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4 May 2000
Source: Frankfurt, Garbus, Klein & Selz and Electronic Frontier Foundation.

Related files:

Motion to which this brief replies
2600 article on plaintiffs' motion
http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://jya.com/cryptout.htm#DVD-DeCSS


Reply Brief
Order to show cause

Declarations

Harold Abelson
Andrew Appel
Chris DiBona
Bruce Fries
Martin Garbus
Martin Garbus CV
Martin Garbus - Order to show cause
John Gilmore
Emmanuel Goldstein
Robin Gross
Lewis Kurlantzick
Eben Moglen
Matt Pavlovich
Pamela Samuelson
Bruce Schneier
Barbara Simons
Frank Stevenson
David S. Touretzky
David Wagner
John Young


Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

BRIEF SUBMITTED BY MEDIA
DEFENDANT 2600 ENTERPRISES,
INC. AND ERIC CORLEY a/k/a
"EMMANUEL GOLDSTEIN" IN OPPOSITION TO PLAINTIFFS'
MOTION TO MODIFY THE
PRELIMINARY INJUNCTION
AND IN SUPPORT OF DEFENDANTS' CROSS-MOTION
TO VACATE THE
PRELIMINARY INJUNCTION
MEMORANDUM OF LAW IN
OPPOSITION TO PLAINTIFFS'
MOTION TO MODIFY THE
PRELIMINARY INJUNCTION
AND IN SUPPORT OF DEFENDANTS'
CROSS-MOTION TO VACATE
THE PRELIMINARY INJUNCTION

Preliminary Statement

This injunction should not be expanded. In fact, it should not be kept in place one minute longer. This Court has enough information now immediately to vacate this unprecedented prior restraint. Even though defendant has not had any discovery at all, the declarations submitted in opposition to plaintiffs motion and in support of defendants' cross-motion demonstrate that plaintiff's motion must be rejected and that the existing injunction, which is based on inaccurate facts presented by plaintiffs in an air of hysteria, must be vacated. Defendants will prove the facts necessary ultimately to prevail in this case through the documents plaintiffs will produce and through the testimony of the plaintiffs. Plaintiffs waited more than five months after they learned of DeCSS to attempt to enjoin linking because they knew that such a motion would be factually and legally without basis.

Plaintiffs' motion must be denied because an injunction that barred linking would be a prior restraint, and plaintiffs know it. Defendants' cross-motion must be granted because the spectre of "copying" upon which the Court based its findings of both irreparable harm and the lower level of protection it afforded the expressive speech of DeCSS in granting the preliminary injunction was not just a creature of gross speculation, but is demonstrably nonexistent, and plaintiffs know that, too.

Defendant 2600 Enterprises, Inc. ("2600"), is a news magazine focused on the Internet and Technology, and Defendant Eric Corley a/k/a "Emmanuel Goldstein," is the publisher of 2600. These are the only remaining defendants before this Court, and they are media defendants. Universities, academics, these defendants, the press and the public are presently being subjected to exactly the type of prior restraint of the press the Supreme Court long ago rejected in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and its progeny. Plaintiffs seek to punish defendants for engaging in exactly the same linking acts as other media entities like The New York Times, San Jose Mercury News, the AP website, and numerous universities and academics.

This unprecedented prior restraint case does not involve national security, does not involve the building of atomic bombs, does not involve the protection of a defendant's rights; it does not involve picketing or boycotting; but most importantly, it does not involve copyright infringement.

Defendants submit this Memorandum of Law in opposition to Plaintiffs' motion to modify the January 20, 2000 preliminary injunction (hereinafter, the "Linking Motion" and in support of their cross-motion to vacate the existing preliminary injunction the "Cross-Motion"). By their linking motion, plaintiffs invite this Court not just to prohibit defendants from posting the utility called Decrypted Content Scrambling System ("DeCSS") on 2600.com, but to expand the existing injunction exponentially by barring 2600 from linking to any other web site that posts DeCSS, most of which contain varying quantities of protected expressive speech in addition to DeCSS. Such an unprecedented injunction constitutes an unconstitutional prior restraint and would silence an immense amount of expressive speech. Tellingly, no new facts exist to support the extraordinarily broad expansion of the existing injunction against a media defendant that has never committed an act of infringement or piracy and never contributed to anyone's infringement or piracy.

Defendants cross-move to vacate the January 20 preliminary injunction because the Court's prior decision was based on an inadequate record, consisting only of plaintiffs' inaccurate but uncontradicted assertions of fact. Plaintiffs have known for at least half a year, since before this action was commenced, of the linking by this defendant, as well as about numerous websites posting or linking to DeCSS that were created or operated by universities, academics, and other members of the press. The Court's Memorandum Opinion on the preliminary injunction did not focus on the rights of any of the media, let alone the defendants, because it relied on the wholly incorrect, speculative or misleading claims about copying presented by plaintiffs. The existing injunction severely and impermissibly restricts and chills the First Amendment rights of the defendants, of other media speakers, and of the public. Because no threat of copying or copyright infringement actually exists, there is no irreparable harm and the preliminary injunction must be vacated. Moreover, the Court's decision reflects an incorrect and unconstitutional reading of the anti-circumvention provisions, and in particular, Section 1201 ("Section 1201") of the Digital Millennium amendment to the Copyright Act, 17 U.S.C. §§ 1201 et seq, and thereby improperly limits rights granted to the public under the Copyright Act.

The plaintiff knows that this action presents issues of first impression: the constitutionality, interpretation, meaning and scope of Section 1201's anti-circumvention provisions. Plaintiff's complaint also raises for the first time the conflict between the First Amendment and the rights of a classic First Amendment media speaker like 2600, and Section 1201's potentially severe restrictions on speech posed by plaintiffs' Linking Motion. Plaintiffs must acknowledge that if the Linking Motion wins, The New York Times, Village Voice, The San Jose Mercury News and the AP website will be barred from linking too. To suggest that 2600.com cannot refer to a university, academic, cryptographer, library, or CNN.com is preposterous.

Defendants can post and link. It is unfortunate that no evidence countering plaintiff's inaccurate submissions was before the Court last January. That is no longer the case; sufficient evidence now exists to permit the Court to consider these fsimportant and novel First Amendment and statutory questions and vacate the preliminary injunction.

BACKGROUND

A. Procedural History of this and Related CSS/DeCSS Actions

This events underlying this and other actions regarding DeCSS began to unfold in early October, 1999 when a 16-year-old Norwegian teenager, Jon Johansen, posted the utility and made it generally available on the Internet in order to help in the efforts to "add DVD support to Linux." Declaration of Chris DiBona ("DiBona Decl."), ¶ 5, Exhibit B. Shortly before Christmas, 1999, the DVD Copy Control Association ("DVD CCA"), the 1999 successor to two prior DVD consortiums (dating back to 1996), formed to license the Contents Scramble System ("CSS") used to prohibit access to the material on DVDs, commenced a litigation against 21 named and 500 "John Doe" defendants. The DVD CCA's state court action alleged that disclosing, distributing, posting, discussing and linking to DeCSS violated the California Trade Secrets statute. By Order dated January 21, 2000, the California Court granted in part the DVD CCA's motion for a preliminary injunction; it enjoined posting DeCSS, but it:

refuse[d] to issue an injunction against linking to other websites which contain the protected materials as such an order is overbroad and extremely burdensome. Links to other websites are the mainstay of the Internet and indispensable to its convenient access to the vast world of information. A website owner cannot be held responsible for all of the content of the sites to which it provides links. Further, an order prohibiting linking to websites with prohibited information is not necessary since the Court has enjoined the posting of the information in the first instance.

DVD CCA v. McLaughlin, et al. (Case No. CV 786804) (Order dated January 20, 2000); http://www.eff.org/pub/Intellectual_property/DVDCCA_case/20000120-pi-order.html.

Various entities representing the interests of the Movie Industry (DVD CCA, MPAA, and these plaintiffs) have filed three DeCSS-related law suits thus far. On January 14, 2000, the plaintiffs filed the complaint in this action and moved by order to show cause for a preliminary injunction. Defendants were to be served by late January 14, 2000; 2600 was not named as a defendant in the January 14, 2000 complaint. Defendant Goldstein had until 10:00 a.m. on January 19 to file responsive papers. Unfortunately, the California attorneys who took on Goldstein's defense on a pro bono basis were unable to appear before the Court timely to file declarations refuting the facts asserted in the plaintiffs' papers. They raised the basic constitutional issues on January 20, 2000; but after oral argument on the application, the Court signed the preliminary injunction.

Plaintiffs first raised the issue of linking at that Hearing, suggesting in a way to mislead the Court that the Court extend the injunction to linking on the ground that "[t]o us it makes little difference whether you're providing it with the first set of clicks or the second. You're still providing it and the language of the statute is ‘providing.'" (January 20 Hearing transcript at 84:6-9). The Court correctly declined this invitation:

I think that that [the linking] issue is sufficiently different from what I've heard that I'm not prepared to rule on it now. I will deal with this in the form, if you wish to press it, of an application to modify and we'll give the defendants an opportunity to respond to it , and well deal with it in a more measured way.

(January 20 Hearing transcript at 85:3-8).

Plaintiffs waited until April 4, 2000—following defendants' present counsel's entrance in case on March 20, 2000 and the addition of 2600Magazine as a defendant—to make such an Application.

In the interim, plaintiffs undertook a campaign of writing cease and desist letters (but no new law suits) to web sites posting DeCSS that were listed on and/or linked-to from the 2600.com web site, but did not start any new lawsuits.

B. 2600 Magazine and the 2600.com

Website Media defendant 2600 Magazine was founded in 1984. Today, the Quarterly and its related 2600.com website is one the leading journals addressing difficult issues about the modern technological era. See Declaration of Emmanuel Goldstein ("Goldstein Dec."), ¶ 4. Over the years, 2600 has retained its independent, inquiring focus, but has grown to over 60,000 readers; the website receives up to 50,000 unique hits per day and anticipates more than 5,000,000 for the year 2000. Goldstein Decl., ¶¶ 5, 20.

2600 is now recognized as one of the leading voices from the perspective of the hardcore Internet user and adventurer and those concerned with problems connected to the wired age. Id., ¶ 6, 7, and Exhibit B. Goldstein has not only become a regular expert guest on established network shows such as "Nightline" and "60 Minutes," but he has also testified before Congress on issues of computers and security. Id., ¶ 9. Additionally, 2600 runs the well-attended HOPE conferences about the computer/Internet world. Id., ¶ 10.

2600 covered the story of the break of CSS and posting of DeCSS just as it covered other stories relevant to its mixed audience of college professors, intelligence agencies, and teenagers. 2600 did not and has never condoned or encouraged piracy of DVDs; it reported on the story. In keeping with its journalistic standards, 2600 also posted DeCSS and relevant links in 2600.com, so its readers could look at the source code and reviews and participate in relevant discussion about DeCSS and what it meant. 2600 is a magazine: its function is to report news and make information available to its readers. As part of its role as an organ of the media, 2600 took the same actions as other media outlets such as the The San Jose Mercury News, CNN.com, Wired, and ZD Net, which all at one time also linked directly to DeCSS. Goldstein Decl., ¶ 21; Declaration of Martin Garbus ("Garbus Decl."), Exhibit F.

Following the preliminary injunction order, 2600 took down its DeCSS posting. It also covered the story that 2600's publisher and editor had been sued over the content posted on its website, and that the website had been gagged from uttering certain speech by the imposition of the preliminary injunction. It also posted a list of mirrors—websites which contained, among other items, DeCSS or links to DeCSS. Goldstein., Exhibit D. Some of these sites are academic or scholarly (see Declaration of Andrew Appel ("Appel Decl."), ¶ 14; many were created and sent to the list by individuals who believe passionately in freedom of speech on the Internet and who were outraged by the plaintiff's attack on DeCSS and the scheming of those who would examine, study or even use DeCSS. The fact that some of these overtly political statements are uncomplimentary to plaintiffs, or even rude, does not diminish these statements as speech. Seegenerally Goldstein Decl., Exhibit E (samples of past and present mirror sites, including members of the media, University sites, and political statements).

All of the websites on the 2600.com list of mirrors would be impacted—silenced and chilled—by the expanded injunction sought by the Linking Motion. 2600 readers would be denied access to all of the expressive, political speech on those websites.

C. Section 1201 of the Copyright.

The legislative history of Chapter 12 of the Copyright Act (the Digital Millennium Copyright Act) is long, contradictory, and convoluted. This applies as well to the history and debate concerning the Section 1201 anti-circumvention provisions that "effectively control" unauthorized access to copyrighted works in digital format, and prohibit trafficking in technologies primarily designed to circumvent access control or copyright protection measures. See 17 U.S.C.A. § 1201 (West Supp. 1999). As observed by Professor Samuelson:

The Senate Judiciary Committee, the House Commerce Committee, representatives of library and educational institutions, Silicon Valley businesses, and other stakeholders in the digital economy, as well as various public interest groups and copyright scholars recognized that the proposed prohibitions were too broad, would upset established copyright principles, and would adversely impact the interests of both the high-technology sector and the public. The input of these groups resulted in the introduction of several specific exemptions and other qualifications to this otherwise overbroad law. Unfortunately, this patch-making process did no allow for a comprehensive or elegant articulation of the interplay between the anti-circumvention regulations and the copyright infringement laws that they were designed to support.

Fundamental to this case is the fact that in enacting these provisions, Congress did not ban the technology of circumvention. Rather, Congress understood Section 1201 narrowly to prohibit the methods and means of piracy while preserving both the right and the ability of the public to engage in uses traditionally privileged by copyright law, including the exercise of fair use fair.

Indeed, the Copyright Act guarantees fair use, and prevents copyright owners from interfering with display of lawfully purchased copies of protected works. See 17 U.S.C. §§ 107, 109(c) (1994). Similarly, § 1201(c)(1) specifies that "Nothing in this Section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." More importantly, Chapter 12 specifically guarantees the public's First Amendment rights:

1203(b) POWERS OF THE COURT -- In action brought under subsection (a) [violation of 1201 or 1201], the court -- (1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the First Amendment to the Constitution.

Congress expressly disclaimed any intention that Section 1201's anti-circumvention measures, which were aimed against piracy, would empower copyright holders to use these new provisions against piracy to deprive copyright users of their ability to engage in fair use copying and unrestricted lawful display.

D. Hyperlinking, the Internet, and Other Relevant Technological Issues

Plaintiffs sued in this action to stop media defendants from making the DeCSS utility, which negates CSS, available to their readers and viewers on the 2600.com website. In the instant motion, plaintiffs seek to prohibit 2600.com from "linking" to websites that make DeCSS available to its readers. Such sites are often called "mirrors" because they mirror on additional different servers a program originally available to be downloaded on one server. A link or hyperlink is created by adding certain instructions and symbols to an Internet address or URL. Thus, for example, "http://www.2600.com" is the address of defendant's website; "<href=htp:http://www.2600.com>" is that same address with instructions that cause the URL to be perceived by the reader's browser program as a hyperlink. What this means is that the reader's computer programs will determine how (or if) the link appears. If the address appears as a link and the reader double-clicks the highlighted word with her mouse, the readers web- browser program will send the read to the linked website. See Declaration of Eben Moglen ("Moglen Decl.), ¶ 8. At that point, the linked-to website will determine what the reader sees; two readers using the same hyperlink will often be shown different things by the linked-to website. Moglen Decl. ¶ 9.

One of the features of the web-browser and related software used by most of the people on the Internet today is that these programs identify a URL and automatically convert the web address into a hyperlink by adding the few necessary words and symbols. Moglen Decl., ¶ 10; see also Supplemental Declaration of Robert W. Schumann, ¶ 5. Thus, even were 2600.com to strip its list of mirrors of the additional programming language that cause it to be a link, i.e., it stops linking, the URL would still appear on many readers' computer screens as a link. Such readers could include one of the plaintiffs—or even the Court—reviewing the 2600.com website. The DeCSS mirror site would appear to this hypothetical reader as a link, and would function as a link, even though 2600.com would have taken every possible step it could to ensure that the URL was not a link.

Additionally, on the Internet, the party creating a hyperlink has no control over what content is located on the linked-to site, or what happens to the reader after he/she clicks on the hyperlink. See, Moglen Decl., ¶¶ 8-9.

Another misconception that is relevant to this case is the technical effectiveness of DeCSS in copying DVDs. A DVD contains a huge amount of date—up to 8.5 gigabytes (8,500,000,000). Declaration of John Gilmore ("Gilmore Decl."), ¶ 21. It has repeatedly been suggested recently by Disney CEO Michael Eisner in a letter to all Disney employees that DeCSS permits the amateur "pirate" to "steal" the data off of a DVD and instant e-mail the movie around the country. See Declaration of Martin Garbus ("Garbus Decl."), Exhibit G (letter from Michael Eisner to Disney employees.) Not only would such a huge file be too large for all except the biggest home computer hard drives (which commonly come in 5, 10, or up to 20 gigabyte sizes), Gilmore Decl., ¶ 21, but uploading a single gigabyte on a 56k modem would take about 40 hours, so uploading an entire DVD movie would take many days. Id.

E. DVDs, CSS and DeCSS And The Myth of Piracy

When the movie industry contemplated the shift to a new digital media, they also decided to protect against access to the data on the media. They did so in the expectation of immense profits: today, more than six months after DeCSS was released, the movie industry sells over 1,000,000 DVD's per week. Complaint, ¶ 10. Thus the movie industry adopted CSS, a system that performed several functions: it locked the disc until CSS authenticated that it was being played on a CSS-equipped machine, and it decrypted the scrambled files containing the movie. Declaration of Matt Pavlovich ("Pavlovich Decl."), ¶ 10. CSS, however, is very poorly protected, a 1996 vintage system with a very weak 40-bit key. Declaration of Bruce Schneier ("Schneier Decl."), ¶ 4; Declaration of David Wagner ("Wagner Decl."), ¶¶ 10-11. The movie industry knew CSS would be cracked; it was only a matter of when.

The actual function of CSS is a more complicated story. Because of its inherent weakness, the Movie Industry knew it could not stop commercial piracy. And, of course, it didn't. As early as 1997, the MPAA -- the organization which represents the interests of the Movie Industry -- was aware through its membership in the International Intellectual Property Alliance ("IIPA") that commercial piracy of DVD's was big and getting bigger. See Declaration of Frank Stevenson ("Stevenson Decl."), ¶ 23 and Exhibit B. In 1998, professional mass-production equipment was found in Hong Kong, and more than 40,000 pirated DVDs seized in a series of cards in Taiwan. Id. These commercially pirated DVDs sell for a few dollars (Stevenson Decl., ¶ 23) and are perfect, bit-by-bit copies of the original, complete with CSS (Declaration of Matt Pavlovich ("Pavlovich Decl."), ¶ 9). DeCSS, which did not exist until October, 1999, of course has nothing to do with this commercial piracy (Wagner Decl. ¶ 18); wide-spread commercially relevant copying of DVDs has existed for years before DeCSS.

CSS is irrelevant to commercial piracy. Instead, for example, it prevents consumers who have purchased DVDs -- that is, paid the requisite royalties and received authorization to play and view the movie on the DVD -- from, among other things: (1) playing a DVD on any DVD Player (hardware, i.e., home player, or software or computer-based player) that is not made by a manufacturer that has licensed CSS; (2) playing a DVD bought in any other of the seven (7) geographic regions into which the DVD consortium has broken the world other than the region in which she bought her DVD; and (3) skipping commercials at the start of a DVD of its maker decides you must view them. CSS also completely prohibits the possibility of making fair use of any material on a DVD. See, e.g., Pavlovich Decl., ¶ 6.4.

DeCSS, on the other hand, acts to permit a consumer to engage all of the above legal and protected activities. See, e.g., Gilmore Decl., ¶¶ 9-14 (detailed examples of legal uses enabled by DECSS); Stevenson Decl., ¶ 29. Moreover, DeCSS was an essential part of the international project to reverse engineer a DVD player so as to build a DVD player for Linux and other open- source operating systems or platforms. (Pavlovich Decl., ¶¶ 2-6; DiBona Decl., ¶ 5; Gilmore Decl., ¶¶ 15-16.) Indeed, in an interview posted January 31, 2000 on CNN.com. Jon Johansen, the 16-year-old Norwegian teen who first posted DeCSS and was part of the reverse engineering group that created it, stated that DeCSS evolved out of his involvement with DVD: "we decided that it was time to add DVD support to Linux -- and, of course, to other operating systems, such as FreeBSD." DiBona Decl., Exhibit B.

In this regard, it is important to realize that DeCSS is not simply an exercise in reverse engineering CSS (which is permissible); it is a vital step in the larger project of creating an open- source CSS-equipped DVD player to permit interoperability between CSS-equipped DVDs and open-source operating systems like Linux. This type of player, and the project to develop it, is necessary because CSS is proprietary and closed-source. Thus it is essentially incompatible with an open-source platform, or the philosophy behind such platforms. Pavlovich Decl., ¶ 5.

What DeCSS does not do, however, is permit commercially viable piracy, let along amateur copying of DVDs that is feasible on any realistic analysis. Indeed, no one is aware of DeCSS's being used for any copying at all. See DiBona Decl., ¶¶ 7-8 (Internet survey with 2,000 responses revealed no copying and only two instances of incomplete playing); Stevenson Decl., ¶ 21; Pavlovich Decl., ¶ 14. First, the amount of data stored on a DVD is huge (approximately 5-8 gigabytes). If one copies a DVD movie onto a hard drive, one not only takes up large amounts of space, but the only way the copy can be sold is to sell the computer. Moreover, no recordable media now exists that can store and playback a DVD in the same fashion as the DVD itself. DVD files decrypted by DeCSS will not fit on any currently available DVD recordable media. See, e.g., Gilmore Decl., ¶ 22; Stevenson Decl., ¶ 22, Pavlovich Decl., ¶ 11. Portable hard drives are expensive and cumbersome; CDs cannot hold the data, nor can Jazz drives. Stevenson Decl., ¶ 26. DAT tapes can hold the date but do not permit navigation within the movie - the tape must be rewound or played forward and there is degradation of quality and other technical problems. Id.

Most importantly, the notion that DVDs can be e-mailed instantly anywhere is completely false. The files are so huge that, using a 56k modem, uploading a DVD would take more than 200 hours; using a T1 line cuts the time down, but to a still absurd six-plus hours. Gilmore Decl., ¶ 21; Stevenson Decl., ¶ 27. For a detailed examination of the difficulties faced by our expert in using DeCSS to view DVDs, see DiBona Decl. ¶¶ 9-21.

Finally, common sense must be recognized. DeCSS would be complicated and expensive to use to copy DVDs in the DVD format -- about $5,000.00 for a DVD burner and $25-50 per blank disk. Pavlovich Decl., ¶ 11. Not only is this far more costly than buying a $15 DVD, but it will not work. And since the presumed market for sale of pirated DVDs is people with DVD players, it is absurd to assume that this market will buy expensive ancillary hard drives or lower- quality data storage media like Jazz or DAT drives instead of renting a DVD for $3.

ARGUMENT

I. Plaintiffs Cannot Make the Requisite Showing of Irreparable Harm Necessary To Support the Linking Motion or To Justify the Existing Preliminary Injunction

Standard for the Granting of a Preliminary Injunction.

It is black letter law that for a Preliminary Injunction to issue, the party seeking it must show: "(a) irreparable harm, and (b) either (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them fair grounds for litigation and a balance of hardships tipping decidedly in its favor." Richard Feiner & Co. v. Turner Ent. Co., MGM/UA, 98 F.3d 33, 34 (2d Cir. 1996).

Plaintiffs can meet neither of these conjunctive requirements. There is no irreparable harm; it is not alleged in the Second Amended Complaint; only that legal damages are inadequate. The Court in its Memorandum Opinion, however, found irreparable harm based on the potential DeCSS posed for copying and copyright infringement. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 215 (S.D.N.Y. 2000). This was incorrect for several reasons. First, since copyright infringement is not addressed by Section 1201 and not here alleged, there can be no presumption of irreparable harm. See, e.g., Realworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. Jan. 18, 2000). If there is no copying, there is no harm, and if there is no harm at all, let alone irreparable harm, there can be no injunction. And even plaintiffs admit that they have no evidence whatsoever of copying. Declaration of Robin Gross ("Gross Decl."), ¶ 4. The absence of any harm is a distinction that matters.

Given the absence of any technical or commercial possibility of copying, the mere assertion that copying might occur cannot provide the necessary element of irreparable harm. Plaintiffs' irreparable harm claim relies solely on the spectrum of horrors arising from DeCSS- enabled piracy. These, as plaintiffs must know, are false. Plaintiff argues that in the absence of a preliminary injunction DVD is dead as a media. In fact, the financial harm claims by the industry from DeCSS is highly speculative.

Indeed, as noted supra, despite the easy availability of DeCSS for six months, more than 1,000,000 are sold per week. Professor Lewis Kurlantzick, whose seminal article "The Audio Home Recording Act of 1992 and the Formation of Copyright Policy" in The Journal of the Copyright Society of the USA is cited favorably by the Ninth Circuit in Recording Industry Ass'n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1074 n.1 (9th Cir. 1999), (noting that whether or not piracy actually causes the entertainment industry significant financial harm is a matter of considerable debate), confirms the lack of economic basis to use DeCSS for copying. Based on the cost and time of copying DVDs with DeCSS (assuming it is possible at all), Professor Kurlantzick opined that the rational consumer would not copy a DVD but buy it. Declaration of Lewis Kurlantzick ("Kurlantzick Decl."), ¶¶ 3-4.

In fact, the relevant analysis for preliminary injunctions is what injury "will result to the moving party" should the injunction not issue. Importantly, the analysis is in the imperative-- will result, not may result. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562-68 (1976) (requiring showing that the absence of the injunction will "surely result in direct, immediate or irreparable damage"). Thus, plaintiffs have to offer more than self-confessed speculation, already proven to be incorrect, that some copying may result from posting or linking to sites that post DeCSS, and that either the existing or proposed injunction will stop the copying. They must come forward with credible, factual evidence that actual and substantial harm will actually result and that the requested relief will actually remedy that harm. Plaintiffs have failed to do so.

