In the Supreme Court of the State of California
I attended the oral argument of DVD Copy Control Association v. Pavlovich before the California Supreme Court. It was interesting.
I think both sides made some technical errors in their descriptions of what DeCSS is and does.
What most frustrated me about what the other side had to say was this. The DVD CCA's attorney first accurately said that Pavlovich intended to create an open source DVD player. (That was a great improvement over some of what they've said in the past.) DVD CCA then went on to argue that, because creating an open source player "defeats" or "undoes" or "destroys" CSS (by necessarily involving publishing it contrary to DVD CCA's rules), the decision to develop such a player shows a intent to harm technology companies and movie studios (and that this intent is malicious).
After all, DVD CCA said, the nature of CSS as intended by its creators was that it could not be published in an open source form (otherwise people would be able to do copying of DVDs, because they would know how to implement CSS without being contractually bound). Therefore, Pavlovich would have known that publishing a CSS-implementing player in an open source form would undermine the security of CSS and would hurt the various California industries which had developed and relied on the security of CSS.
DVD CCA just kept on claiming that Pavlovich knew he was doing something wrong because he knew that the development of LiVid was contrary to the intention of the tech companies and the studios, and would harm their business. One of the justices (Justice Brown) asked a great question, roughly
So, if I'm here in California, and I start to picket in front of my house, saying "The U.S. automobile industry sucks!", can I be sued in Michigan because I deliberately acted in a way I knew would have effects on an industry in Michigan?
I'm biased on this point, but I thought DVD CCA's answer was evasive. It dodged the suggestion that there are legitimate activities which can be expected to harm someone's business, and promptly went back to an earlier analogy which compared Pavlovich's conduct to that of somebody firing a rocket.
(Shannon Lafferty covered this hearing for The Recorder, and reports that Brown asked "What is it about what he did that makes it appropriate for California to exercise jurisdiction? If I picketed in front of my house with a sign, 'American car companies are terrible,' I can be sued in Michigan?".)
I found something which DVD CCA's attitude reminded me of. (I fear that a whole bunch of law students will start finding this page through searches, because of what I'm about to reproduce below. Maybe that's not a bad thing.)
Two masters of a grammar school at Gloucester brought a writ of trespass against another master, and counted that the defendant had started a school in the same town, so that whereas the plaintiffs had formerly received 40d. or two shillings a quarter from each child, now they got only 12d., to their damage, & c.TILDESLEY. His writ is worthless.
SKRENE. It is a good action on the case, and the plaintiffs have shown well enough how they are damaged; wherefore, & c.
HANFORD, J. There may be damnum absque injuria [a loss without a (legally cognizable) injury]. As if I have a mill, and my neighbor builds another mill, whereby the profit of mine is diminished, I shall have no action against him; still I am damaged, quod Thirning, C.J., concessit, and said that the instruction of children is a spiritual matter; and if one retains a master in his house to teach his children, it is a damage to the common master of the town, yet, I think, he will have no action.
SKRENE. The masters of Paul's claim that there shall be no other masters in all London except themselves.
HORTON demurred because the action was not maintainable.
HILL, J. There is no ground to maintain this action, since the plaintiffs have no estate, but a ministry for the time; and though another equally competent with the plaintiffs comes to teach the children, this is a virtuous and charitable thing, and an ease to the people, for which he cannot be punished by our law.
SKRENE. If a market is erected to the nuisance of my market I shall have an assize of nuisance; and in a common case, if those coming to my market be disturbed or beaten, whereby I lose my toll, I shall have a good action on my case; so here.
HANKFORD, J. Not the same case, because in the case put you have a freehold and inheritance in the market; but here the plaintiffs have no estate in the schoolmastership, & c., but for an uncertain time, and it would be against reason for a master to be hindered from keeping school where he pleases, unless where a university was incorporated or a school founded in ancient times.
And the opinion of the court was that the writ would not lie. Wherefore it was awarded that they should take nothing, & c.
("The Schoolmaster Case", Y.B. 11 Hen. IV, 47 (1410).)
What I would have loved to have seen in Pavlovich was one of the Justices declaring that, "though another equally competent with the plaintiffs comes to publish independently-developed DVD player software, this is a virtuous and charitable thing, and an ease to the people, for which he cannot be punished by our law". Of course, since this was just an argument about jurisdiction, the Court wasn't actually considering the merits of the case.
But they sure liked to talk about the damnum and not so much about the injuria.
