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List:       cryptography
Subject:    Re: DeCSS Court Hearing Report
From:       Sameer Parekh <sameer () bpm ! ai>
Date:       1999-12-30 19:44:12
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	Let me just echo everything Lucky has said, and emphasize a
few things. The EFF truly saved the day in this case. Without quick
action on the part of the EFF the TRO would have been granted and the
DVD CCA would have dealt a significant blow to free speech. Attorneys
for the defense Robin Gross and Allonn Levy deserve our
gratitude. Many thanks also to the sole defendant Andrew Bunner who
decided to stand up to the DVD CCA and appear in court.
	I am not at all surprised that the DVD CCA attorneys did not
act completely professionally. The lead attorney in fact was extremely
flustered during his rebuttal, which I'm sure did not help his case. I
suspect the DVD CCA didn't bring out their best and brightest for this
hearing because, as has already been stated, they expected it to be an
open and shut 15 minute no-defendant-present TRO hearing. Now that
they have seen what opposition we can muster on two days notice, we
can expect that the DVD CCA will be making sure their best people are
on the case, people who will not get flustered during rebuttal, people
who will not show any visible signs of unease before a hearing.
	This is an incredibly important case. Its outcome could set
the tone for future interactions between the large copyright holders
(MPAA, RIAA, etc.) and the Internet community at large. This case will
determine if the large copyright holders will be able to just roll
over whomever they like at their whim or if they are going to think
twice before launching a baseless case such as this.
	The DVD CCA does not have a strong case, but they will not
back down. They have too much riding on this. As Lucky has stated,
their entire existence is built upon licensing the CSS
technology. Since it is no longer a trade secret, they have nothing
left to license. The DVD CCA has expected and continues to expect to
win -- not on the merits of their case, but based upon the simple fact
that they have more money than the defendants in the lawsuit.
	We need to prove them wrong.

	Just yesterday I sent a check to the EFF for $5,000. I
encourage everyone who has an interest in free speech to help show the
DVD CCA and its member organizations that they can not and will not be
able to use their financial might to censor free speech. I will
dispute Lucky's point, however, that cash contributions are the best
way to support the EFF. By donating appreciated liquid securities
rather than cash you get substantially increased tax benefits over
donating cash. Consult your accountant.

	Plan to show up at the hearing January 14th. Show the judge
that this is an issue that matters.
	Tell people about the case. Impress upon them how important
this case is in the fight for free expression as more and more
expression is done with source code, audio, and video
technology.
	There was substantial support at the hearing from the Linux
community, but the support from the Cypherpunk and MP3/music
communities was thin to non-existent. This is not just a Linux
issue. This is a free speech issue.
	And of course, contribute what you can to the EFF. Imagine
what the Internet would be like without the EFF. Source code would not
be speech in the 9th circuit. "Indecency" (an ill-defined term at
best) would be illegal on the Internet. The BXA would not be rewriting
the encryption regulations to support open source. Without the EFF,
the Internet as we know it and the associated wealth created with this
Internet would not exist.

Thank you,
-s

> 
> 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
> 


-- 
sameer

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