<nettime> Lucky Green on the DeCSS Court Hearing Report (fwd)

[t byfield <tbyfield@panix.com>]

----- Forwarded 

Date: Wed, 29 Dec 1999 20:06:32 -0800
From: Lucky Green <shamrock@cypherpunks.to>
Old-Subject: DeCSS Court Hearing Report
To: "cypherpunks@Algebra. COM" <cypherpunks@Algebra.COM>
Cc: "Cryptography@C2. Net" <cryptography@c2.net>, John Gilmore <gnu@toad.com>
Subject:  DeCSS Court Hearing Report

Today, I attended a fascinating hearing in State of California Superior
Court (county of Santa Clara). The issue at bar was a request by the "DVD
Copy Control Association, Inc." (DVDCCA) to issue a temporary restraining
order (TRO) against various named and unnamed operators of websites and
other individuals distributing copies of [De]CSS source code. DeCSS was
originally published to allow for playback of DVD's on computers running the
Linux operating system.

The lines appear drawn rather clearly: a "Copy Control Association" vs. the
Open Source community. But the hearing left the audience, and I suspect the
judge, with many open questions.

First, let's introduce the players (I didn't take many notes. Other may have
more detailed information).

o three attorneys from Weil, Gotshal, and Manges (New York City) for the
DVDCCA.
o one lone defendant with two attorneys provided by the EFF.
o an audience of various Cypherpunks and Linux folks.

The DVDCCA's attorneys arrived at the courthouse after the Cypherpunks
contingent and had to make their way through a rather impressive crowd
(especially given that we had less than a day notice) to file their
complaint. One of the attorneys carried several boxes with copies of the
complaint. The complaint was sizable. Each copy stacked up almost 3 inches.

The plaintiff's attorneys were clearly surprised by the publicity their
action had generated. All three attorneys were visibly nervous and
apprehensive while waiting in the hallway for the courtroom to open. This is
significant, because these folks are professionals. Unlike some random
person who suddenly finds himself in court and might reasonably be nervous,
these guys crush people for a living. Yet our presence gave them the
jitters.

This is perhaps not /that/ surprising, given that only a *single* defendant
of the 500 alleged defendants bothered to show up in court. Chances are the
plaintiff assumed that none of the defendants would appear in court. Had
that happened, the plaintiff's attorneys would have present their case,
requested a TRO, and absent an opposing party the TRO would have been
granted. A mere formality. In and out of the court room in 15 minutes.

However, what took place was far from a formality. Instead of the judge
rubber-stamping the TRO, the plaintiffs found themselves faced with not only
a defendant, but two attorneys for the defendant that in oral arguments
framed the issue at bar in very different terms than the "evil hackers are
conspiring to cause millions of dollars in damages to the movie industry by
distributing software that allows for illegal copies to be created" put
forward by the plaintiff. The defendant's attorneys turned a potential "open
and shut" case into a First Amendment issue. Not at all what the plaintiffs
had in mind. Big thanks go to the EFF for providing for a defense literally
overnight.

Trying to sum up the arguments made during the hearing by both sides is
somewhat challenging, which is probably at least in part due to the fact
that the plaintiff's complaint has no merit. Nonetheless, I will try to
provide an attempt at summary below.

The plaintiff concedes that reverse engineering CSS from an implementation
is in principle lawful. However, they also claim that:

1. CSS was reverse engineered from Xing's DVD player.
2. Xing's player requires the user to click on a button accepting a license
agreement prohibiting reverse engineering.
3. Reverse engineering could not have been performed without accepting this
license agreement.

All taken together, the reverse engineering was supposedly performed in
violation of the license agreement to which the person performing the
reverse engineering allegedly agreed. It probably will not come as a
surprise to many readers of this post that the plaintiff failed to provide
even a shred of evidence for even a single one of these claims, much less
all of them, as would be required by the legal theory advanced by the
plaintiff.

Next, the plaintiff alleges that since the CSS trade secret was therefore
obtained by illegal means (breach of contract) the trade secret is still
afforded protection. Similarly to a trade secret that has been leaked by a
person under NDA.

Furthermore, the plaintiff alleges that every single webmaster that
presently mirrors CSS is aware of this supposed illegal origin of the CSS
source. The plaintiff conceded that once a webmaster that is unaware of the
supposed illegal origin of CSS mirrors the CSS source, the plaintiff's
complaint based on trade secret (as found in the Universal Commercial Code)
can no longer be made. The plaintiff then requested a TRO to prevent the
spread of the CSS source before such a situation occurs.

The counsel for the defendant argued that source code is speech, that the
theory that CSS was obtained illegally was questionable at best, and that
issuing a TRO would chill the speech of not just the individuals presently
mirroring CSS, but of webmasters in general.