Second, with respect to the Linking Motion, plaintiffs' delay destroys any inference of harm based on their speculative assertions that copying may take place. Plaintiffs knew about the linked websites when they moved by the expedited made of Order to Show cause for the Preliminary Injunction, and even tried casually to persuade this Court to "toss in" hyperlinking as being just another kind of "providing" prohibited by § 1201(a)(2). This Court invited an application to expand the Preliminary Injunction; Plaintiffs let two months pass before filing the Linking Motion, a total of six months since they knew of the practice. This unhurried pace is entirely at odds with a claim of irreparable harm.

By its very nature, a preliminary injunction is a specific equitable remedy and, thus, must be framed in such a way as to strike a delicate balance between competing interests . By necessity, the scope of the injunction must be drawn by reference to the facts of the individual case, reflecting a careful balancing of the equities. . . . The question then becomes whether plaintiff has delayed in seeking a preliminary injunction in a manner that undercuts the threat of irreparable harm."

Moreover, Joseph Scott Company v. Scott Swimming Pools, Inc., 764 F.2d 62, 67 (2d Cir. 1985): "the presumption of irreparable harm may be ‘neutralized' where the plaintiff does not promptly seek a preliminary injunction." Bear U.S.A., Inc. v. A.J. Sheepskin & Leather Outerwear, Inc., 909 F. Supp. 896, 909-10 (S.D.N.Y. 1995).

Third, it is obvious that enjoining a single party is futile. Even if the links are enjoined, plaintiffs cannot seek to enjoin defendants from listing the mirror sites by URL, but without the HTML language that creates a link. The futility of the "relief" sought by plaintiffs is underscored by the fact that even if 2600.com stripped the HTML language from a linked-to URL, most readers' web browsers would recognize a web address and automatically convert it into a link. Moglen Decl. ¶ 8. Obviously, the court cannot be sure that any less injury "will result," if the chances for enforcement of the injunction are purely speculative. And the resulting injury will not be significantly diminished by the issuance of an injunction that is ineffectual or incapable of being enforced. The only non-futile remedy would be to enjoin all sites posting DeCSS, which is simply not possible, if only because a number the mirror sites are overseas and beyond the enforceable reach of the US Copyright Act. "[T]he essence of equity jurisdiction has been the power to grant relief no broader than necessary to cure the effects of the harm caused by the violation." Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402, 406 (2d Cir. 1997). The injunction framed must be "narrowly tailored to fit specific legal violations . . . [and] should not impose unnecessary burdens on lawful activity." Waldman Publ. Corp. and Playmore, Inc. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir. 1994).

A. Section 1201 Cannot be used in furtherance of CSS' Impermissible Goal of Destroying the Right of Fair Use

As the Court noted in the Memorandum Opinion, fair use has a constitutional magnitude: "[To the extent there is any tension between free speech and protection of copyright, the Court has found it to be accommodated fully by traditional fair use doctrine, with expression prohibited by the Copyright Act and not within the fair use exception considered unprotected by the First Amendment. Universal, 82 F. Supp. 2d at 220 (citing, Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 551 (1985); Wainwright Securities,Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977)), cert. denied; 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978) ("Conflicts between interests protected by the first amendment and the copyright laws thus far have been resolved by application of the fair use doctrine."); Ninon Keizai Shimbun Inc. v. Comline Business Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999).) CSS, which plaintiffs would have codified into law through its cramped reading of Section 1201, completely blocks access to the copyrighted material on a DVD, and prevents thereby any possibility that the right of fair use can be exercised with respect to that material. Congress did not anticipate or permit this.

An individual who may be prohibited from circumventing to gain access to a work for improper purposes, nonetheless may do so in order to make fair use of a work which he or she has lawfully acquired. H.R. Rep. No. 105-551, pt. 1, at *18 (1998); accord S. Rep. No. 105-190, at *26 (1998) ("This paragraph does not apply to the subsequent actions of a person once he or she has obtained authorized access even if such actions involve circumvention"). Thus, for example, where a copy control technology is employed to prevent the unauthorized reproduction of a work, the circumvention of that technology for fair use would not be actionable under Section 1201, but any infringing use of the work would be actionable under the Copyright Act.

In this regard, it is imperative to explode the favored analogy urged by plaintiffs, the MPAA and the DVD CCA, that no one has the right to break into a bookstore to make fair use of a book. In reality, the effect of CSS on fair use is to permit a publisher to prohibit a customer who has purchased one of its books from reading the work, except in a room constructed by a licensed builder, or under the lamp built by a licensed manufacturer.

Congress certainly did not intend to destroy the traditional rights of copyright users by barring technologies that facilitate circumvention for lawful fair-use purposes. The result of such a regime -- fair use is permitted, but only by those skilled enough to make their own DeCSS -- is obvious. As Barbara Simons, the president of the Association for Computing Machinery opined:

Our scientific and technological success as a nation has relied heavily on the "fair use" of copyrighted materials. For this reason, and because of our interest in and concern about education, ACM has strongly supported consumers' rights under the Copyright Act, and in particular, the fair use right. It is clear to me that if such rights are not preserved as essential, if the plaintiffs in this case are permitted to use Section 1201 to ban any utility that negates CSS and permits noninfringing access to copyrighted works, essential rights such as fair use will be limited to a small technological elite. If such utilities are not generally available, then only persons technologically skilled enough to create the requisite tool will be able to exercise their fair use rights; the rest of the world will not. That cannot be the intention of Section 1201.

Simons Decl., ¶ 17.

Similarly, Congress never intended Section 1201's restrictions on devices and technologies to be read independently of the scope of Section 1201's narrow prohibitions on circumvention itself. Senator Ashcroft, who drafted Section 1201's savings clause for legitimate devices, pointedly summarized the substance and importance of this understanding to securing passage of Section 1201.

In discussing the anti-circumvention portion of the legislation, I think it is worth emphasizing that I could agree to support the bill's approach of outlawing certain devices because I was repeatedly assured that the device prohibitions are aimed at so-called ‘black boxes' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. [N]either section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses. . . .

144 Cong. Rec. S4890 (daily ed. May 14, 1998) (statement of Senator Ashcroft).

Another important fair use right is that of open academic discourse and research. As noted by such distinguished Professors as Dr. Barbara Simons at UC Berkeley, Dr. Andrew Appel at Princeton, and Dr. David Touretzky at Carnegie Mellon, discussion and examination of the source code for utilities like DeCSS are essential to the standard and accepted practice of making fair use of copyrighted texts. See generally, Simons Decl., Appel Decl., Touretzky Decl. and Stevenson Decl. Scholarly research cannot, as plaintiffs appear willing to accept, be made subservient to a requirement of licensing, as plaintiffs would have it.

Finally, the right of fair use is affirmatively guaranteed by §1201(c). See, generally, Samuelson Decl., ¶¶ 11-13. Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. "Under this title" means the entire section 1201 of the Copyright Act, including 1201(a)(2). Because fair use is a right and a limitation on the breadth of the exclusivity granted creators by Copyright Act, Congress intended that anti-circumvention provisions of 1201(a)(2) be balanced and circumscribed by the existing right of consumers of intellectual property (e.g., everyone except the holder of a copyright) to the fair use of copyrighted material. As noted above, this Court has identified the Constitutional role played by fair use in resolving tension between the First Amendment and the Copyright Act. Here, we balance freedom of speech and non-circumvention rather than free speech against copying. No infringement is even alleged, and there is no idea/expression dichotomy to bridge the gap between freedom of speech and protected expression.

In the context of §1201, fair use must be identified as an affirmative right, as a sword and not just as a shield against infringement. This is so, in part, because it plays so important a role in balancing the conflict between the First Amendment and the Copyright Act. But logic also dictates this result, despite some activity unrelated to infringing conduct. Historically, fair use has been raised to defend against claims of illegal use or copying; now, it must be employed affirmatively, to preserve fair use in a non-copying situation. Section 1201 is the first amendment to the Copyright Act that bars something other than copying.

B. DeCSS is Permitted by §1201(f) as a Necessary Tool in The Reverse Engineering of an Open-Source DVD Player

DeCSS was a necessary step in creating an open-source DVD player. See Pavlovich Decl., ¶ 2; DiBona Decl.; ¶ 4. Section 1201(f) states:

(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent that any such acts of identification and analysis do not constitute infringement under this title.

Based on the declarations submitted by defendants in this proceeding, it is now uncontrovertable that DeCSS was a crucial step in the larger project of creating an open-source DVD player by reverse engineering a CSS-equipped DVD player. See Pavlovich Decl., ¶ 2; DiBona Decl., ¶ 4. The open-source DVD project, LiVid, used DeCSS in its ongoing efforts to create a player to run on Linux and other open-source systems as BSD and Free BSD. See Pavlovich Decl., ¶ 4. Such a program would be interoperable with not just CSS, but an operating system. It would also be usable on non-open-source systems such as Sun's Solaris®, Apple OSX and Windows 98, 2000 and NT. Id. On proprietary systems, the LiVid (or similar) open- source DVD player would interact with that system's platform and CSS to permit more efficient use of the systems capabilities, even to the point of saving some consumers from purchasing a new DVD home player or computer. See Pavlovich Decl., ¶¶ 4-6; 14.

C. Section 1201 Does Not Bar DeCSS Because The DVD Owner Has Been Authorized Access to the copyrighted material on a DVD

Although the defendants are not moving to dismiss the complaint, it is legally deficient because plaintiffs have failed to plead a cause of action under Section 1201. Plaintiffs charge that by placing DeCSS on the 2600.com web site, defendant has provided technology that circumvents a technological measure affecting authorized access to a work protected under Section 1201. Thus media defendants like 2600, and other potential media defendants that post or link to DeCSS, like the New York Times, The San Jose Mercury News, the Associated Press Business wire, all of which posted or linked to DeCSS (Garbus Decl., Exhibit C), could all be found to have violated the statute by reporting on DeCSS, or as plaintiffs phrase it, "providing" DeCSS, if the link to a DeCSS mirror. Academic or library web sites that post or link to DeCSS, like Professor Touretzky's Carnegie Mellon-based DeCSS Gallery and Cryptome.com, are equally vulnerable. This is not what is intended by Section 1201.

Section 1201(a)(2)'s prohibition on circumvention applies only when a technological measure which "requires . . . the authority of the copyright owner, to gain access to the work" is avoided "without the authority of the copyright owner" in order to "pirate." The prohibition does not apply to the subsequent actions of a person once he or she has obtained authorized access to copy of a work, even if such actions involve circumvention of additional forms of technological protection measures. Nor can they, since §1201(a)(1), when it becomes operative in October 2000, will include specific exemptions from anti-circumvention rules.

DeCSS does not circumvent a technological measure, however, because users of DeCSS at all times have "the authority of the copyright owner." To "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, "without the authority of the copyright owners." §1201(a)(3)(A). Consumers are given authority to decrypt or descramble Plaintiff's copyrighted work when they buy the DVD; the plaintiffs have already profited from that purchase regardless of whether the consumer uses a licensed or an alternative player; the authority to decrypt must be equally valid regardless of the DVD player the consumer chooses to use. Nothing in the Copyright Act requires that the DVD player be authorized by the copyright owner. This authorization must be given at sale of the DVD because it can only come from the copyright owner, since the manufacturer of the DVD player is not the copyright holder and DVD cannot be granted with the purchase of a machine or program.

Moreover, the existence of encryption of the audiovisual work, and the key to decrypt that work, are only "physical" barriers to private use once the consumer has lawfully obtained physical access to the work, and do not constitute legally significant barriers to access once authorization has been obtained by purchasing a DVD. Subsequent means of decryption do not form a part of the "access" contemplated by §1201(a)(2).

The official comments to Section 1201 explicitly state that Congress did not intend the Act to prohibit circumvention where an individual has lawfully obtained copyrighted material.

Subsection (a) applies when a person has not obtained authorized access to a copy . . . Paragraph (a)(1) does not apply to the subsequent actions of a person once he or she has obtained authorized access to copy of a work . . ., even if such actions involve circumvention of additional forms of technological protection measures.

H.Rep. 105-551, part I, at 18 (emphasis added); in accord S. Rep. 105-190, at 26.

D. CSS Does Not "Effectively Control Access" to the Copyrighted Material on a DVD

Congress was also adamant that Section 1201 not allow copyright owners to dictate technical standards to device manufacturers. Thus, a measure is also not effective if it is employed to require device manufacturers to make design decisions at the command of copyright holders. CSS is not "effective" by these measures. CSS ties the grant of a key not to the purchase of a legitimate copy of a work, but to the purchase of a licensed player. This improper scheme allows copyright owners to restrict statutorily privileged display of legitimately purchased copies of CSS-encoded DVD's by limiting playback to licensed and approved devices by preventing DVD owners from fast-forwarding through ads, and by imposing a regime of "region coding." See Gilmore Decl., ¶¶ 9-11. It also permits copyright owners to control the design of playback devices by attaching conditions to the grant of licenses to device manufacturers. Copyright holders have wrongfully used this power to prohibit manufacturers from creating devices with digital outputs, recording, universal navigation capabilities to engage in lawful fair-use copying. For all this, CSS is absolutely useless against piracy. A pirate does not need a key to make a perfect copy of a CSS-encrypted DVD. Stevenson Decl., ¶¶ 21-30. Gilmore Decl., ¶¶ 21-25. And because every licensed player has the keys to unlock any DVD, a licensed player is not capable of rejecting a pirated copy with CSS.

Since CSS, in the ordinary course of its operation, permits access irrespective of the copyright owner's authorization, it is ineffective under Section 1201's literal terms. Instead, CSS destroys fair use and subjects consumers to serious inconveniences. It is difficult to conceive of a technology more at odds with the express intentions of Congress and the balanced purpose of Section 1201. At least one of Section 1201's framers foresaw that copyright owners would attempt to use its provisions to suppress technologies like DeCSS that employ circumvention to facilitate lawful display and fair use copying by owners of legitimate copies of copyrighted works.

If history is a guide, however, someone may yet try to use this bill as a basis for initiating litigation to stop legitimate new products from coming to market. I have sought to make clear that any such effort to use the courts to block the introduction of new technology should be bound to fail. As my colleagues may recall, this wouldn't be the first time someone has tried to stop the advance of new technology. I think it useful to recall what the supreme court had to say in ruling for consumers and against two movie studios in [Sony]: ‘One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.'

144 Cong. Rec. S4890 (daily ed. May 14, 1998) (statement of Senator Ashcroft).

E. Section 1201 Cannot Protect CSS Without Conflicting With Other Provisions of The Copyright Act

As noted, supra, a consumer who has lawfully purchased a DVD is authorized to enjoy its contents, including, if necessary, to employ decryption technology to play the copyrighted material they have purchased. This interpretation is also obvious based on the First Sale Doctrine: "The whole point of the first sale doctrine that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution" (Quality King v. L'Anza Research, 523 U.S. 135, 139, 118 S.Ct. 1125, 1134 (1998)). Once sold, the purchaser owns the right to use that copy of the material, to sell it, or transfer it onto any system he or she wishes (Quality King, supra; Burke & Van Heusen Inc. v. Arrow Drug, Inc., 233 F. Supp 881, 882 (D.C.Pa. 1964) (copyright owner loses right to control use of material once sold); and see generally U.S. v. Wise, 550 F.2d 1180 (1977); 17 U.S.C §§109(a), (c)).

II. Section 1201 Is Unconstitutional On Its Face, As Written And As Interpreted Because The Preliminary Injunction Granted And The Expanded Injunction Violate The Media Defendants' First Amendment Rights

This Court must consider and weigh the gravity of the constitutional injury caused by the injunction and require the plaintiffs to assert a more fundamental interest than false, unfounded, inaccurate speculations about copying that plaintiffs' themselves have acknowledge has never occurred. The plaintiffs have been claiming since October 1999 that the sky would fall on the DVD industry. It has not. Moreover, the Court must consider the grave constitutional harm and extraordinary chilling effect posed by an injunction with such severe First Amendment consequences. It is a prior restraint on the freedom of expression on the defendants and the entire media, which strikes at the very heart of the First Amendment. "In determining the extent of the [First Amendment's] constitutional protection, it has generally, if not universally, been considered that the chief purpose of the guaranty is to prevent previous restraints on publication." Near v. Minnesota, 283 U.S. 697, 713 (1930). See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("[P]rior restraints upon speech and publication are the most serious and least tolerable infringement on First Amendment rights."); New York Times v. United States (1969) 403 U.S. 713, 726-27, 730 (stating that prior restraints are permissible only "at time of war" [Brennan, J. concurring], or when there exists a "direct, immediate and irreparable damage to our nation or its people." [Stewart J.concurring]). The Supreme Court has recognized that expression via the Internet is at the core of protected speech.

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . We agree that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

Reno v. ACLU, 521 U.S. 844, 870 (1997).

Moreover, plaintiffs seek to restrict the press's right to free speech precisely because of the communicative impact of the expression. The California Court in the DVD CCA case "refuse[d] to issue an injunction against linking to other websites which contain the protected materials as such an order is overbroad and extremely burdensome." DVD CCA v. McLaughlin, et al. No Court in this country that we know of has ever enjoined linking against the press. In fact, this Court, so far as we know, was the first Court to enjoin the press from posting expressive speech under the Copyright Act. Unfortunately, the Court relied on inaccurate facts given by the plaintiff, and referred to national security criminal cases which have absolutely nothing to do with this case. Of course injunctions can issue in copyright cases. But that is not this case. The preliminary injunction already issued and the expanded injunction plaintiffs now seek is thus a restraint on "pure speech," that is, speech not incidental to conduct. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558, 570 (White, J. concurring).

DeCSS is expressive speech. See generally, Harold Abelson Decl., Andrew Appel Decl., and David Touretsky Decl. (professors and research scientists explain why source code is expressive speech). The Court assumed this status for DeCSS for the purposes of considering the initial preliminary injunction motion but assigned at a low level of protection. However, as Chief Judge Martin firmly held in the recent Sixth Circuit decision. Junger v. Daley, 2000 U.S. App. LEXIS 6161 *10 (6th Cir. April 4, 2000) (which cited Professor Abelson and Appel's affidavits submitted in that case explaining nature and expressive speech of source code): "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." The Court there explained, after observing that "[t]he Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll." Id. at *9 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 569 (1995)):

The functional capabilities of source code, and particularly those of encryption source code, should be considered when analyzing the governmental interest in regulating the exchange of this form of speech. . . . . In Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994), the Supreme Court noted that although an asserted governmental interest may be important, when the government defends restrictions on speech "it must do more than simply 'posit the existence of the disease sought to be cured.'" Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The government "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."

Junger, at *10.

In this regard, it is important to give great weight to defendants' overwhelming proof of the absence of even a remote possibility that DeCSS will enable or encourage any piracy, or even viable amateur piracy, and that the focus of those discussing, down-loading, and mirroring DeCSS had nothing to do with copying. This Court improperly gave little weight to the expressive quality of the speech here at issue, having concluded based on the inaccurate and/or misleading evidence then before it that making DeCSS available on the Internet was part of an improper course of conduct; the copyright infringement that was never alleged by plaintiffs. Additionally, linking is permitted under the Copyright Act. See Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553 (C.D. Cal. Mar. 27, 2000).

More than just expressive speech is threatened by both the preliminary injunction and the Linking Motion. If linking is barred, the prior restraint imposed on 2600.com will chill the speech of other members of the media, because they too will face liability merely for referring readers to locations where more information may be acquired. Plaintiffs' linking motion seeks to silence a news organization and deprive the public of connections that direct users to other sites (which will almost always contain expressive speech in addition to DeCSS), but which also contain either other links which lead to the DeCSS program, or the DeCSS program itself. Indeed, the scope of the injunction potentially encompasses The New York Times, San Jose Mercury News and many other news groups. See Garbus Decl., Exhibit F.

A. Both the Existing and the Expanded Preliminary Injunctions Constitute Unconstitutional and Improper Prior Restraints On Free Speech

Any injunction that prohibited linking would constitute a gross prior restraint of speech. A "prior restraint" is any governmental action, including a court injunction, that prevents speech from reaching the public. It is the most dangerous imposition on individuals' freedom of speech. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights"). See also Bantam Books, 372 U.S. at 70 ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity"). Therefore, request for such a restraint "comes to [the] Court bearing a heavy presumption against its constitutional validity." New York Times Co. v. United States, 403 U.S. 713, 714 (1971). Even cases involving actionable speech do not support a preliminary injunction restraining the speech before it reaches its intended audience.

In the instant case, plaintiffs seek to quash a media defendant's right to link to DeCSS and preserve the existing injunction on the ground that it violates a provision of the Copyright Act. They do not allege infringement and have admitted that no copying has occurred because of DeCSS. Gross Decl, ¶ 5. Planitiffs have declined to narrowly tailor its requested relief. As such, plaintiff cannot overcome the presumption that the requested prior restraint is unconstitutional. The proper course for plaintiffs is to sue each web site that posts DeCSS, if they can ever credibly claim that it will lead to copying. Instead, they seek to expand what is already a classic prior restraint.

The Supreme Court has repeatedly held that

[a statute which] makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969).

The First Amendment's "chief purpose" is "to prevent previous restraints upon publication," the "essence of censorship." Near v. Minnesota, 283 U.S. 697, 713 (1931). See also New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

The First Amendment's ban on prior restraints may be overridden only where "[publication] will surely result in direct, immediate, and irreparable damage to our nation or its people," New York Times, 403 U.S. at 730 (Stewart, J., joined by White, J., concurring), or where there is "governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea." Id. at 726-27 (Brennan, J., concurring); see also WXYZ, Inc. v. Hand, 658 F.2d 420, 426 (6th Cir. 1981). The government's (or in this case, the plaintiffs') burden is "formidable," and indeed "almost insuperable." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 592-94 (1976) (Brennan, J., joined by Stewart, J., and Marshall, J., concurring). National security, on the one hand, and a claim arising under the Copyright Act that does not even allege infringement, on the other, have a different balancing standard. The protection of copyright uses a different standard than the protection of information that could lead to the destruction of the country. Irreplaceable harm from nuclear weapons, or invasion or release of national security information is different than future, false speculation or damage.

Plaintiffs do not contend that any harm has actually befallen them. Instead, they proffer misleading assertions of impending harm that is easily and completely refuted by the actual technical and commercial realities of DVD piracy. This Court has a right to ask what will happen in the next day that has not happened in the past six months, even though DeCSS has been widely available and was downloaded by tens of thousands of people. A prior restraint of expressive speech, especially the extremely broad restraint of expression sought in the Linking Motion, based on this sort of standardless, speculative claim of harm, fails to satisfy the standard set forth in New York Times and poses the grave dangers of a censorship system that the Supreme Court has repeatedly condemned. See, e.g., Niemotko v. Maryland, 340 U.S. 268 (1951).

Our democratic society values and diligently protects its hard fought freedoms. Both the United States and New York Constitutions guarantee the freedom to speak freely, to generate discourse and to advance innovation through the exchange of ideas. The U.S. Supreme Court has held that the Internet is one of the most egalitarian mediums invented and one of the greatest democratic tools for the 21st century. Reno v. ACLU, 521 U.S. 844, 851 (1997). The Internet is "the most participatory form of mass speech yet developed - [and] is entitled to the highest protection from governmental intrusion." Id. at 883, 884. The Supreme Court recognized in Reno that the Internet is a "unique and wholly new medium of worldwide human communication" which disseminates "content as diverse as human thought." Id. at 852. Recognizing the need for the highest level of protection from governmental restraints on speech, the Supreme Court likened expression in on-line chat rooms to town criers with voices resonating far from the soap box, and likened expression in newsgroups having characteristics similar to traditional street pamphleteers. Id. at 870.

B. Section 1201 is Unconstitutionally Vague and Overbroad

A government regulation that restricts expression based on its content or subject matter is unconstitutional, absent a compelling governmental interest and narrow tailoring of means to end. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983); Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment means that government has no power to restrict expression because of its . . . subject matter, or its content."). The Supreme Court makes plain that "[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment. We have long recognized that even regulations aimed at proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592 (1983) (citations omitted).

Plaintiff's interpretation of Section 1201, as adopted by the Court for the limited purpose of analyzing and granting plaintiff's preliminary injunction, is unconstitutionally vague and overbroad. It gives the public no coherent guidance as to what speech may be barred and, particularly in connection with the linking motion, is so vague and all-embracing as to prohibit an immense amount of protected speech along with the single utterance (DeCSS) plaintiffs claim they wish to silence. A vague regulation that impacts speech "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno, 521 U.S. at 871-72.

Speech-restrictive regulations that fail to accomplish their stated purpose to any significant degree cannot be found to be narrowly tailored. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43 (1994).

[T]he Court long has recognized that by limiting the availability of particular means of communication, content-neutral restrictions can significantly impair the ability of individuals to communicate their views to others . . . To ensure the widest possible dissemination of information . . . the First Amendment prohibits not only content-based restrictions that censor particular points of view, but also content-neutral restrictions that unduly constrict the opportunities for free expression.

City of Ladue, 512 U.S. at 55 n.13 (quoting Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 57-58 (1987)) (citations omitted); see also Reno v. ACLU, 521 U.S. at 880.

Indeed, the practical effect of the limitations on communication that arise from the Court's application of Section 1201, a vaguely worded and overbroad prohibition against "offer[ing] to the public, provid[ing] or otherwise traffic[ing] in any technology. . . ," is to eliminate the Internet as a medium of communication for encryption software, including source code. This directly offends the First Amendment. In American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), the court observed that "Internet technology gives speakers potential of a wider audience" and applied strict scrutiny. The Supreme Court, in striking down the statute at issue in Reno, found that the statute's restrictions would block certain speech in all of cyberspace. As applied in this case, Section 1201 is even more suspect because the content of speech being regulated is so vaguely described. For example, only programs that do certain illegal things can be "prohibited," yet the preliminary injunction silenced defendants without proof (or a decision) about what that limiting language means, and how the section applies to CSS and DeCSS.

