3 January 2000. Cryptome scan/typos corrected in Harvey Shapiro Declaration.
31 December 1999
Source: Hardcopy provided by LG of documents handed out by plaintiff's attorney
at court hearing on December 29, 1999. Not in this hardcopy package is the
Complaint sent to defendants:
http://cryptome.org/dvd-v-500.htm
This file is available Zipped: http://cryptome.org/dvd-v-521.zip (47K)
See Court order denying Temporary Restraining Order: http://cryptome.org/dvd-order.htm
[Contents by Cryptome]
CONTENTS
1. EX PARTE APPLICATION FOR THE ISSUANCE OF A TEMPORARY
RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY
INJUNCTION AGAINST ALL DEFENDANTS
2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION AGAINST ALL DEFENDANTS
3. DECLARATION OF JOHN J. HOY
4. DECLARATION OF BRUCE H. TURNBULL, ESQ.
5. DECLARATION OF FREDERIC HIRSCH, ESQ. IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
6. DECLARATION OF JONATHAN S. SHAPIRO, ESQ. RE: NOTICE GIVEN PURSUANT TO CCP § 527 AND CALIFORNIA RULE OF COURT 379
7. DECLARATION OF HARVEY SHAPIRO, ESQ. IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
8. [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
9. EXHIBITS OF NON-CALIFORNIA CASES IN SUPPORT OF DVD CCA'S EX PARTE APPLICATION FOR THE ISSUANCE OF A TEMPRORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION AGAINST ALL DEFENDANTS
| [Footer all pages:] Ex Parte Application For The Issuance Of a Temporary Restraining Order And Order to Show Cause |
NY1:\846695\01\$5BB01!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV - 786804
EX PARTE APPLICATION FOR THE
MEMORANDUM OF POINTS AND
DECLARATIONS OF JOHN HOY, BRUCE
[PROPOSED] TEMPORARY
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
INTRODUCTION
Plaintiff, DVD Copy Control Association, Inc. ("DVD CCA"), is a trade association and the sole licensor of the technology that allows consumers to view movies through digital technology known as Digital Video Discs or "DVDs." This is the next generation of technology for the motion picture industry, much in the way that music compact discs have replaced records. To prevent copying of the motion pictures, the DVDs are encrypted, that is, the digital signal is "scrambled." The proprietary technology at issue here, called the Content Scramble System, or "CSS," allows digital data to be decrypted (or unscrambled) so that the underlying copyrighted images -- such as motion pictures -- can be viewed on DVD players or on personal computer DVD drives. CSS thus provides protection for the valuable intellectual property of the motion picture industry. Access to the CSS trade secret technology is granted only to those licensees that provide the software and hardware to enable consumers to view motion pictures and who agree to a stringent set of controls to protect the confidentiality of the CSS system.
Defendants in this action have misappropriated the proprietary CSS trade secrets by improper means and either have posted it on their Internet web sites and/or "linked" to another web site which posts such proprietary information. If this Court does not enjoin this malicious, continuous and illegal theft of proprietary information, which is subject to trade secret protection under California law, the CSS technology will be severely compromised. The DVD CCA and both the motion picture industry and the companies which provide the software and hardware which permit consumers to view motion pictures in a digital format (the licensees) are and will continue to suffer irreparable damage without the protection of preliminary relief.
Defendants have not only misappropriated the technology at issue, but have done so with reckless abandon, announcing their defiance of the law on their web sites. To quote a few:
"Mark of the scofflaw! Here's my local copy of CSS decryption software, enjoy."I may very well be sued."
"F[_ _ _] the feds!' . . . '[h]uh? Aren't these files legal? Oh, well, I didn't know that."
(See Complaint, ¶ 50).
Defendants have posted CSS trade secrets on their web sites as a direct attack on DVD CCA and the motion picture industry's copyrighted content contained on the DVDs in an effort to encourage illegal pirating of such DVDs. Defendants' actions threaten not only the economic viability of this new digital format, but also the consumer electronics and personal computer industries, which provide the necessary hardware and software to access digital images. Without the motion picture companies' copyrighted content for DVD video, there would be no viable market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices and, thus, there would be no DVD video industry. Many of the companies who manufacture these products, the licensees of the CSS technology, are located in Santa Clara County, the Bay Area and the State of California. In fact, 73 of the more than 400 CSS licensees are located in California, of which there are 42 in Santa Clara County alone and an additional 17 in other Bay Area locations. Companies which have invested millions of dollars and employ thousands of people developing the digital technology to display these images to the public will suffer significant and irreparable harm.
If left unchecked, Defendants' misappropriation of proprietary trade secrets will also have a chilling effect on future technological innovation in these and other industries and will discourage other companies and industries from making their content available to the public in new formats. As a result, consumers will be deprived of the benefits of superior technology.
DVD CCA urges this Court to stop this illicit activity by granting the preliminary and permanent injunctive relief sought in this action.
APPLICATION
Plaintiff, DVD COPY CONTROL ASSOCIATION, INC., is a not-for-profit trade association with its principal place of business in Morgan Hill, California. DVD CCA is the duly authorized and sole licensing entity for a proprietary system for the encryption and decryption of data contained on Digital Video Discs ("DVD"). DVD CCA makes this Application for the issuance of a Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction pending trial of this action ("Application") enjoining Defendants, and their officers, directors, principals, agents, servants, employees, attorneys, successors and assigns, from making any further use of or otherwise disclosing or distributing, on their web sites or elsewhere, or "linking" to other web sites which disclose, distribute or "link" to, any proprietary information or property or trade secrets relating to the CSS technology, and specifically enjoining Defendants, their officers, directors, principals, agents, servants, employees, attorneys, successors and assigns; and from copying, duplicating, licensing, selling, distributing, publishing, leasing, renting or otherwise marketing any and all products containing, using and/or substantially derived from CSS proprietary information or property or trade secrets of DVD CCA. Defendants have and continue knowingly and willfully to disclose on their web sites the proprietary trade secrets licensed by DVD CCA as part of a scheme to defeat DVD encryption/decryption software and enable users illegally to pirate copies of copyrighted motion pictures and other digital images contained on DVDs.
Defendants continue to misappropriate the CSS proprietary trade secrets that they themselves obtained by improper means or, alternatively, that they knew or should have known upon receipt was obtained by others by improper means. Indeed, most of the defendants have already been notified by the Motion Picture Association ("MPA"), through its anti-piracy task force, that they are unlawfully making proprietary information available on their web sites and demanding that they take down such proprietary information from their sites. (Declaration of Harvey Shapiro, Esq., filed in Support of this Application ["H. Shapiro Decl."], ¶¶ 3-4; Declaration of Frederic Hirsch, Esq., filed in Support of this Application ["Hirsch Decl."], ¶¶ 7-9). In fact, 25 web sites, after having received such notice from the MPA, voluntarily removed the trade secrets at issue from their sites. (See H. Shapiro Decl., ¶¶ 6-71 ). The others have not done so.
This Application is brought under California Code of Civil Procedure sections 526 and 527. Unless Defendants are restrained and enjoined during the pendency of this litigation from disseminating over the Internet the trade secrets and proprietary information licensed by DVD CCA, DVD CCA will suffer irreparable injury because such activities will completely destroy its business of licensing and policing the CSS technology. Irreparable injury will also be suffered by the motion picture industry and the DVD industry, which is substantially located in California. DVD CCA has no adequate, plain or speedy remedy at law.
Notice of this ex parte Application has been given to Defendants, pursuant to California Code of Civil Procedure section 527(c), California Rule of Court 379 and Local Rule 1.3.5. As detailed in the accompanying Declaration of Jonathan S. Shapiro, Esq., filed in Support of this Application ("J. Shapiro Decl."), counsel for DVD CCA made a thorough and extensive search to determine the owners of the web sites that were either posting the proprietary information at issue or "linking" to web sites that were posting it. DVD CCA has given notice of this Application to the defendants by sending an e-mail to each of the named defendants (at their web site addresses) and to the Doe defendants (where the name of the web site owner could not be identified) at the web sites which either post or link to the proprietary information at issue containing the following: (i) a Notice of the filing of this Application, a copy of which is attached to the J. Shapiro Declaration as Exhibit A (the "Notice"); and (ii) a copy of the Complaint. For both the Notice and the Complaint, DVD CCA has sent one version in English and one version in the language of the apparent host country. (J. Shapiro Decl., ¶ 16). For those defendants residing in California, DVD CCA also attempted to serve the Notice and Complaint on them by hand. (Id., ¶ 17). Furthermore, for those defendants located in the United States, DVD CCA also attempted to give notice of DVD CCA's Application by telephone. (Id.). The results of these attempts to provide notice are set forth in the J. Shapiro Decl. at ¶¶ 16-31 . DVD CCA has not previously sought such a temporary restraining order or preliminary injunction against Defendants.
This Application is based on the Complaint filed in this action, this Application, the accompanying Memorandum of Points and Authorities in Support, the Declarations of John Hoy, Bruce H. Turnbull, Esq., Frederic Hirsch, Esq., Harvey Shapiro, Esq. and Jonathan S. Shapiro, Esq., and all exhibits attached thereto, filed concurrently herewith, and upon such further evidence and upon such argument as may be presented at the hearings on this Application.
Dated: December 28, 1999
Menlo Park, California
Respectfully submitted,WEIL GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)By: [Signature]
Jared B. BobrowAttorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
OF COUNSEL:
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
EDWARD J. BURKE
JONATHAN S. SHAPIRO*
___________________
* Pro Hac Vice application being submitted to the Court.
[End document 1.]
| [Footer all pages:] Memorandum of Points and Authorities |
NY1:\845432\06\$4C806!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV - 786804
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION
FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE
RE: PRELIMINARY INJUNCTION AGAINST ALL DEFENDANTS
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY OF FACTS
A. Summary of ArgumentB. Background and Summary of The Facts
1. DVDs Represent the Next Generation of Technology for the Motion Picture, Computer and Consumer Electronics Industnes
2. CSS Technology is Highly Sophisticated and Stringent Standards Were Put in Place to Protect Its Confidentiality
3. The CSS Technology Was Misappropriated
4. The Misappropriation Has Been Willful and Malicious
5. The Significance of Protecting the CSS Technology/Trade Secrets
II. THE LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF
III. DVD CCA IS LIKELY TO PREVAIL IN THIS ACTION
A. The CSS Technology Is A Trade Secret1. CSS Proprietary Trade Secrets Possesses Independent Economic Value
2. DVD CCA and its Predecessors Took Extraordinary Steps to Maintain the Secrecy of the Proprietary Trade SecretsB. Defendants Have Misappropriated CSS Trade Secret Information
IV. DVD CCA IS SUFFERING AND WILL CONTINUE TO SUFFER IMMEDIATE AND IRREPARABLE HARM UNLESS A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUCTION ARE ISSUED
V. ALL DEFENDANTS ARE SUBJECT TO THE JURISDICTION OF THIS COURT
A. The Defendants Purposefully Availed Themselves of the Privileges of This StateB. Plaintiff's Claim Arises from the Defendants' Forum-Related Activity
C. The Exercise of Jurisdiction Comports with Fair Play and Substantial Justice
CONCLUSION
TABLE OF AUTHORITIES
CALIFORNIA STATE CASES
Cohen v. Board of Supervisors (1985) 40 Cal.3d 277 [219 Cal. Rptr. 467]
Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 [67 Cal. Rptr. 761]
Courtesy Temporary Serv.v. Camancho (1990) 222 Cal.App.3d 1278 [272 Cal.Rptr.352]
IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 [196 Cal.Rptr. 715]
Paul v. Wadler (1962), 209 Cal.App.2d 615 [26 Cal. Rptr. 341]
Quattrone v. Superior Court (1975) 44 Cal.App.3d 296 [118 Cal.Rptr. 548]
Triple A Machine Shop v. California (1989) 213 Cal. App.3d 131 [261 Cal. Rptr. 493]
Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34 [6 Cal.Rptr.2d 602]
Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434
[58 Cal.Rptr.2d 899] cert. denied 522 U.S. 808
FEDERAL CASES
International Shoe Co. v. Washington (1945) 326 U.S. 310
MCA Records Inc. v. Charly Records LTD (9th Cir. 1997) 108 F.3d 338 [1997 WL 76173] cert. denied 522 U.S. 822
Mai Systems Corp. v. Peak Computer, Inc. (9th Cir. 1993) 991 F.2d 511
Maritz, Inc. v. Cybergold, Inc. (E.D. Mo. 1996) 947 F.Supp. 1328
Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316
Stomp, Inc. v. Neato, LLC (C.D. Cal. 1999), 61 F. Supp. 2d 1074
The 3DO Company v. Poptop Software (N.D. Cal. 1998) 1998 U.S. Dist. LEXIS 21281
Triad Systems Corp. v. Southeastern Express Co. (9th Cir. 1995) 64
F. 3d 1330 cert. denied 516 U.S. 1145
MISCELLANEOUS
2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, § 129
6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, §§ 286, 296, 298
Civ. Code, § 3426 et seq
Cal. Code Civ. Proc. § 410.1012
Code Civ. Proc., § 527(c)
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION AND SUMMARY OF FACTS
A. Summary of Argument
This Application for a Temporary Restraining Order, Order to Show Cause and Preliminary Injunction is brought by DVD Copy Control Association, Inc. ("DVD CCA"), a notfor-profit trade association with its principal place of business in Morgan Hill, California, to stop the defendants who have been able, through the theft of proprietary information and trade secrets licensed by plaintiff, illegally to copy and distribute the most valuable assets of the motion picture industry -- its copyrighted motion pictures stored on digital video discs, or "DVDs." Unless enjoined, defendants' actions will allow wholesale additional infringement and will cause irreparable injury to (i) DVD technology, (ii) plaintiff DVD CCA (which is the sole licensor of the trade secrets which are being stolen), (iii) the motion picture industry (which is primarily located in California), and (iv) the more than 400 licensees of the CSS technology through DVD CCA (73 of which are located in California)1 who have invested millions of dollars and employ thousands of people creating the hardware and software necessary to access the digital images on DVDs.
