IP: More on Judge limits media in DVD case

[Dave Farber <farber@cis.upenn.edu>]

>Date: Thu, 8 Jun 2000 17:21:22 -0400
>To: farber@cis.upenn.edu, ip-sub-1@majordomo.pobox.com
>From: Mike Godwin <mnemonic@well.com>
>\
>
>Dave, I think Declan's story as presented doesn't quite convey the 
>significance of the judge's ruling in the MPAA case. I was there, and my 
>account takes a different focus, which is that the movie companies lost 
>their play to block press access to deposition testimony:
>
> From the June 8, 2000 issue of E-Commerce Law Weekly
>In the Courts
>Movie Studios Lose Battle to Impose Blanket Bar Of Press, Internet
>Access to Deposition Testimony
>
>A federal judge denied June 6 a motion by movie studios seeking a
>blanket protective order barring disclosure of deposition testimony
>on the Internet (Universal City Studios Inc. v. Reimerdes, S.D.N.Y.,
>CA No. 00 Civ. 277 (LAK), motion denied 6/6/00).
>The underlying case concerns whether the dissemination and linking to
>a DVD decryption utility known as DeCSS is actionable as a violation
>of the Digital Millennium Copyright Act's anticircumvention
>provisions.
>The case was brought earlier this year by a group of movie-studio
>plaintiffs against defendants who either had published the source
>code for the DeCSS utility on their websites or who had linked to
>websites where the DeCSS program or source code could be found (2
>ECLW 87, 1/25/00). The suit is widely regarded by
>intellectual-property experts and the computer industry as a landmark
>case addressing questions of the scope of the DMCA's
>anticircumvention provisions and the applicability of "fair use"
>doctrine in the digital world.
>In response to a motion from the plaintiffs to categorically bar
>press access to depositions and to bar parties from disclosing
>deposition transcripts and evidence to the press-or to the public
>through the Internet-Judge Lewis A. Kaplan invited intervention on
>the issue from members of the press (2 ECLW 629, 6/1/00).
>The parties and the intervenors argued on the plaintiffs' motion at
>the June 6 hearing. Attorneys for defendant Eric Corley, who
>publishes 2600 magazine and who operates a related website, argued
>for press access to the depositions and evidence. Press intervenors
>contended that the press and the public were harmed by closed
>depositions, and some intervenors criticized the parties for agreeing
>to any confidentiality stipulation.
>Prior Confidentiality Agreement
>Ruling from the bench, Kaplan denied the plaintiffs' blanket
>protective order but held that the parties already-signed
>confidentiality agreement enabled them to redact any confidential,
>proprietary, or trade-secret information from deposition transcripts
>and evidence. Except for such redacted information, he ruled,
>deposition transcripts and testimony will
>generally be available to the press-
>and publishable on the Internet-10 days after the deposition dates.
>Kaplan made important exceptions to the 10-day rule: With regard to
>the testimony of Motion Picture Association of America CEO Jack
>Valenti and other "prominent" witnesses such as Disney chief
>executive Michael Eisner, the parties will make the transcripts and
>evidence available in three rather than 10 days. Valenti's
>deposition, which took place on the morning of June 6, was included
>in Kaplan's ruling.
>Encryption Information Gets Limited Protection
>At the hearing on the plaintiffs' motion to bar public and press
>access to depositions, arguments for media intervenors were made by
>lawyers for the Times Mirror Co. and for the Village Voice, and by
>Mike Godwin, senior legal editor of E-Commerce Law Weekly and
>columnist for American Lawyer, who argued pro se.
>Kaplan also held that parties' confidentiality stipulation, which
>Kaplan had approved June 5, will remain unmodified. The Times Mirror
>Co. and the Village Voice had sought to overturn the confidentiality
>stipulation, under which parties are bound to keep confidential
>certain kinds of information that may be disclosed in the discovery
>phase of the case.
>Among the types of information that qualify as "confidential
>information" to be redacted under the stipulation, Judge Kaplan
>ruled, are: information that could lead to harm of a deponent; trade
>or business secrets; and information on present or future DVD-movie
>encryption protection measures. Excluded is information or testimony
>that is embarrassing to deponents.
>Kaplan said protection of the encryption information is limited to
>the discovery phase of the case because the encryption technology
>used in manufacturing DVD movies is central to the lawsuit and thus
>will likely become public at trial.
>Although he did not grant a broad protective order to the plaintiffs,
>Kaplan did modify the confidentiality stipulation as a result of the
>hearing on press access. He held that publicly released material may
>be posted on the Internet as well as released to other communications
>media and that videotapes of the depositions, if made, could also be
>released subject to the redaction of stipulated information.
>Kaplan also held that parties could propose that other "prominent"
>deponents' testimony be subject to the three-day rule rather than the
>10-day rule.
>Kaplan stated that he will rule promptly on any disputes as to
>whether particular material falls within the terms of the
>confidentiality stipulation but warned that parties will be subject
>to sanctions if there is any attempt to use this adjudication process
>either to force disclosure of confidential information or to slow
>parties' preparation for trial, which is set for July.
>Mere Embarrassment Not Enough for Redaction
>In response to complaints by the plaintiffs that their filings appear
>on the Internet within a day or two of submission, Kaplan commented
>that this kind of rapid publication on the Internet is something
>parties will have to get used to, and noted that federal judges' own
>financial statements are now subject to disclosure on the Internet.
>Kaplan also noted that mere embarrassment of a deponent-as when a
>deponent does not know an answer to a question or answers
>incorrectly-does not rise to the level of the kind of harm that would
>lead to testimony being blocked or redacted by the confidentiality
>order.
>The plaintiffs had expressed concern, in their argument for a blanket
>protective order, that deponents were being asked questions that
>would publicly embarrass them. Kaplan said Valenti, Eisner, and other
>prominent deponents do not need his court to protect them from
>embarrassment.
>Both sides of the dispute and the media intervenors proposed
>alternative arrangements under which the court could make
>particularized rulings as to whether information should be blocked
>from disclosure to the press or the public.
>But Kaplan said he was unwilling to open the proceedings up to the
>kind of delay those arrangements-such as a review by an independent
>magistrate-would cause. Because the case is set to go to trial in
>July, he said, his ruling is designed to avoid procedures and
>proceedings that would lead to further delay.
>? By Mike Godwin
>?
>[Editor's note: Mike Godwin's motion was made on his own behalf, and
>his appearance at the hearing was pro se. Godwin's argument and
>motion do not necessarily represent the views of American Lawyer
>Media Inc., the  publisher of E-Commerce Law Weekly.]
>
>--
>
>--
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>            --Walt Whitman
>Mike Godwin can be reached by phone at 202-223-7843.
>His book, CYBER RIGHTS, can be ordered at
>         http://www.panix.com/~mnemonic .
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