By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
The federal judge handling the case will hear arguments on the motion on Tuesday, June 6 (after the Voice goes to press). Through the vagaries of the justice system, the studios have already won a significant battle: MPAA president Jack Valenti is to be deposed before the hearing on the protective order. Accordingly, Valenti, who has hardly shied from trying this case in the papers (even writing an op-ed for the Los Angeles Times), will enjoy the shield of confidentiality when he gives his testimony.
Valenti will likely speak against DeCSSa program created to allow users to watch DVD movies on unlicensed machines, specifically those using the operating system Linux. In November, the film industry launched a crusade to ban online posting of the decryption program.
Judge Lewis Kaplan has invited news organizations to make formal requests for access, and several have taken him up on the offer. The Voice, which has been covering the case [see "Down By Law"], filed a brief that includes a declaration from this reporter. Declan McCullagh, a correspondent for Wired News, and Mike Godwin, the senior legal editor for E-Commerce Law Weekly, have filed a joint brief. Cryptome.org and Newsday have also each filed briefs.
"This is an issue of great public import, a constitutional issue and a challenge to a very important law, the Digital Millennium Copyright Act," says McCullagh, a veteran law and technology reporter. "It's going to affect anyone who wants to read, work, or play online in the future. This is a public case, and the MPAA, by putting out press releases, has made it a public case. We just want to hold them to it."
Other news outlets are watching the case closely. The New York Times filed an affidavit supporting defense arguments on a prior motion but declined to intervene on the issue of press access. However, Times attorney Adam Liptak was willing to comment. "In general, there ought to be a good reason to exclude the press from court proceedings, including depositions. We've heard nothing like a good reason here," says Liptak.
Leon Gold, an attorney for the MPAA, says the testimony and documents should be sealed to protect the court, lawyers, and MPAA officials. In support of this logic, the plaintiff's legal team filed a declaration by Kenneth Jacobsen, the MPAA's chief of anti-piracy, which includes several e-mails he received that threaten the MPAA and its legal representatives. "If you even dare try to put forward your litigation and lawsuits, I will kill you and your lawyers and anyone else who supports you in your fight against piracy," reads one of the submitted e-mails. It adds, "I have hired several hitmen to kill Elian when comes [sic] back into cuban soil."
Goldstein's lawyer, Martin Garbus, says he has no problem with sealing the identity, addresses, and phone numbers of MPAA witnesses, or, for that matter, shielding information that may be construed as trade secretsa category that includes plans for DVD encryption and techniques for investigating piracy. Garbus's firm signed a confidentiality agreement with Proskauer Rose last month, pledging their willingness to keep such information sealed. "But they're trying to use that agreement to overdesignate what is and what isn't confidential," says Garbus. "The fact is they're embarrassed by what is coming out of the documents and the testimony, which basically says they don't have a case and they did something foolish in pursuing this."
In another development, Garbus's firm is now a permanent member of Goldstein's defense team. Time Warner, one of the litigants, had asked to have Garbus disqualified because his firm, Frankfurt, Garbus, Klein, and Selz, represents Time Warner's interests in an unrelated case. On May 22, the court rejected the motion to remove Garbus from the case.
MORE VOICE STORIES BY JEFF HOWE ABOUT DVD PIRACY
Firing Blanks Published June 21 - 27, 2000
Valenti Bumbles Through Deposition on DVD Piracy
Down By Law Published May 3 - 9, 2000
When Movie Moguls Wage War to Protect Copyright, the First Amendment Ends Up on the Cutting Room Floor