22 January 2000. Thanks to 2600.
Source: http://www.2600.com/news/2000/0121-brief.txt

See related plaintiff filings: http://cryptome.org/dvd-mpaa-v-3.htm

And preliminary injunction later granted: http://cryptome.org/dvd-mpaa-3-pi.htm

Footnotes not provided.

PETER L. KATZ - PK-5820
45 Knollwood Road
Elmsford, New York 10523
Telephone: (914) 345-0001
Facsmile: (914) 345-8316

ALLONN E. LEVY (pro hac vice admission to be applied for)
HUBER & SAMUELSON, P.C.
210 N. Fourth Street, Suite 400
San Jose, CA 95112
Telephone: (408) 295-7034
Facsimile: (408) 295-5799

ROBIN D. GROSS (pro hac vice admission to be applied for)
ELECTRONIC FRONTIER FOUNDATION
1550 Bryant Street, Suite 725
San Francisco, CA 95103
Telephone: (415) 436-9333
Facsimile: (415) 436-9993

COME NOW defendants SHAWN C. REIMERDES, EMMANUEL GOLDSTEN AND ROMAN KAZAN (hereafter "defendants") and submit the following argument in opposition to plaintiff's request for preliminary injunction. These arguments are submitted concurrently with a request for adjournment, should the adjournment be granted, defendants will be able to submit a more comprehensive response.

INTRODUCTION

Plaintiffs seek an emergency application of a new law that they themselves lobbied hard for, in a case of first impression. The law itself, as well as the way that plaintiffs are applying it, raises grave dangers to freedom of inquiry, freedom of speech, and fair use of intellectual property. Ultimately the plaintiffs ask this court to concur with them that an intellectual property holder can place any kind of restrictions on use of their work, regardless of the balance struck in the copyright law, and rely on the courts to smash anyone who attempts to bypass these restrictions in order to exercise their rights under the Constitution and copyright law. The postings cited (plaintiffs motion at p.7) by plaintiffs show nothing more than a disdain for the DVD CCA and a legal assertion of the right to "space shift" and "time shift" purchased works.

STATEMENT OF FACTS

Computer programmers and researchers from the Linux community have been working on writing programs and understanding the technology required to display DVD movies. Their goals are to understand the playing process from top to bottom, and to re-create software that implements this process. This software is being cooperatively developed under intellectual property licenses which make it available to anyone who wants it, both for use and for collaboration on its development. These programmers maintain an Internet mailing list called LiViD-dev (Linux Video Disc Development).

DeCSS is a program which runs in Microsoft Windows and decrypts encrypted DVDs. Various versions of it have been made available via the LiViD-dev mailing list. It was a teaching aid for the engineers involved in understanding the technology. Other engineers then wrote the corresponding Linux program, readdvd. Readdvd can be combined with previously written programs such as mpegplay to actually view a DVD on Linux. The ultimate goal is to produce and distribute an integrated program easy enough that ordinary users can simply pop in a disc and watch it, with convenient controls. In order to play a DVD disc, its contents must be decrypted.

In the traditional design of a DVD player, this requires a "player key" which are issued by the DVD Copy Control Association, a licensing agency. However, cryptanalyst Frank Andrew Stevenson on the LiViD mailing list invented a new way to decrypt a disc without a "player key". (A cryptanalyst is a scientist who studies encryption systems to learn how to recover the encrypted information.) The developers and users involved in the Linux Video Disc project have always been concerned with the possibility of heavy-handed retaliation from the movie companies.

Their concerns became real when movie company lawyers started sending threatening letters. These letters never went to the programmers or to the publishers of information -- the plaintiffs targeted these peoples' Internet service providers, and succeeded in scaring many of them into summarily terminating the web sites of the publishers. In response to this underhanded censorship, the Internet community began replicating copies of the program, and alerting other citizens that a movie company campaign to censor this material was afoot. The instant case is part of that campaign.