___________________
1 Of the 73 licensees located in California, 42 are located in Santa Clara County and an additional 17 are in other Bay Area locations. (Hoy Decl., ¶33).
B. Background and Summary of The Facts
The facts relevant to this Application are established in the declarations of John Hoy ("Hoy Decl."), Frederic Hirsch, Esq. ("Hirsch Decl."), Harvey Shapiro, Esq. ("H. Shapiro Decl."), Jonathan S. Shapiro, Esq. ("J. Shapiro Decl."), and Bruce H. Turrbull, Esq. ("Turnbull Decl.") filed in support thereof.
1. DVDs Represent the Next Generation of Technology for the Motion Picture, Computer and Consumer Electronics Industries
Just as compact discs ("CDs") have replaced records, Digital Video Discs ("DVDs") are the next generation of technology allowing consumers to view motion pictures in their homes. DVDs provide high quality images which are digitally formatted on a convenient 5-inch disc that is resistant to wear and damage and allows for attractive consumer features not presently available in other video formats. DVDs containing motion pictures in encrypted form can be played either on special purpose machines ("DVD Players") or personal computers ("PCs") with DVD drives. Encryption is necessary to prevent copying of the copyrighted material on the DVD. To play a copyrighted motion picture, either form of player device requires the implementation of certain algorithms and "master keys" to carry out the decryption of the data stored on the disc. The implementation that provides this decryption function is developed by DVD CCA's licensees using detailed specifications known as the Contents Scramble System ("CSS"), provided by DVD CCA to such licensees. (Hoy Decl., ¶ 5; Complt., ¶ 30).
2. CSS Technology is Highly Sophisticated and Stringent Standards Were Put in Place to Protect Its Confidentiality
Before allowing their copyrighted motion pictures to be used on the DVD format, the motion picture companies insisted on a viable copy protection system to prevent users from making copies of the digital motion pictures. Such protection is necessary to prevent copying from discs that are rented or borrowed and to prevent broader scale piracy through widespread transmission of these motion pictures over the Internet and widespread distribution of "pirated" discs in competition with the authorized prerecorded discs. Without motion picture companies' copyrighted content for DVDs, there would be no viable market for computer DVD drives and DVD players, as well as the related computer chips and software, which runs these devices and, thus, there would be no DVD industry for video applications. (Hirsch Decl., ¶¶ 5-6; Hoy Decl., ¶¶ 6-9; Complt., ¶¶ 31-32). Without copy protection, Motion Picture Association ("MPA") members would not have agreed to distribute their motion pictures on DVDs. (Hirsch Decl., ¶ 6).
CSS is proprietary trade secret technology that was developed to provide the protection demanded by the motion picture companies against unauthorized copying of their copyrighted material. DVD CCA is the sole duly authorized licensor for the CSS technology. Any party desiring lawfully to use the CSS technology must do so through a license from DVD CCA. (Hoy Decl., 2¶ 10-13; Complt., ¶ 33)
Beginning on or about October 31, 1996, DVD CCA's predecessor-in-interest began licensing CSS technology pursuant to an agreement that later became the AMENDED AND RESTATED CSS INTERIM LICENSE AGREEMENT, including the related CSS PROCEDURAL AND AMENDED AND RESTATED TECHNICAL SPECIFICATIONS (collectively, the "CSS Agreement") with hundreds of licensees. The CSS Agreement sets forth the conditions under which the CSS licensing entity (currently DVD CCA) would grant licenses to, among others, manufacturers of DVD players, DVD drives and related hardware and software. Licensees were granted the right to use the security system on DVD products and agreed to safeguard CSS technology from public disclosure. (Hoy Decl., ¶ 14; Complt., ¶¶ 34, 56-58).
The CSS Agreement gives licensees the right to use the technology and provides the necessary descrambling technology and "master keys" to do so. The trade secrets are not accessible to unlicensed third parties because they are incorporated in hardware devices -- chips -- or made tamper resistant if distributed in the form of actual software. The trade secret technology cannot be accessed by non-licensees. Each licensee is assigned a set of "master keys" unique to each licensee. When the DVD system was created, approximately 400 such "master keys" were predesignated, to be assigned to licensees, and each DVD disc contains, in a part of the disc not normally read by the player device, a file containing the 400 "master keys." The system will not operate unless the "key" contained in the licensee's decryption software matches one of the keys stored on the DVD disc. (Hoy Decl., ¶ 15; Complt., ¶ 35).
The CSS Agreement requires licensees to maintain the confidentiality of certain defined pieces of information, such as the proprietary algorithms and "master keys" and, as such, licensees are subject to a stringent set of rules to maintain confidentiality within the group of licensees. (Hirsch Decl., ¶ 6; Hoy Decl., ¶ 16; Complt., ¶ 36). Among the safeguards taken is the requirement that only those licensees that absolutely need to know a particular algorithm and/or master key are provided with such information. (Hoy Decl., ¶ 17; Complt., ¶37).2
____________________
2 For example, a manufacturer of semiconductor chips for descrambling CSS content in stand-alone DVD players is provided with information necessary for manufacturing such chips but not with information concerning the scrambling process itself or the authentication between DVD drives and the descrambling module used for computer-based implementations. Companies that merely assemble parts and components produced by others may be required to be licensees in order to purchase such parts and components, but these companies are not provided with the CSS trade secrets at issue. (Hoy Decl., ¶ 17; Complt., ¶ 37).
The CSS Agreement mandates that licensees provide CSS trade secrets to the minimum number of their employees requiring access to the information, beginning with three employees and increasing only upon notification to the licensor. Licensees who violate these requirements are subject to liquidated damages in the amount of $1 million per violation (with a cap based on profits made from the sale of licensed products). (Hoy Decl., ¶ 18; Complt., ¶ 38).
Additionally, licensees implementing authentication and descrambling functions in the software must do so only in a manner that obscures the CSS trade secrets, to frustrate anyone seeking to obtain such proprietary information.3 Failure to abide by these operating restrictions can subject the licensee to injunctions prohibiting the sale of the product in which the failure occurs, through actions brought either by the licensor or by third party beneficiary content owners (motion picture companies that are CSS licensees and have made copyrighted content available on DVD discs encrypted using CSS technology). (Hoy Decl. ¶ 19; Complt., ¶ 39).
____________________
3 Specific means of accomplishing this protection requirement are provided to licensees to illustrate the measures to be taken and the level of technical skill that must be employed to defeat such measures.
DVD CCA's predecessor-in-interest began the process of licensing companies to use the technology pursuant to copy protection rules contained in the "procedural specifications" associated with the CSS Agreement. The companies in the DVD business (motion picture, computer, and consumer electronics companies) recognized that the licensing of CSS technology ought to be controlled and administered by the companies in the three industries together and that the costs associated with such critical intellectual property protection should be borne by the hundreds of companies involved in the DVD business. (Hoy Decl., ¶¶ 20-21; Complt., ¶ 40). Thus, the DVD Copy Control Association, Inc. was formed in December 1998.
In mid-December 1999, DVD CCA's predecessor-in-interest assigned its licensing interests under the CSS Agreement making DVD CCA the sole licensing entity which grants licenses to the CSS technology in the DVD format. Additionally, DVD CCA was given direct rights to enforce the CSS Agreement. (Hoy Decl., ¶ 24; Complt., ¶ 44).
3. The CSS Technology Was Misappropriated
On or about October 25, 1999, the source code of a program named DeCSS appeared on an Internet web site operated by Jon Johansen, a Norwegian citizen. (Hirsch Decl., ¶ 7; Hoy Decl., ¶ 25). The DeCSS program embodies, uses and/or is a substantial derivation of trade secrets which DVD CCA licenses under the CSS Agreement. The DeCSS program, and links to other sites with the DeCSS program, were removed by Mr. Johansen from the web site after a demand was sent to him by an attorney from Simonsen & Musaeus, a Norwegian law firm retained by the MPA. (Hirsch Decl., ¶ 9; Hoy Decl., ¶ 25; Complt., ¶ 45). On information and belief, the DeCSS program first appeared in the United States on or about October 25, 1999, on a web site operated by defendant Pavolich. (Hoy Decl., ¶ 26; Complt., ¶¶ 45-46).
This proprietary information was obtained by willfully "hacking" and/or improperly reverse engineering software created by CSS licensee Xing Technology Corporation ("Xing"). Xing's software is and was licensed to users under a license agreement which specifically prohibits reverse engineering. (Hoy Decl., ¶ 27; Complt., ¶ 47).
Since the October 25, 1999 appearance of DeCSS, proprietary CSS information been displayed on at least 118 web sites (or by web sites "linking" to other web sites which display the information) in at least 11 states and l l countries throughout the world. Extensive investigative efforts were immediately undertaken by DVD CCA and the MPA's anti-piracy task force to locate web sites which were posting and/or "linking" to other sites posting the trade secrets, and Internet service providers which were hosting such sites. (Hirsch Decl., ¶¶ 3-4, 7-9; H. Shapiro Decl., ¶¶ 3-4; J. Shapiro Decl., ¶¶ 4-8; Hoy Decl., ¶30; Turnbull Decl., ¶¶ 4-9; Complt., ¶ 48). The MPA sent notices to about 66 web sites and Internet service providers demanding that this information be removed immediately. (H. Shapiro Decl., ¶¶ 6-7; J. Shapiro Decl., ¶ 8; Hoy Decl., ¶ 30; Complt., ¶ 48; Hirsch Decl., ¶¶ 7-9). After receiving such notice, approximately 25 of these web sites and Internet service providers voluntarily removed the proprietary information or "links" to the information at issue. (Hoy Decl., ¶ 30; Complt., ¶ 48).4
_____________________
4 On information and belief, all named defendants (with the exception of defendant Hanson) and Does l, 8, 10 through 14, 16, 26, 28, 31, 32, 33, 35, 48 through 54, and 62 through 72 have received notice through the MPA and refused to remove the information at issue. Defendant Hanson and the other Doe defendants who were not previously identified have now received notice of this action through various means. (J. Shapiro Decl. ¶ 17: Complt., ¶ 48).
4. The Misappropriation Has Been Willful and Malicious
Defendants knew or should have known when they posted or provided "links" to the DeCSS program on their web sites that it was being made available by virtue of the unauthorized use of trade secrets and that they were misusing trade secrets gained through improper means. This is because the DeCSS program was specifically designed to defeat DVD encryption software, thus allowing users illegally to pirate copyrighted motion pictures on DVDs -- activity which is irreparably harmful to the DVD video format, the motion picture industry, and the hundreds of computer and consumer electronics companies whose businesses rely on the viability of the digital format. (Hoy Decl., ¶ 29; Turnbull Decl., ¶ 5; Complt., ¶ 49). Information posted on Defendants' web sites establishes that they are fully aware that, in posting or "linking" to the DeCSS program, they are wrongfully appropriating trade secrets. For example:
(a) Defendant McLaughlin explains to visitors of his site: "Mark of the scofflaw! Here's my local copy of the CSS decryption software, enjoy[;]"(b) Defendant Baugh acknowledges that "I may very well be sued.. . [;]"
(c) Doe defendant 14 challenges: "I have the money to go to court. Your call[;]"
(d) In response to the MPA and DVD CCA's anti-piracy efforts, defendants Vogt, Blank and Doe defendants 4, 9, 23, and 37 provide a "Note to the lawyers and other scum . . . It was the DVD consortium that f***up, . . . [;]"
(e) Similarly, defendant Jones explains: "Listen, lawyers, and those you represent: This is none of your concern. The horse has been let out" and mocking the "trained weasels you call lawyers[;]" and
(f) Doe defendant 35 states: "F[_ _ _] da feds! ... "[h]uh? Aren't these files legal? Oh, well, I didn't know that!" (expletive omitted).
(Complt., ¶ 50; see also Complt., ¶¶ 56-64).
5. The Significance of Protecting the CSS Technology/Trade Secrets
The theft of CSS has had a substantial adverse effect. DVD encryption technology was (and is) critical to the adoption and utilization of the DVD format. Without such copy protection, the motion picture companies would not have allowed their copyrighted motion pictures to be available in this new digital video format. (Hirsch Decl., ¶¶ 5-6; Hoy Decl., ¶t 6; Complt., ¶ 51). Without motion picture content, there would be no viable market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices. (Hoy Decl., ¶¶ 6, 31; Hirsch Decl., ¶ 5; Complt., ¶ 51). Accordingly, if the defendants are permitted to continue to misappropriate CSS trade secrets, the DVD industry will be irreparably harmed, and DVD CCA's very existence will be threatened because its sole business purpose is to be the tri-industry (motion pictures, computers and consumer electronics) licensing entity and administrator of the CSS technology. (Hoy Decl., ¶ 32).