CONCLUSION

Anyone of the plaintiffs can "link." They are all media plaintiffs. They exist, through their various entities in nearly every aspect of the media. The New York Times, The San Jose Mercury News, The Associated Press Website, text book and magazine publishers, libraries and index systems have a perfect right to transfer viewers, readers and listeners to sites that contain media information including DeCSS references. So, too, can these media defendants. Based upon the foregoing, 2600 and Emmanuel Goldstein respectfully urge that the Court deny the motion to expand with attorneys fees and costs for the defendants, and the preliminary injunction vacated.

Dated: New York, New York May 3, 2000

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.

By:______________________________

Martin Garbus (MG 6261)
Edward Hernstadt (EH-9569)
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendants Eric Corley a/k/a Emmanuel Goldstein and 2600 Enterprises, Inc.

TABLE OF CONTENTS

Preliminary Statement 1

BACKGROUND 4

A. Procedural History of this and Related CSS/DeCSS Actions 4

B. 2600 Magazine and the 2600.com Website 6

C. Section 1201 of the Copyright 8

D. Hyperlinking, the Internet, and Other Relevant Technological Issues 9

E. DVDs, CSS and DeCSS And The Myth of Piracy 11

ARGUMENT 14

I. Plaintiffs Cannot Make the Requisite Showing of Irreparable Harm Necessary To Support the Linking Motion or To Justify the Existing Preliminary Injunction 14

A. Section 1201 Cannot be used in furtherance of CSS' Impermissible Goal of Destroying the Right of Fair Use 18

B. DeCSS is Permitted by §1201(f) as a Necessary Tool in The Reverse Engineering of an Open-Source DVD Player 22

C. Section 1201 Does Not Bar DeCSS Because The DVD Owner Has Been Authorized Access to the copyrighted materialon a DVD 23

D. CSS Does Not "Effectively Control Access" to the Copyrighted 25

E. Section 1201 Cannot Protect CSS Without Conflicting With Other Provisions of The Copyright Act 26

II. Section 1201 Is Unconstitutional On Its Face, As Written And As Interpreted Because The Preliminary Injunction Granted And The Expanded Injunction Violate The Media Defendants' First Amendment Rights 27

A. Both the Existing and the Expanded Preliminary Injunctions Constitute Unconstitutional and Improper Prior Restraints On Free Speech 30

B. Section 1201 is Unconstitutionally Vague and Overbroad 33

CONCLUSION 35

TABLE OF AUTHORITIES

Cases

American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996) 35

Bantam Books, 372 U.S. at 70 31

Bear U.S.A., Inc. v. A.J. Sheepskin & Leather Outerwear, Inc., 909 F. Supp. 896 (S.D.N.Y. 1995) 17

Burke & Van Heusen Inc. v. Arrow Drug, Inc., 233 F. Supp 881 (D.C.Pa. 1964) 27

City of Ladue v. Gilleo, 512 U.S. 43 (1994) 34

DVD CCA v. McLaughlin, et al. (Case No. CV 786804) (Order dated January 20, 2000) 5, 28

Forschner Group, Inc. v. Arrow Trading Co., 124 F.3d 402 (2d Cir. 1997) 18

Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 18

Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995) 29

Joseph Scott Company v. Scott Swimming Pools, Inc., 764 F.2d 62 (2d Cir. 1985) 17

Junger v. Daley, 2000 U.S. App. LEXIS 6161 *10 (6th Cir. April 4, 2000) 29

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983) 34

Near v. Minnesota, 283 U.S. 697 (1930) 27

Near v. Minnesota, 283 U.S. 697 (1931) 32

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) 16, 31

New York Times Co. v. United States, 403 U.S. 713 (1971) 27, 31

Niemotko v. Maryland, 340 U.S. 268 (1951) 33

Ninon Keizai Shimbun Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999) 18

Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) 33

Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) 33

Quality King v. L'Anza Research, 523 U.S. 135, 118 S.Ct. 1125 (1998) 27

Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) 29

Realworks, Inc. v. Streambox, Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. Jan. 18, 2000) 15

Recording Industry Ass'n of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (9th Cir. 1999) 16

Reno v. ACLU, 521 U.S. 844 (1997) 28, 33, 34

Richard Feiner & Co. v. Turner Ent. Co., MGM/UA, 98 F.3d 33 (2d Cir. 1996) 15

Sweezy v. New Hampshire, 354 U.S. 234 (1957) 30

Ticketmaster Corp. v. Tickets.com, Inc., 2000 U.S. Dist. LEXIS 4553(C.D. Cal. Mar. 27, 2000) 30

U.S. v. Wise, 550 F.2d 1180 (1977) 27

Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) 15, 18

Wainwright Securities,Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977)), cert. denied; 434 U.S. 1014, 54 L. Ed. 2d 759, 98 S. Ct. 730 (1978) 18

Waldman Publ. Corp. and Playmore, Inc. v. Landoll, Inc., 43 F.3d 775 (2d Cir. 1994) 18

WXYZ, Inc. v. Hand, 658 F.2d 420 (6th Cir. 1981) 32

Statutes

17 U.S.C §109 27

17 U.S.C. §§ 107, 109(c) (1994) 9

17 U.S.C. §§ 1201 3, 15, 17, 21, 23, 24, 35

Other Authorities

144 Cong. Rec. H7099 (daily ed. Aug. 4, 1998) (statement of Rep. Dingell) 20

1996 WL 48968 (Statement of Barbara A. Munder, Senior Vice President, McGraw Hill, on behalf of the Information Industry Association Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, Feb. 7, 1996) 20

1998 WL 265200 (Remarks of Bonnie J.K. Richardson, Vice President, Motion Picture Association of America, Before the Subcomm. on Int'l Policy and Trade of the House Comm. on Int'l Relations, May 21, 1998) 20

H.R. Rep. No. 105-551, pt. 1, at *18 (1998); accord S. Rep. No. 105-190, at *26 (1998) 19

H.Rep. 105-551, part I, at 18; in accord S. Rep. 105-190 25

"The Audio Home Recording Act of 1992 and the Formation of Copyright Policy." The Journal of the Copyright Society of the USA. 16


[Harold Abelson Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
HAROLD ABELSON
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY INJUNCTION
AND IN SUPPORT OF
DEFENDANTS'
CROSS- MOTION TO
VACATE THE
PRELIMINARY
INJUNCTION

I, HAROLD ABELSON, declare under penalty of perjury that the foregoing is true and correct:

1. I am Professor of Computer Science and Engineering at the Massachusetts Institute of Technology in Cambridge, Massachusetts. I give this declaration in my personal capacity and not on behalf of MIT.

2. I have been active in computer science at MIT since 1969, when I began as a graduate student. I joined the MIT Department of Electrical Engineering and Computer Science as a faculty member in 1977.

3. From 1981 through 1998, I was in charge of MIT's introductory computer science subject, "Structure and Interpretation of Computer Programs" (together with my colleague, Prof. Gerald Jay Sussman). This subject is taught at MIT each year to between 500 and 700 undergraduates.

4. Together with Gerald Jay Sussman and Julie Sussman, I am author of the textbook Structure and Interpretation of Computer Programs, which is based on our MIT course. The first edition of this book was published by the MIT Press and the McGraw-Hill Book Company in 1985; the second edition appeared in 1996.

5. Through the MIT course and the textbook, my work in computer science education has gained major visibility. Materials arising from our course are currently used at over 200 colleges and universities worldwide.

6. In recognition of my educational activities, I was named winner of 1995 Taylor L. Booth Award, given by the Institute of Electronic and Electrical Engineers (IEEE) Computer Society for outstanding contributions to computer science and engineering education. I was cited for continued contributions to the pedagogy and teaching of introductory computer science.

7. I comment from the perspective of someone who has been active in the teaching of university computer science.

Computer Programs Are a Medium of Expression

8. The notion that computer programs are a medium of expression is widespread throughout computer science education. In particular, this notion is central to the approach to computer science used at MIT over the past fifteen years. The idea appears prominently in the preface to our textbook:

Our design of this introductory computer-science subject reflects two major concerns. First, we want to establish the idea that a computer language is not just a way of getting a computer to perform operations but rather that it is a novel formal medium for expressing ideas about methodology. Thus, programs must be written for people to read, and only incidentally for machines to execute . . .

Computer Programs Express Ideas about Methodology

9. Just as ordinary mathematics and logic serve as a languages for expressing ideas about truth and falsehood (so-called "declarative knowledge"), computer programs serve as languages for expressing ideas about how to do things (so-called "imperative knowledge"). The following excerpt from a paper I wrote in 1990 expands on this point (from "Computation as a Framework for Engineering Education," in Research Directions in Computer Science: An MIT Perspective, Cambridge, MA: MIT Press, 1991):

To illustrate the difference between declarative and imperative knowledge, consider the following definition of a square root: The square root of a number X is the number Y such that Y times Y equals X. This is declarative knowledge. It tells us something that is true about square roots. But it doesn't tell us how to find a square root.

In contrast, consider the following ancient algorithm, attributed to Heron of Alexandria, for approximating square roots. To approximate the square root of a positive number X: Make a guess for the square root of X; Compute an improved guess as the average of the guess and X divided by the guess; Keep improving the guess until it is good enough.

Heron's method doesn't say anything about what square roots are, but it does say how to approximate them. It is a piece of imperative "how to" knowledge.

Computer Science is in the business of formalizing imperative knowledge -- developing formal notations and ways to reason and talk about methodology. Here is Heron's method formalized as a procedure in the notation of the Lisp computer language:

	(define (sqrt x)
        (define (good-enough? guess)
	(<(abs (- (square guess) x)) tolerance))
	(define (improve guess)
	(average guess (/ x guess)))
	(define (try guess)
	(if (good-enough? guess)
	guess
	(try (improve guess))))
	(try 1))

Certainly, if the only things we ever computed were square roots, then Computer Science would not be of much interest. Similarly, if all one ever did in geometry was surveying, then geometry would not be of much interest. In each case, the importance of having a formalism is that it provides a framework for controlling complexity, a way to think about ideas that are too involved to think about all at once. The important techniques in Computer Science are the techniques for coping with methodological complexity.

Expressive Style Is an Important Aspect of Computer Programs

10. One indication that computer programs have major expressive elements is that teachers of programming regularly evaluate student programs on stylistic issues such as readability (by people) and appropriateness of choice of elements. This is analogous to the way that teachers of writing evaluate student essays on the style and quality of writing, not just on the meanings of the words.

11. The criteria used in evaluating "programming style" are often unrelated to the sequence of operations that would be carried out by a computer in executing the program. Two programs might evoke exactly the same process when executed by a computer, and yet be judged very differently, because they express the process in different ways.

12. As an example, the following excerpt from our textbook (2nd edition) discusses a technique called "mapping over a list":

MAP is an important construct, not only because it captures a common pattern, but because it establishes a higher level of abstraction in dealing with lists. In the original definition of SCALE-LIST, the recursive structure of the program draws attention to the element-by-element processing of the list. Defining SCALE-LIST in terms of MAP suppresses that level of detail and emphasizes that scaling transforms a list of elements to a list of results. The difference between the two definitions is not that the computer is performing a different process (it isn't) but that we think about the process differently.

Dated: April __, 2000

Cambridge, Massachusetts


[Andrew Appel Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
ANDREW W. APPEL
IN OPPOSITION TO
PLAINTIFF’S MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION

I, ANDREW W. APPEL, declare under penalty of perjury that the foregoing is true and correct:

1. I am currently a professor of computer science at Princeton University. I teach courses in compilers, programming languages, and software engineering. My research is in efficient compilation of functional programming languages, particularly the language "ML." A copy of my Curriculum Vitae is attached hereto as Exhibit A.

2. I received a Ph.D. in Computer Science from Carnegie-Mellon University in 1985. I have been at Princeton University since 1986; as Assistant Professor (1986-92), Associate Professor (1992-95), and Professor (since 1995). From 1993-97 I served as Editor in Chief of ACM Transactions on Programming Languages and Systems, the major journal in the field of programming languages. My work as the implementor of the "Standard ML of New Jersey" compiler is well known. Standard ML of New Jersey is research software that has been distributed widely, without charge, on the Internet since 1988. It is now in use at over 100 universities and industrial research and development laboratories.

3. Publication of ideas -- which includes in particular publication by means of posting and linking on the internet -- is a fundamental part of the academic world. Publication of ideas is emphasized in academia because it is vital to the scientific method. This, on a basic level, means that if you have an idea, you toss it out into the "marketplace of ideas" and your peers and others evaluate it, test it and discuss it. This is how we determine which ideas are good and which are faulty.

4. For example, I mention two journal papers:

a.. "Efficient Computation of LALR(1) look-ahead sets." F. L. DeRemer and T. Pennello, ACM Transactions on Programming Languages and Systems, October 1982. This article explains a faster computer algorithm for a certain task, whose utility was justified by a (claimed) relationship between two classes of programming language grammars.

b. "On the (non-)Relationship between SLR(1) and NQLALR(1) Grammars." M. E. Bermudez and K. M. Schimpf, ACM Transactions on Programming Languages and Systems, April 1988. This article published nearly six years later, described itself as follows: A popular but "not-quite" correct technique for computing LALR(1) look-ahead sets has been formalized by DeRemer and Pennello and dubbed NQLALR(1). They also claim that the class of SLR(1) grammars is a subset of the class of NQLALR(1) grammars. We prove here that no such relationship exists between those two classes. We do so with a counterexample that, ironically, appeared in DeRemer and Pennello's own paper.

5. Clearly, DeRemer and Penello's idea was not as good or useful as they thought, since Bernudez and Schimpf were able to demonstrate its flaws. On the other hand, scientific journals are full of good papers about ideas that don't actually work, but do advance the state of the art. The way they do so is by reaching their readers and encouraging the readers to review, test and improve on the ideas.

6. For anyone whose ideas include or involve computer code, this publication process as part of the scientific method includes publication of that code. This is not only computer scientists, but mathematicians, cryptologists, scientists, economists and others whose ideas are described or demonstrated with the help of computer code. Descriptions limited to English or mathematics are not sufficient to appropriately describe many things. They are certainly not sufficient to allow someone else to test many ideas without significant, unnecessary work. Such testing is required for both the scientific method and academic advancement.

7. For example, early in my career (1986) I became convinced that a certain kind of programming language, called "functional," would be useful for a wide variety of applications. Up to that point, functional languages were considered useful only in very specialized applications, and systems that used functional languages were invariably extremely slow (these two points are related, since many uses of computers require speed).

8. I focused my research on the speedy implementation of the functional language ML, implemented in my "Standard ML of New Jersey" software system. In 1987 I published a preliminary paper (with a colleague) describing the system. Also in 1987, I began making the software available, for free, to anyone who wanted to use it. Originally this was done by sending magnetic tapes through parcel post.

9. By 1988 we realized that we could make our software available on the Internet to anyone who wanted to "fetch" it. We did so in order to allow others to test and review it. By 1990 there were over 70 academic and industrial institutions using the software, and by 1994 over 100. It would have been very difficult to sustain this wide a distribution using magnetic tapes, since we were not charging money for the software.

10. Between 1987 and 1997, I published a series of papers describing the scientific ideas and methods underlying the software. I also posted each of these papers on the internet, linked to them from my home site and other professional web sites with which I was involved, and encouraged others to link to the papers as well. Any academic scientist is expected to describe his innovations in a form where fellow scientists and the world at large can learn from them. However, in the "marketplace of ideas" there are many competitors, and the scientist often has a hard time being heard. When I published my papers, I think that people took them seriously because they knew the software worked well.

11. Distributing computer code on the Internet -- together with commentary, questions, and the like about the code -- enables not only the evaluation of ideas, but also their incremental improvement. For example, a compiler for the programming language is typically a large software system, often containing hundreds of "modules," where each module represents one or more scientific ideas and days or weeks of implementation effort. My "Standard ML of New Jersey" compiler, for example, has more than 400 modules and represents tens of man-years of effort.

12. A typical scientific idea or innovation usually involves just a small set of these modules. If a scientist wants to test his new idea, involving one module, he will still have to implement all the other modules just to demonstrate that his idea works. By distributing the software, I make it possible for a scientist to replace just one module with an innovative one, and use the other modules that I provide.

13. There have been several occasions since 1988 where computer scientists at other institutions have fetched the Standard ML of New Jersey software on the Internet, made modifications to it, and published scientific papers describing their improvements. The lack of freely distributed software would constitute a significant "barrier to entry" to scientists wanting to test innovations.

14. Making computer code available on the Internet is an important avenue for academic advancement. My own career would have been hurt significantly if I had not been able to distribute or retrieve working computer programs. While many of the web sites presently posting or linking to DeCSS state or suggest that the posting is intended to demonstrate sympathy for the right to post DeCSS, I am aware of at least four scholarly/academic web sites which have posted or linked to DeCSS in the context of scholaraly discussions:

http://www.counterpane.com/crypto-gram-9911.html#DVDEncryptionBroken
(web site of Bruce Schneier, president of Counterpane Systems, a noted researcher and developer of cryptographic systems;

http://www.cs.berkeley-.edu/~daw/crypto.html

(web site of David Wagner, a P.hD candidate and well-known and widely respected researcher in the cryptography and security communities);

http://www.cs.cmu.edu-/~dst/DeCSS/index.html

(web site of David Touretzky, Professor of computer science at Carnegie Mellon University); and

http://ils.unc.edu/gbnewby/index_top.html

(Greg Newby, Assistant Professor, School of Information and Library Science, University of North Carolina at Chapel Hill).

15. Cryptography is an area of applied mathematics, just as many areas of computer science are. It is not merely a "product" or a "thing" to be used for commercial purposes; it is a dynamic academic discipline. This science may also produce useful things for people, as with many sciences, but it changes and grows with new research and insights gained from the academic process. The further development of this discipline requires that cryptographers be able to share their ideas, including the sharing of their computer code over the internet.

16. The cryptological work done in "cracking" the CSS encryption program used on DVDs; on the DeCSS utility and source code; and information about the related reverse engineering and programming work involved in developing a Linux-based DVD player are all topics of serious academic and scientific concern. It is very important and appropriate that this information is and remains available to the scientific, academic and computer community via the internet.

17. Hyperlinking is also an important part of this discourse, as well as a major part of the internet's tremendous growth and power -- and any restriction on linking would have grave ramifications. Huge amounts of information are accessible to anyone who looks for it; an almost unlimited variety of opinions are expressed on millions of web sites; and for scientists, linking makes the free and open exchange of information with other scientists, academics, and any interested persons much simpler, broader and more effective. Barring hyperlinking would have a very negative impact on the flow of ideas and information online.

18. Finally, I am deeply concerned about the potential harm to scholarship that may occur were this Court to adopt the interpretation of Section 1201 of the Copyright Act I am told plaintiffs have asserted in this lawsuit. As set forth in greater detail in the Comment I and my colleague Professor Edward Felten submitted in response to the Copyright Office's request for comments to assist it in determining exemptions from Section 1201(a)(1) of the Act, which is attached hereto as Exhibit B:

Technical protection mechanisms that prevent computer programs from accessing the underlying content of copyrighted materials will hinder legitimate noninfringing uses that are vital to scholarship and science.

19. In sum, based on my experience as a University professor and researcher, as a programmer, and as a serious participant on the internet since its birth, it is my opinion that scholarship and science, and the innovation that is so crucial to technological advancement and economic growth, will be seriously damaged by an interpretation of Section 1201 that would prohibit circumvention of security systems for such non-infringing purposes as, for example, those described in my submission to the Library of Congress.

Dated: April ___ 2000

Princeton, New Jersey


[Chris DiBona Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY
a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
CHRIS
DiBONA
IN OPPOSITION TO

PLAINTIFFS' MOTION
TO
MODIFY THE
PRELIMINARY

INJUNCTION AND IN
SUPPORT OF
DEFENDANTS'

CROSS- MOTION TO
VACATE THE
PRELIMINARY

INJUNCTION

I, CHRIS DiBONA, declare under penalty of perjury that the foregoing is true and correct:

1. I am presently employed by VA Linux Systems, Inc. ("VA Linux"), which is the country's leading company providing hardware and software products for Linux users and Internet Infrastructure companies. A copy of my Resume is attached hereto as Exhibit A.

2. Linux is an operating system designed from the ground up to be distributed in an open manner. One of the things that makes Linux different from other commercial offerings is the fact that it is not owned by any one person, organization or company. Developed over the last decade over the internet, Linux was released under the GNU General Public License ("GPL"). The GPL license provides that anyone can use Linux, but they must promise to make any program derived from or based on the Linux source code open and freely available in its turn, so as to promote the spread of the Linux and similar software. By it's very nature, Linux is an open system.

3. During the early development of Linux, it was very rare for a manufacturer of a device (say a DVD player, printer, video or sound card) to provide specifications or even technical help to the people who wanted that same device to work with Linux. Commonly, a programmer would reverse engineer the device to ensure that device worked under Linux.

4. I have very closely followed the efforts of various individuals and/or groups to develop a DVD player for machines using the Linux operating system (as well as for other open-source operating systems), including those of the international LiVid group. I have also followed with great attention the related efforts by some individuals and/or groups to "crack" the CSS code that encrypts the data on DVDs as part of their endeavor to create an open-source DVD player. Such a step is necessary to enable DVD players not equipped with CSS, such as players for use on Linux and other open source platforms, to read or play commercial DVDs.

5. I have reviewed this Court's preliminary injunction decision -- which is posted online at a variety of web sites, including a number of web sites on the 2600.com mirror list as posting DeCSS -- and am aware of the Court's apparent belief that DeCSS poses a great risk of of copying by "pirates" who could use DeCSS to create innumerable, commercially viable, infringing digital copies of a DVD movie. Based on my experience, my expertise with the necessary technology, and the investigation described below, it is patently clear to me that this conclusion is factually incorrect. Additionally, the Court's apparent belief that the only reason for DeCSS is for copying is also incorrect. For example, Jon Johansen, the Norwegian 16-year-old who first posted DeCSS and is a member of MoRE ("Masters of Reverse Engineering"), the group that developed the utility, stated in a January 31, 2000 interview reported on CNN.Com:

"I got involved with DVD about two years ago. . . . . [a]nd about at the end of September last year, I got in contact with a German Computer programmer and a Dutch computer programmer, and we decided that it was time to add DVD support to Linux -- and, of course, to opther operating systems, such as FreeBSD."

A copy of the interview is attached hereto as Exhibit B.

6. I have no personal knowledge of anyone using DeCSS to view or copy a DVD, except for a single professional demonstration presented by OpenDVD.org at the Atlanta Linux Showcase trade show at which DeCSS was used to play (but not copy) a DVD.

7. In early April, I was asked by counsel for the defendants in this lawsuit to investigate the use by the Linux community -- and/or anyone else -- of DeCSS in any context, including to view or copy DVDs. Accordingly, in addition to my constant contacts and conversations with members of the Linux community, between April 10th and April 20th I posted general inquiries about DeCSS-related copying to the Linux, other open-source, and "hacker" (in the non-perjorative sense of individuals devoted to exploring the limits of the Internet) communities via a variety of mailing list and websites, including but not limited to the SVLUG and DeCSS mailing lists and the opendvd.org website. These communities are made up of very skilled and technically capable people.

8. None of the approximately 2000 people who responded to my e-mails and postings reported using DeCSS to make copies of DVDs. Indeed, only two people -- both of whom insisted on strict anonymity as a condition of speaking with me because they feared reprisal from the MPAA -- said that they were able to use DeCSS to view DVDs they had purchased. However, both reported significant problems with playback. One experienced distorted video and both experienced stuttering sound. It's also worth noting that the individual who called the video "high quality" (although with bad sound) used a very expensive dual processing computer equipped with a great deal of random access memory.

9. There are several explanations for the results obtained by these isolated experiments. First, it is technically quite complicated to use DeCSS to copy DVDs. Starting with the DVD player, you'd need to acquire and make use of the DeCSS utility. Additionally, some sort of MPEG decoding utility would be necessary to view the resulting decoded data. Since the algorithms used by the MPEG display software are especially cpu (the central processing unit or chip that runs a computer) and memory intensive, and because the developers of the DeCSS application were unable to enlist the help of any hardware decoder that may exist on the video card, the resulting video quality is very poor.

10. Except under a very specific and unusual set of circumstances (I am hypothesizing that such circumstances are possible, since as far as I am aware, it hasn't yet been done), it is also nearly impossible to enjoy a DVD played through DeCSS because of the syncing problems that make movies appear like dubbed martial arts films. When one combines the poor playback quality created by these technical difficulties with the exceptionally large size of the data files, which makes the copying and distribution of decrypted versions of movies from a DVD so costly and complicated as to be unfeasible, it is clear that DeCSS is not a useful tool for the piracy, let alone viewing, of DVDs.

11. In order to test the theories and information I had gleaned about the DeCSS program, and to understand the technical aspects of using it, I downloaded DeCSS.exe and installed it on my DVD equipped Laptop. Before executing DeCSS, I tried to copy some of the VOB files off of the DVD of Air Force One that was specifically procured for this task. I was unable to copy over the file until after I had run DeCSS on the drive to unlock the data, which confirmed that DeCSS permits one to copy a file off a DVD onto a computer's hard drive. However, the only DVD player program I had on my computer refused to play any of the VOB files I had copied directly off the hard drive (I did not copy all of them because of lack of room on my 18-gB hard drive). I was also unable to find a program under windows that would play the VOB file.

12. I was able to play the VOB file under Linux using a free utility called "xmovie". (x denotes that this is a movie player for the xwindows system, the windowing environment used by Linux and Unix). My experience was that with some tweaking I was able to watch the VOB file, but that video quality was very poor, showing a lot of stuttering and with a great deal of artifacts, and the sound, while clear enough, was not synchronized with the picture very well. This was the first time I was able to watch even a fragment of a DVD (which I had purchased) using Linux; but it took me hours to accomplish this task, and I used a DVD I already owned and could play on my home player and laptop computer.

13. Having laboriously used DeCSS to view a fragment of a commercially purchased DVD, my conclusion is that it is not watchable by any degree. Apart from the extensive technical problems I experienced (and others I understand are discussed in other declarations), it is clear that any copies made for sale (i.e., pirated copies) using this system would share all of the above-described defects.

