SAN FRANCISCO--A federal judge sealed a courtroom on Friday after attorneys for the Motion Picture Association of America and another Hollywood group claimed that confidential information might be disclosed during testimony about DVD-encryption technology.
U.S. District Judge Marilyn Patel kicked the public out of the courtroom at around 2:30 p.m. PDT, overruling objections from CNET News and RealNetworks, which also said it opposed the unusual request.
An attorney for the DVD Copy Control Association, which is involved in a lawsuit here over DVD-backup software sold by RealNetworks, said details about the technology used to encrypt DVDs justified the request to give the public the boot during witness testimony--which, according to legal precedent, should be reserved only for rare cases.
"I find that this does meet the requirements for a trade secret," Patel said. "We're going to protect what needs to be protected. I'm ordering everyone not signed off on a confidentiality agreement to leave the courtroom."
"The MPAA is trying to seal proprietary specifications," said DVD-CCA attorney Reginald Steer. He added: "This is critical to our presentation."
Steer said the trade secrets related to licensing technology and CSS, or Content Scrambling System, which is an algorithm used to encrypt DVDs. DVD-CCA once filed a lawsuit against programmer Jon Johansen, who wrote a DVD-descrambling utility that circumvented CSS--a suit that had the unintended consequence of publicizing the code widely, including on ties, T-shirts, and at least one haiku poem.
Corynne McSherry, an attorney at the Electronic Frontier Foundation who has been following this case and was in the courtroom, said Patel chose an unfortunate procedure when barring the public from the room on Friday.
"She implied that we should have filed a motion preemptively," McSherry said. "If that's true, the public shouldn't have to go to court to make the courtroom stay open...Presumably the plaintiffs had known for months that they were planning to close this hearing. This is not the right way to do it."
CNET News contacted the MPAA in advance and asked if the group would attempt to close the courtroom on Friday; the MPAA replied earlier this week it would not seek to do so.
The MPAA, the lobbying group for the six largest film studios, alleges that RealDVD violates the Digital Millennium Copyright Act (DMCA) because it bypasses the copy protection built into DVDs. The DMCA generally restricts companies from developing products that circumvent antipiracy protections, but Real says that its RealDVD product complies with the law.
When arguing for the courtroom to be cleared of anyone that was bound by a non-disclosure agreement, attorneys for the DVD-CCA acknowledged that some of its technology had been cracked and published on the Web. But, they said, that information represented only a small fraction of the keys, algorithms and other trade secrets which have never been appeared publicly.
Details about CSS and Johansen's DeCSS code --which was the subject of an injunction nine years ago by a court in New York--is widely distributed including through a online gallery published by a Carnegie Mellon University researcher. In addition, programs like the DVD-descrambling utility Handbrake are in common use.
Patel's initial response in the morning seemed skeptical. She joked that if DVD-CCA and the MPAA wanted to close the courtroom, "You should have gotten yourself a private judge. This is an open forum."
Under long-standing U.S. law, courtrooms are open by default. The 9th Circuit Court of Appeals, which is binding on Patel, has said that judges considering closing a courtroom or sealing records "must provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives. If objections are made, a hearing on the objections must be held as soon as possible."
Once that hearing is held, the courtroom can only be closed if specific conditions are met, including that there are no alternatives that are practical. Also, the judge must "make specific factual findings," and not just claim it was necessary.
A CNET News reporter objected to the courtroom closure. CNET News' publisher, CBS Interactive, is weighing its options in terms of a legal challenge. CNET intervened last year in federal court in a case pitting Facebook against ConnectU to unseal documents, a dispute that ended up before the 9th Circuit Court of Appeals.
Updated 12:55 p.m. PDT to add more background.
Updated 3 p.m. PDT to note the courtroom had been closed.
Vice President Joe Biden lauded Hollywood at a gala dinner in Washington, D.C. on Tuesday evening, assailed movie piracy, and promised film executives that the Obama administration would pick "the right person" as its copyright czar.
Just days after four Pirate Bay defendants were found guilty in Sweden, Biden warned of the harms of piracy at a private event organized by the Motion Picture Association of America in the sumptuous, newly renovated Great Hall of the National Portrait Gallery in Washington, D.C.
"It's pure theft, stolen from the artists and quite frankly from the American people as consequence of loss of jobs and as a consequence of loss of income," Biden said, according to a White House pool report.
Biden blasted China, saying its intellectual property laws remain "largely ineffective" and will end up "strangling their own creative juices," and compared it to what he described as India's more effective anti-piracy regime. He singled out Canada, a close U.S. ally, as needing stronger laws; it never signed the treaty that led to the Digital Millennium Copyright Act, and a proposal to adopt anti-circumvention restrictions was never adopted.
