FC: Our motion to open proceedings in MPAA-2600 DVD case to public

[Declan McCullagh <declan () well com>]

Mike Godwin and I on Friday will file a motion to intervene in the DVD 
lawsuit in federal district court in New York. We are asking Judge Kaplan 
to allow us and other members of the press full access to information in 
the lawsuit brought by the MPAA member companies against 2600 Magazine. 
That includes depositions and deposition transcripts, which the MPAA 
companies are hoping to conceal from the public.

If the judge allows us to intervene, we can argue in court next week 
against plaintiffs' request for a protective order. For instance, we 
believe that the MPAA's claim that email flames constitute serious threats 
-- and justify giving the boot to the public -- is overblown.

Background:
http://cryptome.org/mpaa-v-2600-poa.htm
http://cryptome.org/mpaa-v-2600-mpo.htm

-Declan



http://www.politechbot.com/dvd/intervene.motion.060200.html

   IN THE UNITED STATES DISTRICT COURT
   FOR THE SOUTHERN DISTRICT OF NEW YORK
   ___________________________________________________
   UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES
   CORPORATION, METRO-GOLDWYN-MAYER STUDIOS INC.,
   TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES,
   INC., TIME WARNER ENTERTAINMENT CO., L.P.,
   DISNEY ENTERPRISES, INC., and TWENTIETH
   CENTURY FOX FILM CORPORATION,

     Plaintiffs,

     -against-

   ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and 2600
   ENTERPRISES, INC.,

     Defendants.

   ___________________________________________________

   MOTION TO INTERVENE,
   OPPOSITION TO MOTION FOR PROTECTIVE ORDER,
   AND BRIEF IN SUPPORT OF MOTIONS

   STANDING AND QUALIFICATIONS OF MOVANTS

   1. Declan McCullagh is a reporter for Wired News, a daily online
   publication that can be found at wired.com. McCullagh specializes in
   writing about technology, privacy, intellectual property, and free
   speech. He has written ten articles for Wired News about the release
   of the DeCSS utility and the subsequent lawsuits including the instant
   case. He has written a lengthy article about the instant case, called
   "DVD Battles: Copy Free or Die?" that was the cover story for the
   April 2000 issue of IP Worldwide magazine. He has written about the
   instant case for an article that appeared on the website of The New
   Republic magazine in May 2000.

   [...snip...]

   4. Wired News is part of Lycos, a Waltham, Mass. company that owns and
   operates a global network of media properties. Lycos currently is one
   of the most visted hubs on the Internet, reaching one of every two web
   users. Lycos has announced a merger agreement with Terra Networks that
   would create a combined company with operations in 37 countries, an
   estimated 50 million unique users, and 175 million page views per day.

   5. McCullagh has linked to copies of the DeCSS utility from Wired News
   and other articles, and is aware of online reporters who have done the
   same. He believes that comprehensive and accurate coverage of the
   issues in this case requires that he be able to point readers to
   precise technical information about the DeCSS program itself, as well
   as to the technical information that is likely to be generated and
   discussed in the discovery phase of this case.

   6. As a writer and working journalist who specializes in
   Internet-related legal issues, and who has written about the instant
   case and related cases, McCullagh has standing as a journalist to
   oppose the plaintiffs' motion for a protective order barring the press
   and public from access to transcripts of the parties' depositions in
   this case and from access to submissions, videotapes, and other
   related evidence in the discovery phase of this widely publicized
   litigation.

   7. Mike Godwin currently serves as senior legal editor of E-Commerce
   Law Weekly, a publication of American Lawyer Media, Inc.. That
   publication was founded in October 1999 to provide relevant legal and
   news reporting of current cases, legislation, and other information to
   lawyers whose practices deal with Internet-related,
   e-commerce-related, and computer-related legal issues. E-Commerce Law
   Weekly typically includes detailed reporting of case decisions and of
   filings in important cases in this area. Although E-Commerce Law
   Weekly is a limited-circulation journal, articles from the journal are
   routinely reposted on the Internet at large at http://www.law.com.
   Several articles related to the ongoing litigation concerning the CSS
   encryption scheme for motion-picture DVDs have already appeared on
   these websites, and at least one of Mike Godwin's articles for
   E-Commerce Law Weekly has been cited by the court in the instant case.

   [...snip...]

   11. As a writer and working journalist who specializes in
   Internet-related legal issues, and who has written about the instant
   case and related cases, Godwin has standing as a journalist to oppose
   the plaintiffs' motion for a protective order barring the press and
   public from access to transcripts of the parties' depositions in this
   case and from access to submissions, videotapes, and other related
   evidence in the discovery phase of this widely publicized litigation.

   ARGUMENT

   The Free-Speech Value of Keeping The Depositions Open

   1. In general, litigation and related proceedings should be as public
   as possible. It is a longstanding principle in American society that
   court proceedings of any sort are presumptively available to the
   public. Part of the rationale for this principle is that citizens must
   know what is going on in their society's courtrooms if they are to
   know whether justice is being done. In some relatively rare
   circumstances it may be appropriate for a court to close proceedings
   or to edit or redact some or all of a court document. But such
   exceptions to the general principle of open proceedings should be
   narrowly tailored and grounded in solid evidence of a compelling
   governmental interest in denying the public access to presumptively
   open court documents.