14. Accordingly, given the many problems and costs associated with using DeCSS, especially compared to the low price of buying or renting a DVD and the fact that new Windows and Apple computers increasingly provide a DVD player as standard equipment, it is my opinion that the only real commercial value in DeCSS is as part of the reverse engineering of an open-source DVD player and not at all as a tool for commercial piracy. This conclusion is also supported by the fact that none of the 2000 people who responded to my inquiries about DeCSS used the program to copy a DVD.

15. In fact, DeCSS seems to me to have been created as an exercise in cryptology and the result of intellectual curiosity and experimentation by a handful of extremely sophisticated computer experts. Once open-source DVD players have been established, DeCSS' only value will be as an interesting utility to be examined by academics, scholars, engineers, programmers, cryptologists, and the like.

16. After some thought, and through my actions working on this debate, I realized that may be in fact possible to copy the VOB files as I described in previous paragraphs, but without using DeCSS at all. I tested my theory on my Laptop, a IBM Thinkpad 600E with a DVD drive installed.

17. IBM ships the Mediamatics DVD playing program with their DVD drive so that the user can watch DVD's in full screen under Windows. This works flawlessly under Windows. What is interesting is that if you do the following, you can copy data off the Disk, and use the mediamatics program as a DeCSS equivalent.

18. First, I opened up the same movie and started it playing, then I minimized the window so that my screen was not completely filled by Harrison Ford. Using window's file manager, I then copied two of the VOB files on the Disk to the hard drive. Prior to my playing the movie (and the concommitant unlocking of the DVD Drive by the mediamatics player), I was unable to copy these same VOB files.

19. After copying one of the files onto my hard drive, I shut down the mediamatics playing program. I discovered that upon the closing of the program the DVD was left unlocked. This means you can copy the data from the DVD player while it is playing, or you can wait until you are done watching to copy the data. I copied over some more of the VOB files that I had been unable to copy before starting the MediaMatics program. The VOB file that was copied was still scrambled, but it was the data off the DVD drive. Conceivably you could make a bit for bit copy of the DVD in this manner.

20. It should be clear that the DeCSS program by itself is not necessary to get the data files off the DVD. The design of the protocol makes DeCSS redundant. If a person is able to play a DVD on a Laptop, then the design of CSS demands that the DVD be unlocked. While a DVD is unlocked, you can copy whatever you want off the DVD. For the case of my laptop and the MediaMadics player I was able to not only copy the VOB file I was currently viewing, I was able to copy all other files. That said, I'd be surprised if this was not the case for the other players. The design of the DVD copy protection is flawed in such a way as to invalidate any assertion that CSS is a copy protection mechanism, since I can use the tools designed for it and licenced by the MPAA/DVD-CCA to copy VOB files.

21. If the DeCSS program is not even needed to circumvent the copy protection on the DVD, DeCSS should be seen as a method of descrambling only, as copy protection is invalidated by the design of the DVD itself. The fact that the files can be removed without DeCSS means that bit-by-bit copies of the DVDs could be made using the necessary equipment. It may even be possible to make a CSS-equipped DVD player run the encrypted VOB files directly off a hard drive without the benefit of any assisting software.

Dated: May 2, 2000

Sunnyvale, California

_________________________________


[Bruce Fries Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
BRUCE FRIES IN
OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND IN
SUPPORT OF
DEFENDANTS'
CROSS-MOTION TO
VACATE THE
PRELIMINARY
INJUNCTION

I, BRUCE FRIES declare under penalty of perjury that the foregoing is true and correct:

1. I am a publisher, writer, technology consultant and entrepreneur. In January 1999, I founded TeamCom, LLC, a New Media publishing company. I am also an associate of the Audio Engineering Society. A list of TeamCom's present and future publications is attached hereto as Exhibit A.

2. I recently wrote and published The MP3 and Internet Audio Handbook: Your Guide to the Digital Music Revolution! to explain the new MP3 technology and the benefits of digital audio compression, downloadable music and streaming audio in simple, easy-to- understand terms. The book also contains step-by-step instructions for finding music on the Internet, listening to Internet radio, creating and playing MP3 files, recording music on a computer, recording custom CDs, and connecting a PC to a stereo system. Information about and press reaction to The MP3 Handbook are attached hereto as Exhibit B.

3. In the Fall of this year, TeamCom will simultaneously publish the book Fair Use: the Fight for Consumer Rights in two formats: traditional print and as a down-loadable text file available through the Internet. I conceived this book as a result of the recent court cases initiated by the Entertainment Industry in response to the Internet publication of the DeCSS source code. Fair Use focuses on the issues surrounding the fair use of copyrighted materials by consumers and researchers. It explains various forms of encryption and copy protection schemes that assume consumer dishonesty and prevent or restrict duplication of copyrighted works for legitimate purposes such as fair use and reverse engineering. An outline is attached as Exhibit C.

4. The book includes tutorials and source code for programs -- including the source code for DeCSS -- that enable consumers and researchers to circumvent copy protection schemes for fair use purposes. Obviously, it is crucial to the book's accuracy and credibility that I am able to publish the source code for DeCSS and other CSS descramblers. Moreover, the on-line version of Fair Use will include URLs that will appear to the reader as hyperlinks, including links to web sites that may post or link to DeCSS. Thus, the plaintiffs' motion to expand the injunction against posting the DeCSS source code to include a prohibition against links to web sites that post DeCSS would directly and negatively impact TeamCom's publication of Fair Use. If TeamCom cannot include hyperlinks in its on-line publication of the book, it will be forced to censure its on-line publication by removing prohibited URLs, even though those addresses remain in the traditional print publication of the book.

5. The expansive injunction sought by plaintiffs would have this chilling result because even if TeamCom does not put banned URLs in a HTML format, many of the computer programs that will be utilized to read the book after it has been purchased and down-loaded it to a customer's computer will recognize a URL and automatically convert it to a hyperlink. Thus, even though TeamCom has no control over whether a reader's program will convert URLs into hyperlinks, we could nonetheless be found to have improperly linked to a prohibited web site.

Dated: April ___, 2000

Silver Springs, Maryland

______________________________


[Martin Garbus Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
MARTIN GARBUS
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND IN
SUPPORT OF
DEFENDANTS'
CROSS-MOTION TO
VACATE THE
PRELIMINARY
INJUNCTION

I, MARTIN GARBUS, declare under penalty of perjury that the foregoing is true and correct:

1. I submit this affidavit in support of defendants' motion to immediately vacate the prior restraint.

2. At the present time, as I understand the law, the use of DeCSS is not illegal. 1201(a)(1) is not yet in effect, and DeCSS is not copyright infringement. It is simply another means of legitimately using a purchased copyright work. This case is not about piracy.

3. The declarations we have filed include statements of significant people in the field with full knowledge of the facts has been or they will be filed. There are hundreds more such potential witnesses, organizations and individuals who deal with the statutory history, the fair use issues and the very important First Amendment concerns in the work that defendants do. The declarations we have submitted are not only individual voices, but they are also voices for the most important constituencies in the country on the issues of educations, fair use, creativity, copyright and speech.

4. Some 235 comments have thus far been submitted to the Copyright Office, as part of its current "rule making" procedures for § 1201(a)(1) of the Digital Millennium Copyright Act: how it is and should be legally interpreted, what factors Congress and the court should consider and what the future will be. These organizations deal with many of the issues before this Court -- fair use, First Amendment, the need for access to information. Hearings are presently being conducted in Washington, D.C. and at Stamford University. Approximately 235 comments were submitted in the first round; only a handful, I am told, were in favor of plaintiffs' view of the DMCA's interpretation that plaintiffs argue here today, and those were submitted by those who share plaintiffs' concerns. The 235 comments consist of librarians, academics, Harvard University and computer scientists and others. A list of some of those who submitted comments are annexed hereto as Exhibit A.

5. The Copyright Office's description of the comment process is set forth at Exhibit B. These comments include representatives of the five most significant libraries, representatives from MIT and others. Annexed hereto as Exhibit C is an informational packet regarding the comment process. These are some of the witnesses we expect to call and to get further affidavits from. We believe the Court will recognize that what has happened thus far in this proceeding is remarkable. That is why we needed this time to go before the Court and why we resisted Proskauer Rose's statement that discovery could be taken in a week and we could go to trial in late April or May. These are taken from the website of the United States Copyright Offices.

6. Annexed hereto as Exhibit D is a recent New York Times article (Friday, April 27, 2000) on the DVD case, and a Village Voice article (May 2, 2000) (Exhibit E). Both advise the reader where to go to get DeCSS. The press reports 300,000 downloads of DeCSS (I do not know how accurate this is), and the plaintiff does not claim one single act of piracy. Annexed hereto as Exhibit F is a list of more than 30 stories published by major news organizations that are posted or linked to DeCSS. Annexed hereto as Exhibit G is a copy of a letter sent from Disney Chief, Michael Eisner to "Fellow Cast Members."

7. A prior restraint is in effect where there has been limited information given by the plaintiff to the Court or opposing counsel at the time of their application to the Court. I understand the Harvard University Berkman Center has written to this Court and asked permission to file an amicus brief. My understanding is that Professor Charles Nesson of Harvard will be the signatory on that brief and it will be filed shortly. I understand as of now the New York Times intends to file an affidavit as the appropriateness of an article that refers to a site that tells you where to get DeCSS. I understand the Universities of Chicago, California, Yale University and the American Civil Liberties are considering filing affidavits along with selected librarians. I urge the Court to accept all of these filings. So too, I believe, will Professor Lessig at Harvard and Professor Bechler at New York University. These are objective professionals who have lived with the DMCA for a long time.

8. The delay in the additional affidavits do not offer plaintiffs any justification for opposing the immediate lifting of the injunction. They confirm and expand on what has already been sent and although there are new matters, there is now for the first time in three months, a sufficient record. On the contrary, this should persuade the Court to deal with this now. I am determined to have a full record on this motion.

9. No Court would permit a government agency alleging national security violations that sought to keep a restraining order in effect to ignore or delay discovery. Surely, private parties Sony and Universal and the remainder of the plaintiffs stand in no better shoes.

THE PRIOR RESTRAINT ORDER AND THE RELATED ISSUE OF DISCOVERY

10. If this were a commercial case I would not be so committed to vacating an order. But this is not an ordinary commercial case; it is not even a very serious commercial case. It is a First Amendment case with extremely broad implications where a prior restraint had wrongfully been put in place. As I indicated to the court, the defendants did not have the option of appeal; do not, as a practical matter, have the option of moving ahead the trial immediately and must seek discovery to persuade the Court that its previous order should be vacated. The problems here are not of the Court's making and they are not of the defendants' making. I apologize now for getting involved in discovery issues. Proskauer Rose, after saying it was ready for trial in April 2000 or as late as May now says is cannot even begin discovery at this time. They seek to ignore this Court's ruling rendered yesterday Discovery, delay, the existence of a prior restraint order and the disqualification are now inextricably intertwined.

11. Annexed hereto as Exhibit H is a letter sent to Proskauer after our discussion with the Court on Tuesday, a letter sent to Weil Gotshal & Manges (Exhibit I), the DVD CCA lawyers, the plaintiffs in the California case and a letter we sent yesterday to the Court (Exhibit J).

12. The existence of the outstanding order necessitates discussion of these issues in this affidavit. I apologize for not having been able to work it out amicably, as the Court suggested, but I perfectly understand why it is not possible. The plaintiffs have a prior restraining order issued by a court, there is not appellate record that defendant has, and they prefer and insist on the status quo.

13. To make the record complete, both for this Court and the Appellate Court, that will ultimately decide these issues, we note that Proskauer Rose, in their letter to the Court on Friday, April 27, 2000, intertwined disqualification and discovery issues as they attempted to delay the trial. They never sought to have my firm disqualified as they sought to push us into an immediate trial. Now, after six weeks, many hundreds of hours of lawyers' time, hundreds of research hours and vast expenditures of funds by a not for profit civil liberties group they to disqualify us and further keep the restraining order in effect and delay the proceeding. We long ago served notices of deposition and requests for production of documents. We discussed these depositions and documents yesterday with the Court. Since the discussion with the Court, I have had conversations with Proskauer in an attempt to amicably agree on dates. Proskauer Rose's interpretation of the Court's decision totally differs from mine and from what I believe the Court's transcript indicates. I have called twice today to avoid bringing this before the Court.

14. Proskauer argues it will agree to June dates because that was the Court's decision. Proskauer has no right to reargue these issues before this Court again and take up the Court's time with issues that responsible, dignified and competent counsel should be able to resolve.

15. We set up the DVD CCA deposition for California for May 5th. Today, Mr. Sugarman of Weil Gotshal called to suggest June 6th and agreed to give us the documents we requested. That is when Mr. Gold says he is away on vacation. I called Mr. Gold to try and work out an accommodation and neither he nor his associate who has been working with him on the case nor any of the other attorneys on the firm who have been involved in the case returned my call. Nor did they respond to a letter served upon them early this morning. Proskauer can give me those documents. They have resources equal to Weil Gotshal.

16. If Mr. Valenti is unavailable, as Mr. Gold says he is, we will start with Gregory Goeckner of the MPAA, who, at Yale last week, said there is no evidence of piracy caused by the DeCSS. He has been lecturing throughout the country and we will travel to suit his convenience on any day.

17. As of this moment, not one motion (other than the disqualification motion) has been made responsive to defendants' discovery, not one plaintiff or witness has agreed to appear, not one document has been produced.

18. Thus far, plaintiffs say they do not have lawyers, clients or the ability to produce documents for deposition. Proskauer has offices in New York, California, Washington, D.C., Paris, London and many hundreds of lawyers (Exhibit K). Weil Gotshal & Manges (Exhibit L), has 750 lawyers with offices in New York, California, Prague, Brussels, Warsaw and Silicon Valley. I do not believe Proskauer and Rose and their clients do not have the resources to litigate a case involving a present prior restraint, one that has been in effect for over three months. Their failure to comply with discovery, by itself, is sufficient to lift the injunction. 19. As Mr. Goeckner said two days ago, there is not present evidence of any piracy. A client and law firm check of these plaintiffs and the law firms that represent them shows every large media company they represent is also represented other law firms, many at the same time. Many times, four or five major law firms are on the same matter. We shall not burden the Court with information about the financial capabilities of these plaintiffs. Suffice it to say, they have the resources to deal with this case that they started and prepared for for years,. They have dealt with far greater issues on far shorter issues.

20. Again, I regret having to go before this Court on discovery matters.

21. The prior restraint order should be immediately lifted.

Dated: New York, New York

May __, 2000

_______________________________

Martin Garbus


[Martin Garbus CV]

MARTIN GARBUS

Martin Garbus, one of the country's leading trial lawyers, has tried free speech - criminal law - constitutional 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.

As a criminal lawyer, 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 many other legal trials over the past thirty years.

Mr. Garbus has represented all of the major book publishers 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.

Martin Garbus is Chairman of the Committee to Abolish Capital Punishment and is the author of two award-winning books, Ready for the Defense and Traitors and Heroes, both of which deal with freedom of speech. A third book, entitled Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way and dealing with such First Amendment concerns as copyright, obscenity, hate speech and libel, was published in August 1998 by Random House-Times Books. It was named one of the "Best 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 and national magazines, and has appeared on television and radio shows as an expert commentator.


[Martin Garbus Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

ERIC CORLEY a/k/a
"EMMANUEL GOLDSTEIN" and
2600 ENTERPRISES, INC.,

Defendants

_______________________________________

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00 Civ. 0277 (LAK)

AFFIDAVIT OF MARTIN GARBUS IN SUPPORT OF DEFENDANTS' MOTION PURSUANT TO RULE 65 TO HAVE PLAINTIFFS POST A SECURITY BOND, AND IN SUPPORT OF DEFENDANTS' APPLICATION PURSUANT TO RULE 37 OF THE FEDERAL RULES OF CIVIL PROCEDURE TO DISMISS THE COMPLAINT OR, IN THE ALTERNATIVE, TO VACATE THE PRIOR RESTRAINING ORDER AND TO COMPEL PLAINTIFFS TO UNDERTAKE DISCOVERY

MARTIN GARBUS, being duly sworn deposes:

1. Defendants, Eric Corley and 2600 Enterprises, Inc. ("2600) need the aid of the Court. I will go through the history briefly so that it cannot be said that defendants did make a full and complete trial record and because defendants cannot continue to be required to respond to the claim that they did not appeal quickly. The Court is aware of the history of this case, and defendants incorporate all the previous pleadings, motions and cross motions had in this case as part of the instant application.

2. I submit this affidavit in support of defendants' motion pursuant to Rule 37 of the Federal Rules of Civil Procedure to dismiss the complaint or, in the alternative, to vacate the preliminary injunction, to compel specific discovery and document production dates, to impose costs and sanctions, and, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, to require plaintiff to post an appropriate bond.

3. Rule 37 is directed at the failure by a party to cooperate in discovery and/or to make disclosure. It requires the movant to make a good faith effort to resolve these issues. We have done that; our efforts have failed. Rule 37 permits the Court to order sanctions up to and including dismissal of the complaint. Rule 37(g) permits the Court, to determine if a litigant has failed to participate in the framing of a discovery plan and to impose expenses, including attorney fees. We believe this is appropriate.

THE SERIOUS AND CONTINUING DAMAGE TO THE FIRST AMENDMENT, TO THE COUNTRY, TO THIRD PARTIES, AND TO DEFENDANTS CAUSED BY THE PRIOR RESTRAINT MUST BE ADDRESSED

4. This is a First Amendment case with a four (4) month prior restraint in effect. The interpretation of Rules 37 and 65(c) should be considered in light of the past and present litigation in this Court, the values at stake, and the reasons why plaintiff has been non- cooperative. This Court, and the Courts that will ultimately be dealing with the procedural and substantive issues presented in this case, including the interpretation the of the Ditgital Millenium Copyright Act are dealing with issues of great significance. Court and counsel have enormous responsibility. This is, if possible, more than "a prior restraint" and First Amendment case, more than the first interpretation of this new law, more than another instance of Courts' being asked to determine if Congress has, or has not acted constitutionally. People are being hurt. I am told that plaintiffs have sent an unknown but substantial number of cease and desist letters to persons wholly unconnected with this case, and that the threats in these letters have silenced a great deal of speech. In fact, I understand that at least one individual who had posted DeCSS and received a letter, was fired. Universities and academics have chanted their practices. The MPAA and Jack Valenti have vigorously waged a national campaign of intimidation. Discovery matters affect and may be dispositive of these issues.

RULE 65 REQUIRES A SUBSTANTIAL BOND BE POSTED

5. There is presently a $10,000 bond. The value of that bond may be appropriate in a $20,000 commercial case, when an injunction has been issued. But this is not that case. The FRCP Rule 65 bond is of great significance; it allows the courts to play a very important role, especially in case of constitutional significant, that no other branch of government can play. Many feel, as I do, that the role of the Court as the arbiter of last resort is essential to this Country's freedom. Only it can protect individual litigants and third parties affected by their decision. I recognize the differing degrees of deference that must be given to Congress when it passes [legislation]. Given the political and economic pressures placed on Congress by plaintiffs' lobbyists, and given the respective power of the plaintiffs and Emmanuel Goldstein, it is not surprising that Congress was less than clear in balancing the First Amendment rights of academicians, scientists, and Universities to unfettered speech. Given these stakes, a very significant bond is obviously required.

6. This Court's ruling, coming as it did in the midst of the Copyright Office's current rule making procedure for 1201(a)(1), has enormous significance. See, Declaration of Martin Garbus dated May 3, 2000, ("Garbus Decl.") Exhibits "A-C." The longer the prior restraint order is in effect, the longer the Court's initial interpretation of the Digital Millenium Amendment to Copyright Act lingers, the longer the public will be "chilled" by the fear its speech can be silenced. This Court's Order, and the plaintiffs' enthusiastic cease and desist campaign based on it, has affected a very substantial number of people in different ways, even more than prior restraints Courts have rejected in the past.

7. Every academic, every Justice of The Supreme Court, and every Federal and State Trial Judge will agree that the First Amendment, the defendants and American Society suffer, minute by minute, when a unprecedented improper prior restraint order is in effect. Nonetheless, plaintiff treats this as it would a commercial case, and it treats the discovery issue as a cumbersome sideline, to hide the fact that it is using discovery to delay the end of the Order.

8. The damage to academic research occasioned by plaintiffs' conduct and this Court's resulting Order is significant. The Harvard Berkman Center, citing Professor Nimmer, takes particular issue with the plaintiffs' position in this case in the document previously submitted as Exhibit "B" to my May 3rd declarations, at page 8: "The Supreme Court has ruled on Fair Use several times in the last two decades alone on decisions that were overturned at every review" (emphasis added). It is my understanding scientist and scholars that the injunction has already had a significantly chilling effect; we have witnesses prepared to testify to that. See, e.g., on the question of the present immediate and serious harm caused by the Preliminary Injunction, see the documents submitted to Congress by scientists working at the Massachusetts Institute of Technology Media Lab (Garbus Decl., Exhibit "B") refers at page 2 to this Court's decision and its chilling effect.

9. On the other hand, plaintiffs have suffered absolutely no damage to date, and can only speculate wildly about the possibility' of damage in the immediate or foreseeable future. This is not a balancing test. No Court would permit the government to do this unless bombs were on their way to our cities or our national security was in jeopardy".

DISCOVERY OF PLAINTIFF

10. On April 3, 2000, defendants served plaintiffs' counsel with notices of the plaintiffs' depositions. The first deposition of non-party witnesses was to start on Monday at 10:00 a.m. May 8, 2000, the second on Tuesday. Plaintiffs refused to let them take place. I scheduled plaintiff's depositions to take place the week after; Proskauer has refused to produce any of its clients on those dates. On Friday, April 29, 2000, the plaintiff sent a letter requesting a stay of discovery pending a decision on the disqualification motion they filed on the day before. On Tuesday, May 2, 2000, the Court rejected plaintiffs' application. However, plaintiffs advise me that the Court ruled in their favor on May 2. In any event, they have, as a practical matter, chosen to ignore the Court's ruling.

11. Sadly, the plaintiffs have refused thus far to produce one document, to schedule one party deposition, or even to identify one piece of paper for document production. Instead they have made it clear they will use every avenue of delay.

12. The plaintiffs' evasion of this Court's May 2, 2000 ruling is actionable under Rule 37.

13. Proskauer talks of June dates for discovery of the plaintiffs, as if they prevailed on May 2 and discovery were stayed. I refused to agree: A prior restraint is in effect. By plaintiffs' acts, the stay is, as a practical matter, now in effect and will, unless the Court acts now, remain in effect at least until the disqualification motion is submitted and decided. Plaintiffs' refusal to permit discovery will contribute to the length of the restraining order.

THE MPAA WITNESSES, MICHAEL EISNER, JACK VALENTI AND THE DEPOSITIONS OF THE PLAINTIFFS

14. Plaintiffs delayed at every step. I advised Proskauer that I wanted to examine Mr. Valenti. Plaintiff refused and tried to raise the issue of Mr. Valenti's deposition on May 2, 2000. I implored Proskauer to let me examine one of MPAA's witnesses on a scheduled date. The Federal Rules of Civil Procedure have some meaning and give parties and witnesses who object to either document demands or notices of depositions to make appropriate motions. Plaintiffs did not make a motion, they stonewalled. In order to be cooperative and to get the MPAA deposition started this morning, I asked to depose Fritz Attaway of the MPAA if Mr. Valenti or Mr. Goeckner were not available on the noticed date. His February 16, 2000 letter to the copyright office deals with when 1201(a)(1)(A) becomes effective and shows his full knowledge of the facts. His office is in Washington where Proskauer also maintains offices. Instead, plaintiffs offered two (2) MPAA witnesses in two different states, a day apart. This is totally unacceptable. They do this without contacting my offices, after refusing to meet me, by letter sent at the end of business on Friday, May 5, 2000.

15. This Court can see the MPAA officers listed on the MPAA Website (MPAA.org). The proposed deponents are not among them, although I understand that Ken Jacobsen is the head of the MPA's world-wide piracy division. Robert Schumann is, of course, the outside consultant who has submitted several highly technical declarations on behalf of plaintiffs in this matter, and is a limited witness. He owns his own company, and is not so far as he has disclosed, a MPAA employee; he is, I believe, a consultant to the MPAA. On the MPAA's Board of Directors are the Chairman and Presidents of the following company of the seven major producers and distributors of motion pictures and television programs in the United States. They include The Walt Disney Company, headed by Mr. Eisner, Sony Pictures Entertainment, Inc., Metro Goldwyn Mayer Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corp., Universal Studios and Warner Bros.

16. Mr. Valenti and Mr. Eisner of Disney (a member of the MPAA) have put themselves at the forefront of this case, and in particular regarding the irreparable harm that Disney and the other plaintiffs will allegedly suffer from piracy. See, Garbus Decl. Exhibit "G" (letter to employees from Eisner, the CEO of one of the plaintiffs, a spokesman for the MPAA). We believe that Eisner as been furnished with reports which will show that the basic allegations placed before the Court were seriously misleading. Disney's depositions are set for this month, and we are confident Mr. Eisner will seek to avoid testimony.

17. I recognize each plaintiff's right to make the initial choice of witness to proffer on its behalf. I have, as the correspondence indicates, suggested to plaintiffs a number of alternative people for me to examine. The Court directed Proskauer to cooperate; they have not done so. I previously advised the Court of the schedule of depositions. Garbus Decl., Exhibit "J." Plaintiffs were all noticed well in advance (at least six weeks). No motions have been made other than the disqualification motion.

18. Instead, Proskauer's late afternoon letter to me Friday, May 5, 2000 states "We are getting deposition dates for you, as promised but plaintiffs will take the position that defendants cannot resume the deposition at a later time on the ground that certain documents were not produced before the depositions." Obviously, this is completely unacceptable. I suggested that we defer the MPAA depositions Proskauer unilaterally moved to May 16 and 18, if I could use this week to depose the plaintiffs. Proskauer refused. Furthermore, they will only produce the MPAA witnesses if I execute a confidentiality stipulation that I have never seen. Again, this is not a good faith discovery process.