In addition, the effect of defendants' unlawful activities both on the motion picture industry, centered in California, and the companies which provide the software and hardware to allow consumers to access the digital images, many of which are located not just in California, but in Santa Clara County, is immeasurable. Apart from the substantial resources that the motion picture industry has invested in the adoption of the DVD format, the wholesale copying and distribution of copyrighted motion pictures destroys the industry's ability to protect its most valuable asset -- its copyright in its motion pictures. (Hirsch Decl., ¶¶ 10-11, 13; Hoy Decl., ¶ 33). There can be no doubt that the primary purpose of the defendants is to encourage wholesale copying and distribution of copyrighted motion pictures. Further, there can be no dispute that all defendants knew or should reasonably have known that the heart of the motion picture industry is located in California. As stated, the unwillingness of the motion picture industry to provide content for DVDs would destroy DVD CCA and the DVD business of hardware and software companies that have developed products to enable consumers to access the digital images contained on DVDs, the licensees of CSS technology. (Hoy Decl., ¶ 7; Hirsch Decl. ¶¶ 5-6).5
____________________
5 Additionally, the "hack" and disclosure of the CSS proprietary information has already had a very serious adverse effect on consumers, in California and elsewhere, in that the introduction of a related product -- DVD audio -- has been delayed. (Hoy Decl., ¶ 34; Complt., ¶ 54; Hirsch Decl., ¶ 12). The major music companies have indicated that they are not prepared to use a "compromised" system to protect their content and have insisted on the creation of a new encryption technology to protect the DVD audio system. The launch of DVD audio products, planned for December 1999, has, thus, been postponed for at least six months while new copy protection technology is developed, agreed upon, and implemented. (Hoy Decl., ¶ 34; Complt., ¶ 54).
II. THE LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF
The primary purpose of a preliminary injunction is to preserve the status quo until a court can make a final determination on the merits of the action. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 167 Cal. Rptr. 7611). A temporary restraining order ("TRO") is properly granted on ex parte notice in order to maintain the status quo or to prevent irreparable injury pending a hearing on the Application for a preliminary injunction. (Code Civ. Proc., § 527(c); see also 6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, § 286, p. 227).
The test most frequently used by California trial courts in deciding whether to issue a TRO and/or preliminary injunction requires the evaluation of two interrelated factors: (1) the likelihood that the plaintiff will succeed on the merits of its claims at trial; and (2) the harm that plaintiff is likely to suffer if the TRO and/or preliminary injunction does not issue, balanced against the harm that the defendant is likely to suffer if they do issue. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 [219 Cal. Rptr. 467]; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70 [196 Cal.Rptr. 715]; 6 Witkin, supra, § 296, pp. 235-236). When addressing these factors, the plaintiff must prove the likelihood that it will suffer immediate and irreparable harm due to the inadequacy of other, legal, remedies. (Triple A Machine Shop v. California (1989) 213 Cal.App.3d 131, 138 [261 Cal. Rptr. 493]).
The Uniform Trade Secrets Act ("UTSA") (Civ. Code, § 3426 et seq.) specifically provides that "actual or threatened misappropriation [of trade secrets] may be enjoined." (Civ. Code, § 3426.2). Where injunctive relief is authorized by statute and the statutory conditions for its issuance have been satisfied, irreparable injury need not be shown to obtain injunctive relief. (6 Witkin, supra, § 298, p. 238; see also IT Corp. v. County of Imperial, supra, 35 Cal.3d 63; Paul v. Wadler (1962) 209 Cal. App. 2d. 615, 625 [26 Cal. Rptr. 341] ["where an injunction is authorized by statute, a violation is good and sufficient cause for its issuance"]).6
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6 The Paul court also held that "the same rule should apply to the less drastic relief afforded by temporary restraining order." Paul, 209 Cal.App.2d at 625.
As discussed below, each of these factors strongly militiates in favor of the issuance of the interim injunctive relief sought by DVD CCA.
III. DVD CCA IS LIKELY TO PREVAIL IN THIS ACTION
California has adopted a version of the Uniform Trade Secrets Act ("UTSA") (Civ. Code, § 3426.1 et seq). The UTSA defines a trade secret as
information, including a formula, pattern, compilation, program, device, method, technique or process that:
(1) Derived independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
(Id., § 3426.1 (d)). The UTSA further defines "misappropriation" of a trade secret as:
(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or(2) Disclosure or use of a trade secret of another without express or implied consent by a person who:
(A) Used improper means to acquire knowledge of the trade secret; or
(B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:
(i) Derived from or through a person who had utilized improper means to acquire it;
(ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; . . .
(Id., § 3426.1 (b)). To prove a misappropriation of trade secrets, plaintiff must prove that a trade secret exists and that its acquisition, disclosure or use by defendants is improper. (See Courtesy Temporary Serv. v. Camancho (1990) 222 Cal.App.3d 1278, 1287-88 [272 Cal.Rptr. 352]).
DVD CCA has demonstrated that it is highly likely to be able to prove the elements of a cause of action for misappropriation of trade secrets under the UTSA.
A. The CSS Technology Is A Trade Secret
1. CSS Trade Secrets Possesses Independent Economic Value
A trade secret must derive "independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use." (Civ. Code, § 3426.1(d)(1)). By its very nature, CSS derives independent economic value from not being generally known to the public. Indeed, its secrecy is the foundation for the survival of the DVD industry because CSS prevents unauthorized copying and distribution of copyrighted motion pictures. If this technology were to become freely disseminated, the CSS trade secrets would be used, as it has been by the defendants, to create decryption programs that would allow piracy of the motion pictures contained on DVDs.
2. DVD CCA and its Predecessors Took Extraordinary Steps to Maintain the Secrecy of the Proprietary Trade Secrets
As discussed on pp. 2-5 above, the trade secrets at issue are protected by stringent controls including:
a. The CSS Agreement requires licensees to maintain the confidentiality of certain defined pieces of information, such as the algorithms and "master keys" and, as such, licensees are subject to a stringent set of rules to maintain confidentiality. (See Mai Systems Corp. v. Peak Computer, Inc. (9th Cir. 1993) 991 F.2d 51 1, 521 [applying California UTSA; plaintiff took reasonable steps to ensure secrecy when it required those with access to proprietary inforrnation to sign confidentiality agreements]).7
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7 Non-California cases are appended in a separate exhibit filed herewith.
b. Only those licensees that absolutely need to know a particular algorithm and/or master key are provided with such information.
c. The CSS Agreement mandates that licensees only provide CSS trade secrets to the absolute minimum number of its employees requiring access to the information.
d. Licensees implementing authentication and descrambling functions in software must do so in a manner that obscures the CSS trade secrets. (Hoy Decl., ¶¶ 15-19; Complt., ¶¶ 36-39).
B. Defendants Have Misappropriated CSS Trade Secret Information
The Content Scramble System is clearly protectable as a trade secret under California law. Defendants have misappropriated this information and are improperly using it.
Defendants knew or should have known when they posted or provided "links" to the DeCSS program on their web sites that it was available by virtue of the unauthorized use of trade secrets and that they were misusing trade secrets gained through improper means. (Hoy Decl., ¶ 29). Indeed, the DeCSS program has no use other than to defeat DVD encryption software and allow users illegally to pirate the copyrighted motion pictures contained on DVD videos. As established above, the defendants' knowledge of the illicit nature of their conduct is demonstrated by their own comments posted on their web sites. (Complt.¶ 50; see also Complt., ¶¶ 56-64). In fact, the only reason defendants posted or linked to other sites posting CSS trade secrets was to enable others to take this misappropriated information and use it for the sole purpose of making unlawful copies of copyrighted motion pictures contained on DVD videos.
IV. DVD CCA IS SUFFERING AND WILL CONTINUE TO SUFFER lMMEDIATE AND IRREPARABLE HARM UNLESS A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ARE ISSUED
Defendants' use of the trade secrets which DVD CCA licenses is, by itself, sufficient to establish the requisite level of harm to justify the grant of a preliminary injunction. (See Paul v. Wadler, supra, 209 Cal.App.2d 615, 625). Their dissemination of the encryptiondecryption technology also threatens the very existence of DVD CCA, the sole licensor of the trade secrets defendants are stealing. (Hoy Decl., ¶ 32). Motion picture studios agreed to provide their copyrighted product only on the assurance that it would not be copied. (Hirsch Decl., ¶ 56; Hoy Decl., ¶¶ 6, 8). If those assurances are compromised, the DVD industry will be threatened with irreparable harm, including the motion picture industry (headquartered in California) and the more than 400 licensees (73 of which are located in California) who have invested millions of dollars and employ thousands of people in this State to develop, manufacture and distribute the hardware and software necessary for consumers to access the digital images contained on DVDs. (Hoy Decl., ¶¶ 31-33). The theft of CSS allows infringement of motion picture copyrights and, if not enjoined, that will continue. (Hirsch Decl. ¶ 13). That infringement is presumed to cause irreparable injury. (See Triad Systems Corp. v. Southeastern Express Co. (9th Cir. 1995) 64 F. 3d 1330, 1335 cert. denied 5l6 U.S. 1145 (copyright infringement action, showing of reasonable likelihood of success on the merits raises presumption of irreparable harm).
V. ALL DEFENDANTS ARE SUBJECT TO THE JURISDICTION OF THIS COURT
The defendants in this action reside in various locations, including California. This court has personal jurisdiction over all of them.
The defendants residing in California are subject to the court's jurisdiction because they are domiciled in this state. (2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, § 129, p. 671.) The other defendants, while not residing in California, have nonetheless established contacts with this forum by taking actions contemplated to cause severe injury in California. First, defendants have misappropriated intellectual property rights solely licensed by DVD CCA, which has its principal place of business in California. Second, defendants have injured the motion picture industry in California, by posting material which allows copying of its copyrighted motion pictures on interactive web sites available to all California Internet users. Third, the impact of defendants' illegal activities threatens the economic welfare of the more than 400 CSS licensees -- the companies that make the hardware and software that enables consumers to view digital images on DVDs. Of the 73 licensees which are located in California, 42 are located in Santa Clara County and an additional 17 are in other Bay Area locations. As discussed below, these minimum contacts are sufficient to establish jurisdiction over the out-of-state defendants under the California long-arm statute.
Specific jurisdiction, which is relevant in this action, applies when the plaintiff's cause of action is related to the defendant's contact with the forum. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446-447 [58 Cal.Rptr.2d 899] cert. denied 522 U.S. 808).8 California courts apply a three-part test to determine whether specific jurisdiction exists. First, the defendant must have purposefully availed himself or herself of the forum. Second, the controversy must arise from the defendant's contacts with the forum. Finally, once it has been decided that a defendant purposefully established minimum contacts with the forum, the court will consider these contacts in light of other factors to assure that the exercise of jurisdiction would comport with "fair play and substantial justice." (Id.) The defendants satisfy all three prongs of the specific jurisdiction test.
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8 The limits of the California long-arm statute are co-extensive with the limits of due process. (Cal. Code Civ. Proc. § 410.10). The Constitution requires a defendant to have minimum contacts with a state such that the assertion of jurisdiction does not violate "traditional notions of fair play and substantial justice." (International Shoe Co. v. Washington (1945) 326 U.S. 310, 316).
A. Defendants Purposefully Availed Themselves of the Privileges of This State
The defendants satisfy the purposeful availment requirement of specific jurisdiction. California courts have held that the "purposeful availment" requirement may be satisfied if a defendant's conduct causes harmful effects within the state. See Quattrone v. Superior Court (1975) 44 Cal.App.3d 296 [118 Cal.Rptr. 548]). Under the "effects test," personal jurisdiction may be based upon (1) intentional actions (2) expressly aimed at the forum state (3) causing harm which is suffered -- and which the defendant knows or reasonably should have known is likely to be suffered -- in the forum state. (Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1321 [applying California law] citing Calder v. Jones (1984) 465 U.S. 783).9
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9 The effects test applicable in tort cases is properly applied in a cause of action arising under the Uniform Trade Secrets Act. Prior to the enactment of the California UTSA in 1984, a cause of action for misappropriation of trade secrets was a common law tort. (See Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34 [6 Cal.Rptr.2d 602]). See also Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1321, finding a claim for trademark infringement "akin to a tort case" and applying the effects test where the defendant used the plaintiff's name in a web site domain name.
In this case, defendants intentionally launched a direct attack on the plaintiff and on three of California's largest and most important industries -- the motion picture industry, the computer industry and the consumer electronics industry -- by posting the proprietary technology on interactive web sites, thereby enabling countless Internet users to make pirated copies of DVD movies. That these actions were directly aimed at the motion picture industry is self-evident from the fact that the only ,surpose of someone disclosing the CSS trade secrets is to make improper copies of copyrighted motion pictures. (Hoy Decl., ¶ 29). It is further evidenced by the defendants' statements made on various web sites at which the harmful material was posted. (See discussion supra at p.6; Complt., ¶ 50, ¶¶ 56-64). This conduct also threatens the very existence of DVD CCA, which has its principle place of business in Morgan Hill, California and is the sole licensor of the intellectual property misalvpropriated by the defendants, as well as the more than 400 CSS licensees, and is causing serious injury to the motion picture, computer and consumer electronics industries in California. (Hirsch Decl., ¶ 12; Hoy Decl., ¶¶ 31 -33).
The defendants all knew or reasonably should have known that posting the DVD decryption program on their web sites would cause significant harm in California. (See Hoy Decl ., ¶ 33; Panavision International L.P. v. Toeppen, supra, 141 F.3d 1316, 1321 [defendant knew the brunt of harm would be in California because, among other things, "the heart of the theatrical motion picture and television industry is located there"]). Indeed, it would be unreasonable for any defendant to claim it did not know that the heart of the motion picture industry was in California. Further, most of the defendants were further informed that injury was being felt in California when the MPA sent letters to defendants demanding that they remove the trade secrets from their web sites. Nonetheless, 41 of the 66 web sites contacted by the MPA refused to do so. (Hirsch Decl., ¶ 8; Turnbull Decl., ¶ 8; Hoy Decl., ¶ 30). It is self-evident that all defendants intended to and did cause harm in California. Consequently, they purposefully availed themselves of the privilege of conducting activities in this state. (See MCH Records Inc. v. Charly Records LTD (9th Cir. 1997) 108 F.3d 338 [1997 WL 76173] cert. denied 522 U.S. 822 [finding jurisdiction over Panamanian licensor and its Danish licensee under the effects test because effect of their trademark infringement was felt by California plaintiffl).
