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Date: 2000-01-23
DVD-Lobby gewinnt auch in Fall 2-.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- die News sind keine guten. Judge Elfving hat der Klage auf einstweilige Verfügung stattgegeben: Das Programm DeCSS, das den Kopierschutz von DVDs unwirksam macht, zu hosten ist auf US-Websites vorerst illegal [siehe unten]. Dafüpr kommen jetzt Audio-CDs mit Kopierschutz [URL below] auf den Markt. Das in den meisten Jurisdiktionen jahrzehntelang geltende Recht des Konsumenten, pro legal erworbenem Stück Content auf Video, LPs, CDs, Musik- Kassetten eine Kopie für den eigenen Gebrauch anzufertigen, stirbt damit langsam aus. -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DVD COPY CONTROL ASSOCIATION, INC., Plaintiff, vs. ANDREW THOMAS MCLAUGHLIN, et al. Defendants, Case No. CV 786804 ORDER GRANTING PRELIMINARY INJUNCTION The above-entitled matter came on for hearing before the Honorable William J. Elfving on January 18, 2000 at 1:30 p.m. in Department 2. The matter having been taken under submission, the Court orders as follows: The Plaintiff's Motion for Preliminary Injunction is GRANTED in part as follows: The named Defendants, their officers, directors, principals, agents, servants, employees, attorneys, successors and assigns, representatives and all persons acting in concert with them, are hereby enjoined from: Posting o r otherwise disclosing or distributing, on their websites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambling system ("CSS"), or any other information derived from this proprietary inf ormation. Plaintiff, DVD Copy Control Association, is the sole licencing entity which grants licenses to the CSS technology in the DVD format. CSS, "Content Scrambling System," is an encryption system developed by Plaintiff's pred ecessor in interest in order to protect the copyrighted materials stored on DVDs. The alleged misappropriation of the CSS algorithm and master keys is the subject of this action and the instant Motion for Preliminary Inj unction. The evidence is fairly clear and undisputed that the original postings of DeCSS, a program which allegedly embodies, uses and/or is a substantial derivation of CSS, to the Internet occurred on October 6 and then on Octobe r 25, 1999. Plaintiff's evidence shows that the Motion Picture Association immediately began an investigation and sent cease and desist letters on November 18, 1999. Some individuals and entities such as CNET's download .com removed the alleged trade secret materials; other did not. Thereafter, on December 27, 1999 Plaintiff filed this lawsuit seeking the limited remedy of injunctive relief for misappropriation of its trade secret. The Court denied Plaintiff's very broad request for a Temporary Restraining Order, and the parties proceeded to submit extensive argument and evidence for the Court's consideration. In the course of these proceeding, Plaint iff narrowed the scope of the injunction which they seek to only prohibit Defendants from posting and/or knowingly linking to any websites which post the trade secret and/or its derivatives. In order to prevail on their Motion for Preliminary Injunction in a misappropriation of trade secret case, the Plaintiff must show that they are likely to prevail on the merits, and that the burden of harm weighs in their favor. (See Generally Witkin, Cal. Procedure, 4th ed., Provisional Remedies, IV Injunctions, §296) "A preliminary injunction may be properly issued whenever the questions of law or fact are grave and difficult, and injur y to the moving party will be immediate, certain, and great if it is denied, while the loss to the opposing party will be trivial if it is granted. Wilms v. Hand (1951) 101 Cal.App.2d 811, 815 In order to prevail on the merits, Plaintiff must establish that they had a trade secret which was misappropriated. The Plaintiff has shown that the CSS is a piece of proprietary information which derived its independent economic value from not being generally known to the public and that Plaintiff made reasonable efforts under the circumstances to maintain its secrecy. Although Defendants argue extensively that a 40 bit encryption syst em is weak at best, it is undisputed that the encryption remained a secret for close to three years and was limited in its strength by certain international export regulations. Under the law, a system to protect secrecy does not become unreasonable simply because a clever thief finds a way to penetrate the security. (E.L. du Pont de Nemours & Co., inc. v. Christopher, (CA5, 1970) 431 F.2d 1012) Under these circumstances, the Court is sa tisfied that Plaintiff has shown a likelihood of prevailing on the issue of trade secret. Plaintiff must also show that the trade secret was misappropriated, or that the trade secret was obtained through improper means and that the Defendants knew or should have know that the trade secret was obtained through improper means when they posted it or its derivative to the Internet. (Civil Code §3426.1(b)) Although the parties dispute the who and how, the evidence is fairly clear that the trade secret was obtained through reverse e ngineering. The Legislative comment to the Uniform Trade Secrets Act states, "Discovery by "reverse engineering," that is, by starting with the known product and working backward to find the method by which it was develo ped," is considered proper means. The only way in which the reverse engineering could be considered "improper means" herein would be if whoever did the reverse engineering was subject to the click licence agreement which preconditioned installation of DVD software or hardware, and prohibited reverse engineering. Plaintiff's case is problematic at this pre-discovery stage. Clearly they have no direct evidence at this point that Mr. Jon Johansen did the reverse engineering, and that he did so after clicking on any licence agreement. However, in trade secret cases, it is a rare occasion when the Plaintiff has a video of an employee walking out with trade secret, or an admission of a competitor that they used improper means to obtain Plaintiff's intellectual property. In most situations, Defendants try to cover their tracks with considerably more effort than the Defendan ts did herein. The circumstantial evidence, available mostly due to the various defendants' inclination to boast about their disrespect for the law, is quite compelling on both the issue of Mr. Johansen's improper means and that Defendants' knowledge of impropriety. Defendants make the additional argument that even if Johansen clicked on the license agreement, such an agreement contravenes Norwegian law. This Court is not well positioned to interpret Norwegian Law, and Defendant's o wn expert, even if this Court could consider expert testimony on question of legal interpretation,1 states that the issue has not been conclusively decided in Norway. Defendants have not sufficiently supported their argument that the licence agreement, like the one at issue here, would be disallowed by Norwegian Law, although they may at some point be able to do so. Most compelling in this matter is the relative harm to the parties. At this point in the proceeding, the harm to the Defendants is truly minimal. They will simply have to remove the trade secret information from their web sites. They may still continue to discuss and debate the subject as they have in the past in both educational, scientific, philosophical and political context. Defendants have not provided any evidence of any economic harm which an injunction could currently cause, although if such an injunction were not granted it is quite possible that this could change which could potentially shift the burden of harm in Defendants' favor. http://douglas.min.net/~drw/css-auth/legal-info/granted/granted.html http://futurezone.orf.at/futurezone.orf?read=detail&id=16059 -.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- - -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- edited by published on: 2000-01-23 comments to office@quintessenz.at subscribe Newsletter - -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- -.-. --.- 
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