19. Moreover, plaintiffs seem confused not just about who to produce, but about the nature of depositions. There is simply no reason I should run around the country examining witnesses such as Mr. Schumann, in a variety of Proskauer offices, on the date and at the time set by Proskauer. Can plaintiffs give me any reason why they should be permitted totally to ignore the rules of this Court and common courtesy, dignity and cooperative relationships with opposing counsel? I suggested compromises; they claim they do not have the resources to deal with this case. In my letter of May 5, 2000 I advised Plaintiff in an effort to resolve these issues and expedite discovery:

"In addition to Mr. Attaway's letter, I can give you letters and documents filed by other representatives of the plaintiffs. You have them all and you know were they are. The Congressional Record that is available, which we will bring to the Court's attention, selectively, so as not to burden the Court, is in large part based on information furnished by your clients. It is inconceivable to me that it has not been carefully indexed and is available nearly at the push of a button.

20. Proskauer and their clients are as sophisticated in this technology of retrieving, saving and making available information as perhaps anyone in country.

21. The plaintiffs are following a practice that, particularly in a First Amendment prior restraint cases, is unconscionable. Plaintiffs have a prior restraint on the basis of evidence submitted to the Court in such a way that foreclosed even a barely adequate response, possible, by means of declarations that, as we have shown, are at the least incomplete, misleading and inaccurate.

22. I should not be forced to defend a client on issues likes these, with vital First Amendment values involved, in this way. I am prepared, now, to examine Mr. Valenti; Proskauer has never responded to my inquires regarding him. If the Court is, because of its press of business, unable to act now, I request that all depositions be held before a Magistrate Judge immediately, with costs to be borne by plaintiffs.

23. Plaintiff resist defendants' urgency. They complain defendants could have done more before and they should not be pressed. As Plaintiffs are aware, until last week there was no record from which defendant would reasonably appeal. The reasons for this, and the Court process to date, have been thoroughly discussed in the previous affidavits and will not be repeated. It is not due to the fault of the Court or Defendant.

DVD WITNESSES

24. We sought to set a date for a non-party deposition of the DVD CCA in California. Their attorneys refused to go ahead on May 5th and we agreed to a June date, if it was convenient for Proskauer, given their personal schedules. I called Proskauer regarding the June date; I have never heard back.

25. I have also tried to deal with the DVD CCA witness personally, but unsuccessfully. They, too, cannot comply with deposition dates. Mr. Gold is unavailable on the dates that the DVD CCA says it is available. In the meantime, I have been advised that Matsushita Electric Industrial Co., which makes Panasonic brand products, will soon launch new DVD audio products and is developing a new security system for it. Yoshihiro Kitadeya at Matsushita publicly said that Matsushita and its partners are nearly finished on a successor to CSS2 (the proposed version of the CSS for audio discs, which had to be replaced when the manifest weakness of CSS became obvious), with a stronger key and a new encoding system. I understand Matsushita with other entities, DVD CCA. To think that the two litigations, the first in California and the second in New York, are unrelated, is foolish. To think that the MPAA, the plaintiffs and the DVD CCA are separate groups, is also foolish. They are all related and thier refusal to agree to discovery is coordinated by plaintiffs.

THE MEDIA DEFENDANT

26. Plaintiffs have extraordinary resources and can move quickly when they want to. For example, the original Order to Show Cause in this case was served late on Friday, January 14, 2000. Monday was Martin Luther King Day, so Eric Corley couldn't seek to retain counsel until Tuesday on Wednesday, January 20, 2000, the Court entered a decision. An Order was immediately entered; two week later, the Court filed its Memorandum Opinion. Plaintiffs then initially resisted defendants' request to file a late answer, claiming prejudice. That was four months ago. Had plaintiff sued The San Jose Mercury News or The New York Times, the result and the resultant outcry would have been different.

27. Plaintiffs ignore Eric Corley/Emmanuel Goldstein and the media because they refuse to see the obvious First Amendment issues in this case. Goldstein's rights and our rights have been abused. Goldstein is a first time media defendant, has been working as hard as he can on the issues this case since he and I met. So to have we. The press, including The New York Times are freely linking in the same way 2600 links. Goldstein walked into a storm and faced the potential of millions of dollars in potential damage claims based on the hundreds of thousands of alleged downloads of DeCSS and the millions of "pirate" DVDs plaintiffs assert are now inevitable. Of course, as many or more downloads of DeCSS are attributable to The San Jose Mercury News, The New York Times, University, libraries, The Associated Press, whose downloads probably exceed defendants by many multiples.

28. The plaintiffs who have engineered the entrance of a prior restraint, are waging a war of delay, cost, attribution and exhaustion against Emmanuel Goldstein, his supporters and my firm.

29. Plaintiff believes the values that determine the path of this case are:

(1) The motions they want to make, how they want to make them and when. They have already made three motions including a disqualification, all for tactical reasons, filed several complaints. They wanted to stay this proceeding.

(2) The convenience of their parties.

(3) The convenience of their lawyers.

(4) The conveyance of their witness.

30. Given what is happening each day, given what is at stake, and given the assets of each of the plaintiffs, an appropriate bond must be a considerable figure, which we will address with the Court at the appropriate time. The bond should be increased the longer the injunction stays in effect. We are prepared to immediately take deposition testimony of the plaintiffs on the damage and value of the bond to be set. It should be sufficiently high to discourage exactly what is happening here.

THE PRACTICAL REALITIES

31. I have noticed the eight plaintiffs, the MPAA, and the DVD CCA for depositions; I have mentioned Valenti and Goeckner; there are many others. I told the Court I need three months for discovery and had planned to finish any discovery by August 1. I expect the injunction to be vacated long before that.

32. Although I am a partner in a substantial law firm, only two lawyers, my associate Edward Hernstadt and I and two paralegals, are working on this case: My clients do not have plaintiffs' resources. Nonetheless, I am prepared to go ahead immediately, today, with the discovery of each of the plaintiffs. I should not be forced into a different state every day or even other day, as Proskauer seeks to do with the MPAA witnesses. This Court, as busy as it is, should not be forced to restrain this type of strategic conduct.

33. We have previously spoken of plaintiffs' assets, which they can use to run the defendants and their lawyers "ragged." That is exactly what has been happening. My colleague and I have spent well over 300 hours a month since this case began. Many unpaid volunteers of the caliber of Professor Elsen Moglen of Columbia University, and professors at Harvard, New York University, and Stanford have, I am sure, have spent as much or more time. Only the Court can stop the waste of time and money caused by plaintiffs' refusal to engage in discovery.

34. I have been contacted by representatives of the press who wish to be present at the depositions. I have been contacted by numerous parties who wish to file amicus brief. I have no objection to the filing of any amicus briefs that the Court feels is appropriate and I have no objection to the press presence. I would presume that media plaintiffs also have no objection.

35. The complaint should be dismissed and the preliminary injunction vacated.

36. No prior request for the relief sought herein has been made to this Court.

Dated: New York, New York
May 8, 2000

____________________________

MARTIN GARBUS


[Order to show cause]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

ERIC CORLEY a/k/a
"EMMANUEL GOLDSTEIN" and
2600 ENTERPRISES, INC.,

Defendants

_______________________________________

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00 Civ. 0277 (LAK)

ORDER TO SHOW CAUSE TO DISMISS COMPLAINT PURSUANT TO RULE 37 OF THE FEDERAL RULES OF CIVIL PROCEDURE, AND FOR AN ORDER PURSUANT TO RULE 65 REQUIRING PLAINTIFF TO POST A FURTHER SECURITY BOND IN AN APPROPRIATE AMOUNT TO BE SET BY THE COURT

Upon the affidavit of Martin Garbus dated May 8, 2000, the exhibits annexed thereto, the defendants previously submitted documents and affidavits in opposition to the plaintiffs' Motion to expand the prior restraint and in support of defendants' cross-motion to vacate the original prior restraint; the transcript of the two hearing before this Court, the first granting the preliminary injunction on January 20, 2000 (Memorandum Opinion at 82 F.Supp 2d 21); on plaintiffs' application for a stay on Tuesday, May 2, 2000; on the disqualification motion; and on the other documents submitted previous hereto, including Defendants' Memorandum of Law in Support of the Motion to Vacate; and sufficient cause appearing therefrom, it is hereby

ORDERED that Plaintiffs show cause, before the Honorable Judge Lewis A. Kaplan, at the United States District Court, for the Southern District of New York, Room 120 of the United States Courthouse, 500 Pearl Street, New York, New York, on May __, 2000 at ____a.m. or as soon there after as counsel can be heard why an order requiring that the plaintiffs post an appropriate bond pursuant to Rule 65 of the Federal Rules of Civil Procedure should not be entered, and it is further

ORDERED, that Plaintiff show cause why an order to, pursuant to Rule 37 of the Federal Rules of Civil Procedure, should not be entered that: (1) dismissing the complaint; (2) immediately determining defendants' and plaintiffs' present motions on the basis of the record now before the Court; or (3) vacating the Order of January 20, 2000 and Decision of February 3, 2000; or (4) requiring plaintiffs to comply immediately with discovery on the dates and times set forth in defendants' notice of depositions; (5) imposing appropriate sanctions fees and costs; and (6) granting such other relief as to this Court deems just and proper, and it is further

ORDERED, that the parties serve any papers in opposition to this motion by hand to Martin Garbus, of Frankfurt Garbus Klein & Selz, at the defendant attorneys' office on or before ___ o'clock on May ____, 2000, and it is further

ORDERED, that service a copy of this order, and the papers annexed hereto to Leon Gold, Esq. At Proskauer Rose, LLP, 1585 Broadway, New York, New York be made on or before ___ o'clock on May ___, 2000

Dated: New York, New York
May 8, 2000

Respectfully submitted,

FRANKFURT GARBUS KLEIN & SELZ

By: ___________________________________

Martin Garbus

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN


[John Gilmore Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
JOHN GILMORE
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND IN
SUPPORT OF
DEFENDANTS'
CROSS- MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, JOHN GILMORE, declare under penalty of perjury that the foregoing is true and correct:

1. I am a computer scientist and entrepreneur in San Francisco, California and submit this affidavit in my personal capacity.

2. I have been working in computers since 1972, as a programmer, designer, quality assurance engineer, writer, manager, and executive. I have been involved in computer security since 1980 and in encryption since 1984. My Curriculum Vitae is attached hereto as Exhibit A.

3. In 1981, I was the fifth employee at Sun Microsystems, which has since grown into one of the top ten computer companies in the world. There I wrote firmware, handled hardware/software integration, tested hardware designs, and worked on computer security and electronic mail, both for their products and for their internal network.

4. In 1989, with two partners, I co-founded Cygnus Support, a small business dedicated to providing commercial support for free software, largely in the embedded systems market. It has grown from 3 employees to approximately 180, and was sold in October 1999 to Red Hat, Inc. The company's main product, the GNU programmer tools, is given away without cost and without major restrictions on modification or redistribution. Cygnus's revenues of about $20 million a year are almost all from contracts to support or develop this freely available software. Cygnus pioneered this "open source" business model for its intellectual property licensing, a model which has become fashionable ten years later.

5. In 1990, I co-founded the Electronic Frontier Foundation (EFF), a nonprofit which defends civil liberties in cyberspace. The foundation continues to exist today, and is providing some of the legal defense in this case. I serve on its Board of Directors and am currently its interim Executive Director.

6. In 1992, I co-founded the Cypherpunks, an informal educational and advocacy group devoted to advancement of privacy and security through greater knowledge and deployment of encryption. The group has been meeting monthly in the San Francisco area since then, maintains several active Internet mailing lists reaching several thousand people, and has spawned similar groups in other areas. Many students and computer scientists who first learned of encryption through the cypherpunks have started encryption companies, become famous through their encryption research, or begun their own civil rights efforts as a result.

7. In 1996, I started a project at EFF to create a "DES Cracker," a custom-designed computer which can recover the key to a message encrypted in the Federal "Data Encryption Standard" in about a week. I led the project, assisted in the chip design, wrote much of the software for the project, edited and wrote major parts of the book. We published the full design through a major book publisher, in the public domain, so that anyone could reproduce it for verification. The purpose of the project was to publicly demonstrate that the DES is easy to crack so that people would stop believing incorrect government statements that DES provides good privacy. The project was successful, and as one result the National Institute of Standards and Technology (NIST) began an "Advanced Encryption Standard" effort to replace DES, which is still ongoing. This effort also won me the "Public Policy Award" from RSA Data Security at their annual conference, and made the front page of the New York Times.

8. I comment from the perspective of someone who has been active in the fields of encryption; one who has created and appreciates the value of intellectual property; and one who understands and has achieved success in business.

There Are Many Legitimate Uses for the Software at Issue

9. There are a number of legitimate and legal reasons why Linux users (and, indeed, anyone) might wish to access or copy the information on a DVD that they have purchased. First and foremost is that they have purchased the DVD and have the right under the copyright laws to make certain uses of the information on it. The copyright holder of the material on the DVD has been compensated; the toll has been paid; the user is a consumer, not a thief.

10. Many published DVD discs can only be decoded by a subset of DVD players. Under the name "region coding," the DVD industry has used its capability to create subsets to divide the world into seven regions and contracted to restrict the DVD players sold in each region to only play DVD discs intended to be sold in that region. The region coding system is not inherent in or necessitated by the design of the encryption system at issue, but is created by how the secret keys are administered. I believe that the DVD industry designed and implemented the region coding system in order to restrain global trade in DVD discs, so they can charge differential prices in different regions, and so that the release of particular movies can be delayed in particular markets, for the benefit of theater owners and the companies who rent them movies. By way of clarification, region coding means that a consumer in England legally using the Internet could legally purchase a newly released DVD from a United States retailer, legally have the DVD mailed to England, but will not be able to play the DVD at home.

11. That DeCSS has been used in the development of a DVD player which can play DVD discs in any "region" does not violate any right or privilege available under law to the copyright owner of the movie on the disc. First, the consumer has purchased the DVD and the copyright owner will receive all appropriate royalties arising from such purchase; second, "code-free" consumer DVD players already exist and offer the same capability. The region coding system is, I believe, no more than a business strategy that controls when and how consumers who have legally purchased DVDs can view the DVDs they own.

12. Another legitimate use of or related to DeCSS is to change the video into a format chosen by its owner, or to "space-shift" it to a more convenient physical location. It is my understanding that the owner of a music CD is free under the copyright laws to copy it onto a tape cassette to play it in her car (both a format-shift from digital CD to analog tape, and a space-shift from her home to her car). Copying a DVD to a videotape so that can be played on the kids' VCR, or copying its soundtrack onto a cassette tape or recordable CD so it can be heard in the cor, is the equivalent of copying a CD to a tape cassette. The legitimate owner of a DVD is free under the copyright laws to copy it onto another medium or location of their choice. This type of legitimate format- or space-shifting is the equivalent of the legitimate time-shifting that was key in the Betamax decision.

13. For example, a DVD owner could use software to extract a 10-second clip of a postman delivering a letter, convert it into a file format that her web browser can play, and a size that fits in a small comer of her screen, and cause her computer to display the clip whenever she get a new email message. Or she might only have a DVD drive on the computer in her home office, but wish to watch the DVD with her family, on the computer or WebTV in the den, using the house's local area network. The software tools to do this today on Linux are not readily available, or are too hard for an ordinary person to use, but the Linux development community is actively working on improving them, and the software at issue in this case is a key component. The ability to read, understand, and publish the DeCSS software, and the principles at issue in this case, are key components in the Linux community's ability to build and publish such improved software tomorrow. I believe that the Betamax case sends a clear message from the Supreme Court that if a device has any substantial non-infringing uses, it is legal to possess and distribute. Plaintiffs seek to drive Defendants into a Catch-22, by claiming that a preliminary piece of software has no substantial non-infringing uses because those uses haven't been built into it yet. If they succeed, the court will make it illegal to build a more complete piece of software even if it does have substantial non-infringing uses, because the information needed to build such software will have been suppressed by the court's decision.

14. The DeCSS software for Windows, and the similar "readdvd" software for Linux, can be used to copy compressed video images from a DVD disc onto a hard drive. There are many legitimate reasons to make such copies.

15. One major reason is to allow Linux developers and users to watch their DVDs on their own computers. Compressed video image files, which DVD discs contain, are not readily visible to humans. A program is required to display the file on the screen, allow the user to fast-forward or rewind through it, etc. Writing such a program is not a trivial exercise, not only because of the complexity of the image compression, but also because the program must be fast, or it will not be able to play back the video in "real time".

16. The Linux developers whose web sites are targeted by this case were in the process of writing such a program. Pieces of the program already exist, and they work to some extent, but they were being constantly refined to eliminate outright errors, handle more different kinds of compression, and to speed up the display so that it could keep up on ordinary personal computers.

17. In order to test and refine a program for displaying compressed video images, one must have a compressed video image to try to display with it. Once a single image has been successfully displayed, it's time to try the program on several other images. Once it works on several images on the original author's computer, then it's time to try it on the computers of several other volunteers around the world, and on their choice of compressed image files. By gradually expanding the circle of testing and repair, a robust and stable program results.

18. It is certainly possible to test such a program with compressed video image files from sources other than DVD discs. I believe the existing Linux programs for displaying these files (such as mpeg2player, xanim, etc) were originally written and tested using other files. But for such a program to be useful to the community in general, it must work well with compressed video image files that come from ordinary commercial DVD discs, since that is the way that most ordinary computer users are likely to have compressed video images in their computers. The programmers cannot tell whether their program works on a DVD image without extracting one and trying it. And whenever their program falls to properly display a DVD image, they must have access to that image, to examine its encoding in detail, so they can reproduce the problem themselves, determine why the program fails to handle it properly, craft a proposed change to the program, and then test that the change actually fixes the problem and doesn't introduce any other problems.

19. In all of the above cases, the programmers would be using commercial DVDs which they have purchased or otherwise have the right to use; no piracy involved, and nobody's copyrights are violated.

20. I believe that the eventual goal of the Linux programmers and software distributors targeted by this case is to evolve their software so that a DVD disc can be played on the computer screen merely by inserting it into the DVD reader slot on a personal computer that runs Linux. Such an eventual use of software derived from DeCSS or readdvd would be completely legitimate and would not infringe any copyrights.

DeCSS Presents No Real or Viable Threat of "Piracy" or Commercial Copying

21. Due to the huge size of the files involved, making a verbatim copy of a DVD is impossible in essentially all easily transportable media commonly available today on personal computers. The DVD format was invented and deployed to hold an enormous amount of information, at least 8.5 gigabytes (8,500,000.000 bytes) of data, while the largest common personal computer writeable media can only hold I gigabyte (Jaz drives). More than eight gigabytes of data can be written on various kinds of computer tapes, but the blank tapes cost from $15-50 each (depending on the type), as much or more than the original $15 DVD. Moreover, I know of no software for playing DVD movies from computer tapes today. But even if such software existed, playing such a movie directly from a tape would lose the interactive characteristics of the original DVD, unless it was first read onto a hard drive. The permanently installed hard drives commonly used in PCs can only hold 5, 10, or 20 gigabytes; 40 at the high end. This means that if a person wished to make a full copy of a DVD disc on their computer, the only place they could put it would be on their hard drive. Thus a consumer could store several movies on her home-PC hard-drive, but would have not feasible way of selling it or doing anything with the movies other than viewing them. Using the Internet to send or sell copies of stored movies is particularly unreasonable: uploading a single gigabyte over a 56K modem would take about 40 hours, so an entire DVD would take many days. The sheer bulk of the material makes it impractical for consumers to "pirate" DVDs using commonly available equipment.

22. There are four recordable DVD formats, all of which are niche media. Most are incompatible with ordinary DVD players, and with each other. They each hold different amounts of data, from 2.6 gigabytes, 3.95 gigabytes, to 5.4 gigabytes so some shorter movies would fit on all of them. Most of these formats (DVD-R, DVD-RW, DVD-RAM, and RW) are not actually on sale yet, they've merely been preannounced. DVD-RAM has been out for a year, and its drives cost from $300-1000. But its discs only hold 2.6GB, cost $14 to $35, and are incompatible with everything else. There is a way to record twice as much data on double-sided DVD-RAM discs in special cartridges, but you have to flip them over to access the second side, like vinyl record albums. The available DVD-R recorder drives cost $3500-$5200. Blank recordable media for DVD-R are more expensive than buying pre-recorded DVDS.

23. There is no incentive to copy a $15 DVD onto a $30-$60 blank DVD-R, rather than buying a second original at $15. All of these recordable DVD formats are niche markets, because most computer buyers are waiting until a truly DVD- compatible recordable format comes out, rather than buy an expensive drive that only writes on media which will be obsolete in a few years.

24. Assuming that the advance of technology produces a recordable-DVD drive which uses affordable media and is readable on ordinary DVD drives, and that the courts are not used to keep such drives and media off the market, we then have another clearly legitimate use: backups of purchased DVD discs. It is legitimate to make a personal copy of purchased copyrighted material, to protect against the accidental (and eventually inevitable) loss or destruction of the original. Any household with children has probably already encountered this problem with other existing fragile media, such as cassette tapes, CDs, or VHS video tapes.

25. Also assuming a future large, cheap, and compatible recording medium, another legitimate use is to mix scenes from various DVD discs onto a single disc. A Bogart fan might produce a DVD which contains ten of their favorite Bogart scenes, in the same way that cassette users compose tapes of their favorite songs by one or more artists, holding their choice of selections in their choice of order. A music fan might contrast several video renditions of the same song, or show the evolution of a band over the years. I believe that it is completely legal for individuals to create and enjoy such compilations under copyright law's Fair Use Privilege that allows for personal noncommercial use.

Dated: May 2, 2000

San Francisco, CA

_____________________________


[Emmanuel Goldstein Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

ERIC CORLEY a/k/a
"EMMANUEL GOLDSTEIN" and
2600 ENTERPRISES, INC.,

Defendants

_______________________________________

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00 Civ. 0277 (LAK)

DECLARATION OF EMMANUEL GOLDSTEIN IN OPPOSITION TO PLAINTIFFS' MOTION TO MODIFY THE PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANTS' CROSS-MOTION TO VACATE THE PRELIMINARY INJUNCTION

I, EMMANUEL GOLDSTEIN, declare under penalty of perjury that the foregoing is true and correct:

1. I have been a journalist for approximately 23 years, beginning in high school with two separate newspapers, continuing through college (State University of New York at Stony Brook, where I received a Bachelor of Arts in English) with the Statesman and Stony Brook Press and as a broadcast journalist on WUSB 90.1 FM. Since 1984, I have been the Publisher and Editor of 2600: The Hacker Quarterly and currently also host the weekly radio program "Off the Hook" on WBAI 99.5 FM in New York City.

2. I served as music director for WUSB from 1980-1981 and program director from 1981-1982.

3. In 1984, through WUSB, I organized a convention of alternative presidential candidates in Stony Brook, New York and invited all of the 209 listed candidates for president to speak. More than two dozen accepted my invitation and spoke, and the convention received worldwide attention. The following year I wrote a radio play entitled "Shadow Over Long Island" which dealt with the threat of a nuclear power plant in the area and the effects of an accident. This also received quite a bit of attention.

4. 2600 is a quarterly journal which currently has approximately 4000 subscribers and another 60,000 newsstand readers. Our readers range from teenagers to college professors, corporate executives, universities, and intelligence agencies. Through this magazine, I try to create a forum to foster discussion and education about the workings, and failings, of our modern technical era. This includes such issues as security weaknesses, bad system design, privacy invasion, and corporate abuse of power. Examples of the magazine are attached hereto as Exhibit A.

5. While 2600 was fairly small in the early years, it has grown along with the public's fascination for all things computer related. It has been quoted and featured numerous times in such publications as The Wall Street Journal, The New York Times, and Newsweek, as well as on all of the major broadcast and cable networks. Some of the quotes are: "2600, a quarterly magazine named after the frequency of a dial tone that is the bible of hackerdom" (New York Times, June 14, 1998); "2600 Magazine, considered the hacker's bible" (USA Today, September 14, 1995); "a well-respected online hacker magazine" (The Washington Post, February 18, 2000). Representational clippings are attached hereto as Exhibit B.

6. It is important to understand that the terms "hacker" and "hacking" as used by and about 2600 are not pejorative, but refer to the original sense of the term "hacker" as a person experienced or expert with computers and Internet navigation who is imbued with a spirit of imagination, innovation and exploration. In the traditional sense of the word, for example, "hackers" include professional security experts used by major corporations and governments to test the security of systems.

7. I've also worked on WBAI radio in New York as both a reporter and radio producer since 1988.

8. WBAI has a worldwide reputation as a station where reporters thoroughly research stories and where commercial influence is nonexistent. My program "Off The Hook" examines issues of technology and freedom in depth once a week, and features an opportunity for listeners to call in to share their perspectives, comments and questions on the air.

9. I've participated in numerous panel discussions on computer and Internet-related issues through such organizations as Computers, Freedom, and Privacy, and Open Source Solutions. I have also appeared as an expert guest on issues such as freedom of speech on the computer era on numerous talk shows, including "The Charlie Rose Show," "Nightline," "60 Minutes," "Good Morning America," NPR's "All Things Considered" and "World News Now." I've given lectures at universities such as New York University, Seton Hall, the State University of New York at Old Westbury, and the State University of New York at Stony Brook. I've also testified in front of the Subcommittee on Telecommunications and Finance of the Committee on Energy and Commerce of the House of Representatives on issues of security and computers. A copy of my testimony is attached hereto as Exhibit C.

10. I organized two computer conferences in New York (1994 and 1997) sponsored by 2600 entitled Hackers On Planet Earth (HOPE) and Beyond HOPE, each of which drew more than 2,000 attendees from around the world. We have also organized and sponsored a third conference entitled H2K (HOPE 2000) on July 14-16 in New York, attendance at which is expected to exceed 4,000. Speakers at these conferences included such respected and established experts like Robert Steele, Bruce Schneier, and Brock Meeks in the world of technology, encryption, detective work, broadcasting, and privacy.

11. I've also written freelance pieces on a variety of matters for magazines and newspapers here and abroad, including for Newsday, The New York Times, and assorted Japanese, Dutch, and German publications.