The defendants also purposefully availed themselves of this state's privileges by posting the trade secrets on interactive web sites, which allows Internet users to download the program, and in many cases, communicate with the web site operator. Courts in several jurisdictions, including California, have held that interactive web sites establish a basis for personal jurisdiction. (See 3DO Company v. Poptop Software (N.D. Cal. 1998) 1998 U.S. Dist. LEXIS 21281 [finding jurisdiction over a Missouri corporation where "the defendants have posted interactive, not passive, web sites which encourage and facilitate users in California and elsewhere to download allegedly infringing copies of the [plaintiff's computer game]"]).10
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10 See also Stomp, Inc. v. Neato, LLC (C.D. Cal. 1999) 61 F.Supp.2d 1074 ljurisdiction based on web site allowing Internet users to purchase products]; Maritz Inc. v. Cybergold, Inc. (E.D. Mo. 1996) 947 F.Supp. 1328 [jurisdiction where web site forwards advertisements to users after they submit inforrnation through the site].
B. Plaintiff's Claim Arises from the Defendants' Forum-Related Activity
The misappropriation of CSS trade secrets occurred when the defendants posted material on their web sites which they knew or should have knew to be improperly misappropriated by "hackers." (Hoy Decl., ¶¶ 28-29). The postings are the direct cause of the injury suffered in California and also made the misappropriated material available to all California Internet users through interactive web sites. Accordingly, specific jurisdiction is appropriate here.
C. The Exercise of Jurisdiction Comports with Fair Play and Substantial Justice
It is most certainly fair play for the defendants to be subject to the jurisdiction of this Court. California maintains a "strong interest in providing an effective means of redress for its residents tortuously injured by commercial misappropriation." (MCA Records Inc. v. Charly Records LTD, supra, 108 F.3d 338 [1997 WL 76173, *6]). Defendants who misappropriate valuable trade secrets and inflict injury on major interests in this State cannot be left untouchable simply because they chose to conduct their illegal activities on the Internet. The Internet is a useful and extraordinary communication tool, yet it will become a haven for intellectual property thieves if states are not able to exercise jurisdiction to redress injuries caused by web site activity directed at the State. It is only fair that defendants who deliberately chose to injure interests in this state be required to answer for their actions.
CONCLUSION
For the reasons stated in Plaintiff's Application for a Temporary Restraining Order and Order to Show Cause, the supporting Declarations, this Memorandum and the Complaint, the Court should grant Plaintiff's application.
Dated: December 28, 1999
Menlo Park, California
Respectfully submitted,WEIL GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)By: [Signature]
Jared B. BobrowAttorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
OF COUNSEL:
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
EDWARD J. BURKE
JONATHAN S. SHAPIRO*
___________________
* Pro Hac Vice application being submitted to the Court.
[End document 2.]
| [Footer all pages:] Declaration of John J. Hoy |
NY1:\845622\02\$4H$02!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
DECLARATION
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
I, JOHN J. HOY, hereby declare and state as follows:
l. I am currently employed as President of plaintiff DVD Copy Control Association, Inc. ("DVD CCA") in the above-captioned matter. I make this Declaration in support of plaintiff's application for a temporary restraining order and for a preliminary iniunction.
2. I have been President of DVD CCA since October 1, 1999. Before holding such position, I was employed by the United States subsidiary of Toshiba Corporation ("Toshiba"), Toshiba America, Inc. ("TAI"), as well as by one of TAI's subsidiaries, as Director of Digital Video Disc ("DVD") Marketing and Director of Strategic Alliances. Toshiba is one of the developers of the proprietary Contents Scramble System ("CSS") at issue in DVD CCA's application.
3. I have been intimately involved in DVD encryption matters -- during my employment with DVD CCA and before then when I was employed by TAI and its subsidiary -- since CSS was invented in July 1996. I have been involved in innumerable meetings among motion picture, computer, and consumer electronic companies concerning the adoption of the DVD video format and the development of, and licensing of, the proprietary technology designed to protect the motion picture companies' copyrighted content on DVD videos.
4. I have been involved in all major drafting and negotiation initiatives concerning DVD adoption and related copy protection issues. Specifically, I have been involved in the drafting and negotiation of the CSS Agreement, discussed further below, and have been involved in all aspects of the implementation and protection of the CSS technology, which is at issue in the instant application for a temporary restraining order and preliminary injunctive relief.
DVD Format and Need for Copy Protection
5. DVD video provides high quality video, for copyrighted content such as motion pictures, digitally formatted on a convenient 5-inch (120 mm) disc that is resistant to wear and damage and allows for many attractive consumer features not presently available in other video formats. DVD video discs containing data comprising motion pictures in encrypted form can be played either on special purpose machines ("DVD Players") or personal computers ("PCs") equipped with DVD drives. Encryption is necessary to prevent copying of the copyrighted material on the DVD disc. In order that the copyrighted motion picture can be played, either form of player device requires the implementation of the CSS algorithrn and "master keys" to carry out the decryption of the data stored on the disc. The implementation software that provides this decryption function is written by licensees of DVD CCA using detailed specifications provided to such licensees.
6. Before allowing their copyrighted motion pictures to be used on the DVD video format, the motion picture companies insisted on a viable copy protection system to prevent users from making copies of the motion pictures. Such protection is necessary to prevent copying from discs that are rented or borrowed and to prevent broader scale piracy through widespread transmission of these motion pictures over the Internet and widespread distribution of "pirated" discs in competition with the authorized prerecorded discs.
7. Without motion picture companies' copyrighted content for DVD video, there would be no viable market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices and, thus, there would be no DVD video industry.
8. The motion picture companies insisted on a copy protection system because this new digital video format increased the risks of perfect pirated copies of their motion picture copyrights. This was in contrast with the situation in the analog domain, where VHS video cassette copies of video material are noticeably degraded from the original content and subsequent copies are progressively degraded as subsequent generations of copies are made. This natural inhibition to copying is lacking in the digital domain, however, and so the motion picture companies demanded creation of a specific copy protection technology that would be legally required to be observed in relevant devices (e.g. DVD players and DVD drives for PCs).
9. Because DVD was a new format, it provided the ideal opportunity to build in copy protection technology. There was no existing installed base of DVD players or DVD drives for personal computers; copy protection therefore could be designed and built into these new devices from the outset.
10. Toshiba and Matsushita Electric Industrial Co., Ltd. developed the Contents Scramble System to provide the protection demanded by the motion picture companies against unauthorized copying of their copyrighted material.
11. Having agreed to use CSS to encrypt video content on DVD discs, the motion picture, computer, and consumer electronics industries then needed to negotiate the terms upon which the content on the discs could be decrypted and played by the consuming public. The negotiations centered on how the content of DVD discs should be treated by playback devices (both consumer electronics and computer devices) once it is decrypted. The industries agreed, in principle, that the video content on DVD discs should not be subject to unauthorized: (i) copying, or (ii) transmission, including making the content available over the Internet.
12. The CSS system is proprietary; DVD CCA's predecessors-in-interest engineered the technology and held certain intellectual property rights, including trade secrets, with respect to it. DVD CCA and its predecessors-in-interest as well as the members of the motion picture, computer, and electronics industries have invested substantial amounts of money and resources in the development of the DVD application and the necessary safeguards, such as the CSS licensing mechanism, to protect the DVD copyrighted content. The CSS license and, in particular, how it protects the DVD technology, is of great commercial importance to DVD CCA and the motion picture, computer, and electronics industries.
13. These intellectual property rights, including trade secrets, concerning the CSS technology are currently licensed by plaintiff DVD CCA as the only duly authorized licensing entity for the CSS technology. Any party that wants to use the CSS technology -- either to encrypt content or decrypt content -- must do so through such CSS licenses.
The CSS Agreement as Mechanism to Protect DVD Encryption Software
14. Beginning on or about October 31, 1996, DVD CCA's predecessor-ininterest began licensing CSS technology pursuant to an agreement that later became the AMENDED AND RESTATED CSS INTERIM LICENSE AGREEMENT, including the related CSS PROCEDURAL AND AMENDED AND RESTATED TECHNICAL SPECIFICATIONS (collectively, the "CSS Agreement"). Since that time, hundreds of licensees have entered into the CSS Agreement. The CSS Agreement sets forth the terms and conditions under which the CSS licensing entity (currently DVD CCA) would grant licenses to, among others, manufacturers of DVD players or DVD drives and related hardware and software. Licensees were granted the right to use the security system on DVD products and agreed to safeguard the CSS technology from public disclosure.
15. The CSS Agreement gives the licensees the right to use the technology, and provides the necessary decscrambling technology and "master keys" to do so. The proprietary technology is not accessible to unlicensed third parties because it is incorporated in hardware devices -- chips -- or made tamper resistant if distributed in the form of actual software. Both forms of distribution are such that the proprietary technology cannot be viewed by non-licensees. Each licensee is assigned a set of "master keys" unique to each licensee. When the DVD system was created, approximately 400 such "master keys" were predesignated, to be assigned to licensees over time, and each DVD disc contains, in a part of the disc not normally read by the player device, a file containing the 400 "master keys." The system will not operate unless the key contained in the licensee's decryption module (a chip or software program) matches one of the "master keys" stored on the DVD disc.
16. The CSS Agreement requires licensees to maintain the confidentiality of certain defined pieces of information, such as the algorithms and "master keys" and, as such, licensees are subject to a very stringent set of rules to ensure the maintenance of confidentiality within the group of licensees.
17. Among the safeguards taken is the requirement that only those licensees that absolutely need to know a particular algorithm and/or key are provided with such inforrnation. For example, a manufacturer of semiconductor chips for descrambling CSS content in stand-alone DVD players is provided with information necessary for manufacturing such chips but not with information concerning the scrarnbling process itself or the authentication between DVD drives and the descrambling module used for computer-based implementations. Companies that merely assemble parts and components produced by others may be required to be licensees in order to purchase such parts and components, but these companies are not provided with the proprietary CSS information at issue.
18. The CSS Agreement mandates that licensees only provide the proprietary CSS technology at issue to the strictest minimum number of licensee's employees who require access to the information, beginning with only three employees and expanding beyond three only upon notification to the licensor of the names of the additional employees. Licensees who violate these requirements are subject to liquidated damages in the amount of $1 million per violation (with a cap based on profits made from the sale of licensed products).
19. Additionally, licensees implementing authentication and descrambling functions in software are required to do so only in a manner that obscures the proprietary CSS technology at issue, so as to effectively frustrate anyone seeking to obtain such proprietary information. Specific means of accomplishing this protection requirement are provided to licensees to illustrate the types of measures to be taken and the level of technical skill that must be employed to defeat any such measures. Failure to abide by these operating restrictions can subject the licensee to injunctions prohibiting the sale of the product in which the failure occurs, through actions brought either by the licensor or by third party beneficiary content owners (motion picture companies that are licensees under the CSS Agreement and have made copyrighted content available on DVD discs encrypted using CSS technology).
Creation of DVD CCA
20. DVD CCA's predecessor-in-interest began the process of licensing companies to use the technology pursuant to copy protection rules contained in the "procedural specifications" associated with the CSS Agreement. However, the companies in the DVD video business (motion picture, computer, and consumer electronics companies) recognized that the licensing of CSS technology, which is and was critical to the adoption of the DVD video format, ought to be controlled and administered by the companies in the three industries together and that the costs associated with such critical intellectual property protection should be borne by the hundreds of companies involved in the DVD video business.
21. The DVD industry agreed that the best solution would be the creation of a licensing entity owned and controlled by the licensees of the technology, pursuant to governance rules that balanced the interests of the three industries involved.
22. The DVD Copy Control Association, Inc. was, therefore, formed in December 1998 as a Delaware not-for-profit trade association.
23. The transition to have DVD CCA become this tri-industry licensing entity which would grant licenses to CSS began some time ago. In September 1999, DVD CCA hired its first staff and occupied offices in Morgan Hill, California. Following staff training, working with its predecessor's personnel who have administered the interim licensing, in early December 1999, DVD CCA and its predecessor signed an agreement, whereby DVD CCA began itself to handle the day-to-day licensing tasks pursuant to the CSS Agreement.
24. In mid-December 1999, DVD CCA's predecessor-in-interest assigned its licensing interests under the CSS Agreement making DVD CCA the sole licensing entity which grants licenses to the CSS technology in the DVD video format. As the duly authorized licensing entity controlling the CSS proprietary technology, DVD CCA, has been granted the right to enforce the CSS Agreement and related specification requirements.
The "Hack" of the CSS Technology
25. As early as October 25, 1999, the source code of a program named DeCSS was posted on the Internet by Jon Johansen, an individual residing in Norway, on the web site mmadb.no/hwplus/Software/DeCSS/decss.html. The DeCSS program which appeared on this web site embodies, uses, and/or is a substantial derivation of confidential proprietary information which DVD CCA licenses pursuant to the CSS Agreement. The DeCSS program and links to other sites with the DeCSS program were removed from the web site on or around November 8, 1999. The program was removed by Mr. Johansen after a demand to remove the infringing information was sent to him by an attorney from Simsonsen & Musaeus, a Norwegian law firm. A link to the DeCSS program reappeared on the site on December 11, 1999. It is not clear who is responsible for posting the link. The web site operator is named as Doe defendant 70 in the DVD CCA's Complaint.
26. On information and belief, the DeCSS program first appeared in the United States, as early as October 25, 1999, on a web site operated by defendant Pavolich addressed as www.livid.on.openprojects.net.
