I want my DVD, your honor

T.C. Pip, a small California ISP operator, didn't think twice about posting DeCSS to one of his web sites. Now he was standing, shaky and pale, before a judge. His lawyer was nowhere to be found.

Judge Buford I. Motion, Chief Judge for the Half Moon Junction ("We put the Southern in Southern California") Superior Court, had news. "Mr. Pip, your lawyer is real bad lost and won't be here for at least an hour. We can't wait that long, so we gonna proceed right now."

Pip swallowed hard.

Jerry Whiplash, attorney for the DVD Copy Control Association, allowed himself to smile. After all, he was a partner with the prestigious New York firm of Bile, GotGall and Mange. Resplendent in fine wool pinstripes, silk club tie and gold-rimmed glasses, he sneered at Pip's clip-on tie and Dockers.

Judge Motion turned to the lawyer. "Mr. Whiplash, I'll bet you're a Harvard boy."

"Why, yes, your Honor. How did you know?"

The judge smiled knowingly. "Piece o' cake, son. When a fella comes to my court wearing such a fine suit but filing such a shabby one, I figure he's a Harvard boy."

Whiplash's smile disappears beneath a lawyer's poker face. Pip's color improves.

"How dare you bring this load of horse manure before my court, son? You think I'm some kind of damned fool?"

Whiplash is shaken, but doesn't flinch. "No, your honor, not at all."

"Then explain paragraph one to me. You say Mr. Pip here is continually misappropriating your trade secrets."

"That's right, your honor."

The judge's face turned crimson and tight." Son, this is not a patent infringement case. How do you `continually' misappropriate a trade secret. Once the cat's out of the bag, it's gone."

"Your honor, a group of Norwegian hackers illegally reverse-engineered a DVD player software..."

The judge's eyes narrowed as they focused on Whiplash.

"Stop right there, son. Did Mr. Pip reverse-engineer this software"

"No, Your Honor. He posted a program called DeCSS that allows you to copy DVD content in a way that doesn't need the encryption keys."

"So, he's not the one who misappropriated the secrets?", the judge asked.

"In California, your honor, it is illegal to pass on or profit from a trade secret that you know was improperly obtained."

"Well son, I know that patents and copyrights are published for all the world to see. Were these trade secrets published anywhere?"

"They weren't, your honor. They're secrets. We sent Mr. Pip a letter clearly explaining that his actions were illegal," came Whiplash's reply.

"Ah. You sent him a letter and now you're upset that he didn't take your word for it. Tell me, Mr. Whiplash, are you as stupid as your case or are you just a Jackass? From your pleadings, I'd say both."

Whiplash fumed bright red. "Your honor, I must object to this treatment. It is highly irregular and unprofessional."

Motion's gaze froze Whiplash in his tracks. "You know what it's called when someone in my courtroom doesn't show this court the appropriate respect," he asked.

"Contempt, your honor."

"That's right. Very good. Now, son, do you know what it's called when I don't show you the respect you think you deserve?"

"Reviewable?"

Judge Motion laughed out loud. " No. It's called I'm the judge and this is my courtroom. You got that, son?"

The judge continued, " It looks to me like you're trying to create a whole new class of action based on infringing a trade secret, but I don't see no limits to your secrets. I don't see any publication and I sure don't see any authority for granting some damned manufacturer's association this kind of power. The Constitution reserved that power to the Federal Government and they said `No, thank you'. To my knowledge, it has always been the responsibility of secret holders to protect their own secrets. The use of public enforcement power is typically reserved for the wrongful appropriation itself."

"But your honor, California law..." Whiplash is cut off mid-sentence by Motion's impatient voice.

"And that's another thing," his honor continues, " you name defendants in Australia, Denmark, France, Germany, England and all over. Now, would you kindly explain to me how some fella in Australia is supposed to come under California law? "

"By putting it on the Internet, your honor, they brought it into California."

"You ever hear of radio, son?"

"Of course, your honor."

"Do you think that the FCC goes after radio stations overseas if they violate U.S. law?"

"Why no, sir, but the Internet reaches right into California," Whiplash replies.