12. Since 1998, I've been involved in producing and directing a documentary about the world of computer hackers and the case of Kevin Mitnick, who was imprisoned for five years and was recently released. I'm hoping to finish production of this project by summer and the movie is expected to be premiered at the H2K conference.

13. While I don't practice or condone breaking into computer systems, experience has shown us that such acts are an inevitable product of curiosity combined with new technology. Through the magazine and the radio program, I try to instill a sense of responsibility in those who may consider doing such things, so that they carefully think about their actions and don't cause any damage. I also try to instill a sense of reality into the mainstream so that the actions of such people are judged in a more even-handed way and so that people aren't sent to prison for relatively minor offenses.

14. I've never had occasion to use the DeCSS program myself -- I don't even have a DVD player. However, when it was posted to the Internet, I recognized the importance of such a program to a variety of disciplines, including reverse engineering an open-source DVD player, cryptography, and in aid of legal consumer fair use. I was quick to show support for its existence and to condemn the attempts at forcibly quashing such knowledge.

15. We have developed the Internet and the World Wide Web as powerful international technologies by sharing resources and pooling our knowledge to develop better capabilities. This is not served by controlling its use to the point of absurdity where people cannot play DVDs they have purchased unless they use selected players. Very few in a free-thinking society support such efforts to control technology since it goes against the customs we are used to. It's tantamount to not being allowed to read a book unless you have not only bought the book but have paid a fee for the right to read it as well as not being allowed to read the book at all in a manner not approved by the publisher or in a foreign country.

16. I have never sold a pirated copy of a DVD. I would not do it. I don't know anyone who would use DeCSS to do this. For one thing, it's a very inept way of copying a DVD. For another, DVDs have been copyable since their first release, and cheap pirated DVDs made by large-scale professional pirates operating overseas have been available for almost as long as DVDs have been in shops. What DeCSS is good for is to permit someone to view a DVD on their own computer or to watch a DVD that was bought in another country. All DVDs currently sold, including old films, have region codes which prevent them from being played on DVD players purchased in a different region. DeCSS is totally noncommercial and I know of nobody who has used this program for any financial gain, nor have I ever heard of such a case. I had occasion to ask one of the lawyers, Mark Traphagen, who helped write the Digital Millenium Copyright Act if he had ever heard of any such case and he had not. He was on a panel at Linux World in New York in January 2000. Thousands of people attended this conference and this was a pretty popular topic - everyone agreed that this was not a commercial application and that it was not developed for the purposes of fraud in any way.

17. There is, however, a great research value to the existence and distribution of DeCSS. The knowledge gained from this program will allow future programmers to develop better DVD players with more features and a wider audience, and in particular, to enable them to fast-forward through commercials or to the part of the movie they want to see, and to play DVDs from all over the world. It will also help plaintiffs improve their security. This is something we have taken for granted in other technologies, such as CDs and VCRs. Had they been crippled with such access controls, these technologies might never have developed to their full potential.

18. A legally purchased DVD can easily be played on a machine running Microsoft software or on a Macintosh computer. It is currently very difficult to play a DVD on a Linux machine since there is no "approved" player for Linux. Even if this changes and an approved Linux player equipped with proprietary CSS comes into existence, the same problem will continue to exist for other open-source operating systems and for Linux users who will decline to buy a closed-source application. In fact, this kind of thing will actively discourage new operating systems from being developed since they won't have the same capabilities as existing ones.

19. It is important to note that this entire issue is NOT about copying but rather about access. I believe it is entirely legal to use a DVD one has bought in a computer that one has bought. I oppose illegal copying but that has got nothing to do with DeCSS.

20. Our web site is www.2600.com and has existed since 1995. The 2600.com web site receives up to 50,000 unique visits per day (a unique visit is one that comes from a unique person - if the same person visits the site twice, that is only counted once). In 1999, 2600.comexperienced more than 3,000,000 unique visits; this figure is anticipated to increase to more than 5,000,000 for the year 2000. What we do is try to supplement the magazine's content with updated information that our readers would be interested in. This web site is an on-line supplement to the content published in the print magazine, with an emphasis on current news. It does not exist, as said in the injunction, to distribute illegal code. If we were interested in doing this, we could easily do a more efficient job and a less public one. The MPAA has already admitted that they cannot possibly shut down all of the mirror sites. By targeting our site, they illustrate the futility of their effort and show that this is largely a symbolic battle for them.

21. The sites containing DeCSS mirrors to which we currently link are very diverse in nature. Some of the sites have simply put the files up as a form of protest. Others explain exactly why they are doing this as a social commentary. Some are juvenile in nature, using a tone that we would not employ ourselves. Still others are operated by professionals who go into great detail as to what the programs do and how they are used. In addition, there are many mainstream media sites, such as The New York Times, San Jose Mercury News, CNN, Wired, and ZDNet, who have currently or in the past put up links that go directly to a list of mirror sites. While we try to keep 2600.com list up to date, not all the web sites on it actually mirror DeCSS. Finally, it is a trivial matter to simply enter "DeCSS" into any search engine and instantly receive a similar list of sites with the DeCSS program. A list of all websites on the 2600.com mirror list is attached hereto as Exhibit D. A sampling of some of these mirrored websites is attached hereto as Exhibit E.

22. There has been one very alarming consequence of the 2600 mirror list. I have been informed that the MPAA -- the trade organization of which the plaintiffs are members and which is the voice of the movie industry -- has been sending cease and desist letters to some or all of the websites on our mirror list. The letters, some of which are attached hereto as Exhibit F, are misleading and intimidating, since they suggest that the recipient "may" be subject to an injunction even though Plaintiffs know very well that the recipient is not. They are also sent to operators whose website no longer or never posted DeCSS, but was placed on the mirror list either by accident or because we were misled.

23. We became involved in this matter simply by showing support to the original developers of the DeCSS program who were being pressured to take it off the net back in November. As is the case today, there were many other mirror sites. We did not seek out publicity in this case; we merely added our site to the list of others showing support. By naming us in the injunction, the MPAA propelled us into the position we're in today. Had they picked others to do this to, we have no doubt they would be fighting the same battle in court with somebody else instead of us.

Dated: May ___, 2000
Setauket, New York

____________________________


[Robin Gross Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
ROBIN GROSS
IN OPPOSITION TO
PLAINTIFFS’ MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION
AND IN SUPPORT
OF DEFENDANTS’
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, ROBIN GROSS, declare under penalty of perjury that the foregoing is true and correct:

1. I am a staff attorney with the Electronic Frontier Foundation, a nonprofit organization founded in 1990 that works to protect civil liberties in cyberspace. I have been licensed to practice law in California since 1998.

2. I was invited to participate as a panelist at two sessions at an event entitled "E-Day@Yale: Commerce and Law in the Age of the Net" held on April 25, 2000 at Yale University in Linsley-Chittendon Hall, Room 101 (63 High Street, New Haven, Connecticut).

3. The event was attended by a wide array of individuals including legal scholars, law students, artists, computer science faculty and students, and university network administrators. I estimate that approximately 50-60 people attended the panel discussions.

4. A panel discussion exploring litigation under the Digital Millennium Copyright Act entitled, "In the Trenches: Reports from the DMCA Battlefield" featured Gregory Goeckner, Vice President & Deputy General Counsel for the Motion Picture Association of America, Kenneth Steinthal of the New York law firm Weil Gotshal & Manges, and myself. The panel’s moderator was Carl Kaplan, a cyberlaw columnist for The New York Times.

5. One of the questions Mr. Kaplan asked Mr. Goeckner during the course of the discussion was if the motion picture industry was aware of any evidence of piracy as a result of the development and distribution of DeCSS. To which Mr. Goeckner replied that he was aware of no evidence of any actual piracy attributable to DeCSS.

6. Mr. Goeckner also responded to a question regarding the public’s right to access data on a DVD for fair use purposes which was posed by an artist who stated that she often makes fair use of copyrighted materials in her art. Mr. Goeckner stated that alternate media, such as video cassettes, should be used instead of materials on DVDs, but confirmed the MPAA’s position that a license was required in order for the public to make fair use of materials on a DVD.

Dated : San Francisco, CA

May 1, 2000

_____________________________

ROBIN GROSS


[Lewis Kurlantzick Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
LEWIS KURLANTZICK
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND IN
SUPPORT OF
DEFENDANTS'
CROSS- MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, LEWIS KURLANTZICK, declare under penalty of perjury that the foregoing is true and correct:

1. I have taught a course in Copyright Law at the University of Connecticut School of Law for twenty-five years.

2. As a Law Professor, I have conducted research on the economic impact on original producers of unauthorized reproduction of intellectual and artistic works, in particular the reproduction of musical recordings. The results of some of that research on the positive and negative effects of copying appeared in an article in The Journal of the Copyright Society of the USA, "The Audio Home Recording Act of 1992 and the Formation of Copyright Policy," which was cited with approval by the Ninth Circuit Court of Appeals in Recording Industry Association of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1074 n.1 (1999).

3. A common error in assessing the financial effects of unauthorized reproduction is the positing of a one-to-one ratio between acts of copying and displaced sales. That is, the assumption is that each "pirate" sale and instance of home recording of music, for example, represents a lost sale by the original record company. But that assumption is erroneous and contrary to accepted microeconomic principles. If it costs a person less to reproduce a recording than it does to purchase an original, it does not follow that a person who home records will necessarily purchase the record if the home recording option is unavailable. The willingness to pay $2 for a product, whether a quart of orange juice or a musical tape, does not necessarily indicate a willingness to pay $6 for that product. Thus, generally a rise in the price of an item will result in a reduction of the amount demanded.

4. A similar rationale applies to DVD reproduction. Indeed, the case for lack of damage is more patent in this context. I have been advised by the defendants that, taking into account out-of-pocket expense and the time needed for the activity, it is currently considerably more expensive to create a copy of a DVD movie for sale using DeCSS (as opposed to the methods employed to create perfect copies employed by off-shore professional "pirates") than to purchase the original digital disk. Any rational consumer prefers to pay less rather than more for a product. Accordingly, he will purchase the DVD rather than incur the costs of reproduction.

Dated: May __, 2000

Hartford, Connecticut

_________________________________


[Eben Moglen Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
EBEN MOGLEN
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS- MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, EBEN MOGLEN, an attorney admitted to practice before this Court, declare under penalty of perjury that the foregoing is true and correct:

1. I am a Professor of Law and Legal History at the Columbia University Law School, with a particular focus in the areas of computer and internet law. Recent courses I have taught include Computers, Privacy and the Constitution, and Law in the Internet Society. A Curriculum Vitae setting forth my professional and educational experience is attached hereto as exhibit A.

2. In addition to teaching classes in internet law at Columbia Law School, I am also General Counsel to the Free Software Foundation, a group dedicated to encouraging the production of software that can be freely copied, improved, and redistributed by its users. I am also associated with the Electronic Freedom Foundation in this and related legal proceedings.

3. As a result of the above associations, I have become intimately familiar with CSS, DeCSS, and "piracy" of DVDs generally. It is my opinion that DeCSS is not presently and will not be commercially useful in the "piracy" or commercial copying of DVDs, although it is commercially useful, if not necessary, in the development of, for example, a Linux DVD player.

4. As plaintiffs' freely admit in, for example, the Declaration of Marsha King, they were aware from the start that CSS was a very weak encryption system that was certain to be cracked. That fact, and their response, which was to lobby for Congress to prohibit consumers from accessing the copyrighted materials resident on the DVD they have purchased. That is, rather than develop a better encryption program, the industry sought to create a legal barrier blocking consumer access to content that is unavailable to and indeed unheard of with respect to any other copyright media. Imagine telling a consumer that she can only read the book she just bought under a specially licensed lamp and in the order and manner dictated by the publisher, and that she would be breaking the law if she untied the string placed around the book by the publisher to block access to the pages within.

5. Thus, I conclude that the plaintiffs were not concerned so much with copying as with controlling access to the copyrighted materials. The former is, of course, prohibited by the Copyright Act, which offers a potent array of tools with which to attack and remedy infringing conduct. The latter has never and cannot be prohibited by the Copyright Act.

6. Similarly, the various web sites containing "mirrors" or copies of the DeCSS source code or which link to such web sites are not, based upon my examination of such sites, addressed to copying or piracy, or intended in any way to spread or encourage copying. Rather, these web sites are either technical or scientific in nature, and are focused on discussing such issues as source codes, reverse engineering, encryption, and the like. Or the web sites are "political," in that they contain DeCSS as a statement of support for open and unfettered dialog on the internet, and against what some perceive to be the attempt by the MPAA to silence them in their ownprovence: hyperspace. I do not believe that postings of DeCSS pose any real threat of copying or of the distribution of modes for copying DVDs.

Hyperlinking

7. Hypertext links, or Hyperlinking, is one of several ways of linking web sites on the World Wide Web. One of the major features hyperlinking is that so long as the URL (" "), the address of a web page, is known, the party at either end of the web link can establish the hyperlink.

8. Thus, while most of the technical representations in the Reply Declaration of Robert W. Schumann are accurate, they are misleading. The primary factual vulnerability in his treatment of links as "instructions" is that those "instructions" are completely ambiguous. For example, the literal URL for 2600.com reads as follows: "http://www.2600.com"; while that same URL including a link would read: "<href=http://www.2600.com">. To go to the literal URL identified above, a reader would have to highlight or select it with his/her mouse, copy to the "location" window in the browser being used, and press or click enter. To visit the same location using the linked URL, the reader has to click on the address. That is, one click instead of two or three.

9. Moreover, when I link a page on my website to a URL address at someone else's web server, I have absolutely no control over what will happen when the reader on my page follows that hyperlink. The hyperlink delivers control entirely to the foreign website that the hyperlink references: the same document can be delivered each time, or (as in the ad-servers like DoubleClick) a completely personalized decision can be made by the foreign web server about what to produce. Accordingly, two readers following a link from the my hypothetical website could receive two completely different results, depending entirely on how the foreign web server, which is not under my control, decides to respond after the server's software has taken account the identity of the linking party, where they have gone and what they have asked for in the past, and so on.

10. It is important to note, however, that the presence or absence of the <href> instruction does not determine whether a website address will be a literal URL or a hyperlink. This is because many of the browser, e-mail, or other programs used by internet consumers will identify a literal URL as a web address and automatically convert it into a hyperlink. Thus, even if the operator of a web site removes all of the <href> instructions with the intent of providing web addresses but not links, the reader visiting that web site may (and probably will) be using a browser that will automatically transform the addresses into hyperlinks, without the permission and despite the intention of the home web site operator.

11. In sum, hyperlinks are references rather than instructions, which may or may not be hyperlinks on the initial web server even if read as such by the foreign web browser, which are the means by which the person or entity operating the initial web site suggests that a reader enter into a relationship with some other speaker, but without determining the content of the resulting conversation.

Dated: April __, 2000

New York, New York

_____________________________


[Matt Pavlovich Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
MATT PAVLOVICH
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS- MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, MATT PAVLOVICH, declare under penalty of perjury that the foregoing is true and correct:

1. I attended Purdue University for four years before taking a leave of absence to work for a technology startup company. I am a former member of IEEE (Institute of Electronic and Electrical Engineers). Presently, I am the President of Media Driver, LLC., a consulting company that focuses on providing Linux video solutions to industry. I have extensive Linux-related experience, including as the Founder/Project leader of the Linux Video and DVD project (LiVid), a developer for Debian GNU/Linux, which distributes a Linux based operating system, and a developer of the GNU/Linux Alpha port, which permits Linux to run on Compaq/DEC Alpha microprocessors. I successfully lobbied numerous hardware manufacturers (including Matrox, Zoran, and Nvidia) to release specifications on chips so Linux could work on their hardware. I am an Eagle Scout.

2. DeCSS and especially its derivatives was and is essential to the development (former and continuing) of a Linux DVD player, and in this connection has a commercially significant purpose that is completely unrelated to circumvention of CSS or to copying. In particular, DeCSS was useful/necessary in analyzing -- that is, reverse engineering -- the algorithm used in CSS to encrypt DVD movies. Reverse engineering CSS was a necessary step in the larger project to reverse engineer DVD players equipped with CSS (for purposes of interoperability) to develop a Linux DVD player. Linux is a computing platform or operating system, for which there is no DVD movie playing application. Linux is currently the fastest growing operating system in terms of server market share.

3. The Linux DVD player in its current form (it is still under construction) is capable of providing reasonable video and sound when used on a Pentium II 400 (or faster) machine. The prototype Linux player can either play video at 30 frames per second or faster, or play the audio at full speed: the audio and video are very difficult to synchronize, and we have not yet been successful in doing so reliably. Although version .001 is not yet out, it is only a matter of time before the Linux DVD player becomes both commercially viable and commercially significant as a program that supports and makes the overall Linux Operating System more useful to consumers.

4. The reverse engineering undertaken to develop a Linux DVD player is also directly applicable (and necessary) to the development of DVD players for use on other open-source operating systems, such as NetBSD, OpenBSD, and FreeBSD. Furthermore, the Linux DVD player is designed in such a way that makes it trivial to 'port' to commercial operating systems, such as Sun's Solaris (R), Apple's OS X, Microsoft Windows(R) 98, 2000 and NT. The modular design and increased performance of the Linux DVD player makes it an attractive alternative to users of virtually every operating system currently running on main stream computers. Thus, a Linux DVD player will be able to compete with all players currently on the market and, because it can defeat region coding, permit fast-forwarding and allow fair use, offer consumers greater control and more use of DVDs they buy.

5. The Linux DVD player will be "open-source" and free of charge to consumers, as with most Linux open-source products. However, its commercial importance and viability stem from -- and will contribute to -- the overall growth of the Linux platform and other open-source products. This is particularly true because many companies see DVD playback as vital to choosing a platform, and because the specifications and guidelines developed for the DVD player will permit the development and introduction of other video-related applications.

6. The Linux player will be significantly more consumer-friendly and have a number of commercial advantages over current available DVD players. For example, it will permit consumers: (1) to play DVDs using the Linux OS; (2) to fast-forward through the several minutes of commercials that the plaintiffs in this lawsuit often put at the beginning of a DVD and can prevent consumers from skipping on existing DVD players by blocking out the fast-forward capability; (3) to play some foreign DVDs purchased in other countries, which CSS's "region coding" presently blocks; (4) to play movies more efficiently and with higher quality than on currently available DVD players; (5) more effectively utilize the current hardware found in most consumer PCs so that hardware upgrades would not be required in order to play DVD movies; (6) operate on computer systems of lower speed specifications than those required by currently available commercial products to operate, thus allowing a larger number of computer users (and, in particular, those with more dated equipment) to take advantage of DVD technology without having to purchase more expensive hardware; and (7) to do all of the above with a low or free operation cost.

7. I have been informed, though, that not only does CSS license prevent a player from fast-forwarding through those certain portions of a DVD that are marked "no fast-forwarding," including entire blocks of unsolicited advertisements, but also that the DVD CCA's license for CSS explicitly forbids its licensees from making a DVD player with that capability.

8. Apart from the DVD CCA's non-disclosure requirement, which is philosophically and technically unacceptable to the open-source/Linux communities because it requires that the CSS source code be hidden, cost is another major reason why many hesitate to license CSS to develop a Linux DVD player. I have been told (but I do not know first hand) that in addition to promising to preserve the secrecy of the CSS source code, a potential licensee must post a security of between $750,000 and $ one million, which would be forfeited if the licensee ever breached the license. Additionally, I have been informed that the DVD CCA, which I understand is a non-profit industry association, also apparently requires a 6% royalty on all sales. Finally, I was informed by an individual that his company's request for a CSS license was rejected because the company was "unknown."

9. Although DeCSS was a particularly useful tool in reverse engineering existing DVD players to create a Linux DVD player, it is essentially useless in making satisfactory and/or cheap copies of DVDs and thus useless to commercial piracy. Almost every pirated DVD sold on the street today are bit-by-bit copies (including CSS) mass-produced by professional pirates operating off-shore with professional equipment, but without utilizing DeCSS. Anyone hoping to use DeCSS to become an amateur "pirate," on the other hand, won't be making DVDs because (as discussed in more detail below) of the technical difficulties and high price of the necessary equipment and blank discs, which cost twice as much as a pre-recorded DVD. Amateur pirates will make illegal copies of movies for sale by filming a first-release movie in a theater or bootlegging VHS tapes. Theoretically, they could use DeCSS to get at the data on a DVD, run it through a program to reduce the volume of the data from more than five gigabytes to 650 kilobytes and burn that new "version" of the data onto a VCD or CD-R; one might also even copy the reformatted movie onto an analog VHS tape. Since one can only reduce the DVD data tenfold by removing a huge amount of data, the resolution and general quality of all such copies is very poor, comparing unfavorably with a high- resolution video cassette.

10. The Content Scrambling System (CSS) developed and licensed by the DVD CCA attempts to prohibit access to the data on a DVD in two ways. First, it uses a disc-locking utility (but only in computer DVD drives, not on home players) requiring the player software or a chip in the computer itself to exchange a "handshake" with the DVD. Second, and only after the DVD has been unlocked, the DeCSS utility decrypts the scrambled data on the DVD itself and the movies is permitted to play. DeCSS only allows the user to gain access to the unencrypted content; thus, the amateur "pirate" seeking to use the DeCSS he/she has downloaded from the Internet to copy DVDs must first find another utility to copy the data from a harddisk (or other large media storage device) to a blank DVD-R (very costly, explained below). Any effort to simply play the unencrypted content stored on a harddisk or other large medium would be futile, due to the fact that there is no known player that can play from anything but a DVD disk.

11. Even if this is done, and the data is stored to a hard drive, copying to DVD-Rs, as opposed to lesser quality VCDs or far more expensive hard-drives, is a very expensive project. DVD burners are, as a result of the industry's persisting failure to find a common standard, currently very rare and very expensive (about $5,000). And recordable DVD-Rs (which are also quite rare) cost at least twice as much as a new DVD ($30-$50), which itself cost at least twice as much as a pirated DVD. Additionally, you cannot copy a DVD onto the current DVD-R blank: it has a single side and a single layer and holds only 4.7 Gb of data, far less than the 6 or more Gbs of data on a double-layered DVD.

12. It is my opinion based on the fact that professional pirates can and are easily copying and selling many tens of thousands of copied DVDs around the world every day that the real function and intended use of CSS is to control and prohibit access to the information on the DVD: It is not an anti-copying device, it is an anti-playing device.

13. At the same time, other tools for copying movies from DVDs, such as DVD-Rip (a program that intercepts the decrypted DVD data stream and creates a freely copyable data file) and PowerRipper, are widely available, and were for months prior to the release of DeCSS. Additionally, they are the tools used when digital-to-digital (for instance, DVD-to VCD) copies are made from DVDs, because they're much easier to use than DeCSS.

14. I am not aware of anyone using DeCSS as a tool for pirating DVD movies; nor do I know of anyone who presently uses DeCSS to watch or copy movies on a Linux or other machine. In fact, during the development of the Linux DVD player, not a single request was ever made to any member of the LiVid project anywhere in the world for information on how to copy a DVD. Likewise, there has not been any efforts to extend the capabilities of the Linux DVD player to permit copying. Additionally, in contrast to a CSS-equipped DVD software player, the Linux player will enable consumers to watch DVD movies on their older system, rather than be required to buy more expensive hardware, because it uses hardware more efficiently. We anticipate that the Linux DVD player will function at full speed on a Pentium II-266Mhz machine, while competing applications require a Pentium II 400Mhz (or faster) CPU to achieve full speed playback.

Dated: April __, 2000

Dallas, Texas

_____________________________


[Pamela Samuelson Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022
(212) 826-5582

Attorneys for Defendant Eric Corley a/k/a
EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC., TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

ERIC CORLEY a/k/a
"EMMANUEL GOLDSTEIN" and
2600 ENTERPRISES, INC.,

Defendants

_______________________________________

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00 Civ. 0277 (LAK)

DECLARATION OF PAMELA SAMUELSON IN OPPOSITION TO PLAINTIFFS’ MOTION TO MODIFY THE PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANT’S CROSS-MOTION TO VACATE THE PRELIMINARY INJUNCTION

I, PAMELA SAMUELSON, under penalty of perjury, declare that the forgoing is true and correct:

1. I am a Professor of Law at Boalt Hall School of Law at the University of California at Berkeley. I have been a law professor since 1981. Prior to my tenured appointment at Berkeley, I was a Professor of Law at the University of Pittsburgh School of Law. Between 1977 and 1981, I practiced law as a litigation associate with the New York firm of Willkie Farr & Gallagher. I also served as the principal investigator for the Software Licensing Project at Carnegie Mellon University funded by a grant from the U.S. Department of Defense.

2. I am a graduate of Yale Law School.

3. In 1997, I was named a Fellow of the John D. & Catherine T. MacArthur Foundation. In 1998, I was recognized by the National Law Journal as being among the 50 most influential female lawyers in the country and among the eight most influential in Northern California. I was recently elected to membership in the American Law Institute and named a Fellow of the Association of Computing Machinery.

4. As a law professor, I have undertaken extensive analyses of the impact of digital media on traditional concepts of copyright law. I have published more than thirty law review articles on this and related subjects, including publications in the California Law Review, Columbia Law Review, Michigan Law Review, and Stanford Law Review, as well as being co-author of a recently published book on "Software and Internet Law" (Aspen Publishing 2000). In addition, I have published approximately sixty other articles on digital intellectual property issues in a range of other publications, including the Washington Post and two computing professional journals, Communications of the ACM and IEEE Software. Among my recent publications in this area is a detailed analysis of the Digital Millennium Copyright Act’s anti-circumvention

provisions: "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised" in the Berkeley Technology Law Journal (1999). A copy of that article is annexed hereto.

5. My analysis of the Digital Millennium Copyright Act (DMCA) reveals that the plaintiffs and this Courts previous view of the DMCA is incorrect. I will draw upon established principles of copyright law as well as the legislative history of the DMCA to show why this is so.

6. The DMCA was enacted by Congress to implement the World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty) signed in Geneva by the administration in December of 1996. In particular, the DMCA implemented a provision of the WIPO Copyright Treaty that called for the adoption of "adequate protection" and "effective remedies" against circumvention of technical protection measures used to protect copyrighted works in digital form against piracy.