27. On information and belief, this proprietary information was obtained by willfully "hacking" and/or improperly reverse engineering software created by CSS licensee Xing Technology Corporation ("Xing"). Xing's software is and was licensed to users under a license agreement which specifically prohibits reverse engineering.
28. Defendants knew or should have known when they posted or provided "links" to the DeCSS program on their web sites that it was created through the unauthorized use of proprietary CSS information, which was illegally "hacked."
29. Defendants knew or should have known when they posted or provided "links" to the DeCSS program on their web sites that they were misusing proprietary confidential information gained through improper means because the DeCSS program was designed with the specific purpose, and has the ability, to defeat DVD encryption software. As a result, the DeCSS program allows users illegally to pirate the copyrighted motion pictures contained on DVD videos -- activity which is devastating to the DVD video format, the motion picture industry, and the hundreds of computer and consumer electronics companies whose businesses rely on the viability of this digital format.
30. Since the October 25, 1999 appearance of DeCSSs proprietary CSS information has been displayed on web sites (or by web sites "linking" to other web sites which display the information) in at least 11 states and 11 countries throughout the world. Extensive investigative efforts were immediately undertaken by DVD CCA and the Motion Picture Association's ("MPA") anti-piracy task force, to locate web sites which were posting and/or "linking" to other sites posting the proprietary information, and Internet service providers which were hosting such sites. The MPA sent notices to 66 web sites and Internet service providers demanding that this information be removed immediately. After receiving such notice, approximately 25 of these web sites and Internet service providers voluntarily removed the proprietary information or "links" to the information at issue. On information and belief, all named defendants (with the exception of defendant Hanson) and Does 1, 8, 10 through 14, 16, 26, 28, 31, 32, 33, 35, 48 through 54, and 62 through 72 have received notice through the MPA and refused to remove the inforrnation at issue.
DVD CCA as well as the Motion Picture, Consumer Electronics and Computer Industries Face Irreparable Harm if Defendants' are not Enjoined
31. DVD encryption technology was (and is) critical to the adoption and utilization of the DVD format. Without such copy protection, the motion picture companies would not have allowed their copyrighted motion pictures to be available in this new digital video format. Without motion picture content, there would be no viable market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices. Accordingly, the Defendants' continued misappropriation of proprietary CSS technology will have a devastating effect on DVD CCA and many other California businesses in the motion picture, computer, and consumer electronics industries, who have invested substantial amounts of money and resources in the development of the DVD video format.
32. The sole business purpose and reason for the existence of DVD CCA. a trade association headquartered in Morgan Hill, California, is to be the tri-industry licensing entity and administrator of the CSS technology. Defendants' continued misappropriation and dissemination of proprietary CSS technology threatens the existence of the DVD format and, thus, the very existence of DVD CCA and the DVD businesses of hundreds of companies involved in the DVD industry. If the proprietary nature of the CSS technology is compromised, it will likely mean the end of this California business.
33. The effect of the unlawful activities of the Defendants on the motion picture industry, centered in California -- as well as on the nurnerous California computer and consumer electronics businesses, including 73 companies in California of which there are 42 in Santa Clara County and an additional 17 in other Bay area locations -- is immeasurable. Apart from the substantial resources that these industries have invested in the adoption of the DVD format, the wholesale copying and distribution of copyrighted motion pictures destroys the motion picture industry's ability to protect its intellectual property and destroys the market for the computer and consumer electronics industries' DVD-based products.
34. In addition to the irnmediate consequence that copyrighted motion pictures have been pirated, the "hack" and disclosure of the CSS proprietary information has already had a very serious adverse effect on consumers, in California and elsewhere, in that the introduction of a related product -- DVD audio -- has been delayed. The major music companies have indicated that they are not prepared to use a "compromised" system to protect their content and have insisted on the creation of a new encryption technology to protect the DVD audio system. The launch of DVD audio products, planned for December 1999, has, thus, been postponed for at least six months while new copy protection technology is developed, agreed upon, and implemented.
I hereby declare under penalty of perjury that the foregoing is true and correct.
[Signature]
John J. Hoy
Dated: December 24, 1999
Morgan Hill, California
[End document 3.]
| [Footer all pages:] Declaration of Bruce H. Turnbull |
NY1:\846760\01\$5D401!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
DECLARATION OF
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
I, BRUCE H. TURNBULL, Esq., hereby declare and state as follows:
1. I am a member of the law firm Weil, Gotshal & Manges LLP, and am counsel to plaintiff the DVD Copy Control Administration, Inc. ("DVD CCA") in the above-captioned matter. I make this Declaration in support of plaintiff's application for a temporary restraining order and for a preliminary injunction.
2. I have been serving as counsel with respect to digital video disc ("DVD") encryption technology matters for the DVD CCA, since its formation in December 1998, and for Matsushita Electric Industrial Co., Ltd. ("MEI"), since the proprietary Contents Scramble System ("CSS") at issue was invented in July 1996. I have been involved in innumerable meetings among motion picture, computer, and consumer electronic companies concerning the adoption of the DVD video format and the development of, and licensing of, the proprietary technology designed to protect the motion picture companies' copyrighted content on DVD videos, as well as the market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices.
3. I have been involved in all major drafting initiatives concerning CSS adoption and related copy protection issues. Specifically, I have been one of the primary drafters and negotiators of the license agreement pursuant to which CSS technology (including associated intellectual property rights) has been licensed and have been consulted by MEI and the DVD CCA on all aspects of the implementation and protection of the CSS technology, which is at issue in the instant application for a temporary restraining order and for preliminary injunctive relief.
The "Hack" of the CSS Technology And Actions Taken in Light of Unauthorized Disclosure
4. On information and belief, as early as October 25, 1999, the source code of a program named DeCSS was posted on the Internet by Jon Johansen, an individual residing in Norway, on the web site mmadb.no/hwplus/Software/DeCSS/decss.html. The DeCSS program which appeared on this web site embodies, uses, and/or is a substantial derivation of confidential proprietary information which DVD CCA licenses pursuant to the CSS Agreement.
5. On information and belief, the DeCSS program was designed with the specific purpose, and has the ability, to defeat DVD encryption software. As a result, the DeCSS program allows users illegally to pirate the copyrighted motion pictures contained on DVD videos -- activity which is fatal to the DVD video format and the hundreds of computer and consumer electronics companies whose businesses rely on the viability of this digital format.
6. Based on my own direct knowledge of the activities of DVD CCA and on information provided to me by the Motion Picture Association's ("MPA") anti-piracy task force and professional staff, extensive investigative efforts were immediately undertaken by DVD CCA and the MPA anti-piracy task force to locate web sites which were posting and/or "linking" to other sites posting the proprietary information, and Internet service providers which were hosting sllch site.s.
7. On October 28, 1999, I participated in a conference call among representatives of MPA and counsel for several computer companies that have participated in the CSS and DVD CCA licensing discussions. During that call, it was decided that the best course of action was for the MPA's anti-piracy group -- an existing department of the MPA which has well-trained personnel and has extensive experience conducting international investigations concerning the "pirating" of intellectual property rights -- to use its resources to locate web sites disclosing, or "linking" to other sites disclosing, CSS proprietary information and demand that such material be removed. DVD CCA would focus on a number of other activities in response to the situation, including using its technical expertise to evaluate the nature of the hack that had occurred and working with the CSS licensee whose implementation of CSS had apparently been compromised to determine the most effective countermeasures to protect the CSS technology and licensing system from further compromise.
8. In the subsequent several weeks, I participated in several additional meetings and conference calls with the MPA anti-piracy staff to learn of their activities and to assist in coordinating and providing assistance from the DVD CCA in regard to their activities. Based on the discussions during those calls and meetings, it is my understanding that the MPA sent notices to 66 web sites and Internet service providers demanding that this information be removed immediately and that after receiving such notice, approximately 25 of these web sites and Internet service providers voluntarily removed the proprietary information or "links" to the information at issue.
9. DVD CCA, with the assistance of Weil, Gotshal & Manges, LLP, and in conjunction with the MPA, has made substantial efforts up through the filing of plaintiff's action to locate websites disclosing, or "linking" to other sites, disclosing CSS proprietary information. DVD CCA's efforts in this regard are further detailed in the Declaration of Jonathan S. Shapiro, Esq., submitted in support of plaintiff's application for a temporary restraining order and for a preliminary injunction.
I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
[Signature]Bruce H. Turnbull
Dated: December 27, 1999
Dillon, Colorado
[End document 4.]
| [Footer all pages:] DECLARATION OF FREDERIC HIRSCH, ESQ. |
NY1:\845833\02\$4ND02!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
DECLARATION OF FREDERIC HIRSCH,
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
I, FREDERIC HIRSCH, ESQ., hereby declare and state as follows:
1. I am employed as Senior Vice-President of the Motion Picture Association ("MPA") and am the Director of the worldwide anti-piracy program. I have held that position for two years; previously, I have held numerous other positions at the MPA over most of the last seventeen years. I make this Declaration in support of DVD Copy Control Association, Inc.'s ("DVD CCA") Application for a Temporary Restraining Order and for a Preliminary Injunction in the above-referenced matter.
2. The Motion Picture Association of America ("MPAA") and its international counterpart, the MPA, serve as the voice and advocate of the major American motion picture studios, domestically through the MPAA and internationally through the MPA. (The MPAA and MPA are referred to here collectively as the "MPA.") The MPA represents not only the theatrical film industry, but also serves as a leader and advocate for major producers and distributors of entertainment programming for television, cable, home video, digital video discs, also referred to as digital versatile discs ("DVDs") and future delivery systems not yet imagined. The members/affiliates of the MPAA include the Walt Disney Company, Sony Pictures Entertainment Inc., Metro-Goldwyn-Mayer, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corp., Universal Studios, Inc. and Warner Bros. All of the MPA member companies own internationally famous intellectual property and rely heavily on internationally accepted laws and rules for the protection of that property.
3. The MPA, as a central part of its work, directs a comprehensive anti-piracy program. Begun in the United States in 1975, the program has several objectives: to strengthen industry security measures; to strengthen existing copyright protection through legislative activity; to assist local governments in the investigation and prosecution of piracy cases; and to provide technical and legal support in the criminal and civil litigation generated by such investigators. This work is of vital importance to the motion picture industry because intellectual property theft has been estimated to cost United States motion picture companies over $2.5 billion annually .
4. The MPA has focused significant attention on the increasing problems of piracy of intellectual property on the Internet. Representatives of the MPA have testified before Congress, warning about the dangers of Internet piracy that threaten the future of the motion picture industry. While the Internet has great potential, as a medium for piracy it may also cause enormous losses and damage to consumers and to intellectual property industries. The valuable intellectual property of the United States motion picture industry is threatened by the piracy that is the subject of DVD CCA's Application.
5. When motion picture studios first began exploring the possibility of making their intellectual property available to the public in a digital format, they were insistent that a viable protection system be made available to prevent users from making copies of motion pictures. Such protection is necessary to prevent copying from discs that are rented or borrowed and to prevent broader scale piracy through widespread transmission of these motion pictures over the Internet and widespread distribution of"pirated" discs in competition with the authorized prerecorded discs. The motion picture companies insisted on a copy protection system because this new digital format increased the risks for perfect pirated copies of their motion picture copyrights. This was in contrast to the analog domain, in which VHS video cassette copies of video are noticeably degraded from the original content and subsequent copies are progressively degraded as subsequent generations of copies are made. The motion picture companies deemed necessary the creation of copy protection technology. Without motion picture companies copyrighted content for DVD video, there would be no viable market for DVD players, as well as the related hardware, computer chips and software necessary to run these devices and, thus, there would be no DVD video industry.
6. The Content Scramble System ("CSS"), was developed to provide the protection for the motion picture companies against the unauthorized copying of their copyrighted material. The motion picture industry (as well as the computer and consumer electronics industries) embraced CSS and the stringent controls that were imposed on the licensees of the CSS. These stringent controls include: restricting the number of licensees with access to CSS encryption technology; dissemination of the proprietary technology only when the knowledge is absolutely necessary to manufacturers; and strict limitation on the number of licensee's employees with access to proprietary technology. Without the development of these protections, MPA members would not have agreed to distribute their films on DVDs.
7. On or about October 25, 1999, the MPA first learned that the source code of a program named DeCSS had appeared on the Internet web site operated by Jon Johansen, an individual residing in Norway, the domain name of which is mmadb.no/hwplus/Software/DeCSS/decss.html. The DeCSS program which appeared on this web site gives persons who visit this site the ability to duplicate copyrighted motion pictures contained on a DVD.
8. In conjunction with DVD CCA, the MPA immediately commenced investigative efforts to locate web sites which were posting and/or "linking" to other sites posting the proprietary information. The MPA, through its counsel, Sargoy, Stein, Rosen & Shapiro, has sent written and e-mail notices to about 66 such web sites and Internet Service Providers, demanding that such sites be taken down. To date, the MPA has been able to determine that about 25 of the sites contacted have been taken down. However, we understand that additional sites have appeared since we sent the cease and desist letters.
9. With the support of DVD CCA, the MPA began to plan legal action against Jon Johansen. Mr. Johansen removed the DeCSS program and links to other sites offering the DeCSS program after he was contacted by letter by an attorney from Simsonsen & Musaeus, a Norwegian law firm retained by the MPA.
10. Absent an effective way to control the spread of DVD decryption technology such as DeCSS, the worth of the copyrights held by MPA members will be significantly diminished. Proliferation of circumvention technology like DeCSS could threaten the foundation of the motion picture industry by allowing a single person with a single copy of the film to distribute via the Internet thousands of perfect DVD-quality copies of that film, which may then be redistributed throughout the world. With little effort, an unauthorized distributor could do millions of dollars worth of damage to the potential market for a single motion picture.