"Like radio. That ol' boy in Australia doesn't connect to California and Californians don't dial into his site to view it. When an ISP connects to the Internet, they are using it as a broadcast medium. They don't give a damn about California law and California can't make them. That takes an international treaty, and that takes Federal Executive action with U.S. Senate ratification. I know they teach constitutional law at Harvard. You should know this stuff."

"Yes, your honor."

"Let's go on, Mr. Whiplash. Does Australian law forbid someone from publishing trade secrets, regardless of the source?"

"I don't know, your honor."

"How about French law, Danish law?"

"I don't know, your honor."

"Louisiana? You up on the Code of Napoleon, son?"

"But, your honor," Whiplash protests, "this case is about California law."

"Really? Well, does Norwegian law allow a software license to forbid reverse engineering?"

"I don't know, your Honor."

"What if the reverse engineering was done by a minor or somebody else incompetent to make a contract?"

Whiplash hemmed and hawed. "We don't know the age of the hackers, your honor." You could almost hear him go "Oops."

"So, the fancy New York lawyer doesn't know if the so-called trade secrets were obtained illegally. However, the ISP operator should know because the lawyer, who doesn't know, sent him a letter." The judge was on a roll.

"That's not exactly...." Whiplash couldn't finish his sentence.

"Never interrupt the judge, son. Now, if these folks around the world didn't break any local laws, they would have been acting legally and Mr. Pip could have gotten the program from one of them legally. But, between you and me, Mr. Whiplash, that don't matter anyhow."

"It don't, er, doesn't, " came the weak reply.

"No, it doesn't. These so-called secrets of yours are published on the freakin' Internet, man. They ain't secrets no more!"

"But, your Honor."

"I'm not finished, Son. Now, Mr. Pip operates in California, which I believe to be part of the United States. Like or not, his right to free speech is protected by the first amendment of the Constitution. Now, Harvard may not cover the second and tenth amendments, but I'm real sure they teach the first amendment."

"Yes, your honor."

"So, Mr. Pip is supposed to surrender his Constitutional rights because some New York lawyer who doesn't know what he's talking about writes him a letter."

"Not exactly, your honor," Whiplash interjects. "He could check with his own counsel."

"I hope his lawyer knows more than you do. I'm sorry, son, but your position creates a bigger chilling effect than the Sub-Zero in my kitchen. The Constitution won't tolerate that, and I won't grant your motion."

Pip relaxed. Whiplash did not. "But, your honor...."

"Hold on, Mr. Whiplash, I'm not finished. I understand that anybody with a commercial stamper can copy DVDs by the bushel. Is that right?"

"Yes, your honor. The copy protection is intended to stop casual copying," Whiplash replied.

"It seems to me that it's also designed to keep people from playing DVDs they bought and paid for. Didn't this whole thing come about because people whose computers used Linux or BeOS wanted to play their legally purchased DVDs?"

"I don't think that's the case at all, your honor."

"Well, Mr. Whiplash, I'll tell you something I know. Your so-called copy protection won't stop pirates, but it does hurt consumers, and not just people who use Linux. My daughter spent last year in France. She bought a DVD player and a nice collection of DVDs. Her DVD player was lost in her move back home. You wanna know what happened when we bought her a new one? She couldn't play a single one of those DVDs that she had bought and paid for because they were all region coded."

"It occurs to me, Mr. Whiplash, that your client is being short-sighted. Movie studios are making a fortune on unprotected videotapes. The music industry is selling unprotected CDs by the ton. Digital AudioTape, which has the industry's grubby little prints all over it, isn't making money for anyone. If you make something easy to buy and use, people will buy it and use it. Y'all are free to go."

As Pip and Whiplash prepared to leave, the Judge motioned the bailiff over to the bench.

"Remember askin' me why my bio doesn't mention my scholarship to Yale or how big my practice was before I retired," he whispers. "It would just ruin all my fun if they knew. Now, let's see what's up next. Hmmm. Amazon.com is suing somebody for patent infringement. This'll be fun."

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Authors background:

Dean Pannell, a.k.a.dinotrac cowers in the Boondocks west of Chicago. Nothing in this piece should be considered legal advice, as dinotrac doesn't know what the heck he is talking about. If you are thinking about jumping into the DeCSS fray, he suggests that you talk to someone who does.