The controversy over the DVD decryption program DeCSS has taken a slightly odd twist, as the case of a digital rights licensing group trying to ban DeCSS has shut down an otherwise unlikely potential distributor - a California state court.
CNET says Santa Clara County Superior Court Judge William Elfving put source code submitted in a trade secrets case under seal Jan. 27. The case was filed by the DVD Copy Control Association against 72 Internet sites and individuals earlier this month.
The seal order, CNET says, erases for now "an embarrassing gaffe" by plaintiffs attorneys - who apparently filed the request only after openly submitting the source code as a supporting document to the complaint. CNET also says it's not yet clear whether the goof could have deeper consequences.
Ordinarily, court papers are considered public documents for the most part, available to anyone who asks, but the DVD Copy Control Association filing was lifted from the court and made available on the Internet at www.Cryptome.org.
Lead plaintiff's attorney Jeffrey Kessler called the seal order a non-event, saying "everyone knew" the DeCSS exhibit would be sealed. But he wouldn't tell CNET how it got introduced into the case.
But the defense and its supporters say the slip could hurt the plaintiffs case. "It sounds like the plaintiffs goofed," says Judy Jennison, head of Perkins Coie's Silicon Valley intellectual property litigation practice and an experienced trade secrets trial attorney who is not involved in the case, to CNET. "If they didn't file it under seal, they could be seen to have given up the their (trade secret) rights."
Defense attorney Allonn Levy concurs, telling CNET that even if the document was made public by mistake it could jeopardize the trade secret status of the material. "Anyone could have copied out the trade secrets from the file before it was sealed," he tells CNET, although he didn't know whether anyone else had done it. "That raises a serious question of whether that material is protectable."
Defendants say DeCSS was made by legal reverse engineering allowing DVDs to be played on the Linux platform, CNET says. The Motion Picture Association of America, which is a member of the DVD Copy Control Association, has also sued to stop DeCSS, considering it a hack aimed at counterfeiting DVD products. The MPAA has filed a federal suit. In both suits, preliminary injunctions have been handed down stopping defendants from posting DeCSS throughout the cases' trials.