11. The risk to the copyrighted films of MPA members is exacerbated by the nature of Internet piracy. Unauthorized copies may be distributed from anywhere in the world on any computer that is connected to the Internet. Finally, consumers may obtain unauthorized copies in private, lessening both detection rates and the social stigma associated with obtaining stolen goods.
12. Misappropriation of proprietary information will also have a chilling effect on future technological innovation in the film industry, the computer industry and the consumer electronics industry. It has already had a serious impact on the music industry, by virtue of the delay of the introduction of digital audio technology. Furthermore, it will also discourage MPA members from making their copyrighted material available to the public in new formats.
13. The MPA fully supports the efforts of DVD CCA to permanently enjoin the illegal "hacking" and distribution of the motion picture industry's intellectual property. Without a legal remedy as that sought by DVD CCA in this action7 unchallenged piracy as that alleged in the Complaint filed in this action will cause the motion picture industry to lose substantial revenues.
I declare under the penalty of periury that the foregoing is true and correct.
Encino, California
December 27. 1999
[Signature]FREDERIC HIRSCH, ESQ.
[End document 5.]
[Document 6, 8 pages; Exhibits: A, 1 page; B, 33 pages; C, 15 pages; and D, 21 pages]
| [Footer first 8 pages:] Declaration of Jonathan S. Shapiro, Esq. |
NY1:\845866\02\$4_@02!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
DECLARATION OF
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
I, JONATHAN S. SHAPIRO, ESQ., hereby declare and state as follows:
1. I am an attorney associated with the law firm of Weil, Gotshal & Manges LLP ("WG&M"), attorneys for plaintiff DVD Copy Control Association, Inc. ("DVD CCA") and am admitted to practice law before the Courts of the State of New York. I make this declaration on personal knowledge and, if sworn as a witness, could competently testify thereto to each of the facts set forth herein, except as to the matters stated on information and belief, and as to such matters I believe them to be true.
2. This Declaration is being submitted in support of Plaintiff s Application for the Issuance of a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction Against All Defendants.
3. Plaintiff's Complaint was filed on December 27, 1999 and contains a cause of action against all defendants for misappropriation of trade secrets.
4. WG&M has worked closely with the Motion Picture Association of America ("MPA") and its attorney Harvey Shapiro, Esq., of the New York law firm Sargoy, Stein, Rosen and Shapiro, in efforts to identify and notify the operators of at least 118 web pages in at least 11 states and 11 countries, which have disclosed (or provided "links" to other web sites which have disclosed) proprietary data contained within the Content Scrambling System ("CSS") licensed by DVD CCA.
5. Nine lawyers, including myself, and two legal assistants from WG&M, have made significant efforts to identify, locate and notify the defendants. We have spent an estimated 150 hours reviewing and verifying the MPA information and Mr. Shapiro's files, searching for additional web pages with infringing information, searching for contact inforrnation for the defendants, and notifying them of our Application for a Temporary Restraining Order and Preliminary Injunction.
6. The MPA has provided us with continuously updated charts listing web pages disclosing or linking to the proprietary data at issue. These charts show (as best as can be determined) the web page address, whether the page is still operating, the country in which the web page is located, and the name and address of the person or entity to whom the domain name is registered. A domain name is an alpha numeric representation of an address where a web site is located (e.g. "www.lemuria.org"). Web pages appear on a web site (e.g. "www.lemuria.org/DeCSS"). Many web pages can appear on a single web site.
7. In some cases, the MPA list identifies a person or electronic mail address of a person believed to be responsible for the content of the web page ("content provider").
8. We have done our own independent web page searching and have continually checked the results of the MPA research for accuracy by visiting each of the listed web pages on the Internet. We have kept track of the 25 out of 66 web pages that have shut down and those that have removed the infringing content -- in response to MPA cease and desist letters -- to determine if they have re-posted the material.
9. We have checked the registration address of the domain for each site by visiting web sites which keep a database of domain addresses. We visited two domain registration web sites, http://www.networksolutions.com and another site http://www.allwhois.com, to verify the domain registration information. Network Solutions is the largest domestic domain name registry. Allwhois.com provides international registration information. These two web sites provide the name and addresses of a person or entity who registered the domains on which the defendants' web pages are found. In some cases, we have determined that the domain registrant is also responsible for the content on the web pages at issue. In other cases, the registrant of the server is not the content provider. Several different web pages, with content provided by different individuals, may be on the same domain. There is no central registry for content providers and most domain registrants simply do not provide the biographical information of the providers.
10. We thoroughly checked each web page we visited to find whether the infringing information and links to infringing information were located on the page. On each page, we searched for any name, address, or electronic mail address of an individual or entity who might be responsible for the content on the site or on the web page(s) with the infringing information. On some web sites, names, addresses, and/or electronic mail addresses of individuals responsible for the content were clearly stated. On some other sites, after reading the contents of the site, we were able to deduce that the domain registrant and the content provider were the same individual. On some sites, we were unable to identify who was responsible for the content.
11. In order to try and ascertain the identities and contact information for additional defendants, we reviewed Mr. Shapiro's files which included the cease and desist letters sent by the MPA to Internet service providers and web sites and the responses thereto. A review of these documents revealed the names and locations of some of the defendants.
12. In addition to finding web sites and defendants by utilizing and crosschecking the MPA lists and Mr. Shapiro's files, we performed independent searches using various search engines on the Internet, such as www.yahoo.com, www.lycos.com, and www.altavista.com. We found and visited additional web pages, discussion groups, and chat rooms related to DVD decryption. Through these efforts we were able to identify additional defendants and ascertain contact information.
13. The efforts outlined above have resulted in the location of 93 web pages with infringing information. Through our efforts, we were able to identify the names and electronic mail addresses of the 21 named defendants in the Complaint. In addition, we were able to identify what we believe to be the electronic mail addresses for 58 out of the 72 Doe defendants listed in the Complaint.
14. We identified and found electronic mail addresses for defendants Andrew Thomas Mclaughlin, Andrew Bunner, John V. Kew, Scott Karlins, Glenn Rosenblatt, Dale Emmons, Emmanuel Goldstein, Douglas R. Winslow, Jonathan Blank, Roger Kumar, Robert Jones, En Hong, Matthew Robert Pavolich, Ian A. Gulliver, Jon Hanson, David M. Chan, Cameron Simpson, Tom Vogt, Cyril Amsellem, Thorsten Fenk, and Adrian Baugh.
15. We found electronic mail addresses for Doe defendants 1 through 13, 16, 19 through 32, 34, 35, 37 through 43, 45, 49, 50, 52 through 56, 58, 61 through 72.
16. On Monday, December 27, 1999, at 1:05 P.M. PST, an associate at WG&M, under my direction, sent, via electronic mail, copies of the Complaint and Notice of Application for Temporary Restraining Order (the "Notice") to each defendant identified in paragraphs 14 and 15 above. (A copy of the Notice is attached as Exhibit A.) Each identified defendant was sent a copy of the documents in English. A second copy of the Complaint and Notice was to sent to each international defendant in the language of the country in which, on information and belief, their web site is located. To accomplish this, we had the Complaint and Notice translated into Dutch, Polish, Finnish, German, French, Danish, Swedish, Italian and Norwegian.
17. We provided notice of our Application for Temporary Restraining Order at least 43 hours prior to the application to 79 of the defendants -- some of whom received three different methods of notice. Below are the three methods of notice that we provided to defendants. To the extent possible each defendant received notice by each method. We attempted to serve the three named defendants in California by personal service. We were able to successfully serve defendants Bunner and McLaughlin. We attempted to telephonically notify eight of the named defendants. We spoke directly with defendants Bunner and Blank. We left messages on three answering machines, believed to belong to defendants McLaughlin, Kew, and Gullii. We curtailed our telephonic notification efforts as we received e-mail and saw web postings indicating receipt of notice from the other defendants whom we intended to call. Defendants for whom we had e-mail addresses were given notice at those e-mail addresses.
18. We exercised reasonable diligence in our attempts to locate and notify all defendants of Plaintiff's application.
19. We have reason to believe that our efforts to provide notice to defendants, particularly through use of their Internet web sites, were effective. We know that notice via Internet web sites will provide actual notice based on the previous results of the MPA's antipiracy task force -- 25 web sites shut down and many responded after receiving MPA cease and desist letters on their Internet web sites. Additionally, comments of defendants on their web sites, which mock attempts to stop their improper activity, demonstrate that defendants, in fact, received such information (and disseminate and discuss this type of information on their sites and in Internet chat rooms) and, thus, that the Internet is an effective means to provide them with actual notice.
20. Within ten minutes of sending a copy of the Notice and the Complaint we received a call from defendant Andrew Bunner who indicated that he had received the Complaint and Notice via electronic mail and that he would take his web site down.
21. Within thirty minutes of sending a copy of the Notice and the Complaint we received a call from defendant Jonathan Blank who indicated that he had received the Complaint and Notice via electronic mail and that he would take his web site down.
22. Within two hours of sending a copy of the Notice and the Complaint we received electronic mail messages from defendants Robert Jones, David Chan, Cyril Amsellem, Tom Vogt (a Doe defendant), Hakan Johansson (a Doe defendant), J. Hammond (a webmaster for a web site of a Doe defendant), "jeroen" (a Doe defendant), and "Massic" (a Doe defendant), indicating that they had received the Notice and Complaint. Defendants Jones, Chan, Johansson, (Doe defendant) and Hammond (as a representive of a Doe defendant) indicated that they would take the infringing material off of their web site. Defendant Jones sent an electronic mail message several hours later to indicate that he was putting the material back on his site.
23. Also within two hours, news of the Notice and Complaint appeared on "www.slashdot.org," a popular web site for discussions regarding computers and technology. The Notice and Complaint was the lead story and the message stated "the hearing will be at the Superior Court of Santa Clara County, State of California, on December 29, 1999, at 8:30 a.m....Yes, the e-mail is real. Many people sent copies. We'll post an in-depth story within a day or two." By 6:00 P.M. PST (only five hours after the Notice and Complaint were sent) there had been over 200 responses to the posting of this news. By 9:00 P.M. PST there were over 400 responses. By 9 A.M. PST on December 28, the number of responses mushroomed to over 750. (Copies of the Slashdot web page and some of the comments are included as Exhibit B.)
24. Many messages on Slashdot state contempt for the DVD CCA and its lawyers. Some openly flout the suit. Brian Ristuccia, who is not named a defendant, queried, [c]an I be a defendant too?" and posted a link to his site containing the DeCSS decryption code at osiris.978.org/~brianr/css/. An anonymous individual posted a link to his site www.bard.org.il/~marc/dvd. Several others have posted codes and links. Several others questioned DVD CCA's motives behind filing suit and mused that DVD CCA will never be able to stop the dissemination of the DeCSS decryption code. There are many other messages on the Slashdot website seeking to organize protests at the Court on the day of the hearing. (Representative samples of these responses are included in Exhibit C.)
25. Defendant Andrew McLauglin has received notice of the action. He posted the following message on Slashdot: "It's interesting to note, having the dubious distinction of being the first listed on this restraining order application, the activity to my web site has taken a sharp increase. More people have downloaded the program from my server today than in the last 30 days! I suppose I have the law firm to thank for that. 'Thanks!' "
26. Within six hours of sending a copy of the Notice and the Complaint, copies of both documents appeared on several web sites including the sites of defendants Emmanuel Goldstein (www.2600.com/news/1999/1227.html) and Dale Emmons (www.frozenlinux.com/local/decss/letter.html). Goldstein's web site includes a plea for individuals to copy the DeCSS code and post it on more web sites. (Copies of relevant information from these sites are attached as Exhibit D.
27. Within sixteen hours of sending a copy of the Notice and the Complaint we received electronic mail messages from defendant Adrian Baugh indicating that he received the Notice and that he wanted another copy of the Complaint in a different file format. We also received electronic mail messages from various individuals hostile towards the DVD CCA's position.
28. The Hacker News Network another popular Internet based news service at www.hackernews.com posted comment about the hearing and a copy of the Notice and Complaint on the morning of December 28, 1999.
29. The response to the Notice and Complaint continues to grow by the minute.
30. It is clear that many named and Doe defendants received notice of our application for a TRO from the methods outlined above. Information regarding the date of the proceeding has spread quickly through the Internet and has provoked quite a reaction. It is extremely likely that many of the defendants whom we have been unable physically to locate, despite reasonable diligence as detailed above, have received notice of the action via the Internet.
31. We are continuing in our efforts to identify and notify all defendants.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
[Signature]Jonathan Shapiro
Dated: December 28 1999
New York, New York
[Exhibit A, 1 page]
ATTENTION: LEGAL NOTICE
NOTICE OF APPLICATION FOR TEMPORARY RESTRAINING ORDER
Notice is hereby given pursuant to California Code of Civil Procedure, section 527(c), California Rule of Court 379, and Local Rule 1.3.5 of the Santa Clara Superior Court of the State of California that the DVD Copy Control Association, Inc. ("DVD CCA") is filing an ex parte application for the issuance of a Temporary Restraining Order and an Order to Show Cause re: Preliminary Injunction in Department 2, 9 or 12 of the Superior Court of Santa Clara County, State of California, on December 29, 1999, at 8:30 a.m. The address of the Court is 191 North First Street, San Jose, CA. A Complaint will be filed no later than 8:30 a.m. on that day and the matter will be assigned either to Department 2, 9, or 12. A representative of DVD CCA will be outside all three departments and will identify himself to you as a representative of DVD CCA.