ARGUMENT

DISCUSSION

The developers and users involved in the Linux Video Disc project have been concerned from the start with the possibility of heavy-handed retaliation from the movie companies. Their concerns became real when movie company lawyers started sending threatening letters soon after the first release of the DeCSS program. These letters never went to the programmers or to the publishers of information, who were likely to challenge the movie companies' assertions. Instead, the plaintiffs targeted these peoples' Internet service providers, threatening them with instant liability unless they removed the "offending" material, and succeeded in scaring many of them into summarily terminating the web sites of the publishers.

In response to this underhanded censorship, the Internet community began replicating copies of the program, and alerting other citizens that a movie company campaign to censor this material was afoot. In mid December a case was filed in an obscure local California court, naming seventy worldwide defendants, leaving 500 John Does "to be named later", and asking for a temporary restraining order with two days' notice. All defendants named were individuals (not corporations likely to actually defend themselves), and many censored their own web sites rather than suffer the risk, time and expense of being part of a court case. This more desparate attempt at censorship also failed, as the Internet civil rights community rallied to provide a quick defense and the TRO was denied. The instant case is the next phase of the censorship campaign.

JURISDICTION & SERVICE

IMPROPER DEFENDANTS

Issue - The Three Named Defendants Are Improper Parties to this Action

Rule 17 of the Federal Rules of Civil Procedure states that "every action shall be prosecuted in the name of the real party in interest". It is submitted that all three defendants have been improperly named in this action as they are not the "real party in interest" as is defined by the Federal Rules of Civil Procedure and related case law. Within his Declaration in Support of the motion, one of the attorneys for the plaintiff, Bruce E. Boyden, Esq. states that on January 7 through 12, 2000, either he or a legal assistant visited several web sites that contain copies of an "unauthorized circumvention utility commonly referred to as 'DeCSS,'". Mr. Boyden then states that after his review of these web sites he was then able to consult with a domain name registry to determine who the registrant of the site actually was. It is this information that the plaintiffs used to determine who the defendants in this case should be. It is submitted that the plaintiffs have improperly named the proper parties in interest to this matter and, accordingly, this matter should be dismissed as to all three defendants pursuant to Federal Rules of Civil Procedure, Rule 17.

Defendant Shawn C. Reimerdes is not the real party in interest to this action

Within his Declaration Mr. Boyden states on January 9, 2000, that he visited the web site designated by the host URL www.dvd-copy.com. and that the "index page" of that site listed Mr. Reimerdes as the site's author and that he then "downloaded this page" & and "printed a paper copy" which he annexed to his Declaration as Exhibit "1". However, a review of Exhibit "1" clearly indicates that the site is in the name of Leech Software, Inc. It is submitted that pursuant to Federal Rules of Civil Procedure, Rule 17, Defendant Reimerdes should be removed as a party defendant as he is not the owner of www.dvd-copy.com.

Defendant Roman Kazan is not the real party in interest this action

Mr. Boyden states on January 8, 2000, that he visited the web site designated by the host URL www.krackdown.com. Mr. Boyden does not state who the owner of the site is as indicated on the website's main page. He does, however, state that he checked the DNS registry information server located at www.networksolutions.com. and that the information retrieved from the DNS registry indicates that defendant Roman Kazan is listed as the "technical contact" for krackdown.com. Mr. Boyden, however, does not indicate in his Declaration who is the registrant of www.krackdown.com nor has he included the DNS registry information for www.krackdown.com as part of his exhibits. Rather, he states that the DNS registry for www.krackdown.com indicates that Roman Kazan is the "technical contact" for www.krackdown.com and that the "server computers" for www.krackdown.com are listed as "escape.com". Mr. Boyden then states that information retrieved from the DNS registry for escape.com lists the "Kazan Corporation, administrative contact Roman Kazan" as the owner of the site. It is submitted that pursuant to Federal Rules of Civil Procedure, Rule 17, Defendant Kazan should be removed as a party defendant as he is not the owner of www.krackdown.com.

