DVD-CCA v. Bunner and DVD-CCA v. Pavlovich

The DVD Copy Control Association (DVD-CCA) sued dozens of unnamed individuals who live around the country and the world for publishing DeCSS, software code that decrypts the data on commercial DVDs. The DVD-CCA claimed that defendants misappropriated trade secrets when they published DeCSS.

This case follows two main paths, Bunner and Pavlovich, both of which went before the California Supreme Court. EFF was successful in defending both.

In Bunner, the DVD CCA summarily dismissed its claims after the California Supreme Court ruled that computer programs could be preliminarily restrained from publication only in very narrow circumstances. The California Court of Appeals ruled that those circumstances were not met in Mr. Bunner's case because the program was not a trade secret at the time it was published, but instead was widely available around the world.

In Pavlovich, the California Supreme Court ruled that Matthew Pavlovich, a Texas resident who published DeCSS on the Internet, could not be forced to stand trial in California. The landmark decision laid out clear jurisdiction rules for claims arising from publishing information on the Internet. DVD CCA's attempt to seek U.S. Supreme Court review of the decision was also rejected.

At issue: The First Amendment's protection for technically oriented speech. In Bunner, EFF established that trade secret legal claims cannot be used to censor publication of information that is already available around the world due to publication by others. In Pavlovich, EFF established that internet publishers cannot be forced to defend litigation in California when their publications have "general effects" in industries located in California but the publishers have no other contacts with the state.

EFF's role: Pay for costs, serve as co-counsel and coordinate the defense of this case.

Updated September, 2005

Table of Contents:

Bunner
Pavlovich
- Press Releases
- Jurisdiction

Bunner

Press Releases

Court Overturns Ban on Posting DeCSS
DVDCCA Surrenders in Bunner DVD Descrambling Case
EFF: California Supreme Court Upholds Free Speech in DVD Case
California Supreme Court to Hear DVD Case
California Supreme Court Hears DVD Trade Secret Case.
Update on California DeCSS Case.
Electronic Frontier Foundation Argues Against DVD Software Ban
EFF Media Advisory: Andrew Bunner faces bogus trade secret suit same day in nearby state court in another online intellectual property case.
EFF Appeals California DVD Software Ban

Preliminary Injunction

California Supreme Court

Bunner\'s Brief in Response to California Attorney General\'s Brief
Brief of Amici Curiae filed by the California Attorney General in support of DVD CCA (PDF 2MB)
Brief of Amici Curiae filed by Computer Professionals for Social Responsibility in support of Bunner (PDF)
Brief of Amici Curiae filed by the ACLU in support of Bunner (PDF)
Brief of Amici Curiae Microsoft et. al supporting DVD CCA (PDF)
Amicus Brief of Intellectual Property Owners Association supporting DVD CCA (PDF)
DVD CCA\'s Reply Brief to California Supreme Court in DVD-CCA v. Bunner
Bunner\'s Opposition Brief California Supreme Court answer to DVD-CCA v. Bunner
DVD Copy Control Association (DVDCCA) Opening Brief of the DVD-CCA to overturn the Appellate ruling that threw out the preliminary injunction against Andrew Bunner\'s posting of DeCSS in DVD-CCA v. Bunner et al., CA Supreme Court. (Mar. 28, 2002). (PDF version; pagination and line numbering preserved, as is the exact original appearance for the most part, but a copy-paste of the raw text will reveal OCR errors. 7MB.)
EFF/Andrew Bunner Reply to DVD-CCA Petition for Review to the CA Supreme Court, in DVD-CCA v. McLaughlin, Bunner, et al. (Dec. 24, 2001) (PDF)
The DVD Copy Control Association Petition for Review after Decision by the Court of Appeal, Sixth Appellate District
EFF/Matthew Pavlovich 2nd Petition to California Supreme Court for Review after decision of Court of Appeal (Sep. 14, 2001)
EFF/Matthew Pavlovich 2nd Petition to California Supreme Court for Review after decision of Court of Appeal (Sep. 14, 2001) (PDF)
Brief of Amici Curiae Intellectual Property Law Professors, The Computer & Communications Industry Association, and the United States Public Policy Committee of the Association for Computing Machinery Supporting Affirmance (PDF 111k)

California Appellate Court

Decision (PDF 130k - February 27, 2004)
Opposition to Motion to Dismiss (PDF 31k - February 18, 2004)
Dismissal (PDF 1M - January 21, 2004)
Bunner\'s Reply brief after Supreme Court review (PDF 115k - December 22, 2003)
Bunner\'s supplemental brief after Supreme Court review (PDF 143k - November 21, 2003
Nov. 1, 2001 CA appellate ruling overturning an injunction forcing Andrew Bunner and numerous other defendants to halt Internet publication, pending the outcome of the trial, of free software that allows people to play DVDs without platform & region restrictions imposed by movie studios. The state appeals court ruled that the lower court\'s injunction was a prior restraint against free expression protected by the First Amendment. (HTML | PDF)