The Application will seek to enjoin you (and those working with or for you) from making any further use or otherwise disclosing or distributing on your web site or elsewhere, or linking to other web sites which disclose, distribute or link to, any proprietary information or property or trade secrets of DVD CCA, including, but not limited to, DeCSS or any program which includes proprietary information which is designed to, or enables one to, decrypt data on DVD dics.
DVD CCA will provide you with further Notice at your web site address, and to the extent that we know it, to your street address via the United States postal system, of the Order issued by the Court regarding DVD CCA's Application for a Temporary Restraining Order, including the dates of any further hearing set by the Court.
Please find, as an attached file, the Complaint being filed against you both in English and in the language of the country in which your web site appears to be based.
NY1:\845974\01\$4R@01!.DOC\62130.0216
[Exhibit B ]
This exhibit consists of 33 pages of printout of the Slashdot discussion on "DVD CCA Applies for Restraining Order," commencing with the Roblimo post on Monday December 27, @06:10PM and ending with the PimpSmurf post on Monday December 27, @07:10PM EST (#135), all pages with this footer:
http://slashdot.org/articles/99/12/27/194216.shtml 12/28/99
[Exhibit C]
This exhibit consists of 15 pages of printout of selected Slashdot comments on the DVD thread, with footers:
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=484 12/28/99http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=477 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=567 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=529 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=514 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=490 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=611 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=424 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=481 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=275 12/28/99
http://slashdot.org/comments.pl?sid=99/12/27/194216&cid=299 12/28/99
[Exhibit D]
This exhibit consists of:
First, 6 pages of printouts of The Hacker Quarterly 2600 News Archive pages on the "DVD Industry Takes 2600 To Court" with this footer:
http://www.2600.com/news/1999/1227.html 12/27/99
"How You Can Help," with this footer:
http://www.2600.com/news/1999/1227-help.html 12/28/99
And a revised "How You Can Help," with this footer:
http://www.2600.com/news/1999/1227-help.html 12/28/99
And, second, 17 pages of printout of the local @ frozenlinux pages showing the DVD CCA Letter of Notice (Exhibit A above) and the Complaint (mirrored at http://cryptome.org/dvd-v-500.htm), all pages with this footer:
http://www.frozenlinux.com/local/decss/letter.html 12/28/99
[End of document 6.]
[Document 7, 24 pages; Exhibit A, 134 pages]
| [Footer first 24 pages:] Declaration of Harvey Shapiro, Esq. In Support of TRO Application |
NY1:\845565\02\$4FX02!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
DECLARATION OF
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
I, HARVEY SHAPIRO, ESQ., hereby declare and state as follows:
1. I am an attorney with the law firm of Sargoy, Stein, Rosen & Shapiro and admitted to practice law before the Courts of the State of New York.
2. My law firm is authorized to act on behalf of the Motion Picture Association of America (MPAA) and its international counterpart, the Motion Picture Association ("MPA") and its member companies. (The MPAA and MPA are referred to collectively as the "MPA".) The MPA is a trade association whose members are motion picture companies. The members own copyrighted motion pictures that are recorded on DVDs. My firm has represented the MPA and its member companies for 50 years. During my eighteen years with the firm, I have worked on various matters in which the MPA has sought to prevent the piracy of the motion picture industry's intellectual property. This Declaration describes the efforts of this law firm to (i) contact web sites, which either posted the CSS technology, which is the subject of this action, or "linked" to such sites which post it and (ii) demand that such web sites cease and desist infringing the intellectual property of the members of the MPA.
3. On or about October 25, 1999, I began to receive information from the MPA that unauthorized DVD copies of its members' motion pictures, and instructions and computer applications to defeat DVD encryption, were available at specific web sites on the Internet. Beginning on or about November 4th, 1999, I (or employees of my firm acting at my direction) sent letters to Internet service providers, system administrators and others, informing the recipients that this unauthorized material was found at a specific web site address or addresses over which they exercised control. I asked them to provide me with the identity of the web site's content provider(s), and to take action to stop the infringing activity.
4. I sent out three types of form letters, depending on (i) the type of infringing activity and (ii) the action I requested the recipient take to stop the infringing activity. These letters are appended as Exhibit A. In the first type of form letter, I notified the recipient that the person responsible for the web site apparently was offering both pirated DVDs and unauthorized decryption technology. I requested that the recipient cease and desist from infringing MPA members' copyrights. In the second type of form letter, I notified the recipient that the person responsible for the web site was offering both pirated DVDs and unauthorized decryption technology. In this letter, I requested (i) that the individual's account be terminated; (ii) that further action be taken to stop the infringing activity; and (iii) that I be provided with the account operator's name and physical address. In the third type of letter, I notified the recipient that I believed the person responsible for the web site was offering CSS decryption technology, "links" to web sites which provided such technology, and/or CSS authorizing CVS code. I requested that (i) the individual's account be terminated, and (ii) that I be provided with the account operator's name and address.
5. The following is a description of the letters which I sent on behalf of the MPA. It has been our procedure to mail confirming copies of each e-mail communication when addresses were available:
6. On November 18th, I sent a letter to David Griffin of the Loyal Orange Society, regarding the web site address http://mclaughlin.orange.ca.us. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the Loyal Orange Society cease and desist from such activities.
7. On November 18th, I sent a letter and a letter via electronic mail to Charlotte Marchandise of Libertysurf, regarding the web site address http://Person.libertysurf.fr/dvdrip/index.html. I wrote that my firm had received information that the web site offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made. and that as a result of this activity, the copyrights of my clients were being infringed. I requested that Libertysurf cease and desist from such activities. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement. and that I be provided with the operator's name and physical address.
8. On November 23rd, I sent a letter via electronic mail to Gael Martinez of Grolier Interactive Europe, regarding the web site address http://perso.clubinternet.fr/ches/dl/rippers/decss/21b.zip; I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
9. On November 19th, I sent a letter to David Shaw of Mac Works Ltd, regarding the web site address http://www.theresistance.net/files.html. I wrote that my firm had received information that the web site offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated and that I be provided with the operator's name and physical address.
10. On November 19th, I sent a letter to Cablevision, regarding the web site address http://www.theresistance.net/files.html. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
11. On November 19th, I sent a letter to the Systems Administrator of Oxford University, regarding the web site address http://merlin.keble.ox.ac.ul/~sftish/css/index.html. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
12. On November 19th, I sent a letter to Dale Emmons of Frozenlinux.com, regarding the web site address http://frozenlinux.com/civ/decss. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
13. On November 19th, I sent a letter to Arlin Bleclic of Invision Systems, regarding the web site address http://douglas.min.net/~drw/css~auth. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
14. On November 19th, I sent a letter to Robert Jones of Chaos Incorporated, regarding the web site address http://www.devzero.org/freecss.html. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
15. On November 19th, I sent a letter to Thomas Cunningham of ALABANZA, regarding the web site address frozenlinux.com/civ/decss. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
16. On November 19th, I sent a letter to Wiljan Dankers of Cable Network Brabant Holding, regarding the web site address http://www.chello.nl/~f.vanwaveren/cssauth/css-auth.tar.gz. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
17. On November 19th, I sent a letter to Rensselaer Polytechnic Institute, regarding the web site address http://guilli.stu.rpi.edu/dvd/files/decss.zip and guillie.stu.rpi.edu/dvd/files/css-auth.tar.gz. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
18. On November 19th, I sent a letter to Michael Glover of Vexed.net, regarding the web site address http://www.vexec.net/css. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
19. On November 19th, I sent a letter to Yossarian Holmberg of National On Line, regarding the web site address http://wwvv.unitycode.org. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
20. On November 19th, I sent a letter to Cor Bosman of XS4ALL Internet BV, regarding the web site address http://www.xs4all.nl/~predator/freecss/freecss.html. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
21. On November 23rd, I sent a letter via electronic mail to an unknown person with the email address of satanix@pobox.com, regarding unauthorized distribution of deencryption material. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the individual cease and desist from such activities.
22. On November 23rd, I sent a letter via electronic mail to an unknown person using the email address of jkew@calpoly.edu, regarding unauthorized distribution of deencryption material. I wrote that my firrn had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the individual cease and desist from such activities.
23. On November 23rd, I sent a letter via electronic mail to an unknown person using the email address of dchan@d.umn.edu, regarding unauthorized distribution of deencryption material. I wrote that my firm had received inforrnation that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the individual cease and desist from such activities.
24. On November 23rd, I sent a letter via electronic mail to an unknown person with the e-mail address of http://www.songofthesouth@homemail.com, regarding unauthorized distribution of deencryption material. I wrote that my firrn had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the individual cease and desist from such activities.
25. On November 23rd, I sent a letter via electronic mail to an unknown person using the email address of webadmin@zpok.demon.co.uk/decss.html, regarding unauthorized distribution of deencryption material. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the individual cease and desist from such activities.
26. On November 23rd, I sent a letter via electronic mail to Jeffrey Bridge of Firehead regarding the web site address ftp://.firehead.org/pub. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
27. On November 23rd, I sent a letter via electronic mail to Joe Gleason of TASAN.COM, regarding the web site address http://www.tasan.com/~fenkt/dvd. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
28. On November 23rd, I sent a letter via electronic mail to OR.AT regarding the web site address http://ftp://eris.giga.or.at/pub/hacker/crypt/dvd. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
29. On November 23rd, I sent a letter via electronic mail to Primat Austria, E.M.P., regarding the web site address http://therapy.endorphin.org/dvd. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
30. On November 23rd, I sent a letter via electronic mail to Dirk Wendt of Discordia.de, regarding the web site address http://www.discordia.de/decss/decss.zip, http://www.discordia.de/decss/css-auth_tar.gz, and http://www.discordia.de/decss.livid.tgz. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
31. On November 23rd, I sent a letter via electronic mail to Eurobell Internet Services, regarding the web site address http://www.dvdlinks.co.uk/css. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
32. On November 23rd, I sent a letter via electronic mail to Jonathan Blank of The Web Union, regarding the web site address http://caspian.twu.net/dvd. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
33. On November 23rd, I sent a letter via electronic mail to Edward Philip of Tripod, Inc., regarding the web site address http://members.tripod.co.uk/bap/css/css.html. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
34. On November 23rd, I sent a letter via electronic mail to Andreas Graap of Videopage.de, regarding the web site address http://dvdripper.videopage.de. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
35. On November 23rd, I sent a letter via electronic mail to Simon Jankelson of Warez, Inc., regarding the web site address http://www.warezinc.com/acquawarez/vcdzl.html. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
36. On November 23rd, I sent a letter via electronic mail to Chris Butdorf of iName, Inc., regarding the web site address songofthesouthghomemail.com. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
37. On November 23rd, I sent a letter via electronic mail to the University of Minnesota Duluth, regarding the web site address http://d.umn.edu/~dchan/css. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
38. On November 23rd, I sent a letter via electronic mail to FreeDrive, of Nextec Communications, regarding the web site address hap://w3.freedrive.com/freedriveexplorer/framedisplay.htm. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
39. On November 23rd, I sent a letter via electronic mail to John Victor Kew, II, of Logorrhea.Com, regarding the web site address http://w3.logorrhea.com/main.html. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
40. On November 23rd, I sent a letter via electronic mail to Performance Systems International, regarding the web site address http://plato.nebulanet.net:88/css. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
41. On November 23rd, I sent a letter via electronic mail to Doug Lother of Nebula Network Group, regarding the web site address http://plato.nebulanet.net:88/css. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
42. On November 23rd, I sent a letter via electronic mail to an unknown person who uses the email address of hostmaster@demon.net, regarding the web site address webadmin@zpok.demon.co.uk. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
43. On November 23rd, I sent a letter via electronic mail to George Rowe of Dynamics Solutions International, regarding the web site address satanix@pobox.com. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
44. On November 4th, I sent a letter to Nicolas Pasquier of Forge Communication, regarding the web site address techsupport@dvdutils.co, subnews@dvdutils.co, subcrack@dvdutils.co, info@dvdutils.co. I wrote that my firm had received information that the persons responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
45. On November 5th, I sent Mr. Pasquier another letter regarding the web site address http://wnvw.dvdutils.com. In a telephone conversation I had with Mr. Pasquier shortly after sending these letters and in an email I received from him, he promised to remove from his site any material which provided information or software for defeating DVD encryption. I wrote that my firm had received information that the persons responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
46. On November 19, I sent a letter via electronic mail to Anders Nielsen of Netspace.net, regarding the web site address xfang@netspace.net.au. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
47. On November 10, I sent a letter via electronic mail to Chavalit Prasitphon of THZONE.COM, regarding the web site address ndk@7thzone.com. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
48. On November 5, I sent a letter via electronic mail to Chris Butdorf of CJB.NET, regarding the web site address http://dvdsite.cjg.net. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
49. On November 5, I sent a letter via electronic mail to Van Oostveen of V3 Redirect Services, regarding the web site address http://come.to/deepS4 and http://fly.to/dvd99. 1 wrote that my firm had received information that the persons responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the accounts be terminated and that I be provided with the web site operators' names and physical addresses.