Eric Corley, a/k/a Emmanuel Goldstein, is not the real party in interest this action

Mr. Boyden states on January 10, 2000, that he visited the web site designated by the host URL www.2600.com and then visited the DNS registry information server located at www.networksolutions.com to determine that Eric Corley, a/k/a Emmanuel Goldstein, "is the owner of the site". Mr. Boyden then included a copy of the aforesaid DNS registry report within his Declaration as Exhibit "8". A review of www.2600.com indicates, however, that Mr. Corley is not the owner of the site but rather that the site is owned by 2600 Magazine a/k/a 2600 Enterprises, Inc. Additionally, the DNS registry lists the registrant as "2600 Magazine", not Emmanuel Goldstein as Mr. Boyden has represented to this court. It is submitted that pursuant to Federal Rules of Civil Procedure, Rule 17, Defendant Corley should be removed as a party defendant as he is not the owner of www.2600.com

Roman Kazan - ISP immune under the DMCA from third-party liability

Title II of the Digital Millennium Copyright Act of 1998, the "Online Copyright Infringement Liability Limitation Act" provides an automatic immunity for copyright infringement by online service providers when engaging in certain activities. The limitations, which entail a complete immunity from monetary damages and restrict injunctive relief are based on four categories of conduct by a service provider:

1) transitory communications;

2) system caching;

3) storage of information on systems or networks at direction of users; and

4) information location tools.

Section 512(c), the limitation for information residing on systems or networks at the direction of users, limits the liability of service providers for infringing material on Web sites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for either of these two limitations on liability, an online service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement in addition to meeting the following conditions:

1.The provider must not have requisite level of knowledge of infringing activity as described below.

2.If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the activity.

3.Upon receiving notification of claimed infringement the provider must expeditiously take down or block access to the allegedly infringing material.

Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take down the material that is claimed to be infringing (or block access to it). The Act also establishes procedures for notification of claimed infringement and rules as to its effect, known as the "notice and takedown procedures" (cite) Roman Kazan is the Internet service provider for the website X, which is owned and operated by a third party. Roman had no knowledge of the existence the DeCSS computer program on the website. In fact, he did not know such a program existed, or what its purpose was. He was completely unaware of it on his system and he did not receive any financial benefit as a result of being posted there. Roman was never contacted in accordance with the "notice and take-down" procedures of the DMCA. Because Roman was immune under the statute from any copyright liability of third parties, he is not a proper party to this suit and should be dismissed.

SUCCESS ON THE MERITS

DMCA EXCEPTIONS

Defendant's activity in this case is legal according to the plain language of the DMCA itself. The general ban on circumvention provides a series of exemptions under the Act that are not to be considered violations of the Act. Defendant's activity in this case is legal according to the plain language of the DMCA itself. The general ban on circumvention provides a series of exemptions under the Act that are not to be considered violations of the Act.

a. REVERSE ENGINEERING:

Section 1201(f) on reverse engineering says you can both reverse engineer and teach others how to circumvent if the purpose is for achieving interoperability. Intent counts under the statute.

"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 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 any such acts of identification and analysis do not constitute infringement under this article.

"(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interpretability of an independently created computer program with other programs, if such means are necessary to achieve such interpretability to the extent that doing so does not constitute infringement under this title.

"(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interpretability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

"(4) For purposes of this subsection, the term 'interpretability' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged. This part of the statute explicitly permits people to distribute the DeCSS computer program because it is necessary to achieve interoperability between DVDs and their Linux computer's operating systems. Before DeCSS, there was no readily available means for a Linux computer programmer to watch their DVDs on their computers. The Defendants in this case distribute the source code in question with the intent that it provide Linux users with a means to watch their legally acquired DVDs. The Defendants do not intend for this program to be used to promote piracy in any way.

b. ENCRYPTION RESEARCH:

Section 1201(g) allows you to circumvent (& teach others) for the purpose of encryption research.

"(g) Encryption Research"

(1) Definitions - For purposes of this subsection -

"(A) The term 'encryption research' means activities necessary to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works, if these activities are conducted to advance the state of knowledge in the field of encryption technology or to assist in the development of encryption products; and

"(B) the term "encryption technology" means the scrambling and descrambling of information using mathematical formulas or algorithms. "

(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH - Not withstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to circumvent a technological measure as applied to a copy, phonorecord, performance, or display of a published work in the course of an act of good faith encryption research if-

"(A) the person lawfully obtained the encrypted copy,

"(B) such act is necessary to conduct such encryption research.

