge that the material or
activity is infringing;
(B) in the absence of such actual knowledge, is not aware
of facts or circumstances from which infringing activity is
apparent; or
(C) upon obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material;
(2) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such activity;
and
(3) upon notification of claimed infringement as described
in subsection (c)(3), responds expeditiously to remove, or disable
access to, the material that is claimed to be infringing or to be
the subject of infringing activity, except that, for purposes of
this paragraph, the information described in subsection
(c)(3)(A)(iii) shall be identification of the reference or link, to
material or activity claimed to be infringing, that is to be removed
or access to which is to be disabled, and information reasonably
sufficient to permit the service provider to locate that reference
or link.
In other words, if a website provides a search capability
to a third party’s website and does not have actual knowledge or is
not aware of infringing material, and does not directly receive a
financial benefit, then it can be argued that the safe harbor
applies, atleast to infringing activity. However, the
anti-circumvention provisions do not concern the act of
"infringement," but rather the act of circumventing and devices used
to circumvent. So it is not clear whether the argument can be made,
that atleast with regard to anti-circumvention, search queries to a
third party site could be shielded by the Section 512 safe harbor
provisions. But there is a better argument that searches to
infringing material, like MP3s, cracker programs, etc… could be
shielded. It goes without saying that this has not been extensively
interpreted by the courts and could involve some risks. One thing
appears to be certain: if you intend to apply the safe harbor
provisions, you must carefully follow the "take down" provisions. If
you receive a "take down" notice, immediately call your lawyer and
have him advise you on the appropriate procedures to ensure that you
are complying with the law. If you don’t effectively comply with the
take down provisions, you could lose the defense.
One reason why the courts might be hesitant to attach
liability to search engines for displaying offensive results is
because search engines play such a critical role. With billions of
webpages to chose from, the Internet would cease to function
properly without search engines directing users to queried content.
It would be unrealistic for Google.com to be responsible for search
results that turned up links to legally offensive material.
Likewise, the courts would be hard-pressed to punish
"hacking" websites that merely provide the ability for users to
query selected 3rd party websites that they have no control over, or
receive any direct financial benefit. However, the courts seem to
dislike rebel defendants hiding behind the larger impact precedents
– i.e., that "you must apply the same standard to us as them." The
2600 court dealt with that issue in the linking of large
"respectable" websites like the New York Times compared to 2600.com
by requiring a that the link be created "for the purpose of
disseminating the technology." The New York Times didn’t and
2600.com did – end of story. The court could apply a similar fuzzy
distinction with search engines located on "hacking" sites by
strengthening the Section 512 "is not aware of facts or
circumstances from which infringing activity is apparent" clause.
The court would look for evidence that the website operators were
"aware" of the circumstances in which the 3rd party site they offer
search queries on contain infringing or other offensive material.
Once again, the tone and overall purpose of the website might become
a relevant issue.
Conclusion:
For non-US website, first determine whether you can be
brought under US jurisdiction. Next, try to determine whether the
content is illegal in your own jurisdiction. If it is illegal, but
it is legal in other countries, then do not host the content on your
server. If you provide a link to the offending content, then you
must be very careful about the context in which the link is created.
If the court can infer in any manner that the link was created to
disseminate the content and encourage others to disseminate it, then
the court could come down heavy on you. However, if the context is
scientific or serves some other legitimate, useful and responsible
purpose, then the court might allow the link, even though it
wouldn’t allow you to host the content on your own server. This has
not, to my knowledge, been clarified by the courts, so under these
circumstances, link at your own risk, and if you receive a
complaint, pull the link immediately until the status of the content
is determined.
It should also be noted that you could be extradited from
your country to the US if the content is illegal in your country,
your acts concerning the content is prohibited, there is an
extradition treaty with the US that specifically includes these
types of offenses, and the offense was committed in the US. However,
that is a lot of "ifs". Realistically, your own jurisdiction will
prosecute you for violating the law in your jurisdiction. However,
if you visit the US, the authorities have the right to arrest you
subject to an indictment and hold you in custody as a flight risk.
If you live in an EU jurisdiction, you could be extradited to
another EU country for a criminal violation of copyright laws,
according to the most recent EU Cybercrime Convention.
Until the court decides on the Constitutionality of the
DMCA, and perhaps maybe the US Supreme Court, US websites that
contain links to potentially offending content should be put on
notice that the court can enjoin such links, and cost the website
owners a significant amount of money in legal fees. All websites
that link to obviously illegal content, such as passwords, serial
numbers, copyrighted software, cracks, trojan software with little
or no legitimate uses, virii, etc… should expect a visit from the
Feds at some point in their career.
The most important thing to keep in mind when developing
your website is to honestly ask yourself how the website would look
as an evidence exhibit in court to a judge? If it looks like a duck,
walks like a duck, and squawks like a duck, the court is likely to
find it is a duck, not matter how clever the technical ruses are
used.
Credits:
Bill Reilly is a California-based network security
attorney, member of the California Bar and a GIAC-certified Advanced
Incident Handler. Bill Reilly can be contacted at reilly@ebutik.com
or US: (415) 771-3463.
Copyright(c) 2002 William Reilly. All rights reserved.
This article does not in any way offer legal advice of any
kind. Rather, the article is meant as a comment and analysis of a
statute and may not be taken for specific legal advice. Please seek
legal advice from an attorney in your jurisdiction for advice
specific to your situation.
Endnotes:
1. For more information on how non-US companies can avoid
US jurisdiction, read my article Write Code – Go to Jail: A look at
the DMCA criminal liability for non-US software developers.
2. The program AEBPR is supposedly legal under Russian law.
In fact, Russian law supposedly requires the ability for backup
copies to be made of certain media.
3. A complete discussion of copyright law and the DMCA
defenses is beyond the scope of this article.
4. The actual defendants were Eric Corley, Shawn Reimerdes
and Roman Kazan. For simplicity, this article will refer to all of
the defendants as "Corley."
5. The Preliminary Injunction Motion also sought damages.
The motion asked "For damages in such amount as may be found and
requiring Defendants to account for and pay over to Plaintiffs all
profits delivered from all acts of circumvention of copyright
protection systems; alternatively, for statutory damages in the
amount of $2,500 for each act of circumvention, device, product,
component, offer, or such other amount as may be proper pursuant to
17 U.S.C. Section 1203(c); and
3. For Plaintiffs’ attorneys’ fees and costs pursuant to 17
U.S.C. Section 1203(b).
4. For prejudgment interest;
5. For costs incurred in this action;
6. For such other and further relief as the Court deems
just and proper."
The defense at one point tried to get Judge Kaplan off the
case by claiming he has personal animosity to the defendant’s
counsel and had a conflict of interest due to prior relations with
the plaintiff’s counsel.
7. Matt’s Script Archive -
http://worldwidemart.com/scripts/links.shtml
8. For an example, visit Astalavista at
http://www.astalavista.com/
9. Read Write Code – Go to Jail: A look at the DMCA
criminal liability for non-US software developers for suggestions.
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