Subj : Re: How much should I charge for fixed-price software contract? To : comp.programming From : Richard Heathfield Date : Mon Aug 22 2005 02:45 pm Gerry Quinn wrote: > In article , > invalid@address.co.uk.invalid says... >> Gerry Quinn wrote: > >> > People may define their moral responsibility in different ways. >> > However, if they intend at any time to visit a foreign country, they >> > would be well advised not to engage in criminal activities there >> > beforehand via the internet. > >> It is not a criminal activity, in Russia, to offer Russian software >> written by Russians in Russia to a worldwide market. No crime took place. >> You understand this? No crime. THEN Sklyarov went to the USA, the Land of >> Free Speech For All - and he was arrested, for speaking. Nice. > > No matter how many times you say that, it still remains false. > Sklyarov's indictment had nothing to do with any speech he made. Okay, if that wasn't it, then what was it? He doesn't appear to have taken part in any criminal activity within US jurisdiction. > Elcomsoft's products may or may not have been legal in Russia [all the > opinions I have seen seem to involve interpretations of automated > translations of Russian by anti-copyright pressure groups]. In any > case Russian copyright law is hardly to be considered useful or > effective. Irrelevant. It's the law in Russia. > The issue is that Elcomsoft sold their software in the US. This was > checked by a Federal agent who bought a copy that was offered for sale > there. Where in the US? > If selling it was a crime, then a crime took place. You don't > have to be at the most obvious scene of a crime to be guilty of it. True, but if it were sold in Russia then this is irrelevant, since Russian law applies in Russia. >> Conspiracy? What conspiracy? What are you talking about? Since when was >> it a conspiracy to write software and try to sell it to a world market? > > It is not in general - it will clearly depend on whether the software > may legally be sold. Are you claiming that Russian law prohibits the sale of Elcomsoft's software? > >> > The charges did not, AFAIK, relate to anything he did at the >> > convention. >> >> And they cannot legally relate to anything he did in Russia. > > Why can't they? Because Russian law applies in Russia, not US law. > >> > DMCA violations are serious charges, allowing for millions >> > of dollars in fines and up to five years imprisonment. >> >> That's not a serious charge. It's a serious punishment all right, but >> it's not a serious charge. > > A charge with a serious punishment is a serious charge. So all you have to do is put library fines up to seven million dollars a day, and suddenly failing to return a library book becomes an arrestable offence. What a pleasant country you live in. > Particularly > when the relevant question is whether an indicted party may flee the > jurisdiction. A jurisdiction within which no crime was committed by the indicted party. His selling activity took place outside the US, in an independent country called Russia. > >> And please remember that we're talking about a Russian program developed >> in Russia by Russians for a Russian company. The USA does not have >> jurisdiction in Russia. The DMCA does not apply in Russia. The DMCA is a >> local bye-law, as far as the world is concerned. Dmitri Sklyarov could >> not break the DMCA in Russia because the DMCA is not part of Russian law. > > Like I said, you don't have to be present at the most obvious crime > scene to commit a crime. But you do have to be in a given country in order to commit a crime in that country. > If Sklyarov went to some country where there > was no law against contract killing, and hired somebody to kill a > Russian business rival, do you think he could walk around free in > Moscow (perhaps he could, but that would be more due to poor > enforcement than lack of grounds to arrest him). I think he could do precisely that. If the contract was set up in country X and carried out in country X, then like it or not, it's country X's laws that apply. If they don't forbid that activity, then that's life. > >> I'm sorry to have to spell this out in Janet and John language, but it >> really does seem that you won't otherwise understand the concept. "The >> USA" and "the world" are not isomorphic. USA law doesn't apply in Russia. >> The USA doesn't have jurisdiction in Russia. The DMCA is not applicable >> in Russia. I am running out of ways to say this. > > Perhaps when you discuss these issues, it's time you moved up from > Janet and John language. I tried that, but you didn't seem able to understand it. > You will note that lawyers tend not to engage > in it except when they resort to rhetorical pleas to the jury knowing > their clients cases under law are dubious. I only engaged in it in the hope you would understand it. Alas, you seem not to understand even that. > >> > Aside from >> > that, the point about "selling a few copies" is irrelevant - most cases >> > relating to isues of this kind are decided on the basis of sample >> > charges. >> >> Yes, Adobe bought a copy of the Elcomsoft software. But not, apparently, >> from Dmitri Sklyarov. So what, precisely, did he do wrong? > > A Federal agent bought one, actually. As I said, the charge seems to > have been conspiracy to sell them. In Russia, where it is not illegal. > >> Fine, and it couldn't relate to his activities in Russia, since the DMCA >> doesn't apply in Russia. So what did he do wrong, and when? > > It did relate to his activities while in Russia, on the basis that via > certain agencies he caused illegal events to transpire in the US. Cf. > hitman example. That's nonsense. If the sale was legal in Russia, then no crime was committed at the Russian end. It is possible that the agent himself committed a crime by /buying/ the software in the USA, in which case he should be prosecuted for it. > >> > Elcomsoft sold the product in the USA. >> >> Really? I thought they were a Russian company, based in Russia, with >> Russian employees. Do you have evidence that they sold the product in the >> USA? The indictment suggests that Adobe bought the product over the >> Internet, which - as far as I can see - means that whilst it may have >> been /bought/ in the USA, it was /sold/ in Russia, under Russian law. > > In point of fact, they employed a US company to carry out the > transaction. In which case, if the US company sold the software in the USA, it is the US company that broke the law. And if the US company sold the software in Russia, no crime was committed. > But I don't think this was a key issue - the bottom line > is that the selling crossed national borders. Sure. At the selling end, the laws prevalent in the land where the selling took place apply to the act of selling. At the purchasing end, the laws prevalent in the land where the buying took place apply to the act of purchasing. > >> > If he had been selling these cars in the US, and depending on his >> > relationship with the company making them, he might well have a case to >> > answer. Why not? >> >> But what if he was selling them in the UK, and a US guy happened to buy >> one via mail order? That is a more closely parallel case. > > Yes. We should also stipulate that they were designed to be sold in > the US, and that new laws have been introduced to quell a rapidly > increasing spate of car drive-side related lawlessness. The fact remains that (in our analogy) the sale took place in the UK, and is subject to UK law. > >> >> Freedom of speech is fundamental. So is the concept of national >> >> sovereignty. The Sklyarov incident shows that the US Government is >> >> prepared to ride rough-shod over both. >> > >> > Neither issue is remotely relevant to the Sklyarov case. Sklyarov was >> > indicted in the US in relation to commercial activity previously >> > conducted in the US, selling goods apparently illegal under US law. >> >> That doesn't appear to be the case. Rather, it seems that the commercial >> activity took place in Russia. Russian law would apply in that case, not >> US law. > > The agent who bought the software did so without leaving the US. The > transaction was, in essence, international. Indeed. So was the incident. -- Richard Heathfield "Usenet is a strange place" - dmr 29/7/1999 http://www.cpax.org.uk mail: rjh at above domain .