"(C) the person made a good faith effort to obtain authorization before the circumvention; and

"(D) such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud and Abuse Act of 1986.

Goldstein's Website 2600 provides a forum to identify and analyze flaws and vulnerabilities of encryption technologies applied to copyrighted works. These activities are conducted to advance the state of knowledge in the field of encryption technology and serves to assist in the development of encryption products generally.

c. SECURITY TESTING:

Section 1201 (j) allows you to circumvent (& teach others) for purposes of security testing.

"(J) SECURITY TESTING "(1) DEFINITION - For the purposes of this subsection, the term 'security testing' means accessing a computer, computer system, or computer network, solely for the purpose of good faith testing, investigating, or correcting, a security flaw or vulnerability, with the authorization of the owner or operator of such computer, computer system, or computer network.

"(2) PERMISSIBLE ACTS OF SECURITY TESTING - Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a person to engage in an act of security testing, if such act does not constitute infringement under this title or a violation of applicable law other than this section, including section 1030 of title 18 and those provisions of title 18 amended by the Computer Fraud Act of 1986.

"(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TESTING - Notwithstanding the provisions of subsection (a)(2), it is not a violation of that subsection for a person to develop, produce, distribute or employ technological means for the sole purpose of performing the acts of security testing described in subsection (2), provided such technological means does not otherwise violate section (a)(2). The 2600 Web site is dedicated to the exploration of computer security and publishes information regarding the weaknesses of security systems of all types.

III. Fair Use: Section 1201(c)(1)- it states that it

"shall not affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, ..."

Both the Sony (Betamax) Supreme Court Case and the 9th Circuit's Diamond Rio decision talk about the fair use right for personal use. People may time-shift and/or space-shift their recordings. This ability allows Linux users to watch their DVDs on their Linux boxes. This provision of the statute states that consumers are still allowed to make fair use, (since the statute says it hasn't changed), therefore, they *must* be allowed to have the tools that allow them to make fair use. Vault v. Quaid 847 F.2d 255 (5th Cir. 1988): fair use is not limited to use intended by the copyright holder. Sega v. Accolade 977 F2d 1510 (9th Cir. 1993):

"We conclude based on the policies underlying the Copyright Act that disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassembly provides the only means of access tot hose elements of the code that are protected by copyright and the copier has a legitimate reason for seeking such access."

"Where there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use."

III. THE DMCA SCHEME IS OVERBROAD AND VAGUE ON ITS FACE AND AS APPLIED.

In First Amendment cases, the rules of standing are relaxed. Sec'y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 957 n. 7 (1984); id. at 958 (finding that Plaintiff could bring facial challenge to restrictions on charitable solicitations "whether or not its own First Amendment rights are at stake"). Where a statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack. Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, n. 19 (1984).

B. The Challenged Provisions Are Substantially Overbroad and Vague.

Overbreadth requires a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. Vincent, 466 U.S. 789 (1984) at 801. Here, the burden on speech is quantitatively substantial and the chilling effects are plainly seen. For example, the DMCA restricts the proliferation of proper, independantly created code that has a legitimate use.

Additionally, the DMCA limits the rights of others to receive speech (Virginia Pharmacy Bd v. Virginia Consum. Counsel 425 U.S. 748, 756 (1976) [rights of consumers to receive information]; and see also United States v. National Treas. Employ. Union, 115 S.Ct. 1003, 1015 (1995)) in the form of legitimate copies of speech such as "space shifting," "time shifting," "format shifting," by imposing restraints on consumers abilities to circumvent encryption devises utilized to curtail such legitimate copies.

Additionally, the DMCA as applied in this instance would serve to curtail the rights of all Linux users to access information contained on purchased or rented DVDs (Virginia, supra). Additonally, by curtailing the ability to "disseminate" or publish decryption tools, the act creates a wholsale prohibition on the legitimate and necessary science of cryptology.

This massive, widespread, restraint on scientific speech is unprecedented in its breadth and severity (Sweezy v. New Hampshire 354 U.S. 234, 249-250 (1957) on the importance of protecting scholarship and academic inquiry).

