What happened:

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:

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

Pre-trial

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.

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.

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 and running.
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 in California!
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 the net.

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...

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 links.
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.

Break

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.

DVD

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.

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.

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.

What's next.

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 accordingly.
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..

Chris DiBona

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