50. On November 5, I sent a letter via electronic mail to Kevin Chang of DVDINFO, regarding the web site address http://pcdvd.nosf.com/files. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
51. On November 5, I sent a letter via electronic mail to FreeServers of North Sky, Inc. regarding the web site address http://brakton.freeservers.com. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
52. On November 5, I sent a letter via electronic mail to Anders Johansson of Q-Labs, regarding the web site address http://www.ajo.waw.pl/dvd. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
53. On November 5, I sent a letter via electronic mail to Anthony Coll of Yahoo, Inc., regarding the web site address http://www.geocities.com/thetropics/island/9478/index.html. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
54. On November 10, I sent a letter via electronic mail to Martin Schulze of Debian.org, regarding the web site address mpavgdebian.org. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
55. On November 10, I sent a letter via electronic mail to Robert Levin of Openprojects Group, regarding the web site address http://openprojects.net. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
56. On November 10, I sent a letter via electronic mail to Tony Schreiber of Man and Machine Ltd, regarding the web site address http://dvdarea.tsx.org. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
57. On November 10, I sent a letter via electronic mail to Pierre Francois Grimaldi of Telestore, regarding the web site address http://www.chez.com/perenoel/dvd.htm. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
58. On November 10, I sent a letter to Dvdsoft, regarding unauthorized distribution of deencryption material available through http://www.chez.com/perenoel/dvd.htm. I wrote that my firm had received information that the persons responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
59. On November 10, I sent two letters via electronic mail to Chris Butdorf of abusegcjb.net, regarding the web site address http://W3.dvdsoft.cjb.net and http://getdvd.cjb.net. I wrote that my firm had received information that the persons responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the accounts be terminated and that I be provided with the web site operators' names and physical address.
60. On November 10, I sent a letter to Dvdsoft, regarding the web site address http://www.chez.com/perenoel/dvd.htm. I wrote that my firm had received information that the person was responsible for the addresses were offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
61. On November 10, I sent a letter via electronic mail to George Hitsch of AT-Net, regarding the web site address http://start.at/dvdsoft. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
62. On November 10, I sent a letter via electronic mail to Mr. David Lehn of Corepower.com, regarding the web site address http://linuxdvd.corepower.com. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address. I received a response via e-mail from Mr. Lehn on the same day. Mr. Lehn offered to cooperate and remove offending content.
63. On November 10, I sent a letter via electronic mail to Mr. Anthony Coll of Yahoo, Inc., regarding the web site address http://www.geocities.com/dvdcentral/news.htm#041199/1. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
64. On November 10, I sent a letter via electronic mail to Marcin Ziolkowski of Astercity.Net, regarding the web site address http://www.geocities.com/dvdcentral/news.htm#041199/1. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
65. On November 10, I sent a letter via electronic mail to Robert Levin of Open Projects Net, regarding the web site address levin@dds.nl. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
66. On November 10, I sent a letter via electronic mail to cecil@calia.daewoo.lubin.pl regarding the web site address http://www.dvd.px.pl. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address. I received a response from that e-mail address on November 11th, denying that the web site contained any software designed to defeat DVD encryption technology. As of December 1 8th, there was no offending material on the web site.
67. On November 10, I sent a letter via electronic mail to Richard Troedsson of Apollo Computer Society, regarding the web site address http://apollo.nu/dvdsoft/decss.zip. I wrote that my firm had received information that the person responsible for the address offered to sell unauthorized DVD copies of my clients' motion pictures and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the person's account be terminated and that I be provided with the web site operator's name and physical address.
68. On November 12, I sent a letter via electronic mail to J. Randall Nye, Esq. of the Nye Financial Group, regarding the web site address http://www.rhythm.cx/dvd. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated, that other appropriate action be taken to terminate the infringement, and that I be provided with the operator's name and physical address.
69. On November 17, I sent a letter via electronic mail to Benjamin R. Bigelow of Humpin Industries Inc. LLC regarding the web site address http://www.humpin.org/decss. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated and that I be provided with the operator's name and physical address.
70. On November 17, I sent a letter via electronic mail to Tom Vogt of Lemuria.org regarding the web site address http://www.lemuria.org. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated and that I be provided with the operator's name and physical address.
71. On November 17, I sent a letter via electronic mail to cnet.com of C/Net, The Computer Network, regarding the web site address http://download.cnet.com. I wrote that my firm had received information that the person responsible for the address offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made, and that as a result of this activity, the copyrights of my clients were being infringed. I requested that the web site operator's account be terminated and that I be provided with the operator's name and physical address.
I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
[Signature]Harvey Shapiro, Esq.
Dated: December 24, 1999
New York. New York
[Exhibit A]
This exhibit consists of 134 pages of letters sent to the parties described in the declaration above.
[Sample of form letter 1, 1 page.]
November 18, 1999
David Griffin
Loyal Orange Association
94 Sheppard Avenue West
Willowdale, ON M2N 1M5, Canada
dgriffin@orange.ca
Re: Unauthorized Distribution of Copyright Motion Pictures
http://mclaughlin.orange.ca.us
MPAA # 5-671
Dear Mr. Griffin:
Sargoy, Stein, Rosen & Shapiro represents the following motion picture production and distribution companies:
Columbia Pictures Industries, Inc.
Disney Enterprises, Inc.
Metro-Goldwyn-Mayer Studios Inc.
Paramount Pictures Corporation
TriStar Pictures, Inc.
Twentieth Century Fox Film Corporation
United Artists Pictures, Inc.
United Artists Corporation
Universal City Studios, Inc.
Warner Bros., a Division of
Time Warner Entertainment Company, L.P.
We have received information that at the above address you have offered to sell unauthorized DVD copies of our clients copyrighted motion pictures, and offered to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made.
These activities constitute infringement of the exclusive rights to make copies and to distribute copies; and constitutes an infringement of copyright by offering goods or services which are primarily designed to circumvent technological protection measures. United States Copyright Act 17 U.S.C. §106 and §1201.
It is therefore demanded that you cease and desist from the above describe activities immediately. Your prompt response is requested. All rights are reserved.
Please telephone or write to me if you have any questions.
Very truly yours,
Edward Gallagher Legal Assistant
cc: Mikhai, Reider, MPM
[Sample of form letter 2, 2 pages.]
November 18. 1999
Charlotte Marchandise
Liberty Surf
30, Avenue Hoch
75008 Paris, France
Re: Infringement of Copyrighted Motion Pictures:
illegal distribution of deencryption material
perso.libertysu rf.fr/dvdrip/index.html
MPAA #5-671
Dear Mme. Marchandise:
Sargoy, Stein, Rosen & Shapiro represents and is authorized to act on behalf of the following copyright owners:
Columbia Pictures Industries, Inc.
Disney Enterprises, Inc.
Metro-Goldwyn-Mayer Studios Inc.
Paramount Pictures Corporation
TriStar Pictures, Inc.
Twentieth Century Fox Film Corporation
United Artists Pictures, Inc.
United Artists Corporation
Universal City Studios, Inc.
Warner Bros., a Division of
Time Warner Entertainment Company, L.P.
We have received information that at the above address there have been offers to provide instructions on defeating DVD encryption so that illegal copies of DVDs can be made. This site is providing links to 38 sites with the deCSS utility, the deCSS utility itself, and css-authorizing CVS code. Concurrently with this e-mail message, I am faxing to you material regarding this activity.
These activities constitute infringement of the exclusive rights to make copies and to distribute copies; and constitute an infringement of copyright by offering goods or services which are primarily designed to circumvent technological protection measures. United States Copyright Act 17 U.S.C. §106 and § 1201.
We request that you immediately terminate this individual's account with your service and take such other action as may be appropriate to suspend these illegal activities. We would also request that you advise us of the name and physical address of the person operating this site.
You may contact me as follows:
Edward Gallagher
Sargoy, Stein, Rosen & Shapiro
1790 Broadway, 19th floor
New York, NY 10019-1412
(212) 581-2222
(212) 581-2755 (Fax)
egallagher@sargoy.com
On behalf of the respective owners of the exclusive rights to the copyrighted material at issue in this notice, I hereby state that I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, their respective agents, or the law.
I hereby state, under penalty of perjury under the laws of New York and under the laws of the United States, that the information in this notification is accurate, and under penalty of perjury, that this law firm is authorized to act on behalf of the owners of an exclusive rights which are being infrinqed as set out in this notification.
We thank you for your cooperation in this matter. Your prompt response is requested so that the illegal infringing activity can be stopped.
Please telephone or write to me if you have any questions.
Very truly yours.
Edward Gallagher
Legal Assistant
cc: Mikhail Reider, MPM
[End document 7.]
| [Footer all pages:] [Proposed] Temporary Restraining Order And Order To Show Cause |
NY1:\845344\01\$49S01!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
[PROPOSED] TEMPORARY
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
The Court has reviewed Plaintiff's Complaint, Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction, the Supporting Declarations and Plaintiff's Supporting Memorandum of Points and Authorities.
It appears to the Court that, unless a Temporary Restraining Order granting appropriate relief is issued immediately before the matter can be heard on notice, irreparable injury would result to Plaintiff, DVD Copy Control Association, Inc. ("DVD CCA"); defendants threaten to do one or more actions in violation of the rights of Plaintiff respecting the subject of the action, tending to render the judgment ineffectual; and pecuniary compensation would not afford adequate relief. Good cause appearing,
IT IS HEREBY ORDERED, that for ____________ ( ) days from the entry of this Order, or until this Court rules on Plaintiff's pending Application Re: Preliminary Injunction, whichever occurs first, the named defendants and DOES 1-500, and their officers, directors, principals, agents, servants, employees, attorneys, successors and assigns, representatives and all persons acting in concert or participation with them, are enjoined from making any further use of or otherwise disclosing or distributing, on their web sites or elsewhere, or knowingly "linking" to other web sites which disclose, distribute or "link" to, any proprietary information or property or trade secrets relating to the Content Scramble System ("CSS") technology, and specifically enjoining Defendants, their officers, directors, principals, agents, servants, employees, attorneys, successors and assigns, representatives and all persons acting in concert or participation with them from copying, duplicating, licensing, selling, distributing, publishing, leasing, renting or otherwise marketing any and all products containing, using and/or substantially derived from CSS proprietary information or property or trade secrets.
IT IS FURTHER ORDERED that the named defendants and DOES 1-500, inclusive, and each of them, appear at Santa Clara Superior Court, Department , San Jose, California, on January ____________, 2000 at or as soon thereafter as the matter may be heard, to show cause, if any they have, why the injunction and restraints sought in Plaintiff's proposed preliminary injunction should not be entered against defendants, their principals, agents, servants, employees, attorneys, successors and assigns, representatives and all persons acting in concert or participation with them, during the pendency of this action, together with any other injunctive relief as appropriate.
IT IS FURTHER ORDERED that a copy of this Order, Plaintiff's Application for Temporary Restraining Order and Order to Show Cause, and all supporting papers, be served upon defendants not later than January ____________, 2000. All defendants who reside in the United States, and as to whom Plaintiff has identified a street address or post office box, are to be served by return-receipt mail via the United States mail. Additionally, all defendants who reside outside of the United States shall be served under procedures applicable to such service. Plaintiff will also effect service of the above-mentioned papers on all defendants by sending the papers via e-mail to their web site addresses. Any defendants discovered after the date of this Order are to be served in the same manner.
IT IS FURTHER ORDERED that defendants serve by (i) personal delivery upon or transmittal of facsimiles to Jared B. Bobrow, Esq. at the of fices of Weil, Gotshal & Manges LLP, attorneys for Plaintiff, 2882 Sand Hill Road, Menlo Park, CA 94025, telephone number 650-926-6200, facsimile number 650-854-3713, or (ii) by e-mail to the following address: decss@weil.com, all papers, documents, affidavits, declarations, records and pleadings which they intend to file in response to this Order to Show Cause no later than January ____________, 2000. Plaintiff shall serve by personal delivery, transmittal of facsimiles or e-mail any papers, documents, affidavits, declarations, records and pleadings which it intends to file in reply to defendants' papers in response to this Order to Show Cause no later than January ____________, 2000.
Dated: December ______, 1999
________________________________Judge of the Superior Court
[End document 8.]
[Document 9, 2 pages; Exhibits of cases: A, 6 pages; B, 10 pages; C, 15 pages; d, 10 pages; E, 9 pages; F, 13 pages; G, 9 pages; H, 7 pages and I, 10 pages.]
| [Footer all pages:] |
NY1:\846939\01\$5$301!.DOC\62130.0216 |
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
| DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association, Plaintiff, v.
ANDREW THOMAS MCLAUGHLIN, an Defendants. __________________________________________ |
Case No. CV-786804
EXHIBITS OF NON-CALIFORNIA CASES
Date: December 29, 1999 |
___________________
*Pro Hac Vice applications being submitted to the Court.
EXHIBITS OF NON-CALIFORNIA CASES IN SUPPORT OF DVD CCA'S
MEMORANDUM OF POINTS AND AUTHORITIES
A. Calder v. Jones (1984) 465 U.S. 783.
B. International Shoe Co. v. Washington (1945) 326 U.S. 310.
C. Mai Systems Corp. v. Peak Computer, Inc. (9th Cir. 1993) 991 F.2d 511.
D. Maritz, Inc. v. Cybergold, Inc. (E.D. Mo. 1996) 947 F.Supp. 1328
E. MCA Records Inc. v. Charly Records LTD (9th Cir. 1997) 108 F.3d 338 [1997 WL 76173].
F. Panavision International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316.
G. Stomp, Inc. v. Neato, LLC (C.D. Cal. 1999), 61 F. Supp. 2d 1074.
H. The 3DO Company v. Poptop Software (N.D. Cal. 1998) 1998 U.S. Dist. LEXIS 21281.
I. Triad Systems Corp. v. Southeastern Express Co. (9th Cir. 1995) 64 F. 3d 1330.
Dated: December 28, 1999
Menlo Park, California
Respectfully submitted,WEIL GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)By: [Signature]
Jared B. BobrowAttorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
OF COUNSEL:
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
EDWARD J. BURKE
JONATHAN S. SHAPIRO*
___________________
* Pro Hac Vice application being submitted to the Court.
[Exhibits of case law cited above from West omitted: A, 6 pages; B, 10 pages; C, 15 pages; d, 10 pages; E, 9 pages; F, 13 pages; G, 9 pages; H, 7 pages and I, 10 pages.]
[End document 9.]
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