Digital versatile disks or DVDs, have long been hailed as the next generation storage media. Because of their immense capacity, upwards of four gigabits, these shiny little disks represent an attractive palette for the distribution of information intensive content such as motion pictures. However, as with any content distribution mechanism, once a DVD is shipped, the author or licensor of the content loses practical control over the product shipped. As a means of continuing to control the content, including the stated purpose of controlling content piracy, the motion picture industry along with certain technology leaders formed a coalition to develop DVD standards and protections. One of the items developed was the DVD content scrambling system, or CSS.⁽¹⁾

The content scrambling system uses weak encryption and a series of key exchanges between the DVD and the DVD player in order to descramble the otherwise scrambled motion picture data stored on CSS enabled DVDs. Although CSS is billed as a copy protection mechanism, it does nothing to thwart bit-for-bit copying or large scale DVD duplication. Additionally, the encryption used is not so called "strong" encryption and can be easily cracked.

CSS, along with its attendant licensing schemes, also provides the motion picture provider with the ability to disable a consumers ability to fast forward through any portion of the DVD. This unique feature was recently utilized by Disney to force consumers to view its advertisements. Additionally, the CSS licensing scheme includes region coding which only enables the DVD to be played on DVD players located in the geographical region where the DVD is purchased. Finally, because the CSS mechanism actually protects the viewing of DVD content (rather than the copying of said content), lawfully purchased DVDs may only be played on DVD players licensed by the consortium that controls CSS.

The Creation of DeCSS:

The actual creation of DeCSS is shrouded more in confusion than mystery. When DeCSS was created, prior to any of the legal actions, numerous groups were vying to take credit for its creation. Since then, different theories have been proffered by the motion picture industry as to how DeCSS was actually created. The prevailing theory, goes as follows:

A fifteen year old honor student and national science award winner in Norway named Jon Johansen became interested in DVDs. Young Johansen and his family frequently traveled to France and were interested in French culture. On one of his many trips to France, the fifteen year old Johansen purchased some DVDs and brought them back to his native Norway. Upon arriving in Norway, he realized that he could not play his DVDs at home because of the region coding scheme. Additionally, he could not play DVDs on a Linux machine at all. It appears that Johansen began various conversations with other individuals and groups aimed at creating a DVD player that would solve both problems. The player would enable consumers to play DVDs of any region and would enable the playing of DVDs on machines running the Linux operating system (at that point, there was no DVD support for Linux, free BSD, or a variety of other non main stream operating systems. It appears that Johansen and a number of other individuals and groups eventually created the program known as DeCSS. The program was initially created to run under Windows which was then intended to be adapted to Linux. In order to create DeCSS, the authors appeared to have reverse engineered one or more licensed DVD players in order to determine the encryption algorithm and keys.

Discussions regarding the CSS problem had been raging on the Web for several months. So, when the DeCSS code was prepared, Johansen and others allegedly posted the information on the Internet. The information was soon republished by numerous other individuals and a variety of different DVD projects eagerly utilized and discussed the information.⁽²⁾

Legal Action:

Several months after the creation and posting of DeCSS, the motion picture industry initiated legal action. The action began with a series of threatening cease and desist letters making a broad range of allegations, accusations and requesting various remedies.

On December 27, 1999, the DVD CCA (a non profit trade organization in charge of administering the CSS license), with support of the motion picture association filed a massive law suit in California State Court. The law suit identified dozens of named individuals, a number of identified Web sites, and 500 additional "Doe defendants" who allegedly either linked or posted to the DeCSS information. Initially, although the law suit identified Johansen as the sole creator of DeCSS⁽³⁾, Johansen was not named as a defendant. Instead, DVD CCA sued only individuals who posted the information. The law suit alleged that DeCSS contains trade secrets covered by the DVD CCA license scheme and that by posting the information the 500 defendants have violated the uniform Trade Secrets Act as enacted in California.