7. Although both the WIPO Copyright Treaty and the DMCA seek to regulate the circumvention of technical protection measures per se, they do so only as an adjunct means of regulating copyright infringement, which is made easier by digitization of copyrighted works. The DMCA should, therefore, be understood as a copyright infringement statute, which has some special features that respond to the challenges of digital works. Its provisions must therefore be interpreted in harmony with the other provisions of the Copyright Act of which it is an integral part. The integral nature of the anti-circumvention regulations with copyright is also apparent from the name of the statute ("Digital Millennium Copyright Act") and from the treaty it implements (the "WIPO Copyright Treaty")

8. The complex dynamics of the DMCA drafting process produced anti-circumvention provisions that have been recognized by many commentators as ambiguous, contradictory, needlessly complex, and/or incomplete in significant respects. The National Academy of Sciences, for example, recently published a report entitled "The Digital Dilemma: Intellectual Property in the Information Age" which offers a number of criticisms of the DMCA’s anti-circumvention regulations. Excerpts of that report are annexed hereto.

The central reason for the complexity of the DMCA’s anti-circumvention regulations is that the Clinton Administration initially proposed legislation that contained sweeping prohibitions against circumvention and circumvention tool-making activities. The Senate Judiciary Committee, the House Commerce Committee, representatives of library and educational institutions, Silicon Valley businesses, and other stakeholders in the digital economy, as well as various public interest groups and copyright scholars recognized that the proposed prohibitions were too broad, would upset established copyright principles, and would adversely impact the interests of both the high-technology sector and the public. The input of these groups resulted in the introduction of several specific exemptions and other qualifications to this otherwise overbroad law. Unfortunately, this patch-making process did not allow for a comprehensive or elegant articulation of the interplay between the anti-circumvention regulations and the copyright infringement laws that they were designed to support. The court is directed in this regard to both the legislative history of the DMCA and my BTLJ article annexed hereto.

9. Given this background, it is not surprising that this court was confused about the proper interpretation of the interplay between the anti-device provisions in section 1201(a)(2) and various exceptions and limitations in the DMCA.

10. For instance, this court has interpreted the interoperability exception of the DMCA, section 1201(f), as though the DMCA only allows achieving interoperability of computer programs with other programs. With all due respect, this provision should not be read so narrowly. Computer scientists know that the distinction between programs and data is highly artificial. Moreover, the interoperability of computer programs with various types of data is equally critical to the development of new technologies and the lawful use and enjoyment of copyrighted works - issues at which the provision is aimed. Consider, for example, that Microsoft Word includes a file format conversion program enabling its users to read documents sent to them in Word Perfect format; this program must interoperate with data to achieve this function. Consider also that Microsoft recently had a dispute with AOL about its desire to achieve interoperability with AOL instant messaging data, and when AOL tried to technically protect its instant messaging service, Microsoft cited the need to achieve interoperability as a reason for bypassing this protection. The issue of platform conversion (interoperability of programs with data) presented in this case is directly within the spirit and purpose of the interoperability exception. With due respect, the court’s uncritical reliance on the narrow confines of the provision is misplaced. The peculiarities of the drafting process, and the difficulty of predicting technological developments within the confines of Congress, resulted in inadequate consideration of the full range of reverse engineering activities that might take place. Unlike Congress, the courts have both the insights provided by subsequent technological developments and the leisure to take a holistic view of how the DMCA fits into the Copyright Act. They are thus competent to undertake a purpose-oriented rather than an overly technical interpretation of the DMCA.

11. Although the anti-device provisions in 1201(a)(2) are new to the courts, attempts by copyright owners to control infringement-enabling technologies are not. The U.S. Supreme Court in Sony Corp. of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984) established the rule that copyright owners only have the right to control infringement-enabling technologies if they lack "substantial non-infringing uses." During the legislative struggle over the anti-circumvention provisions, Congress added a provision to the DMCA intended to preserve this standard by including section 1201(c)(2) in this law. Insofar as DeCSS has a substantial noninfringing use, such as the enablement of platform conversion, it should be permissible under both Sony and the DMCA.

12. In addition, the court’s earlier interpretation of the application of the fair use provision (section 107) of the Copyright Act to section 1201 needs to be rethought. Consider this example. Suppose that a U.S. citizen goes to France and buys a DVD movie in France, takes it home to New York City, and tries to play it in his DVD player. Upon discovering that it doesn’t work because of a country-based coding system in the disk, our New Yorker has only two choices: either to throw away the DVD for which he paid good money or write or use a DeCSS program to enable him to play the DVD movie he purchased in France in the privacy of his own home. Under the court’s previous interpretation of the DMCA, this would violate 1201(a)(2). This is not a plausible interpretation of the statute. This kind of private use activity does no harm to the copyright owner of the DVD and is not the type of piracy-enabling activity that the DMCA anti-circumvention provisions were intended to reach. Or consider the plight of a copyright owner who suspects that an infringing copy of her work is contained inside a cryptographic envelope. There is no exception in the DMCA explicitly allowing the circumvention of an access control, or making a tool to circumvent access controls, in order to determine if an infringing copy of a protected work is contained therein. Under the court’s prior interpretation of section 1201, this copyright owner would violate the DMCA. However, reading whole of section 1201, it becomes apparent that courts can invoke sections 107 and 1201(c)(1) to permit such fair use circumventions.

13. To read the DMCA in the manner proposed by the court would render section 107 and most of the privileges of section 1201 virtually meaningless. If owners of copies of copyrighted works do not have the ability to circumvent technical protection measures in order to make fair uses of protected material, fair use itself would cease to exist simply by virtue of the existence of technical protection measures. Similarly, if individuals do not have the ability to make circumvention tools to enable permissible acts of circumvention, they will, as a practical matter, be unable to engage in even explicitly permissible acts of circumvention under section 1201(c)-(j), let alone in fair use. Congress should not be understood to have created meaningless exceptions and limitations on the rights of copyright owners to use technical protection systems. Section 1201(c)(1) was included in the DMCA to enable courts to craft appropriate rules about fair use circumventions and tool-making. Although a technical, overly narrow reading of the provision could lead to a conclusion that section 1201(c)(1) merely states that the presence of a technical protection measure does not itself obviate fair use, such an interpretation is misguided, for the same reasons that a narrow interpretation of the interaction between section 107 and the DMCA provisions is misguided.

14. Another example will serve to illustrate the practical absurdity of an overbroad interpretation of section 1201 as regards free speech and free press issues. Suppose a journalist, in seeking to expose the hazardous practices of a nuclear power facility, received an encrypted diskette containing details of inadequate company safety procedures. In order to access the material on the diskette and to include fair use excerpts of the information in her story, the journalist may need to ask a computer programmer to write a program to decrypt the diskette. Under the court’s interpretation of the DMCA, both the journalist and the programmer would have violated section 1201.

15. An overly strict, technical reading of the DMCA would seriously threaten freedom of speech. It does so not only by ignoring the communicative aspects of writing and sharing computer code per se, but also by restricting activities which, like in the example above, involve traditional forms of expressive activity. Indeed, the provisions of the DMCA itself counsel against any interpretation that would adversely affect free speech. Section 1201(c)(4) specifically states that nothing in section 1201 shall diminish the rights of free speech or the press. During the legislative struggle over the DMCA, Congress added this section to the anti-circumvention regulations because it recognized the potential for the anti-circumvention regulations to interfere with free speech rights. It gave courts the tools with which to protect free speech interests in an appropriate case.

16. Additional real-world examples will more adequately highlight the conflict between the court’s interpretation of the DMCA and speech activities. Under the terms of the court’s injunction, writing and posting on the Internet an article that explained how to circumvent the CSS system would be illegal. Linking to such an article would also be illegal. The DMCA was never intended to prohibit these kinds of activities, and to do so would undermine established principles of copyright law as well as threaten speech, learning and technological progress.

Executed on May 03, 2000
_______________________________

Pamela Samuelson  


[Bruce Schneier Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
BRUCE SCHNEIER
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS- MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, BRUCE SCHNEIER, declare under penalty of perjury that the foregoing is true and correct:

1. I am currently the chief technology officer of Counterpane Internet Security Inc., and I have been employed in that position for the past year. From 1993 to 1999 I was President of Counterpane Systems, a cryptography consulting company. I am also a cryptographer and an author of one of the five encryption methods under consideration to become the United States' Advanced Encryption Standard. Information about me can be found at Counterpane.com.

2. The entertainment industry knew, even as it implemented it, that the security system created to protect DVDs would be broken, and they expected the Internet be used to distribute programs that assist skilled consumers to remove the copy protection on DVDs and play and edit, and (with great difficulty) copy them.

3. The protection scheme is seriously flawed in several ways.

4. DVDs are encrypted with Content Scrambling System ("CCS"), a very weak program with a very weak 40-bit key which is based on a weak algorithm. Every DVD player, including hardware consoles that plug into your television and software players that you download to your computer, has several unlock keys, which are used to unlock the decryption key on each DVD. A DVD has 400 copies of the same unique decryption key, each encrypted with every unlock code. Note the global secret: if you manage to get one unlock key for one player, you can decrypt every DVD.

5. Thus, the encryption part of security system was known by the industry to be easily deciphered. The software player eventually gets the decryption key, decrypts the DVD, and displays it on the screen. That decrypted DVD data is on the computer, or it could not be displayed on the screen. No matter how good the encryption scheme is, the DVD data is available in plaintext (the CSS having already decrypted it) to anyone who can write a computer program to take it. And so is the decryption key. The computer has to decrypt the DVD. The decryption key has to be in the computer. So the decryption key is available, in the clear, to anyone. It's protected by an unlock key, but the reader has only to unlock it.

6. The entertainment industry knew this was a problem, but failed to come up with a viable solution. Instead, DVD software manufacturers were supposed to disguise the decryption program, and possibly the playing program, using some sort of software obfuscation techniques. This is a technique that has never worked: there is simply no way to obfuscate software because it has to be on the computer somewhere, and is thus accessible to researchers, people engaged in reverse engineering, and the like.

7. In fact, it is not possible for a software program of this kind effectively to protect content at all. One can distribute encrypted content. But, in order for it to be read, viewed, or listened to: (a) encrypted content must be turned into plaintext; and (b) if it must be turned into plaintext, the computer must have a copy of the key and the algorithm to turn it into plaintext; so that (c) a programmer with adequate tools will always be able to reverse-engineer the algorithm, get the key, or just capture the plaintext after decryption. In fact, this kind of scheme could only work if the entertainment could hard-wire its content channel directly to the consumer's monitor; but even then it would be susceptible to reverse engineering. In sum, digital content protection just doesn't work.

8. An effort to ban reverse engineering in this context is not only dangerous as a potential threat to scientific and encryption research, as a disincentive to innovation, and as creating a grave inconsistency within the Copyright Act, but it would also be futile. A programmer can reverse engineer from anywhere and post the results so that they are available worldwide.

9. Finally, as a matter of basic computer and cryptological science, the DVD break consisting of, among other utilities, DeCSS, is a very good thing. It is good research, illustrating how bad the encryption algorithm is and how poorly thought out the security model is, and must be available to cryptologists, programmers, and others as a research and intellectual tool through the normal channels -- including, but not limited to, posting it on the internet. What is learned here can be applied to making future systems stronger.

9. In this regard, I believe that any restriction on linking on the internet would be extremely dangerous. The internet has become what it is, in part, because of hyperlinkg. Huge amounts of information are accessible to anyone who looks for it; an almost unlimited variety of opinions are expressed on millions of web sites; and for scientists, linking makes the free and open exchange of information with other scientists, academics, and any interested persons much simpler, broader and effective. Just as a ban on reverse engineering would seriously limit the kind of innovation that has made the Internet so powerful and vibrant, barring hyperlinking would have a very negative impact on the flow of ideas and information on line.

Dated: April __, 2000

San Jose, California

__________________________________


[Barbara Simons Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
BARBARA SIMONS
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, BARBARA SIMONS, declare under penalty of perjury that the foregoing is true and correct:

1. I am presently the President of the Association for Computing Machinery ("ACM"), a position I was elected to hold in 1998. ACM is the oldest educational and technical computer society in the world, with about 80,000 members internationally. Prior to becoming president, I chaired ACM's U.S. Technology Policy Committee (USACM), which I also founded. As President of the ACM, I submitted comments regarding the anti-circumvention provisions of Section 1201(a) of the "Digital Millenium" amendment to the Copyright Act ("Section 1201"). A copy of this letter is attached hereto as Exhibit A, and can be found at:

http://www.acm.org/usacm/copyright/dmca.exemption.htm.

I was also one of eight presidents of professional societies -- the American Association for the Advancement of Science, American Association of Artificial Intelligence, American Mathematical Society, American Statistical Association, Association for Computing Machinery, Computer Research Association Society for Industrial and Applied Mathematics, and The Institute of Electrical and Electronics Engineers-USA who signed a letter regarding the Section 1201 to Senator Orrin Hatch in September 1998. A copy of that letter is attached hereto as Exhibit B and can be found at:

http://www.acm.org/usacm/copyright/presidents-letter-998.html

2. Prior to being elected President of ACM in 1998, I chaired ACM's U.S. Technology Policy Committee (USACM), and the ACM Committee for Scientific Freedom and Human Rights. I was elected Secretary of the Council of Scientific Society Presidents (CSSP) in 1999, and have been on the CSSP Board since 1998. I have also been a member of the U.C. Berkeley Engineering Fund Board of Directors since 1998. I am a Fellow of ACM and of the American Association for the Advancement of Science.

3. I earned my Ph.D. in computer science from U.C. Berkeley; my dissertation solved a major open problem in scheduling theory. I became a Research Staff Member at IBM's San Jose Research Center (now Almaden), where I did research on scheduling theory, compiler optimization, and fault tolerant distributed computing, and received an IBM Research Division Award for my work on clock synchronization. I then joined IBM's Applications Development Technology Institute and subsequently served as senior technology advisor for IBM Global Services. I hold several patents and have authored numerous technical papers.

4. The University of California, Berkeley will present me with the Distinguished Alumnus Award in Computer Sciences and Engineering in May, 2000. I was selected by c|net as one of its 26 Internet "Visionaries" and was named one of the "Top 100 Women in Computing" by Open Computing. I have received the Norbert Wiener Award from the Computer Professionals for Social Responsibility, and the Pioneer Award from the Electronic Frontier Foundation; Science Magazine featured me in a special edition on women in science in 1992.

5. Currently, I serve on the President's Export Council's Subcommittee on Encryption, and I have been a member of the Information Technology Working Group of the President's Council on the Year 2000 Conversion. I have testified before both the U.S. and the California legislatures and at government sponsored hearings on cryptography, medical privacy, authentication for access to on-line records, and intellectual property on the Internet. My complete Curriculum Vitae is attached hereto as Exhibit C.

6. I make this declaration because I believe that the right to post and conduct discussions about DeCSS (an application which can be used to decrypt Content Scrambling System ("CSS"), the encryption software for DVD movie disks) and similar "security systems" for copyrighted materials is very important to the entire academic and scientific enterprise. Participants in this enterprise, including academics, scientists, professionals, hobbyists, amateurs and more, rely on the freedom to exchange information. Over the past years, the internet has become an increasingly important medium for the exchange of ideas and information, providing interested parties with access to thousands of different web sites publishing a multitude of ideas and speech. Many web sites address matters of concern to the academic and scientific enterprise and provide an easily accessible, widely available forum for the exchange of ideas. I believe that freedom of speech on the internet is crucial to this enterprise, including speech such as the DeCSS source code.

7. Freedom to speak without restraint is especially vital to research and development projects. For example, I understand that there are on-going development projects that were undertaken in order to build a DVD player to play legally purchased DVDs on open-source operating systems (such as Linux).

8. I do not believe that posting or linking to DeCSS poses any real threat of leading to copying DVDs or to the distribution of modes for copying DVDs. The primary commercially relevant or viable "purpose" for DeCSS of which I am aware is as a useful tool (itself reverse engineered) to use on the larger reverse engineering project of building a universal DVD player.

9. The current legal DVD battle between the movie industry and the free/open software communities over DVD is a microcosm of an ongoing dispute about intellectual property generally. This dispute pits intellectual property owners against such diverse groups as programmers opposing restrictions on reverse engineering and the publication of computer code and librarians opposing new restrictions on copyright rights of first sale and fair use.

10. One of the reasons that the myth of a Norwegian teenager's breaking CSS took hold is that CSS is amazingly weak. CSS uses only a 40-bit key, a length known to be breakable in a few minutes. It also employs a proprietary algorithm, rather than one that has been extensively tested in the public domain. The copy protection system relies heavily on obfuscation which, together with the carelessness of at least one licensee, appears to have created additional opportunities to break the system. Another reason was the reaction of the online community. I have been informed that a large number of internet citizens downloaded DeCSS during the first week it was posted (many, I believe, in order to have it if the source code was ever enjoined). The reaction to the arrest of the Norwegian teenager who originally posted DeCSS and the lawsuits filed by the DVD CCA and MPAA was equally immediate, and led to thousands more people downloading DeCSS and/or creating mirror sites of the program.

11. Foreknowledge of and concerns about the vulnerability of this protection scheme appears to have been a motivating factor for extensive lobbying by Hollywood and the DVD manufacturers on behalf of the anti-circumvention component of Section 1201. There have been reports that the Film Industry, working in concert with computer and consumer electronic companies, arrived at a unique solution: it submitted strict Anti-Circumvention legislation to Congress in the hopes of having Congress pass a law to criminalize products or actions that would bypass the copy protection system.

12. The DVD Copy Control Association (DVD CCA) was created in December, 1999 that is, several months after DeCSS was developed and it was first posted it on the Internet -- to issue licenses. I have been informed, and it is my understanding, that to obtain a license, one pays a fee and signs an agreement pledging not to produce non-compliant machines or to reveal the copy protection scheme. The Linux community was divided: CSS had to be dealt with if a Linux DVD player were to be developed, but how to handle the licensing issues? One group, LSDVD, has been working on a licensed DVD player; another, LiViD, is working on creating a free open source version of DVD for Linux.

13. This case was brought by the eight largest movie studios based on the Section 1201. In the California case, the plaintiff DVD CCA filed a copy of the DeCSS source code it has claimed in that case is a trade secret. Although the Court file of the now-notorious "Hoy Declaration" has since been sealed, a number of people reviewed it and posted it on the internet (for example, at http://cryptome.org/dvd-hoy-reply.htm#Exhibit B ). It's even available on a T- shirt (at http://copyleft.net/cgi- in/copyleft/t039.pl?1&back)!

14. I am informed that many of those involved with breaking CSS say they did so to make it possible to play DVDs on Linux and other free/open-source based operating systems, and I am aware that such projects are currently underway. Although the plaintiffs in this case appear to believe that the Section 1201 prohibits almost all reverse engineering of copy- protection systems, that is not the case. For example, reverse engineering for interoperability is specifically exempted from the Section 1201's anti-circumvention provisions. I believe that this exemption would directly apply to the use (or publication) of DeCSS as a step in or part of a project to build a DVD player for use on the Linux and/or other open-source platforms.

15. The plaintiffs in this and the California action have never accused anyone of using DeCSS to make illegal copies of DVDs. However, the latest motion filed by the New York plaintiffs seeks to prohibit the New York defendants' providing hyperlinks to web sites from which DeCSS could be downloaded. Barring hyperlinks is a frightening prospect. I believe that if this Court were to prohibit the defendants from linking to web sites that post DeCSS, not only would it restrain an extraordinary amount of speech in addition to the DeCSS source code, but it would have no impact on the copying the MPAA claims will surely follow from DeCSS: all of the linked-to web sites with DeCSS will still be on the internet. In this regard, I will note that DeCSS is not a prerequisite for making illegal copies, since other CSS descramblers exist and are available on the internet. Further, I do not believe that CSS was primarily intended to prevent illegal copying of DVDs: given the weaknesses of the DVD copy protection system, it was, as the DVD CCA was aware, only a matter of time before CCS would be broken.

16. I am personally familiar with problems related to the ease of copying digitized material in connection with the Association for Computing Machinery's digital library, which is financially successful even though our copyright policy allows unlimited non-commercial copying. I do not claim that the proportionally smaller scale model of a not-for-profit professional society is directly applicable to the DVD industry. However, given that experience, and the fact that, to the best of my knowledge, the industry has historically made a number of claims about copying that are unsupported by objective studies, I believe the Movie Industry's present claims that their survival depends upon a reading of the Section 1201 that would prohibit any access to the copyrighted work in its digital DVD format, even by the consumer who purchased it, is unsupported.

17. Our scientific and technological success as a nation has relied heavily on the "fair use" of copyrighted materials. For this reason, and because of our interest in and concern about education, ACM has strongly supported consumers' rights under the Copyright Act, and in particular, the fair use right. It is clear to me that if such rights are not preserved as essential, if the plaintiffs in this case are permitted to use Section 1201 to ban any utility that negates CSS and permits noninfringing access to copyrighted works, essential rights such as fair use will be limited to a small technological elite. If such utilities are not generally available, then only persons technologically skilled enough to create the requisite tool will be able to exercise their fair use rights; the rest of the world will not. That cannot be the intention of Section 1201.

Dated: April __, 2000

Palo Alto, California

_________________________________


[Frank Stevenson Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
FRANK STEVENSON
IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, FRANK STEVENSON, declare under penalty of perjury under the laws of the United States of America that the following is true and correct:

1. My name is Frank A. Stevenson and I live in Oslo, Norway. If called upon to do so, I would competently testify to the following facts:

2. I am a computer research programmer employed by Funcom Oslo AS. I have 18 years experience in programming, and more than 6 years experience with cryptography. I have been practicing research and development in DVD encryption in particular for six months. My main interest in this endeavor is cryptographical, but as a participant on the LiVid project mailing list (a forum dedicated to providing Video and DVD playback capabilities to the Linux computing platform) I also have a great deal of experience in the mechanics and technology of playing DVDs on computers that are not equipped with DVD players licensed by the DVD CCA, in part by using programs that negate CSS. A copy of my Curriculum Vitae is attached hereto as Exhibit A.

3. I have given cryptographical services to RF-Rogaland Research (http://www.rf.no). To the best of my knowledge I am the first that publicly disclosed cryptonalysis on the CSS ciphers.

4. There are at least 4 programs in wide circulation that uses CSS ciphers. These are the "DeCSS" program, the "anonymous source," and the LiVid-developed css-auth, css-cat. LiVid members cooperatively wrote css-auth and css-cat.

5. "DeCSS" is a Windows program written outside the LiVid team, it's origin is frequently asserted to be Norwegian or German, and it was first posted on the Internet by a Norwegian teenager named Jon Johansen.

6. The only "purpose" for DeCSS of which I am aware is for reverse engineering. It was developed by programmer members of MoRE Masters of Reverse Engineering (Jon Johansen, is a MoRE member). MoRE then supplied the utility to members of the international team working on developing on an open-source/Linux DVD player to use in the reverse engineering that was a key aspect of that program.

7. The "anonymous source" is a short section of source code that describes all the css cipher modes of operation required to decrypt a DVD movie. It cannot be executed as a program. To the best of my knowledge, the origin of the "anonymous source" is completely unknown. There exists no effective means for establishing who the author is.

8. Css-auth is a Linux/BSD program written by the LiVid group. When running it will perform the authorization to the DVD drive, enabling the reading of a hidden block of data. This hidden block of data contains (a) a list of title keys encrypted under various disk keys; (b) a hash (checkSUM) used to verify the title key.

9. Css-cat is a Linux/BSD program developed by the LiVid group. It is capable of decrypting the bulk of movie data after authentication. Css-cat has in part been based on the "anonymous source."

10. Together, Css-auth and css-cat, which are distributed as source code, are functionally equivalent to DeCSS.exe.

11. These CSS-related programs I have described, together with information posted on my and other web sites, provides means for deriving a set of 400 player keys using only a purchased DVD movie, rather than a DVD player, as source of the keys.

12. I regularly publish my crypto-analysis results on the net to share with other researchers and aid in the development of encryption education, computer security, and platform interoperability. The Web site on which I originally published my work about the DVD CSS system is: http://crypto.gq.nu/. The postings I published included a very detailed cryptoanalysis of CSS and its weaknesses, as well as the original anonymous posting of the CSS algorithm and the source code. After the Court handling the California trade secrets case issued an injunction barring posting of DeCSS, however, I stopped publishing my work on this site and replaced it work with links to a variety of other relevant sites. I took this action even though the injunction did not apply to me because I wanted to ensure that the DVD CCA or MPAA would not go after my web site.

13. I, and almost everyone else who was involved with LiVid, or who was interested in and/or concerned about CSS and playing DVDs, posted all our findings to easily accessible web sites. To my knowledge, DeCSS and similar CSS descrambling programs have been available to any interested person with a working knowledge of the internet and Web, and how to utilize search engines, since at least mid-October, 1999.

14. In addition to the CSS-related cryptoanalysis and the other informational papers that I have already published on the internet, I plan to publish a paper concerning the cracking of CSS and the development of video and DVD playback capacity for Linux machines in an academic and/or industry-related journal. I think a paper about the efforts of the LiVid forum and other related and unrelated individuals in connection with CSS and DVDs will provide extremely useful information for a wide variety of individuals, scientists, and academics, including cryptologists and persons interested in the DVD media. Of course, it would be absurd not to include the DeCSS source code in the text of such a scholarly publication; publication of the source code is essential.. However, I have been informed that including the DeCSS source code could conceivably be treated by the plaintiffs in this case as a violation of § 1201(a)(2) of the Copyright Act. This possibility amazes and confounds me, as it is against every existing standard of scientific and scholarly discourse.

A Brief Response to the Reply Declaration of Robert W. Schumann

15. I must point out several important errors, misstatements, and/or misleading statements about DeCSS and Linux that I found in the Reply Declaration of Robert Schumann. 16. Paragraphs 6 through 8 of Schumann's Reply Declaration lack historical background: prior to the release of the DeCSS source code, one had to undertake several steps to play a DVD on a Linux machine: (1) boot the machine into Windows, insert the DVD and decrypt with DODsripper (a utility that pre-dates DeCSS and decrypts CSS); (2) boot the machine back into Linux; and (3) try to play the files previously save onto the Windows hard disc. The DeCSS source code enabled playback of a DVD on a Linux machine without undertaking the above steps.