THE REQUESTED PRELIMINARY INJUNCTION RUNS AFOUL OF CONSTITUTIONAL GUARANTEES AND AMOUNTS TO AN IMPERMISSIBLE PRIOR RESTRAINT OF SPEECH

Plaintiffs attempt to enjoin, not the individual or individuals who created deCSS, but rather, two individuals and a news magazine who have published and discussed the creation of DeCSS in its context as a matter of public interest. Plaintiffs, presumably, intend to seek subsequent prior restraints against the hundreds of other news sources on the internet, the thousands of discussion sites, and the billions of individual users discussing the Content Scrambling System (CSS).

Discussions centered on the results of efforts to break the weak security structures on which the CSS depends. Our democratic society values and diligently protects its hard fought freedoms. The United States Constitution guarantees the freedom to speak freely, to generate discourse and to advance innovation through the exchange of ideas.

The First Amendment provides that 'Congress shall make no law . . . abridging the freedom of speech . . . [I]t is settled that when . . . the judicial process is invoked to restrict expressive activities on public property, 'state action' is implicated entitling the aggrieved party to the protection of the First and Fourteenth Amendments. [Citations.] San Diego Unified Prot. Dist. v. U.S. Citizens Patrol, 63 Cal. App. 4th 964, 970, 74 Cal. Rptr. 2d 364 (1998) (citing Planned Parenthood v. Williams, 7 Cal.4th 860, 868, 30 Cal. Rptr. 2d 629 (1994)).

The U.S. Supreme Court has noted that the Internet is one of the most egalitarian mediums invented and one of the greatest democratic tools for the 21st century. Reno v. American Civil Liberties Union, 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 2344.

The DeCSS program itself is speech in that it is a written expression of language.⁶ Other forms of writing, in different languages or "codes," such as music, have long been considered "speech" deserving First Amendment protection . Music, either in the form of sheet music, or in the form of code played on a player piano is "speech" for purposes of First Amendment inquiry. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).

Similarly, other instruction sets and manuals are also protected speech, even where those instructions may also have potentially damaging effects (United States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979) [speech could be used to produce hydrogen bomb]). Copyright cases which have examined computer code have similarly concluded that programs embody expression and qualify as "literary work." 17 U.S.C. §101; Johnson Controls v. Phoenix, 886 F.2d 1173, 1175 (9th Cir. 1989).

In addressing this issue, a recent Northern District court specifically found that computer code is speech deserving of First Amendment protection (Bernstein v. U.S. Dept. of State, (Bernstein I), 922 F. Supp. 1426 (N.D. Cal. 1996)).⁷ As in the Bernstein case, here, the DeCSS program is written information, albeit in computer language rather than in plain English.⁸ There is nothing about this functional writing to suggest it is more like conduct than speech (Bernstein I, 922 F. Supp. at 1435).

Furthermore, as is indicated in the supporting affidavits, the need for discourse and academic inquiry in the fields of programming and cryptography supports the importance of protecting this particular speech (see Sweezy v. New Hampshire, 354 U.S. 234, 249-250 (1957) (importance of protecting scholarship and academic inquiry). Finally, any doubt that the program, the text, and the links are "speech" for purposes of First Amendment analysis is removed by the fact that the information appears on the Internet - a forum uniquely tailored for the exchange of information.

a. Plaintiff's Requested Injunction, Restraining Speech Prior To Publication, Is Presumptively Unconstitutional

A "prior restraint" is any governmental action, including a court injunction, that prevents speech from reaching the public. San Diego Unified, 63 Cal. App.4th at 970. Any prior restraint 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")). 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)).

In the instant case, plaintiff concedes that it seeks to protect only private (as opposed to national) interests. As such, plaintiff cannot overcome the presumption that the requested prior restraint is unconstitutional. The proper remedy for plaintiff is to sue for damages if it perceives any harm that is directly caused by the defendants' speech, not to restrain that speech before it reaches the intended audience.

b. The Requested Court Action Would Have a Chilling Effect On Speech, And Would Cause Harm To Society

The requested injunction would send an unprecedented wave across cyberspace, chilling cyber-speech in its wake. The injunction would tell web operators that, contrary to principles of free speech, web publishers are required to rule out any possibility that speech may infringe on potentially untraceable intellectual property rights of others before they may post that speech, link to it, or otherwise discuss it.⁹

The injunction would also immediately stop the current innovation embodied by the DeCSS program and will chill other attempts at education, creativity, collaboration, innovation, and creation of other non-proprietary programs and systems. The requested injunction would be the first step in creating a liability minefield on the Internet that will effectively bar individual participation in this public forum. Individuals who do not have the resources to rule out any potential complaints of infringement or misappropriation will be forced to refrain from posting, linking or discussing anything on the web for fear of lawsuits.