Although there was some interest in DeCSS prior to DVD CCA's action, once the law suit was initiated, targeting only individuals (no corporations were named), a massive protest started. As part of the protest, numerous individuals began dramatically increased efforts at spreading DeCSS worldwide. One such well publicized attempt included posting the DeCSS code on a tee shirt, another involved attaching the code to balloons and releasing them into the air. One group sponsored a contest regarding the publication of DeCSS - several weeks later, when the contest was over, the organizers named DVD CCA as the most efficient group causing the proliferation of the DeCSS code.

In the legal arena, DVD CCA was not fairing much better. The California trade secrets case was filed immediately after Christmas and was served only on individuals. Therefore, DVD CCA was surprised when their request for a temporary restraining order on 24 hours notice was met with an opposition.

Almost the instant that DVD CCA filed their law suit, the well respected cyber-rights group EFF (Electronic Frontier Foundation) began organizing a defense strategy. EFF staff counsel, Robin Gross, contacted the HS Law Group and requested assistance.

At the temporary restraining order hearing, the HS Law Group and EFF appeared on behalf of Andrew Bunner, an individual alleged to have mirrored the DeCSS code on his Web site. On the morning of the hearing, an astonishing number of interested parties arrived at the Santa Clara County courthouse. Various estimates suggest that the number of Internet activists was in the hundreds, all trying to enter the packed Santa Clara County Superior Courthouse. Following an extensive three hour argument, the court issued a written order denying DVD CCA's request for a temporary restraining order.

Shortly after the state court's denial of the TRO, eight motion picture studios filed two much more narrow law suits in federal court. In New York, the studios filed suit against two journalists and an Internet service provider alleging a violation of the digital millennium copy right act (17 U.S.C. 1201). A similar suit was filed in Connecticut against a single individual.

The studios moved even more quickly in New York, successfully defeating the HS Law Group's efforts at obtaining an adjournment of the federal proceedings in order to obtain local New York counsel. Eventually, the New York court held a hearing and granted the studios' request for a temporary restraining order (EFF staff counsel, Robin Gross and HS Law Group attorney, Allonn Levy, were admitted pro hoc vice and appeared by telephone). The court did accept the defense team's arguments regarding linking and only granted the injunction as to the actual posting of code, denying the plaintiffs' request to also bar linking.

Not long after the New York hearing, the California court held a second hearing and granted a preliminary injunction against the named defendants in the California case. The court tailored its preliminary injunction ruling to cover only the posting of DeCSS and specifically declined to bar linking, citing first amendment considerations. The order granting the preliminary injunction in California is currently on appeal before the Sixth District Court of Appeal in California. http://appellatecases.courtinfo.ca.gov/search/mainCaseScreen.cfm?dist=6&doc_id=21328

Meanwhile, in the New York action, the legal team obtained local New York counsel and noted first amendment attorney Martin Garbus of the Frankfurt, Garbus, Kline and Seltz firm. The New York court ordered an abbreviated discovery schedule and set the matter for trial almost immediately. On August 17, 2000, the New York district court found in favor of the plaintiffs⁽⁴⁾ and issued a lengthy, precedent setting opinion. In the opinion, the court found that the "substantial non-infringing use" theory presented in the well known Supreme Court opinion of Sony v. Betamax had been overruled, that first amendment rights were not impinged by this court's actions, that the DMCA was constitutional, and that the plaintiffs' interpretation of the statute and application to these facts was correct. Following the granting of the injunction in New York, the sole remaining defendant⁽⁵⁾ filed a notice of appeal. Numerous technology, free speech, journalist, and librarian groups have joined the appeal as amicus curiae.

California's Jurisdiction and the Internet:

One of the many cyber-law issues brought by the DeCSS cases is the question of jurisdiction. In California, 18 of the 21 named defendants are not California residents. Many of the individuals come from foreign countries and the others from foreign states. The due process clause of the U.S. Constitution protects non-resident defendants against an unreasonable exercise of jurisdiction by any government entity.