   2. In particular, litigation concerning First Amendment issues should
   generally be as a public as possible. As Godwin and others have
   written (see, e.g., Cyber Rights, Chapter 7, generally), the framework
   of copyright exists in an ongoing tension with the framework of
   freedom of speech. The growth of computer and Internet technologies,
   which enhance both individuals' ability to speak freely and their
   ability to engage in lawful and unlawful copying, has heightened this
   tension.1 In our view, the instant case -- in which accusations have
   been made about copyright piracy of movie DVDs in the absence of any
   direct substantive evidence of the use of DeCSS to facilitate such
   piracy -- is itself symptomatic of that heightened tension. There are
   a number of free-speech issues raised by the instant case, including
   but not limited to

   3. Whether it is appropriate for a court to order a party not to link
   to websites that contain information that another party wants
   suppressed;

   4. Whether the mere sharing of source code, which at least two courts
   have classified as expressive speech (See Bernstein v. United States
   Dept. of Justice, 176 F.3d 1132, rehearing in banc granted, opinion
   withdrawn, 192 F.3d 1308 (9th Cir. 1999), and Junger v. Daley, 209
   F.3d 481; 2000 U.S. App. LEXIS 6161; 2000 FED App. 0117P (6th Cir.);
   28 Media L. Rep. 16092), should be considered violative of the
   anticircumvention provisions of the Digital Millennium Copyright Act,
   and

   5. Whether the free-speech interests embodied in the our copyright
   law's "Fair Use" doctines have any continued meaning in the fact of
   the anticircumvention provisions of Digital Millennium Copyright Act.

   _____________________

     1 "Even though there are some real issues facing the world of
     copyright in the digital age, there's no reason they can't be
     debated publicly and honorably. As to the merits of the proposed
     copyright reforms, the companies that want to increase legal
     protection for intellectual property think there are arguments
     compelling enough without needing to sneak policymaking though the
     backdoor of a lawsuit. I don't agree with some of the software
     providers' arguments, but I do agree that the arrival of the Net as
     a central force in public life presents an occasion for a full
     examination of intellectual property issues. And the only
     unassailable consensus about copyright on the Net will be the one
     that comes from fair and open public debate." Godwin, Cyber Rights:
     Defending Free Speech in the Digital Age, Times Books 1998, page
     183.

     2 Reversing and remanding Junger v. Daley, 8 F. Supp.2d 708, 715-18
     (N.D. Ohio 1998), which was relied upon by this court in its Feb. 2
     memorandum opinion in this case. "Because computer source code is
     an expressive means for the exchange of information and ideas about
     computer programming," the appeals court wrote, "we hold that it is
     protected by the First Amendment." 209 F.3d 483.

   The Overblown "Threat" of Angry E-mail

   6. The evidence of a threat posed to Motion Picture Association of
   America (hereafter MPAA) employees and others by the disclosure of the
   deposition testimony and evidence is inadequate to support the broad
   protective order that plaintiffs request. Plaintiffs adduce no
   evidence of a causal or any other kind of connection between the
   threats they say they have received and the actions they say have been
   taken against representatives of the MPAA. Angry mail, without more,
   is not enough evidence of a threat posed, in our opinions as
   longstanding observers of, and participants in, Internet culture.

   7. McCullagh and Godwin have each received angry e-mail at least as
   virulent in substance and tone as that adduced by plaintiffs. In no
   instance has either McCullagh or Godwin regarded the purported
   "threatening e-mail" as serious enough to warrant independent criminal
   investigation. Both McCullagh and Godwin have written about the
   cyberspace social phenomenon called "flaming," and it is our belief as
   longstanding observers of Internet cultures that the e-mail MPAA has
   received is nothing more than the routine "flames" that any person or
   entity taking an unpopular position might receive. In our opinion,
   plaintiffs are hoping the court will not make a distinction between
   innocuous "rants" (at least one of the correspondents cited in
   plaintiffs' brief acknowledges that that his or her message is "just a
   rant") and true threats.

   The Inequity of Plaintiffs' Complaints About Angry E-mail

   8. While we do not excuse the content or tone of some of the messages
   plaintiffs cite in their request for a protective order, we must point
   out to the court that spokespersons for the plaintiffs (and, in
   particular, MPAA chief executive officer Jack Valenti) made a point at
   the outset of this litigation to characterize the defendants and those
   who support them with words like "thief" and "pirate." Although
   regrettable, it is perhaps not an unforeseeable result that young
   computer hobbyists might react angrily and resentfully to an entire
   industry's labelling them as criminals -- to that extent, we believe,
   the anger that the MPAA has encountered in its e-mail is in part a
   function of the public-relations strategy it chose at the outset of
   the litigation.

   9. That anger and frustration is also, we believe, partly a reaction
   to the widespread sense in Internet communities that concerned
   individuals who are not a party to this litigation have been closed
   out of the process by which this case is being developed and by which
   the law will be made. A protective order that closes the doors of
   secrecy on the testimony and evidence developed in this case will, in
   our view, likely only intensify the angry responses plaintiffs say
   they wish to quell.

