FC: California appeals court rules against DeCSS defendant

[Declan McCullagh <declan () well com>]

The opinion, released Tuesday, can be found at:
http://www.courtinfo.ca.gov/opinions/documents/H021961.PDF

Background on DVDCCA lawsuit (a California state case using trade secret 
claims, as opposed to the federal DMCA lawsuit in New York):
http://www.politechbot.com/cgi-bin/politech.cgi?name=dvdcca

Statements from the DVD CCA attorneys:
In response to Court of Appeal of the State of California, Sixth Appellate
District, ruling on Matthew Pavlovich v. Superior Court of Santa Clara Co.

Jeffrey L. Kessler, Senior Litigation Partner (Weil, Gotshal & Manges,
LLP): "We're very pleased with the court's decision because it stands for
the principle that individuals who steal trade secrets cannot hide behind
the internet as a shield to protect them from responsibility for their
unlawful conduct."

Robert G. Sugarman, Senior Litigation Partner (Weil, Gotshal & Manges,
LLP): "This decision clearly indicates that individual states like
California have the legal ability to protect businesses and organizations
in their states from unlawful conduct carried out against them via the
internet."

************

Excerpts from ruling:

Pavlovich founded and operated the LiVid video project, whose purpose was 
to aid in the development of an unlicensed system for DVD playback and 
copying. Pavlovich owned and operated the Web site called 
"livId.on.openprojects.net," where he posted the DeCSS program.
Pavlovich knew that DVDs deliver motion picture content to their 
purchasers. He testified in his deposition that DVDs are "a large storage 
medium" that can be used for "a lot of different things," one of which, 
"holding motion pictures," is "probably the most well known."
Pavlovich admitted in his deposition that "there was an organization which 
you had to file for or apply for a license or whatever" to use certain DVD 
technology, and that he knew about this because "[i]n the course of the 
development of the project, the Linux video and DVD project, there was a 
lot of discussion regarding the decryption piece of the full length of 
decoding of DVD and, you know, there were individuals making statements on 
the mailing list as to - to that effect." Pressed for the kind of 
statements he had heard, Pavlovich answered it was "[s]omething along the 
lines of you've got to apply for a license and whatnot."
Nonetheless, Pavlovich never sought or obtained a license to use DVD 
technology for his LiVid project. Pavlovich admitted that his LiVid project 
utilized DVD CCA's trade secrets, including those contained in DeCSS. 
Pavlovich further admitted that through the LiVid project he aimed to 
develop an unlicensed DVD player that would use DeCSS to decrypt DVD data. 
Pavlovich knew that DeCSS was developed by reverse engineering, which he 
knew was unauthorized. [...]
Despite his knowledge of how DeCSS obtained and misappropriated DVD CCA's 
trade secrets, Pavlovich sought to and actually disseminated those trade 
secrets. [...]
Because Pavlovich knew that California is commonly known as the center of 
the movie industry, and knew that Silicon Valley in California is one of 
the top three technology "hot spots" in the country, he knew, or should 
have known, that the DVD republishing and distribution activities he was 
illegally doing and allowing to be done through the use of his Web site, 
while benefiting him, were injuriously affecting the motion picture and 
computer industries in California. The question is whether Pavlovich's lack 
of physical and personal presence in California incapacitates California 
courts from jurisdictionally reaching him through its long-arm statute. We 
hold it does not. [...]
We conclude the denial by the trial court of Pavlovich's motion to quash 
service of process comports with notions of fair play and substantial 
justice under the due process clause of the United States Constitution. 
Consequently, the exercise of jurisdiction by the trial court is reasonable.
The petition for a writ of mandate is denied. Real party in interest DVD 
CCA is awarded costs as the prevailing party.

************

Date: Wed, 8 Aug 2001 01:40:44 -0700
From: Stanton McCandlish <mech () eff org>
Subject: CA Court Asserts Jurisdiction Over TX Net Publisher
Content-Type: text/plain; charset="us-ascii"

Electronic Frontier Foundation Media Advisory

   For Immediate Release: August 8, 2001

   Contacts:
      Robin Gross, Staff Attorney - Intellectual Property,
        robin () eff org,
        +1 415-436-9333 x112
      Lee Tien, EFF Senior Staff Attorney,
        tien () eff org,
        +1 415-436-9333 x102


CALIFORNIA COURT ASSERTS JURISDICTION OVER NON-RESIDENT
INTERNET PUBLISHER

On August 7th, the California Sixth Appellate District
issued an opinion denying Matthew Pavlovich's motion to
dismiss the case against him for lack of personal
jurisdiction over him.

Pavlovich, who was a college student in Indiana and now
lives in Texas, claims postings made to the LiVID mailing
list, which he ran from his home computer should not subject
him to defending himself in California. LiVID is an open
source development team working to build a DVD player
compatible with the Linux operating system that could
compete with the movie studios' monopoly on DVD players.  In
January 2000, a California judge issued an injunction
banning dozens of individuals, including Pavlovich, from
publishing DeCSS computer code.

Today, the court held that because Pavlovich knew the movie
business was in California, publishing information that
might have an effect on its profits was a sufficient
connection to find Pavlovich within the court's purview.

This ruling magnifies the ability of Hollywood or other
businesses to successfully sue anyone in the world who
publishes information on the Internet which the movie
studios claim could hurt their profits.  Pavlovich is
considering an appeal of the order to the California Supreme
Court on Constitutional Due Process grounds.

Text of ruling:
http://www.eff.org/Cases/DVDCCA_case/20010807_pavlovich_appelate_ruling.html


About EFF:

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression, privacy, and openness in the information
society. EFF is a member-supported organization and
maintains one of the most linked-to Web sites in the world:
http://www.eff.org/

                        - end -

--


--
Stanton McCandlish      mech () eff org       http://www.eff.org/~mech
Technical Director/Webmaster         Electronic Frontier Foundation
voice: +1 415 436 9333 x105                    fax: +1 415 436 9993
EFF, 454 Shotwell St.                    San Francisco CA 94110 USA




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