17. Schumann's claim in ¶ 9 of his Declaration that no fully functional Linux DVD player exists is at best partially true: while certain navigational features are missing (and being developed), and achieving a good sync between the video and audio elements quite complicated, DVDs have been playable on Linux machines since October 1999.

18. Schumann's claim in ¶ 10 that DeCSS was the first utility that permitted decryption of CSS is incorrect: DODsripper predates DeCSS. Moreover, PowerRipper is a Windows program that enables the digital signal from a Windows DVD player to be diverted and copied.

19. While Schumann's claim in ¶ 12 that DeCSS and DODsripper were initially developed "outside" the Linux community -- the identity and location of the person who developed DeCSS, as well as the operating system he/she uses, is still unknown -- may (or may not) be true, it is more important to note they were both valuable resources in the development of a free Linux DVD player. Schumann's statement in ¶ 14 of his Declaration similarly misses or ignores the development value of these utilities.

20. Finally, Schumann should know what probably prompted the authors of DeCSS to use some level of protection in hiding the CSS keys embedded in DeCSS: fear that the DVD CCA would revoke those keys. In any event, as Schumann must know, the authors released the full source code of DeCSS, which makes the protection of the executable Schumann discusses in ¶ 13 of his Declaration irrelevant.

DeCSS is Not Being Used To Copy and Distribute Copies of DVD Movies

21. Notwithstanding the easy availability of these cost-free programs to any interested individual or group in the world, I am unaware of anyone's having used DeCSS to copy a DVD, or, apart from testing it, regularly to play DVDs. To date, although, as explained below, the technology exists to make either expensive or poor-quality copies using DeCSS, I've seen no direct evidence indicating any commercial piracy using that utility. In part, I believe this is because "pirates" who wish to sell movies need to put them on media that is convenient for distribution. The only such media currently widely available is a DVD. The target market of consumers to whom to sell pirated DVDs, however, is made up exclusively of persons with DVD players, which already are capable of descrambling CSS. Instead of using DeCSS, today's commercially active pirate simply "stamps" the encrypted DVDs (i.e., makes a bit-by-bit copy of all of the information on the DVD, including the CSS) and sells them. Indeed, this is the only piracy I am currently aware of involving DVDs.

22. This is because in order to make a commercially useful copy of a DVD movie, the content must be (1) placed on a DVD disk; and (2) the costs of the equipment needed to make the copies and the media blanks must be sufficiently lower than the cost of a new DVD to make the copying worthwhile. Currently, not even taking into account the "overhead" costs of the equipment and time needed to set up to make copies for sale, recordable media blanks are at least twice as expensive as pre-recorded DVDs. More importantly, even if the price of recordable DVDs is lower than that of pre-recorded DVDs in the future, consumer DVD blanks can only hold 4.7 Gb of data, while the output of DeCSS for most movies is 6 Gb or more. For this reason DeCSS is not even usable for small scale copying of movies on the DVD media.

23. Bit-for-bit copying, which precisely duplicates the content of one DVD on another DVD, results in a fully-playable product. DVD copying in the bit-for-bit form can be done using industrial equipment slightly modified from that used for bulk pressing of audio CDs. The result is inexpensive enough that press reports disclose that pirated DVDs of US first-run movies are on sale in Hong Kong arcades for roughly $4.00. In fact, The International Intellectual Property Alliance ("IIPA") , of which plaintiffs' Motion Picture Association of America is a member (see http://www.iipa.com/html/iipa_members.html), reported in 1998 that large-scale pirate operations have been actively bulk pressing bit-by-bit copies of DVDs in Taiwan and Hong Kong since as early as April 1998. A copy of the 1998 IIPA report on Hong Kong is attached hereto as Exhibit B, and at http://www.iipa.com/html/rbc_hong_kong_301_99.html.

24. It is important to note that it is has been possible to make reduced-quality copies of DVD movies -- on, for example, VCDs -- in a variety of ways, with or without DeCSS, since shortly after the introduction of the DVD. The fact that several methods of descrambling CSS in order to play (or copy) DVDs that work as well as DeCSS have been available for some time prior to the release of DeCSS, only underscores the fact that DeCSS is not an enabling technology for piracy, but a utility useful to the reverse engineering of the DVD player application. Thus, hopeful "pirates" could have turned to DODsripper, Windows Ripper, PowerRipper, ATI capture cards, and the like well before DeCSS was ever posted on the internet.

25. In contrast to the professionally stamped pirate discs described above, however, making perfect home copies of DVDs onto DVDS using DeCSS or similar means is not economically viable and doesn't make any sense. No readily-available removable home computer storage medium can store the amount of data represented by a full-length feature film. For comparison, such a film would require roughly 6,000 floppy disks or 60 zip disks. No personal computer in the US or elsewhere in the world is presently on sale with a drive that can write to a DVD. There is a format called DVD-RW, but this is somewhat misleading because a DVD-RW disk cannot be played back in a DVD player.

26. Neither of the two current alternatives to DVDs for storing and distributing copied movies are very convenient. Hard drives are not only rather expensive, typically more than $100, and they are difficult to mover around, can only be played back on or through a high-end computer, and there are technical limits arising out of power supply, heat generation and connector issues on to how much hard drive space you can have on a computer. DAT tapes, although they can store a great deal of data are used primarily to back up data where data is streamed in sequence to or from the tape. Since playing a DVD movie requires access to any part of the movie files at any time, one would have to copy the entire movie onto the hard drive before viewing it. Playing a movie directly from DAT has serious defects, including skipping, freezing, and an inability move directly from scene to scene within the movie.

27. Network distribution of descrambled DVD content is also so impracticable as to be commercially impossible. Assuming that a movie consists of four gigabytes of data (which is a conservative number), it would take more than 200 hours to transmit a movie via a standard 56K modem connection to the internet; on a T1 line, the optimal time for such a transmission would be more than six hours, and in practice, almost always longer than that. Two computers connected to the Internet's "backbone," the high-capacity data pathways that lie at the architectural center of the net, could exchange such an amount of data in minutes, but backbone bandwidth is not available to ordinary consumers, and does not currently represent a means of commercially-viable content infringement.

28. Thus, the tools to copy DVDs are and have been available since prior to the posting of DeCSS. For example, there are tools that compress the DVD to the VCD format, making it possible to fit a much reduced quality version of the movie onto 2 CD-ROMS. With some experience these discs can be made VCD compatible, and playback may be possible on VCD, or even some DVD players. However, I must note that the only time I observed these tools tested as described above, they were extremely slow, requiring more than a day on relatively fast computers to do the recompression, and the result had to be edited because the individual scenes were out of order in the data files. In my opinion, a dedicated individual could possibly overcome these difficulties and produce a VCD CD-ROM master file for distribution over the internet. But it would be much easier to use a VHS tape (or DVD player output) and a videocapture card (such as ATI) to generate mpeg files that can only be played back on a computer. (VCD and VHS are comparable in quality.) There are also indications that future co-decs ( compression methods ) will allow full length movies to be stored on a single CD-ROM, but these can only be played on computers, and quality will still be poorer than an original DVD.

The Importance of DeCSS

29. In sum, DeCSS has essentially no commercial value as a tool for piracy, it has an important commercial use as part of the overall project to reverse engineer DVD to devise an open-source or Linux playback program created either by independent programmers (as in the LiVid project) or Linux vendors such as Red Hat, SUSE or Corel, that would enable individuals who legally purchased their DVDs legally to play them on their legally purchased Linux platforms.

30. In this regard, I believe that any restriction on linking on the internet would be extremely dangerous. The internet has become what it is, in part, because of hyperlinking. Huge amounts of information are accessible to anyone who looks for it; an almost unlimited variety of opinions are expressed on millions of web sites; and for scientists, linking makes the free and open exchange of information with other scientists, academics, and any interested persons much simpler, broader and effective. Just as a ban on reverse engineering would seriously limit the kind of innovation that has made the Internet so powerful and vibrant, barring hyperlinking would have a very negative impact on the flow of ideas and information on line.

Dated: April ____, 2000

Oslo, Norway

____________________________


[David S. Touretzky Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
DAVID S. TOURETZKY

IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, DAVID S. TOURETZKY, declare under penalty of perjury that the foregoing is true and correct:

1. I am currently a Senior Research Scientist in the Computer Science Department and the Center for the Neural Basis of Cognition at Carnegie Mellon University, at which institution I earned M.S. and Ph.D. degrees in Computer Science. I speak regularly around the world on such topics as cognitive science, artificial intelligence, robotics, and neural networks. I have authored three books, edited or co-edited nine collections of scholarly works, and authored and co-authored dozens of articles for scholarly journals, conference presentations, and the like. Over the past 25 years I have taught computer science material in a variety of formats, including brief tutorials at national conferences, week-long seminars for industrial clients, and semester- length university courses. My full Curriculum Vitae is attached hereto as Exhbit A.

2. I presently host a web page called the "Gallery of CSS Descramblers" on the Carnegie Mellon University web server (at http://www.cs.cmu.edu/~dst/DeCSS/Gallery). A printout of the Gallery is annexed hereto as Exhibit B. I created the Gallery in response to the Preliminary Injunction issued by this Court. The Gallery consists of a set of files containing source code, textual descriptions of algorithms, and discussion of programs that can decrypt data that has been encrypted with CSS, or that can recover the keys necessary for such decryption. One version of the decryption code has been published on a t-shirt; the Gallery includes an image of this shirt together with a link to the web site from which the shirt can be ordered. I do not link to the binary executable file for the program known as DeCSS.

3. It is my belief that source code is expressive speech meriting the full protection of the First Amendment. This belief results in part from my experience as a computer science educator. For example, my first book, "Lisp: A Gentle Introduction to Symbolic Computation" (Harper & Row, 1984), and its successor, "Common Lisp: A Gentle Introduction to Symbolic Computation" (Benjamin Cummings/Addison-Wesley, 1990), both contain several full-length programs that are meant to be studied and understood by the reader, not merely executed by a computer. Most texts on computer programming contain examples of this sort. In addition, in the graduate course I teach on artificial neural networks, students are required to read the source code for various neural net simulations in order to understand how the algorithms are implemented. My own education as a computer scientist benefited considerably from reading source code written by other programmers.

4. I am concerned that this Court issued an order prohibiting the defendants from posting source code for CSS decryption algorithms on the Internet. As a scientist, I feel it is imperative that anyone, not just academics, be allowed to participate in the ongoing analysis and improvement of encryption technologies. This requires a dialog among all interested parties, who must be free to engage in their own testing and reverse engineering, and to openly discuss the algorithms and their implementation. A normal part of such discussions among computer scientists is the sharing of source code. It is clear to me that some of the web sites presently posting and/or linking to DeCSS or the css-auth decryption routines are primarily part of the Internet-based scientific/intellectual dialogue described above, especially those sites operated by developers of DVD applications, or by cryptographers. Other postings/linkings appear to be made in support of the right of the defendants in this case to post the source code.

5. My Gallery is a combination of scientific dialog and political statement. In comparing the "anonymous C source code" for CSS decryption with the code in css_descramble.c (part of the css-auth package), I discuss certain structural and strategic differences between the two implementations of the decryption routine. Without access to the source code, I would never have been able to discern these differences or to present them to the world for commentary online. As another example, my web site contains a copy of a textual description of the CSS decryption algorithm by the cryptographer Frank Stevenson. How is one to determine whether Stevenson's description is accurate? The only reliable way is to compare it with the source code for an implementation that is known to be correct because it has been compiled and run successfully. My own initial introduction to encryption algorithms based on linear feedback shift registers came from reading the css-auth source code in conjunction with Stevenson's writings.

6. Besides the technical discussion of CSS encryption, a second purpose of my Gallery is to illustrate the futility of trying to differentiate executable source code from other forms of written expression whose First Amendment protection is already well established. To do this I provide several descriptions of the CSS descrambling algorithm. One is the source code for css_descramble.c, a computer program written in the C programming language. My understanding is that the Court has enjoined the defendants from posting this source code on their web site on the grounds that it could potentially be compiled and executed. Another Gallery item is a version of the same program written in a different programming language for which there does not exist a compiler. This language, invented by me, is similar to C, but contains sufficient syntactic differences that programs written in it cannot be handled by a C compiler. If the Court's intent is to enjoin publication of source code that is executable, then this version is not subject to the injunction. But if someone were to write a compiler for this language, they could unilaterally change the legal status of my file. Another item in the Gallery is a line-by-line translation of the C source code into ordinary English. Since this Court has stated that it does not wish to enjoin public discussion of the decryption algorithm, only the distribution of executable code, I believe that the defendants in this case could post my English translation of the algorithm without violating the Court's injunction. Of course, anyone skilled in C programming could turn the English version back into C code with little effort. But for those who are uncertain of their translation skills, I also provide as a separate Gallery item a version of the English description of the algorithm where each sentence is annotated with the equivalent C statement. Although this annotated version does contain executable code, it cannot be processed by a C compiler because that code is intermixed with English text and HTML formatting commands. The conclusion I hope will be drawn by visitors to the Gallery is that even when code is primarily intended to be executed, it retains expressive content, and that content can be preserved in trivially-derived variant versions that are not executable. Therefore, the executability of code is not an essential characteristic differentiating it from other forms of speech.

7. I have examined several dozen mirror sites containing DeCSS and/or the css-auth source code. None of the sites I examined advocate the piracy of DVD movies. Rather, they appear to have been created as a reaction to the plaintiffs' attempt to suppress distribution of a computer program which the plaintiffs do not own (DeCSS), and to suppress the distribution of source code (css-auth) which most computer scientists view as speech. Thus I believe the mirror sites are making a political statement, even when the prohibited files are posted without additional commentary.

Dated: April ___, 2000

Pittsburgh, PA

______________________________


[David Wagner Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
DAVID WAGNER

IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, DAVID WAGNER, under penalty of perjury, declare that the foregoing is true and correct:

1. I am a Ph.D. candidate in Computer Science at the University of California, Berkeley, with an expected degree date of June 2000. I received an AB in Mathematics from Princeton University in 1995 and an MS in Computer Science from Berkeley in 1999. I am personally familiar with the facts set forth herein, and if called as a witness, I could and would testify thereto of my own personal knowledge.

2. My area of research includes computer and telecommunications security, cryptography, privacy, anonymity, and electronic commerce. Cryptography is the science of designing and analyzing secure codes and ciphers.

3. I am a co-founder, and currently the senior graduate student, at U.C. Berkeley's ISAAC Security Research Group. The ISAAC Security Research Group has made substantial contributions in encryption research, in computer, network, and wireless security, and in on-line privacy. I also teach CS261 Security in Computer Systems at Berkeley, a graduate-level course on modern computer and network security.

4. I have published extensively on the subjects related to encryption, cryptography, and computer systems. A list of my publications is included in my Curriculum Vitae, which is attached hereto as Exhibit A.

5. My work (I have done data security consulting through Counterpane Systems, Minneapolis, and independently), my studies (in addition to my work at Princeton and Berkeley, I twice interned at Bell Labs, studying under S. Bellovin) and my teaching have given me extensive experience in the analysis of the uses of encryption and related tools in real-world security systems. The systems I have personally examined include supposedly secure systems used by hundreds of millions of people. Many of my discoveries have resulted not only in academic publications, but also in widespread news coverage in leading newspapers, magazines, and TV news shows. For example, in September 1995, a colleague and I reported serious flaws in the techniques used for encrypting credit card numbers in the leading products facilitating the implementation of electronic commerce over the Internet. This discovery was reported on the front page of the New York Times, the front page of the business section of the Washington Post, and elsewhere.

6. Researchers in the academic community often provide essential evaluations of cryptographic and other security measures used to protect our information infrastructure. Their work is particularly valuable because they have no financial interest in the outcome of these evaluations and because manufacturers do not always have the incentive or talent to undertake thorough examinations themselves. Publication and circulation of results of such evaluations is the accepted way to share ideas and advance scientific knowledge about cryptography. Indeed, the combined knowledge of the cryptography research community is defined by published results, and extending the body of knowledge of how encryption systems work or do not work.

7. As an academic researcher, I -- and many others -- have been closely watching this case to see how what impact it may have on our right and freedom to study and test practical information security and to examine and publish results on real-world systems. In my opinion, prohibiting cryptologists and engineers from researching and/or investigating DVD encryption and security systems, and quashing publication of any report resulting from such studies that reveals the weakness of the encryption and other security measures used on DVDs, will have a serious, substantial and chilling effect on further research and innovation in the analysis and design of real-world encryption and security systems.

8. Through my research, I have gained extensive experience in reverse engineering and the process of mathematically analyzing encryption systems.

9. Many security systems found on computers (and other electronic goods designed for to the mass market) are implemented as a set of instructions for the computer to follow, specified in a low-level language designed to be convenient for a computer to process, but not especially convenient for humans to understand. The contents of these instructions are readily available, but their meaning may not be readily apparent to those untrained in the field. Reverse engineering such a system requires one to comprehend the computer instructions and translate them into a simplified form others can understand.

10. The reverse engineer studies a product in depth and, by translating an obscure, machine-oriented language into plain English, is able to summarize the product's relevant features in a more comprehensible and useful form. Reverse engineering is often tedious and time-consuming because computer programs are extremely verbose (by human standards), but it is not in principle difficult. For example, any trained or experienced individual anywhere in the world can reverse engineer a computer software product; this work is not restricted to engineers, professionals, industry professionals, or graduate students. Indeed, individuals who lack high academic credentials and even regular jobs have published some very important results. Based upon my experience and participation in and my observation of the academic and research communities at the University of California, Berkeley, reverse engineering is necessary, standard, and good for software and consumer electronic products containing encryption. Independent product reviews of such products would in many cases be impossible without the aid of reverse engineering. Independent reviews have proven essential for dependable security in the encryption industry, and they help consumers make informed purchasing decisions.

11. One of the components of the DVD security architecture employed on computer-based DVD players is the use of encryption to scramble the data (e.g., a movie) stored on the DVD so that it cannot be played on a system which is unable to decrypt the data, and cannot be copied in a decrypted form. The encryption algorithm used for these purposes is known as CSS (Content Scrambling System).

12. Even before DVDs were made commercially available, however, it was already a given in the computer industry that CSS's 40-bit keys would provide (at best) a very low level of security. The entertainment industry, including the MPAA members who started this lawsuit, has known for some time that CSS was extremely weak. For example, Warner Home Video Executive Vice President stated in her declaration (which is available on the Cryptome web site) that it was "inevitable" that CSS would be broken, and Internet reports published to the world at http://cryptome.org/dvd-bogk.htm also indicate that CSS's security flaws were known inside the DVD industry long before they were publicly discovered. In fact, one poster to the popular "cryptography@c2.net" mailing list wrote that a member of the DVD industry had informed the poster that there was a way to break CSS in fractions of a second. It is commonly accepted that 40-bit keys can be cracked in hours by a student using a modest computer, and as the challenge at the annual RSA Conference has repeatedly demonstrated, it can be cracked in a fraction of a second by organizations with more resources.

13. The mathematical operation of the CSS was initially undisclosed to the public. Sometime before October, 1999, however, some programmers reverse engineered much of the DVD security system and built a program (called DeCSS) that implements the same encryption process used in DVD players. Reverse engineering CSS as part of this process was, of course, a necessity: you cannot build a DVD player on which to play DVDs that are encrypted with CSS unless you know how CSS works and how to make the DVD play despite the presence of CSS.

14. The published results about the cracking of CSS suggest that a graduate or other serious student could easily reverse engineer the CSS algorithm using publicly available tools, a software DVD player, and a DVD disk. A software implementation of the CSS is, after all, by design readily available for reverse engineering, if any interested party is so inclined. Based on my experience with reverse engineering software implementations of other encryption algorithms, I believe that reverse engineering the mathematical operation of the CSS is well within reach of many programmers, students, and others trained in computer programming.

15. It is also clear to me based upon my review of the communications back and forth among researchers as the work was unfolding, that DeCSS was developed as a tool during the course of the larger project of building a DVD player that would permit Linux users to play their own, properly purchased DVDs, as was already possible on computers with Microsoft or MacIntosh operating systems.

16. On or about October 7, 1999, the DeCSS source code was released to the public via an Internet discussion list. This high-level source code is much easier for humans to understand than the low-level computer instructions found in DVD players. Moreover, the programmers engaged in reverse engineering DVD players to see how they worked could refer to or use DeCSS in the course of that reverse engineering project to solve the question of decryption. The DeCSS source code made it possible to analyze the encryption security of the DVD security system without further reverse engineering; effectively, it substituted for or constituted that part of the entire job of reverse engineering a DVD player. Therefore, publication of the DeCSS source code facilitated independent product reviews of DVD players, in-depth examination for potential defects or product flaws, and scientific research into real-world encryption security issues.

17. Shortly, on or about October 27, 1999, cryptographer Frank Stevenson announced that he had analyzed the DeCSS high-level source code and had discovered serious flaws in the CSS encryption algorithm. His mathematical analysis described how to break the CSS code in just a fraction of a second. The announcement of cryptographic flaws in CSS was quickly and widely distributed over the Internet to members of the academic research community and to students of cryptography around the world The flaws in DVD security were a topic of extensive discussion. By the end of October 1999, it was clear that several methods of neutralizing CSS, including DeCSS, existed and were universally available on the Internet.

18. The ability to break the CSS revealed in October is irrelevant to and will have no impact on the large-scale piracy of DVDs that has been on-going for a few years, since that piracy does not use or rely on DeCSS. It was already widely known that it is possible to copy DVD discs onto other discs without authorization, without breaking any special encryption codes or using software like DeCSS. One may simply copy the data on the disk as it is, in encrypted form, without ever decrypting it. In fact, reports published on the Internet at such locations as http://www.opendvd.org/ rickletter.html describe how to copy a DVD disc in three easy steps, without use of DeCSS or related tools. (This Internet report describes a fundamental shortcoming of the DVD design that allows copyright-pirates to copy DVD discs without engaging in any circumvention, code-breaking, or use of DeCSS-like tools. The shortcoming is that the encrypted data on the DVD disc onto another disc, and the resulting copy will be indistinguishable from the original.) Thus, CSS is much less a barrier to mass copying than a means of preventing people from building DVD players without permission from the DVD industry. The result is that DeCSS is inferior to existing methods as a tool for mass piracy, and is therefore unlikely substantially to increase the prevalence of copyright-piracy.

19. In my opinion, it is fundamentally impossible to secure software DVD players against copying and piracy by dedicated individuals. Even if the CSS had been designed properly, the unpleasant truth is that it will still be a straightforward cryptanalysis exercise to circumvent the DVD copy prevention measures by technical means. This will not surprise anyone who has even the slightest experience in security, cryptography, and copy protection systems.

Dated: April __, 2000

San Francisco, CA

_____________________________


[John Young Declaration]

Martin Garbus, Esq. (MG 6261)
Edward Hernstadt, Esq. (EH 9569)
FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
488 Madison Avenue
New York, New York 10022

Attorneys for Defendant Eric Corley
a/k/a EMMANUEL GOLDSTEIN

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNIVERSAL CITY STUDIOS, INC.,
PARAMOUNT PICTURES CORPORATION,. METRO-GOLDWYN-MAYER STUDIOS INC.,
TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
DISNEY ENTERPRISES, INC., and
TWENTIETH CENTURY FOX FILM
CORPORATION,

Plaintiffs,

- against -

SHAWN C. REIMERDES, ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,

Defendants

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    00 Civ. 0277 (LAK)

DECLARATION OF
JOHN YOUNG

IN OPPOSITION TO
PLAINTIFFS' MOTION
TO MODIFY THE
PRELIMINARY
INJUNCTION AND
IN SUPPORT OF
DEFENDANTS'
CROSS-MOTION
TO VACATE THE
PRELIMINARY
INJUNCTION

I, JOHN YOUNG, declare under penalty of perjury that the foregoing is true and correct:

1. I submit this affidavit in opposition to the motion by the plaintiffs in this lawsuit to expand the preliminary injunction against posting DeCSS to ban linking to web sites that post DeCSS, and in support of the defendants' cross-motion to vacate the injunction against posting DeCSS. A copy of my resume is attached hereto as Exhibit A.

2. I am an architectural consultant by profession. I am also the operator of http://www.cryptome.org, a web site I created in 1996. Cryptome is a pro bono Internet library project -- to which I devote approximately 50 percent of my time. As the name -- "Cryptome -- suggests, it is a library site that stores information. It is not a "hackers" sight. It generally receives 10,000 visits per day; when a document is of broader interest, it can receive 100,00 visits. Cryptome is also a defendant in the DVD CCA California litigation.

3. Cryptome is a web site which offers a comprehensive archive on cryptology, dual use technologies, national security and intelligence. It offers over 6,000 files collected over four (4) years and is operated as a public service web site. It also publishes controversial documents on these topics and is known for publishing documents from worldwide sources.

4. 2600.com currently links to Cryptome in order to make all of the material provided on the Cryptome web site available to its readers. In addition to the categories of materials referred to above, items of particular interest to 2600 readers include postings of all of the pleadings in this litigation, and in particular this Court's Memorandum and Order granting the preliminary injunction. Cryptome also posts DeCSS, as well as hyperlinks to other web sites that discuss and possibly post DeCSS. Without question, all of this material could be in a library. Because it is on the web does not mean it is entitled to less protection.

5. I believe it is essential that the Internet permit the free exchange of ideas. I know how important this is.

6. I refer this Court to my web site (http://www.cryptome.org) and/or suggest the Court review the attached CD containing a library of all of the files we have posted or linked to on the Cryptome web site all for a fuller understanding of what it is that we do. In the tradition of free public libraries, Cryptome makes these archive CDs available to anyone who requests one.

6. I also attach my curriculum vitae and examples of architectural projects I have been involved with. I urge the Court to vacate the preliminary injunction and to rule that linking on the Internet cannot be prohibited.

Dated: May 1, 2000

New York, New York

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