The first non-resident defendant to contest jurisdiction in California was Matthew Pavlovich. Pavlovich, also represented by the HS Law Group, was a student at Indiana's Purdue University when he was sued by the DVD CCA. He argues that he has had no contacts with California and therefore the due process clause of the constitution forbids the California state government from exercising its jurisdictional power over him. DVD CCA contends that by interacting on the Internet, with issues involving the computer industry and motion picture industry, which are reputed to exist in California, Pavlovich has engaged in so called "minimum contacts" that will support jurisdiction in California. Following extensive motion work and a hearing on the issue, the Santa Clara County Trial Court denied Matthew Pavlovich's request for a motion to quash for lack of jurisdiction.⁽⁶⁾ Mr. Pavlovich immediately contested the trial court's ruling by seeking a Writ of Mandate from the appellate court. Following extensive briefing, the Sixth District Court of Appeals denied the petition for Writ of Mandate and Mr. Pavlovich sought an "Extraordinary Writ" by way of Petition for Review to the California State Supreme Court.

http://appellatecases.courtinfo.ca.gov/search/mainCaseScreen.cfm?dist=6&doc_id=22136

Although such petitions are rarely granted, on December 19, 2000, a unanimous decision was issued by the California State Supreme Court, En Banc, granting the Petition for Review and immediately transferring the matter back to the Sixth Appellate District with directions to vacate its prior order denying Mandate and to further issue a new order commanding the trial court to show cause why the relief sought in Mr. Pavlovich's petition should not be granted.

California Legal Team

Allonn E. Levy, HS Law Group APC (Read biography)

Diane E. Baylor, HS Law Group APC (Read biography)

Robin Gross, Electronic Frontier Foundation (www.eff.org)

Tom Moore, Tomlinson Zisko Morosoli and Maser LLP (www.tzmm.com)

David Greene, The First Amendment Project (www.thefirstamendment.org)

James Wheaton, The First Amendment Project (www.thefirstamendment.org)

New York Legal Team

Allonn E. Levy, HS Law Group APC (Read biography)

Marty Garbus, Frankfurt, Garbus, Klein, Kurnit and Selz (www.fgks.com)

Ed Hernstadt, Frankfurt, Garbus, Klein, Kurnit and Selz (www.fgks.com)

Robin Gross, Electronic Frontier Foundation (www.eff.org)

Other Resources

Archive for the NY DVD case: http://www.eff.org/pub/Intellectual_property/MPAA_DVD_cases

Judge's Memorandum Order, constituting the judge's "findings of fact and conclusions of law" in support of his granting NY Preliminary Injunction: http://www.eff.org/pub/Intellectual_property/MPAA_DVD_cases/20000202_ny_memorandum_order.html

Order granting NY preliminary injunction at hearing: http://www.eff.org/pub/Intellectual_property/MPAA_DVD_cases/20000120_pi_order.html

Archive for the California DVD case: http://www.eff.org/pub/Intellectual_property/DVDCCA_case

General Info on the technology: http://www.opendvd.org

More background documents on the DVD case: http://www.eff.org/ip/Video

EFF Press Releases: http://www.eff.org/ip/Video/MPAA_DVD_cases/200001120_eff_press_release.html

DMCA Exemption Comments

EFF's Comments to Copyright Office on Anticircumvention provisions: http://www.virtualrecordings.com/effcomment.htm

Other comments to the Copyright office http://lcweb.loc.gov/copyright/1201/comments

Footnotes

1. Because of allegations of trade secret in the case of DVD CCA v. McLaughlin, et al., now pending in Santa Clara County, California, the actual CSS system will only be discussed in very general terms.

2. Prior to the creation of DeCSS, numerous Linux groups such as Linux DVD and Livid (Linux video) were in the process of developing a number of different video and DVD utilities for the open source Linux operating system.

3. As indicated above, the plaintiff has since repeatedly changed its theory on this issue.

4. At trial, plaintiffs dropped all of their damages claims against the defendants and conceded that they were unable to prove any piracy as a result of DeCSS.

5. The other two defendants previously sued had since been removed from the case.

6. Had the motion been granted, Mr. Pavlovich would have been dismissed from the case.