From: attila@primenet.com
Date: Fri, 20 Dec 1996 11:42:38 -0800 (PST)
To: cypherpunks <cypherpunks@toad.com>
Subject: some clarification of jurisdiction in Berstein (long)
Message-ID: <199612201141.EAA01559@infowest.com>
MIME-Version: 1.0
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the question:

::I've seen two other reports (one from NBC) that say the ruling
::only covers the one federal district.

::Any lawyers want to clarify?

        The caveat: the following is a personal opinion and is not, in 
    any way, to be considered either legal opinion or legal advice. 
    Hire an attorney who specializes in these issues before you do 
    anything rash which might qualify you for three hots and a cot.

        Basically, jurisdiction is all a question of who wants to 
    honor whose decision until a higher level either affirms or 
    rejects the lower court ruling (or sends it back w/o a full ruling 
    but requiring a review of some part of the decision by the lower 
    court).

        Generally speaking, the decision is valid for the Northern 
    District of California, but a Federal district judge anywhere in 
    the U.S. can make a concurring decision based on citing Judge 
    Patel's decision that source code is protected under Amendment 1.
    In other words, the cite is valid anywhere, and can be used as the 
    basis of a decision. 

        Likewise, another district judge somewhere in the U.S. can 
    issue a contrary ruling, still citing Judge Patel's ruling, but 
    disagreeing with its tenants; or even ignore the decision and 
    forge new ground. 

        The basic rule of thumb is each federal judge is 'Judge Roy 
    Bean, Law West of the Pecos' in his own courtroom, and able to 
    virtually ignore even USSC rulings by claiming the action is not 
    the same for some silly reason.  He may be reversed on appeal... 

        As for Judge Roy Bean, there have been a number who might 
    qualify for the type in the Ninth Circuit who come to mind: Manny 
    Real in LA, Hadder in LA, Foley in Vegas, and one in El Paso 
    (whose name escapes me --maybe Peck), who was assassinated, 
    probably by the drug trade, about 20 years ago. These are 
    mavericks with a high percentage of cases reversed on appeal. Two 
    of the four are of questionably diminished mental abilities, one 
    was of questionable ethics, and one is just plain nuts --or at 
    least off the wall (IMHO).  

        I have not read the full Bernstein decision as yet, but I 
    understand there are a fair number of unresolved issues such as 
    binary objects. This again can spawn additional test cases, either 
    by someone challenging the issue as Bernstein challenged the 
    source code, which I consider was the correct decision as anyone 
    can read source --understanding source code may be more difficult 
    than reading a bad Russian translation of the nuances in Alice in 
    Wonderland for some... (your mileage may vary...)

        Leaving government appeals out of the equation, if there are 
    two or more district courts within an appeals circuit, whose 
    fundamental opinion: 'source code is protected under Amendment 1 
    rights' do not agree, the obvious step is for the Ninth Circuit 
    Court of Appeals, either by a 3 judge panel, or a full court 
    review, to take jurisdiction and decide which of the two opinions 
    suits their fancy. If a 3 judge panel does not give the decision 
    expected, there is also a possible review by a full court on the 
    motion of either party.

        Now, suppose the Ninth Circuit affirms Judge Patel. At that 
    point every district court within the jurisdiction of the Ninth 
    Circuit uses the Bernstein case as a given, an affirmed precedent; 
    the rulings will reflect that unless some clever clown adds a 
    twist and the judge falls for it. 

        Again, setting aside appeals, there are multiple circuit 
    appeal regions.  None of these are bound by the Ninth Circuit 
    decision, but it is a citation of importance.  Now, if there are 
    significantly different opinions in the appeal circuits, then the 
    Supreme Court will decide whether they will accept the decisions 
    for review, deciding which decision is valid; or the USSC can 
    ignore it.

        Personally, I would publish anything regardless. I've had more 
    than one go around with the simpletons. 

        The first time the goons in gray trenchcoats shake you out of 
    the rack in the early morning, there is a real adrenalin rush; 
    after that it's: "Oh, shit, you guys again, who wants some 
    coffee?"  Whatever you do: keep your mouth shut; even teh previous 
    thought is risky the assholes might charge you with attempted 
    bribary of a Federal official.  

        I have been quiet for 20 years; as you get older you get a lot 
    more cranky, and less concerned with your welfare. You know: 
    "strike another blow for Liberty, FUCK the CDA" and so on.  Be a 
    martyr; give your all for the cause.  Eventually you end up in 
    Springfield, Missouri, home for Federal Criminally Insane 
    political victims. 

        Larry Flynt (Hustler) managed to get away from the Feds who 
    can hold an "insane" individual in their custody indefinitely: 
    certifying him insane with one hand, while the other hand gives 
    him a chemical lobotomy. Larry Flynt was sent to Springfield by a 
    Federal Judge in LA for contempt of court --wearing an American 
    flag as a diaper in his wheelchair (paraplegic).  

        Unless you're a little crazy, I don't think I would start 
    publishing source code yet. Oh, I expect it would be difficult 
    for the Feds to get convictions with a strong precedent decision.

        But, keep in mind, federal judges are appointed on the basis 
    of an ad in the local bar rag: 'wanted: middle aged person with 
    failing law practice and good political connections.'  A Federal 
    judge is appointed for life; after age 65 they are able to choose 
    cases which interest them; most of them seem to die on the bench 
    (some would dispute they were ever alive on the bench). 

        It's been said, "what do you call a lawyer with an IQ of 40?"  
        "Your, Honour."

        If you wish to lay down the bait trail in the Northern 
    California district, by all means, go ahead, but you might find 
    yourself charged in a criminal action, and the government 
    presenting a case that your charges are 'different' than the 
    Bernstein case: Bernstein just wanted to publish an academic 
    paper, you are charged with violation of the munitions act and 
    maybe treason and espionage. 

        And, always remember your opponent is a drug-crazed 800 lb
    gorilla with a mission: conviction.  

        This case is the big one: Bernstein was the plaintiff, in a 
    civil action. You will be the _defendant_, in a criminal action. 

        I would not put a scenario like this past the DOJ scum; maybe 
    multiple times to try and obtain results which match their 
    corroded mental image of peace, prosperity, and union harmony.
  
        The DOJ is not interested in either justice or the Bill of 
    Rights. Federal attorneys are striving for high conviction rates, 
    like Vietnam body counts --and are enforcing the policies of the 
    administration, not the courts, the constitution, or the people. 
 
        If you managed to get here through the convoluted logic, I 
    would be careful of how you loosen the floodgates.  At this point 
    we have made a statement which is a serious breach of their armor. 
    We obviously need additional test cases to clarify the position, 
    and the decision must ultimately be decided by the USSC. 

        I would caution for another reason: if the Feds choose a 
    preferred defendant who is flagrant, obnoxious, and on flaky 
    ground; _they_ may have a good precedent, not us. Academic 
    challenges are certainly among the best --a bit easier to make the 
    point for education than for pornography. 

        The next step IMHO, should be a challenge that object code is 
    just a shipping container for the source code.

==
  I'll get a life when it is proven
    and substantiated to be better
      than what I am currently experiencing.
            --attila


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