   10. It is inequitable of plaintiffs to have publicized this case
   extensively when they believed they could control how the public
   perceives this case, then seek to shut down public review of the case
   proceedings when questions have been raised about the factual and
   legal claims they have advanced. Given the extent to which plaintiffs
   have chosen invite the public spotlight on this case, it is important
   that independent journalists be allowed to follow through and give the
   case the detailed, ongoing coverage it deserves as it develops.

   11. Finally, one of the reasons our society has chosen to make its
   legal proceedings presumptively public is precisely to invite the
   public to respond to the statements and actions of the principals. We
   can speak from experience when we say that it is not particularly
   comfortable to be the object of angry mail, electronic or otherwise.
   But experiencing the discomfort of learning that some portion of the
   public is angry with what we've said or done does not rise to the
   level of harassment.

   The Quasi-Trade-Secret Argument Does Not Justify a Blanket Order

   12. Plaintiffs also make what appears to us to be a
   quasi-trade-secrets argument with regard to MPAA investigatory methods
   and likely future anti-circumvention and anti-piracy methods and
   technologies.

   13. With regard to the investigatory techniques, we believe a
   trade-secret theory is inappropriate, given that the motion picture
   studios are not primarily in the investigations business. Moreover, we
   do not believe it is good public policy in an open society to cloak
   the methods and techniques of an industry's private police forces with
   a blanket protective order of the sort plaintiffs seek here.

   14. With regard to technological anticircumvention and
   copyright-management schemes, we note first that Godwin and McCullagh
   have told on multiple occasions by leading cryptography experts that
   the most secure encryption-based technologies are the most public
   ones. But even if this court is not inclined to take our word for it
   as to what the cryptographers say, we ask that the court consider any
   particular technological trade-secret question ad hoc and make an
   appropriate and limited order at that time rather than pre-emptively
   bar disclosure of all deposition testimony and evidence. After all,
   plaintiffs' lawyers and experts will be in the room during the
   depositions -- it should be possible for plaintiffs to act quickly to
   prevent any particular technological secrets from being leaked, and if
   necessary to seek a particularized court order to protect such
   secrets.

   The Need For Independent Investigation of Factual and Legal Claims

   15. Many of the factual and legal claims made by parties in this case
   deserve independent investigation by the press, not only because press
   reports may be of use to the parties and to the court in this case,
   but also because the factual and legal claims being made have bearing
   on larger policy issues, such as whether the DMCA or other laws
   require additions or amendment. In particular, technical and legal
   journalists regard this case as of key importance in shaping the
   balance of First Amendment rights and copyright prerogatives in the
   new century. McCullagh has written about the DVD/DeCSS litigation on
   innumerable occasions (see, generally, http://www.wired.com), and
   Godwin and his journal's parent company, American Lawyer Media, Inc.,
   have featured the case and related issues in American Lawyer Magazine
   and IP Worldwide as well as in E-Commerce Law Weekly.

   16. Delaying public review of the evidence in this case until the
   trial phase (or later) may prevent important information from being
   discovered and published by independent journalists in a manner that
   may be useful to the parties and to the court prior to the outcome of
   the proceeding. Full reporting of the case in progress is one way of
   ensuring that relevant experts and witnesses have the chance to come
   forward and contribute to this litigation.

   17. The court's own occasional reliance on third-party reports in
   reasoning about the legal and factual issues in this case3 illustrates
   the importance of allowing independent journalists to review, comment,
   and report on the evidence offered by witnesses in preparation for
   trial.

   ____________________

     3 See Footnote 2 of the court's Feb. 2 memorandum opinion in the
     instant case. Universal Studios, Inc. v. Reimerdes, 82 F. Supp. 2d
     211; 2000 U.S. dist. LEXIS 906; 53 U.S.P.Q.2D BNA) 1780.

   18. While it is true that we rely on the adversary process in
   litigation to develop the facts and issues of a case, we do not
   believe that the value of an independent press in supplementing that
   process can be dismissed, especially in as important a case as this
   one.

   CERTIFICATE OF SERVICE

   We hereby certify that on June 1, 2000, we served a copy of this
   combined motion on counsel for all parties by the indicated methods
   addressed as follows:

   [By Fax]

   Leon P. Gold (LG-1434)
   William M. Hart (WH-1604)
   Charles S. Sims
   PROSKAUER ROSE LLP
   1585 Broadway
   New York, New York 10036
   (212) 969-3000 Telephone
   (212) 969-2900 Facsimile

   [By Fax and E-mail]

   Edward Hernstadt
   Martin Garbus
   Frankfurt, Garbus, Klein & Selz, PC
   488 Madison Avenue
   New York, New York 10022
   (New York County)
   Telephone: 212-980-0120
   Facsimile: 212-593-917

   Dated June 2, 2000

   Respectfully submitted,

   [signed]
   Mike Godwin

   [signed]
   Declan McCullagh 

--------------------------------------------------------------------------
POLITECH -- the moderated mailing list of politics and technology
To subscribe, visit http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
--------------------------------------------------------------------------