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
It is divided into the following sections:
- Milling about and Pre-Trial stuff.
- Procedural Matters
- DUD CSS Opening
- EFF Opening
- Short Break
- DVD Rebuttal
- EFF Rebuttal
- Waiting for the Decision.
- The Decision
The whole thing started out with me hitting the snooze bar. After 7 more minutes
of blessed sleep in my nice, warm bed, I:
- Got out of said nice warm bed into shower. Something is wrong with the hot
water heater, so I woke up -fast-
- Put on my wedding/lawsuit/funeral/party suit.
- Grabbed my laptop bag and got into my care.
- Car was totally frosted, a situation that you don't notice if you wake up
after 8:30, but since it was before 7, slowed me down, I didn't want to nail
the joggers on the way to the courtroom, after all.
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.
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
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
They justified this a number of ways.
- The existence of the code is proof that the Xing player was Illegally
- For the Xing player to be hacked, it would have had to have been installed
- For it to have been running, the Reverse engineer (Jon in Norway) would
had to have installed the Xing player and had it running.
- For the Xing player to have been installed he would have had to agree to
a click license.
- The click license on the Xing player prohibited reverse engineering of the
DeCSS trade secret.
- Under the Uniform Trade Secret Act, a trade secret acquired in an illegal
manner or exposed when the person knew it must have been illegal, is still the
property of the trade association or company, and therefore must be taken down
and give them an avenue to consider claiming damages.
- Also, they asserted they are the sole arbiters of the DVD CSS keys and are
charged with administering who gets to make DVD's.
- They complained that many of the defendants ignored thier notice and that
if they had just taken down the code, they wouldn't be named at all. (point
2 in the Original complaint)
- They continually used the word hacker in the way that only the ignorant
can. With a spitting sort of "the hacker was clearly only interested in copying
DVD's and circulating it on the Net!"
- They asserted that by defeating the CSS "protection" mechanism they are
causing great harm to the movie industry, and that the movie industry was not
ready to embrace the format , which gives great benefit to the consumer (blah
blah), until such a protection mechanism was in place. (as if we care, we are
not obligated to respect their profits)
- They asserted that this will cause irreparable harm to the entertainment,
computer and consumer electronics businesses, of which 7 (count em'!) 7 are
- They reiterated how the movie industry relys on this poorly implemented
encryption scheme to protect their movies and such. And that if this cat wasn't
stuck back in the bag, it would cause irreparable harm.
- They then pouted about how a number of sites taunted them with such soul
bruising taunts as (They actually used the word taut):
- I have the money to go to court.
- I may very well be sued.
- Then they pouted about the pamphlet and disks and entered them into evidence.
- This is the cool part, they then ,for the purposes of the trade secret hearing
that is part and parcel of the complaint they are filing, they asked that the
pamphlet and source code which -every- person in the chamber had (and also was
packed onto the bulletin board by my colleague Joe Arruda) and put it under
seal. The judge granted this, so that one copy and floppy were entered in as
Exhibits 1 and 2. Tee Hee :-)
- Probably the best part was when they did "Big lawyer fu" and tried to make
it seem like unless they acted now, more and more people would take the code
and put it on their sites. And that a TRO would stop it. Which, if you were
a bunny rabbit who had been eating carrots in a salt mine for a decade and hadn't
ever seen much less used a mouse, would make sense. But I mean -jeez- the judge
had obviously seen that mahir guys web site or something, because his eventual
ruling to quash the TRO showed he understood the velocity of information on
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.
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...
- They started by asserting that the entire argument was essentially null
and void as this was a free speech issue rather than a trade secret one.
- They cited an -awesome- case, I mean, I almost peed my pants when I heard
it. They cited a number of them, but if precedences were hackers this one was
Linus Torvalds and Alan Cox put together.
It went like this, Earlier on
this century, Chicago Lock Company held as a trade secret a key/lock combination
that was used in early pay phones. The chicago lock company kept it as a trade
secret ostensibly to prevent their invention from being exposed after expiration
of patent. here's the apt , bitchin, part, there were a number of lock smiths
who reverse engineered the keys and sold that service. The chicago lock company
sued and was rejected out right, with the court saying that "The court does
not guarantee profits for companies whose technology has been reverse engineered."
and found for the lock smiths.
- Other bitchin precedences were displayed.
- They pointed out that to put this TRO would send a number of chilling messages,
including basically starting a precedence that would make large companies able
to stop publication of any reverse engineered work until they had been raked
over the coals by the lawyers, something that most people cannot afford financially.
- They also noted that such an action would essentially have a chilling effect
on the further development of the Internet, specifically concerning external
- They pointed out that A TRO that was designed to reign in the dissemination
of the code would be pointless and stupid since they do not have any sort of
jurisdiction in the majority of the locations they targeted.
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...
- The internet is not a lawless zone. (obviously not avid /. readers) The
court does have jurisdiction in California and to a degree the US. The lawyers
said as much that they would, if an injunction was granted (TRO or otherwise)
pursue the injunction on foreign shores and they said the following gut-buster:
"Every country on our list of defendants will honor the injunction", which they
then followed with "And we'll pursue things in those countries that do not".
Right. Okay, I'd love to see this guy go to Azerbaijan and try to assert his
claims, or Iran or Cuba. He'd get his white ass kicked back the the northern
hemisphere so fast he wouldn't have any time to bill.
- That the further spread of the information could be kept in check and that
the passing out of pamphlets and source code floppies were the exact reason
they should have been granted the TRO. Whatever!
- They repeated the assertion that it was an illegal copying of the DeCSS
source code "If it came from Xing, they must have clicked the license". Showing
no knowledge of disassembly at all.
- They pouted more about being called names on the web.
- They pouted more about the floppy.
- They pouted more about the people on the web defying their iron rule!
There was so much more, the transcript will be up soon.
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.
- They asserted that this was indeed a free speech issue whether they liked
it or not.
- They also noted that DeCSS was a method of protection from Playing (and
not a good one at that) not from copying (this tidbit provided by Deirdre Saoirse
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.
Well, we would like two things to happen between now and th 18th.
- Get the code! Put it on your site. The source code especially is important
because in the Bernstein case it was determined that Code is speech and protected
- Come to the trial!
- Get the Code!
- Come to my web site next week once I get the full trial transcribed.
- Get the Code!
- Keep an eye on my site for plans for the 14th.
- Get the Code!
- Start reading about Slapp legislation. I think a lawsuit in California from
everyone affected by this action would be the stick that these guys need to
be smacked over the head with.
- Get the Code!
That's it, I'll add more later..
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