IP: More on Judge limits media in DVD case

[Dave Farber <farber () cis upenn edu>]

> Date: Thu, 8 Jun 2000 17:21:22 -0400
> To: farber () cis upenn edu, ip-sub-1 () majordomo pobox com
> From: Mike Godwin <mnemonic () well com>
> \
>
> Dave, I think Declan's story as presented doesn't quite convey the 
> significance of the judge's ruling in the MPAA case. I was there, and my 
> account takes a different focus, which is that the movie companies lost 
> their play to block press access to deposition testimony:
>
> From the June 8, 2000 issue of E-Commerce Law Weekly
> In the Courts
> Movie Studios Lose Battle to Impose Blanket Bar Of Press, Internet
> Access to Deposition Testimony
>
> A federal judge denied June 6 a motion by movie studios seeking a
> blanket protective order barring disclosure of deposition testimony
> on the Internet (Universal City Studios Inc. v. Reimerdes, S.D.N.Y.,
> CA No. 00 Civ. 277 (LAK), motion denied 6/6/00).
> The underlying case concerns whether the dissemination and linking to
> a DVD decryption utility known as DeCSS is actionable as a violation
> of the Digital Millennium Copyright Act's anticircumvention
> provisions.
> The case was brought earlier this year by a group of movie-studio
> plaintiffs against defendants who either had published the source
> code for the DeCSS utility on their websites or who had linked to
> websites where the DeCSS program or source code could be found (2
> ECLW 87, 1/25/00). The suit is widely regarded by
> intellectual-property experts and the computer industry as a landmark
> case addressing questions of the scope of the DMCA's
> anticircumvention provisions and the applicability of "fair use"
> doctrine in the digital world.
> In response to a motion from the plaintiffs to categorically bar
> press access to depositions and to bar parties from disclosing
> deposition transcripts and evidence to the press-or to the public
> through the Internet-Judge Lewis A. Kaplan invited intervention on
> the issue from members of the press (2 ECLW 629, 6/1/00).
> The parties and the intervenors argued on the plaintiffs' motion at
> the June 6 hearing. Attorneys for defendant Eric Corley, who
> publishes 2600 magazine and who operates a related website, argued
> for press access to the depositions and evidence. Press intervenors
> contended that the press and the public were harmed by closed
> depositions, and some intervenors criticized the parties for agreeing
> to any confidentiality stipulation.
> Prior Confidentiality Agreement
> Ruling from the bench, Kaplan denied the plaintiffs' blanket
> protective order but held that the parties already-signed
> confidentiality agreement enabled them to redact any confidential,
> proprietary, or trade-secret information from deposition transcripts
> and evidence. Except for such redacted information, he ruled,
> deposition transcripts and testimony will
> generally be available to the press-
> and publishable on the Internet-10 days after the deposition dates.
> Kaplan made important exceptions to the 10-day rule: With regard to
> the testimony of Motion Picture Association of America CEO Jack
> Valenti and other "prominent" witnesses such as Disney chief
> executive Michael Eisner, the parties will make the transcripts and
> evidence available in three rather than 10 days. Valenti's
> deposition, which took place on the morning of June 6, was included
> in Kaplan's ruling.
> Encryption Information Gets Limited Protection
> At the hearing on the plaintiffs' motion to bar public and press
> access to depositions, arguments for media intervenors were made by
> lawyers for the Times Mirror Co. and for the Village Voice, and by
> Mike Godwin, senior legal editor of E-Commerce Law Weekly and
> columnist for American Lawyer, who argued pro se.
> Kaplan also held that parties' confidentiality stipulation, which
> Kaplan had approved June 5, will remain unmodified. The Times Mirror
> Co. and the Village Voice had sought to overturn the confidentiality
> stipulation, under which parties are bound to keep confidential
> certain kinds of information that may be disclosed in the discovery
> phase of the case.
> Among the types of information that qualify as "confidential
> information" to be redacted under the stipulation, Judge Kaplan
> ruled, are: information that could lead to harm of a deponent; trade
> or business secrets; and information on present or future DVD-movie
> encryption protection measures. Excluded is information or testimony
> that is embarrassing to deponents.
> Kaplan said protection of the encryption information is limited to
> the discovery phase of the case because the encryption technology
> used in manufacturing DVD movies is central to the lawsuit and thus
> will likely become public at trial.
> Although he did not grant a broad protective order to the plaintiffs,
> Kaplan did modify the confidentiality stipulation as a result of the
> hearing on press access. He held that publicly released material may
> be posted on the Internet as well as released to other communications
> media and that videotapes of the depositions, if made, could also be
> released subject to the redaction of stipulated information.
> Kaplan also held that parties could propose that other "prominent"
> deponents' testimony be subject to the three-day rule rather than the
> 10-day rule.
> Kaplan stated that he will rule promptly on any disputes as to
> whether particular material falls within the terms of the
> confidentiality stipulation but warned that parties will be subject
> to sanctions if there is any attempt to use this adjudication process
> either to force disclosure of confidential information or to slow
> parties' preparation for trial, which is set for July.
> Mere Embarrassment Not Enough for Redaction
> In response to complaints by the plaintiffs that their filings appear
> on the Internet within a day or two of submission, Kaplan commented
> that this kind of rapid publication on the Internet is something
> parties will have to get used to, and noted that federal judges' own
> financial statements are now subject to disclosure on the Internet.
> Kaplan also noted that mere embarrassment of a deponent-as when a
> deponent does not know an answer to a question or answers
> incorrectly-does not rise to the level of the kind of harm that would
> lead to testimony being blocked or redacted by the confidentiality
> order.
> The plaintiffs had expressed concern, in their argument for a blanket
> protective order, that deponents were being asked questions that
> would publicly embarrass them. Kaplan said Valenti, Eisner, and other
> prominent deponents do not need his court to protect them from
> embarrassment.
> Both sides of the dispute and the media intervenors proposed
> alternative arrangements under which the court could make
> particularized rulings as to whether information should be blocked
> from disclosure to the press or the public.
> But Kaplan said he was unwilling to open the proceedings up to the
> kind of delay those arrangements-such as a review by an independent
> magistrate-would cause. Because the case is set to go to trial in
> July, he said, his ruling is designed to avoid procedures and
> proceedings that would lead to further delay.
> … By Mike Godwin
> …
> [Editor's note: Mike Godwin's motion was made on his own behalf, and
> his appearance at the hearing was pro se. Godwin's argument and
> motion do not necessarily represent the views of American Lawyer
> Media Inc., the  publisher of E-Commerce Law Weekly.]
>
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>
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