He also addressed President Obama's forthcoming decision about who will be named the intellectual-property enforcement coordinator, better known as the copyright czar. Copyright industry lobbyists sent a letter Monday to the president asking him to pick someone sympathetic to their concerns, while groups that would curb copyright law sent their own letter urging the opposite approach.
We "will find the right person for intellectual property czar," Biden said.
Under a law approved by the U.S. Congress last October, Obama is required to appoint someone to coordinate the administration's IP enforcement efforts and prepare annual reports.
Senators attending the MPAA gala included Richard Durban (D-Illinois); Sheldon Whitehouse (D-R.I.); Frank Lautenberg (D-N.J.), Judd Gregg (R-N.H.); Amy Klobuchar (D-Minnesota); Patrick Leahy (D-Vermont); Roger Wicker (R-Mississipi); and Ben Nelson (D-Nebraska).
An unspoken reason for the MPAA event--which included a symposium earlier in the day with remarks from top House Democrats and Commerce Secretary Gary Locke--was the loss of $246 million in tax breaks when the Senate revised the economic stimulus bill earlier this year. An MPAA report released Tuesday appears designed to avoid a repeat of that setback, listing the number of movies being filmed in each state.
Earlier in the day, Locke also talked up more government action against peer-to-peer piracy. "The recent revelation that an illegal copy of the upcoming movie "Wolverine" had been posted on the Internet prior to its theatrical release underscores the problem the industry faces...As a former prosecutor, I believe in the full and impartial enforcement of the law," he said.
On copyright, President Obama has signaled a more pro-industry approach than his predecessor, which has alarmed advocates of less restrictive laws.
The president chose as top Justice Department officials the music industry attorney who pulled the plug on Grokster and another longtime Recording Industry Association of America ligitator. The Obama administration recently sided with the RIAA in a file-sharing suit, and Biden was a staunch RIAA and MPAA ally as a U.S. senator.
"I think sometimes you underestimate the impact you have, and not just entertaining but uplifting," Biden told the audience at the MPAA event. "I wish I could inspire the way you do."
It only took a few days after politicians returned from their summer holidays for Hollywood and the major record labels to resume their legislative push to rewrite and expand digital copyright law.
The Recording Industry Association of America and the Motion Picture Association of America are lobbying for a pair of bills that enjoy bipartisan support. Both are designed to give the federal government more power to police copyright violations, and both are likely to run into opposition from political foes of the RIAA and MPAA.
On Thursday, the Senate Judiciary Committee is scheduled to vote on the so-called Enforcement of Intellectual Property Rights Act, a 46-page bill that was introduced in July by Vermont's Patrick Leahy and Pennsylvania's Arlen Specter, the committee's top Democrat and Republican.
The measure represents a fusion of previous bills, including ones that have enjoyed support in both the Senate and House of Representatives, and one that Leahy introduced in November 2007. One of the more controversial sections of the latest version would permit the Justice Department to file a civil lawsuit against "any person" committing a copyright violation--which would include thousands, or perhaps millions, of piratical peer-to-peer users.
A group of librarians and nonprofit groups, including the American Library Association, Public Knowledge, and the Electronic Frontier Foundation, sent a letter to senators on Wednesday that says copyright holders--and not government lawyers funded by tax dollars--should be the ones filing the lawsuits.
"Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs," the letter says. "There is absolutely no reason for the federal government to assume this private enforcement role." (The letter also criticizes the bill's criminal and civil forfeiture sections, and impounding of business records pre-trial if someone is accused of copyright infringement.)
The second RIAA- and MPAA-backed bill was introduced by senators Max Baucus, a Montana Democrat, and Orrin Hatch, a Utah Republican, on Wednesday. It's called the International Intellectual Property Protection and Enforcement Act, and it aims to ratchet up copyright pressure against countries that the U.S. Trade Representative deems to be taking too few steps against piracy.
"We can't let other countries repeatedly rip off the movies Americans make, the products Americans design and the other fruits of American ingenuity without taking some action," Baucus said in a statement.
The Baucus-Hatch bill says that the executive branch "shall develop an action plan" against such nations, with benchmarks including "adequate and effective protection of intellectual property rights." Failure to meet those benchmarks may result in the Feds suspending government procurement contracts involving that nation, and halting loans and development aid, including credit from the Overseas Private Investment Corporation and the Export-Import Bank of the United States.
Another section says the president "shall ensure that an intellectual property attache with the title of Minister-Counselor is placed in the United States embassy of each foreign country with which the President determines the United States has a commercially significant relationship."
The RIAA applauded the bill in a statement, saying it will "protect this national resource with new, meaningful tools." The MPAA's Dan Glickman said: "We appreciate the leadership of Chairman Baucus and Senator Hatch. Their efforts to strengthen the enforcement of U.S. intellectual property rights around the world are critical to protecting the many American business sectors and American workers that depend on intellectual property."
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