DVD CCA is still pushing this idea that Matthew Pavlovich knew that "there was a licensing entity for CSS" or "there was a licensing process for CSS" or something. Their theory seems to be that, since Matthew allegedly knew that such a process existed but chose not to participate in it, his intent must clearly have been wrongful. (The idea that he wanted to compete with them and, like the new school master in 1410, didn't properly require their permission to do so seems foreign to DVD CCA.)
I'm not feeling creative enough to attack this reasoning with actually creative analogies, so I'll just give a boring analogy.
I hereby declare that there is a licensing process for learning the prime factors of 402596090603198404541749. Whoever wants to incorporate these factors into a new product should send a stamped, self-addressed envelope to:
NTILO Factors of 402596090603198404541749 Licensing Division
1022A Shotwell Street
San Francisco, CA 94110-4086
ATTN: Licensing Co-ordinator
along with a check for $80 (payable to "Number Theory Interim Licensing Organization") and a signed copy of the following agreement.
THIS IS A LEGAL AGREEMENT between parties ____________________ (hereinafter "Licensee") and Seth Schoen dba Number Theory Interim Licensing Organization (hereinafter "Licensor").The parties agree as follows:
RECITALS.
- Licensor has developed, and desires to license to Licensee, valuable trade secret information and data, namely a mathematical "factorization" of the integer 402596090603198404541749 (hereinafter "Factorization").
- Licensee, a (natural person) (corporation) (____________) located in _____________________, desires to obtain, for its own use in mathematical research and/or product development, a copy of Factorization from Licensor.
- The development of Factorization required intense efforts on the part of Licensor for several minutes on September 6, 2002.
CONFIDENTIALITY. Licensee understands that Factorization is unique and cannot, if compromised, be replaced by any other factorization. Accordingly, Licensee acknowledges that Factorization constitutes valuable proprietary trade secret information. Licensee undertakes and agrees not to publish or disclose Factorization to any party without prior written content of Licensor. Licensee agrees that Factorization is provided only for its own use in mathematical research and/or product development and that, by this agreement, Licensee acquires no proprietary right or interest in Factorization.
LICENSE FEE. Licensee agrees to pay a license fee of $80.00 (eighty dollars) ("License Fee") to Licensor, in consideration for Licensee's license to possess and use Factorization.
ENFORCEMENT OF AGREEMENT. If Licensee shall breach this agreement, Licensor shall suffer immediate and irreparable damage for which it has no adequate remedy at law. Therefore, Licensee and Licensor agree that Licensor may be entitled to equitable relief in addition to any remedy at law. Licensee agrees that, in the event of unauthorized disclosure or publication, Licensor shall be entitled to an injunction to prevent further disclosure.
ENTIRE AGREEMENT. This is the entire agreement between Licensee and Licensor and supersedes any prior agreement. This agreement may not be modified other than by subsequent written agreement between Licensee and Licensor.
GOVERNING LAW. This agreement shall be governed by the laws of the State of California. Exclusive jurisdiction and venue for all matters relating to the enforcement of this License shall be in courts in the county of San Francisco, California, and the parties hereby consent to such jurisdiction and venue.
SEVERABILITY. In the event that any of the provisions of this agreement shall, for any reason, be held by a court of competant jurisdiction to be invalid, illegal or unenforceable in whole or in part, such invalidity, illegality, unenforceablility, or other defect shall not affect any other provision of this agreement, but this agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained in it.
By: ______________________________
Title: _____________________________
Date: ______________________________
Licensee ____________________________By: ______________________________
Title: Licensing Co-ordinator
Date: ______________________________
Licensor NTILO
Now all of you know that "there is a licensing procedure" which you must follow if you want to know the factors of 402596090603198404541749 or use them for any purpose. Don't let me catch you misappropriating my factors!
Anyway, the California Supreme Court sits in San Francisco, not Sacramento, and has a beautiful courtroom in the Civic Center not at all far from UC Hastings. You can take BART to their arguments. (You'll have to pass through two metal detectors and surrender any weapons or electronic devices -- pocket knives would actually pose an interesting problem because only the 2nd metal detector's operators are equipped to check personal possessions.) Admission is free and open to the public; most attendees dress up.
I personally wore my suit to court, and I looked something like this:
If I'm very lucky, I'm going to be hearing an argument in the Supreme Court of the United States not long from now. I have to make some arrangements first, though.
