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Politech is the oldest Internet resource devoted to politics and technology. Launched in 1994 by Declan McCullagh, the mailing list has chronicled the growing intersection of culture, technology, politics, and law. Since 2000, so has the Politech web site.
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/ --------------------------------------------------------------------------