Additionally, the removal of links to other web sites (through the injunction) will also effectively restrain any additional speech contained on the "linked" web site, regardless of whether or not it relates to DeCSS.

LACK OF COPYRIGHT POWER

The copyright power in the Constitution provides Congress the power

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries".

The grant of power to offer exclusive rights is regulated by the stated purpose -- to promote the progress of science and creativity. Congress does not have the power to grant exclusive rights which do not ultimately promote progress, but which instead merely create and enrich monopolies.

NO IRREPARABLE HARM HAS BEEN SHOWN BY PLAINTIFFS

Plaintiffs request this preliminary injunction under the guise that irreparable harm will befall them, prior to trial, if the court fails to act. In fact, the deCSS program has been widely available everywhere in the world since at least October of 1999. For nearly four months, plaintiffs sat idly by, relying solely on threatening letters and taking no legal action.

Now, with the deCSS program thoroughly distributed, plaintiffs attempt to contend that irreparable harm will occur between now and the time of the hearing. Such an argument is without basis since the additional dissemination by three defendants will prove meaningless when compared to the thousands of web sites that currently show the deCSS program. Plaintiffs also provide wild speculation of mass piracy and disaster should the deCSS system be permitted to remain public.

Closer scrutiny shows that the deCSS code was intended to create a DVD player (for the Linux system), not a copying mechanism. Indeed, currently, the simplest and most prevalent DVD piracy system is straight "bit for bit" copy of a DVD - with no utilization of deCSS. Indeed, once it is understood that deCSS simply permits playing the DVD on other systems (such as Linux), it becomes clear that a DVD "pirate" has no use for deCSS since the "pirate's" entire market will be using CSS enabled players. Such a DVD "pirate," who creates wholesale, illegal, DVD "knock-offs" is subject to stiff criminal sanctions, irrespective of DMCA.

Plaintiffs also attempt to speculate that decrypted DVD data could be mass distributed on the Internet. They appear to overlook the fact that DVDs hold 5.2 gigabytes of data. An amount of data so large that uploading a single gigabyte of the data would take approximately 40 hours, and the entire movie would take approximately 200 hours, using a "fast" 56K modem. Assuming a minimal time cost of $1/hr, an individual would need to expend ten times the amount of money to obtain a "decrypted movie" from the Internet as they would to obtain a legal copy from Blockbuster video (ignoring the fact that the same video could be rented for even less money). .

CONCLUSION

In short, plaintiffs have failed to demonstrate they would suffer irreparable harm between today and the date of the trial. On the other hand, there is no question that the defendants as well as the public at large will suffer harm based on the imposition of a prior restraint on speech. For the foregoing reasons, Plaintiffs' application for a preliminary injunction should be denied in all respects.

I declare under penalty of perjury that the foregoing is true and correct.

Executed:
Elmsford, New York,
January 19, 2000

__________________________________

Peter L. Katz (PK-5820)
45 Knollwood Road
Elmsford, New York 10523
Telephone: (914) 345-0001
Facsmile: (914) 345-8316

ALLONN E. LEVY (pro hac vice admission to be applied for)
HUBER & SAMUELSON, P.C.
210 N. Fourth Street, Suite 400
San Jose, CA 95112
Telephone: (408) 295-7034
Facsimile: (408) 295-5799

ROBIN D. GROSS (pro hac vice admission to be applied for)
ELECTRONIC FRONTIER FOUNDATION
1550 Bryant Street, Suite 725
San Francisco, CA 95103
Telephone: (415) 436-9333
Facsimile: (415) 436-9993

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