What happened:

Chris DiBona

So here is a blow by blow account of the trial. It would be much better but I can't find my notebook (argh) But the good news is, the Judge said it would be fine to put the transcript of the trial up on my web site, so look for that in the coming days.

It is divided into the following sections:


The whole thing started out with me hitting the snooze bar. After 7 more minutes of blessed sleep in my nice, warm bed, I:

Arrived at the Lawyers office, attending from the EFF was John Gilmore and Robin Gross, as well as three guys who work there as well and whose names escape me (sorry, guys). The defendant was one Andrew Brunner, someone who found the code sometime around the first mention on slashdot and who responded to the DVD CSA groups cease and desist by putting it up on his site.

We chatted for a bit then headed to the Courthouse, which was about 3 blocks away. When we arrived at the courthouse, we went through the metal detector, saying hi to our compatriots who had showed up.

While the lawyers went to check in and do lawyer stuff, I said hi to the bay area folks who had shown up to watch the preceding. There was initially about 35 people waiting to come along, later counts went to about 50 people.

The Lawyers from the EFF, Andrew and I went to the second floor to await the court opening. Waiting there were about 5 people from the DVD CCA group. They had 1 internal lawyer, 2 external counsel from a New York firm and a representative from both the MPAA and some copyright control group. It's my opinion that they looked at us kind of funny, but when the 50 other people showed up to observe the trial, they had a distinctly , well, different look on thier face.

And they really weren't happy when we passed out the source code Pamphlet or the floppy discs. The Pamphlet had as it's title "Get your Free DVD Decryption Here:" and then a list of the css-auth.h code.

After about 25 minutes of kibbitzing outside the court, it opened up and we all filed in and sat down.

Before I continue, I should point out that the hackers that showed up were all very respectful of the court and didn't let our derision for the DVD lawyers impact on the case. Only once was there a major chuckle. But even that was polite, sort of a quick, simultaneous snort from the entire audience. (I'll tell about this later) But really a number of them were very well dressed and total pros.

Procedural Matters

After the typical standing up thing for Judge William J. Elfving entrance the Lawyers stated who they were there to represent and the procedural part of the trial began in earnest.

The trial basically became a scheduling session for 15 minutes with the lawyers making sure that the 14th (this was later changed to the 18th due to a scheduling conflict) was a good date for the Preliminary injunction trial and the scheduling for the remaining summonses and reply dates for said summonses (December 31st and January 7th)

The judge did allow summonses by Email, but it is my opinion that the DVD lawyers don't know the internic from a hole in thier briefcase.

After this was completed, the trial in Ernest began

The Trial, Opening with the DVD lawyers.

Okay so here is where my memory will fail me most. I'll try to describe all of the major points they went over.

The trail, as you probably know was a hearing to determine whether or not the courts would grant a Temporary Restraining order against the 57 people and the 501 John Does listed in the complaint. The DVD guys had to prove basically that it was in the interest of justice to ask over 600 people to remove the materials from this web sites.

They justified this a number of ways.

Basically their whole argument was shaped around trade secret law, and they were clearly counting on their "attack the hacker" to make the TRO stick.

The Defendants

There was only 1 actual defendant at the trial, he was represented by the EFF and a local Attorney names Allon Levy. They did a great job. (I gues the important thing is that I'm not biased :-)

So here is their greatest hits...

There was lot more, and it will all be posted when I get the transcripts.


This is cool part, so you have essentially 50 experts on code, and many of those are fairly knowledgeable on both license agreements and encryption. A number of people came up to the lawyers and gave them their ideas on how to respond further to the points brought up by the DVD folks.

Imagine just having 50 qualified experts just -showing up- to help. This is the true power we wield. And we put it together in 36 hours. No company can step on us if we remain vigilant.


Much as the talented lawyers from the EFF did, the DVD CCA folks opened with a well, they may think it's a first amendment case, but it's trade secret case. (was not! Was Too!)

The funny part was that the DVD CCA lawyer guy raised his voice as if volume meant that he wouldn't be wrong. Perhaps he was a tad bit peeved? Who knows.

They made some more points...

There was so much more, the transcript will be up soon.

EFF Rebuttal

This was cool because now they were armed with both the DVD peoples ignorance and the Open Source peoples criticism of said ignorance. They made some cool points, starting with the nullification that these things seem to start with.

There was so much cool stuff that happened, but I'll wait tfor the transcript so I can do it justice. (no pun intended)

Lunch, or, Waiting for the decision.

So after all the arguments were done, the Judge said he would take some time to decide and that he expected to have ruling by the end of the day.

So all the open source people went outside to grab a bite and gab with reporters. We went to this great Cuban place nearby that serves the -best- food. Most of the folks opted for either Sea Bass, Lechon' (roast pork) or a sandwich.

The place is called Havana Cuba, it's at the intersection of Race and Park in San Jose (near the Alameda, past the towne theater and well before the sharks stadium. You should go if you are local or are here for a trade show.

Anyhow, we all talked with reporters outside, the lawyers had some citations to fax to the judge, so they went to the office of the local attorney, Allon Levy and did so. We went to said Cuban restaurant and loaded up on food.

We were there about 2 hours as people filed in. As 4pm approached, I came back to work to start on this document, when, sometime around 5pm, I got word from robin that the judge decided that a TRO was not warranted.

All and all, it was pretty damned cool.

What's next.

Well, we would like two things to happen between now and th 18th.

That's it, I'll add more later..

Chris DiBona

Thanks to VA Linux Systems Inc. [ http://www.valinux.com/ ] for letting me use their server room.

Copyright 1999 http://www.dibona.com/social/dvd/trohearing/index.shtml