24 March 2000. Thanks to Martin Garbus, Frankfurt Garbus Klein & Selz.

See related files: http://jya.com/cryptout.htm#DVD-DeCSS

The Universal et al v Reimerdes et al case is a very interesting and potentially precedent-setting case involving the DVD industry. It is one of the first and most significant cases involving the Digital Millennium Copyright Act (DMCA), copyright, fair use, and the First Amendment. Martin Garbus of Frankfurt Garbus Klein & Selz, PC, represents a journalist who posted a de-encryption code on his magazine's website that permits DVDs to be played on DVD players without the otherwise necessary authorization software. He has never benefited personally from this.

Synopsis

• CSS, an encryption code used on DVD discs, blocks access to the digital material stored on DVDs. CSS was supposed to make sure that DVDs could be played only on DVD players and computers duly licensed by and equipped with CSS.

• In early October 1999, legend has it, a Norwegian teenager cracked the CSS code. Called DeCSS (Decrytped CSS), the program he developed was posted on the Internet and rapidly spread to websites on servers around the world, particularly sites frequented or run by hackers.

• The motion picture and DVD industries rapidly responded with a California state suit against a number of websites under a California Trade Secrets Act theory. The court, however, declined to grant a preliminary injunction banning the sites from posting DeCSS.

• In January 2000, the eight largest movie studios tried again, and sued three individuals in New York Federal Court under a different theory: the DMCA's prohibition against, among other things, offering to the public any technology primarily designed to circumvent technology that controls access to copyrighted material {DMCA § 1201 (a) (2)}. After a long oral argument in late January, Judge Lewis Kaplan enjoined defendants from posting DeCSS. Thereafter, the California courts granted an injunction. Two of the defendants settled out of court by accepting the injunction: an ISP operator with no personal knowledge that a customer had posted DeCSS; and an individual who had posted it at his "free-dvd.com" website, with the exhortation to use DeCSS to copy DVDs and trade them with friends.

• Martin Garbus of Frankfurt Garbus Klein & Selz has been retained to represent the third defendant, Emmanuel Goldstein, a journalist who posted DeCSS on his website, 2600.com. The website and his 16 year-old 2600 Magazine are long-standing and very respected media commentators on the Internet and particularly "hackers" and hacking.

As it winds its way through the District Court, the Second Circuit and the Supreme Court, this major lawsuit may be the litigation that determines:

• the constitutionality of the DMCA's very broad access prohibitions,

• the application of the First Amendment to the DMCA and encryption, and

• the interaction or survival of Fair Use and DMCA  § 1201 (a) (2).

Source: E-mail from Frankfurt, Garbus, Klein & Selz

MARTIN GARBUS

Martin Garbus, a graduate of Hunter College, Columbia University and New York University Law School, and formerly an Associate Director of the ACLU, is the author of two books, Ready for the Defense and Traitors and Heroes, both of which deal with freedom of speech and other constitutional issues.  A third book, entitled Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way, was published by Random House in August of 1998 and deals with such concerns as free speech in the new media, focusing on copyright, obscenity, hate speech and libel.  Tough Talk was named one of the "notable non-fiction books of 1998" by the Los Angeles Times.

Mr. Garbus, who has taught law at Columbia and Yale Universities, is a frequent contributor to major newspapers, national magazines and law journals, and has appeared on television and radio shows as an expert commentator.  An NBC and CNBC legal commentator, his articles have appeared in the New York Times, the Los Angeles Times, Washington Post, The Nation, and other periodicals.

Mr. Garbus has represented many of the major book publishers, film and record companies in the United States and abroad in both criminal and civil actions, as well as the on-line media, television and movie industries.  As part of his First Amendment practice, he has represented Salman Rushdie, Henry Miller, Channel Four TV and Penguin Books in England, and has represented such well-known political dissidents as Vaclav Havel, Andrei Sakharov and Anatoly Scharansky.  He has also served as a consultant on constitutional and free speech issues to the former Soviet Union, Czechoslovakia, Poland, Hungary and Rwanda.

As one of the country's leading trial lawyers, Mr. Garbus has tried free speech cases in nearly every state in the country.  He has appeared before the United States Supreme Court on numerous occasions and has represented over two dozen Murder One defendants, many in high-profile cases. 

Mr. Garbus has developed an expertise in jury selection and forensic issues, and as a First Amendment lawyer, he has long been engaged in the fight for free press/free trial.  This commitment stems from his involvement with such notable cases as the World Trade Center case, the French Connection case, the Wounded Knee prosecution, the defense of Kathy Boudin, Lenny Bruce and countless other legal trials over the past thirty years.

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