FC: California appeals court rules against DeCSS defendant

From: Declan McCullagh (declanat_private)
Date: Wed Aug 08 2001 - 04:43:44 PDT

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    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 <mechat_private>
    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,
             robinat_private,
             +1 415-436-9333 x112
           Lee Tien, EFF Senior Staff Attorney,
             tienat_private,
             +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      mechat_private       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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