The line of argument made by the plaintiff left the audience rather puzzled.
First, basing the litigation on trade secret seems sub-optimal. Not that a
different legal argument would be anywhere near compelling, but it appears
that an argument based on copyright would have been a better approach. In
addition, the plaintiff's choice of venue is simply abysmal. Of the many
jurisdictions in which they could have filed a complaint, they chose the 9th
Circuit, which as ruled that source code is speech.

However, the plaintiff's actions may make more sense when seen in the light
of some comments made repeatedly by the plaintiff during the oral argument.
The first comment was that the DVDCCA attorneys allege that since the /sole/
purpose of the DVDCCA is to license CSS, a freely downloadable CSS
implementation would put the DVDCCA out of business. I would be inclined to
concede this point. It is not quite clear to me why this would be a matter
of concern, since the DVDCCA is a non-profit organization. (Somebody needs
to obtain their financial statements, which, due to their non-profit status
must be public).

The second, and probably more significant, comment made repeatedly by both
the plaintiff  and the attorneys for the Motion Picture Association in the
affidavits accompanying the complaint, is that the studios would not have
agreed to releasing movies on DVD if it hadn't been for the DVD consortium's
assurance that DVD technology implements an effective copy protection
scheme. It appears the DVD consortium is experiencing a lot of heat from the
copyright holders over DeCSS and is in dire need of a scapegoat. Since the
DVD consortium's own technical incompetence in fielding a copy protection
scheme that is both subject to trivial reverse engineering and cryptanalysis
is not considered a desirably admission to make to the studios, the blame
needs to be shifted elsewhere. Blaming Does 1-500 appears to have been the
fastest excuse the DVD consortium could come up with.

[Sidebar: I have just been informed that the judge denied the TRO. This is
good news. But the work has just begun].

Even though the judge denied the TRO, our side needs to submit briefs to the
Court by January 7th for the preliminary hearing to be held on the 14th. For
this to happen we will need two things: technical expertise and money.
Today, we caught the plaintiff's attorneys of guard. That won't happen
again. According to an affidavit by Harvey Shapiro of Sarogy, Stein, Rosen &
Shapiro for the MPAA and MPA, this firm alone has 9 attorneys working on
DeCSS. And those aren't just some guys with a law degree. This law firm has
been representing the MPAA for 50 years. They are the very embodiment of
high-powered American corporate lawyers serving multi-billion dollar
clients. I doubt such attorneys run less than $250/hour. If so, the MPAA's
legal team alone costs almost $550k per month. The DVDCCA's attorneys are
unlikely to be much cheaper. Neither law firm going to make the same mistake
twice.

I don't envy the DVDCCA/MPAA for the situation they are facing. They must
win this case. Otherwise, the almost mythical reputation of invincibility in
the courtroom the MPAA has enjoyed for so long will be lost. And the sharks
have been waiting for a long time, indeed. Yet, the plaintiffs have a
serious problem: their complaint is without merit. This probably wouldn't be
the first time they won a case without merit, but I sincerely doubt it will
happen this time. At least it won't if we do what needs to be done.

I believe the it is crucial for us to do the following:

o support the EFF and others helping to provide legal representation to the
defendants with cash contributions. We need to raise several hundred of
thousands of dollars to win this fight. I am putting my money where my mouth
is and hereby pledge a contribution of $2000.

o the named defendants and their counsel need to show up in court for the
hearing on the 14th. You can't win a case if you refuse to stand up for
yourself in court. Don't stick you head into the sand. If you live in the US
and you name or website is mentioned in the complaint, you only have two
realistic choices: show up in court or cave in to the censors.

o the unnamed John Does should stay out of this unless they are willing to
fight in court. The plaintiff expressed great frustration at not being able
to serve legal notice to defendants only known as
"csssux@some_mail_forwarder.com". Let's not make their job any easier.

o coordinate our actions with those who have been down this road before. It
probably would be best to contact Robin Gross <robin@eff.org>, the EFF's
lead attorney for this case, if you are (or intend to) be involved in this
case in any way.

o FWIW, there is one small benefit of coming forward as a John Doe: the
plaintiffs will serve you all the legal documents directly. They'll even
automatically email them to you in MSWord format, ready for publication on a
website.

[Disclaimer: I am not an attorney licensed to practice law in the State of
California. The preceding represents my personal opinion and should not be
considered legal advice].

--Lucky Green <shamrock@cypherpunks.to>

  "Among the many misdeeds of British rule in India, history will look
   upon the Act depriving a whole nation of arms as the blackest."
  - Mohandas K. Gandhi, An Autobiography, pg 446
  http://www.citizensofamerica.org/missing.ram

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