California Superior Court

Motion to Vacate Judgment of Dismissal (February 18, 2004)

Order Granting Prelim. Injunction for plaintiffs against defendants, in DVD CCA v. McLaughlin, Bunner et al. (Jan. 20, 2000)

Declaration of Jon Bing in Opposition to Plaintiff\'s Opposition to Motion to Dismiss, Transfer. Bing\'s declaration covers Norwegian law (and exposes as highly uncertain the DVD CCA\'s claim that DeCSS is illegal and that defendants knew this all along; DeCSS was created in Norway, and does not appear to violate Norwegian law). (Jan. 18, 2000)

Plaintiff\'s Reply Memorandum of Points and Authorities in Support of Order to Show Cause Re: Preliminary Injunction Against All Defendants (Jan. 14, 2000; misdated Jan. 18). GIF format.

Global Internet Liberty Campaign member statement: Eighteen international GILC member organizations released a statement opposing the DVD Copy Control Association\'s (CCA) suit against people who have posted information about the DVD Content Scrambling System. The letter points out that the controversial DeCSS software is legal reverse-engineering needed to provide interoperability of DVDs on different computer systems. The statement also explains that DeCSS does not enable the practical duplication DVDs and that DVDs can already be copied through other available means. (Jan. 14, 2000)

Declaration of Espen Tøndel in Further Support of DVD CCA\'s Application for a Preliminary Injunction (Jan. 14, 2000; misdated Jan. 18). GIF format.

Declaration of Chris Eddy in Reply to Defendant Bunner\'s and McLaughlin\'s Opposition to DVD CCA\'s Application for Preliminary Injunction; and exhibit: Xing Technology License Agreement (Jan. 14, 2000; misdated Jan. 18). GIF format.

Declaration of Cary H. Sherman, Esq. in Support of DVD CCA\'s Application for Preliminary Injunction (Jan. 14, 2000; misdated Jan. 18). GIF format.
Reply Declaration of John J. Hoy [in Further Support of DVD CCA\'s Application for a Preliminary Injunction] (Jan. 14, 2000; misdated Jan. 18). GIF format.
Reply Declaration of Jonathan S. Shapiro, Esq. in Support of DVD CCA\'s Application for a Preliminary Injunction (Jan. 14, 2000; misdated Jan. 18). GIF format.
Ex Parte Application to Place Declaration of Frank A. Stevenson Under Seal [Civil Code Sect. 3426.5]; Memorandum of Points and Authorities; Declaration of Jared Bobrow in Support; [Proposed] Order [To Place Stevenson Declaration Under Seal]; [Bobrow\'s] Declaration of Service (Jan. 14, 2000; misdated Jan. 18). GIF format.

Motions: Appearances, and Index of Exhibits, in DVD CCA v. McLaughlin, Bunner, et al. (Jan. 14, 2000)

Partial transcript from Jan. 7, 2000 hearing. GIF format.

EFF attorneys\' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRELIMINARY INJUNCTION. We argue against it on First Amendment grounds, lack of trade secret claim, as well as little harm from ongoing publication, and little likelihood that the DVD CCA will win its case on merits.

Andrew Bunner\'s Declaration.

Frank Andrew Stevenson\'s Declaration in Support of Defendant.

David Wagner\'s Declaration in Support of Defendant.

John Gilmore\'s Declaration in Support of Defendant.

Defendant\'s Objections to Evidence.

Defendant\'s Request for Judicial Notice of Norwegian Law Permitting Reverse Engineering.

Defendant\'s authorities cited at oral argument.

Judge\'s order denying the TRO requested by the DVD CCA. Provided by Cryptome.

Lucky Green\'s report on the TRO hearing in the DVD CCA case. Provided by Cryptome.

Email from John Gilmore announcing EFF\'s involvement in the DVD CCA case. Provided by Cryptome.

Jonathan S. Shapiro\'s Declaration for Plaintiffs Re: Notice to Defendants, plus Exhibits, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 28, 1999) Provided by Cryptome.

Plaintiff\'s Exhibits of Non-CA Cases in Support of TRO Motion, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 28, 1999) Provided by Cryptome.

Plaintiff\'s Application for TRO and for Injunction Order, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 28, 1999) Provided by Cryptome.

Plaintiff\'s Memorandum Supporting Motion for TRO and Prelim. Injunction, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 28, 1999) Provided by Cryptome.

Plaintiff\'s Proposed TRO and Injuction Order, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 28, 1999) Provided by Cryptome.

Frederic Hirsch\'s Declaration for Plaintiffs, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 27, 1999) Provided by Cryptome.

Bruce H. Turnbull\'s Declaration for Plaintiffs, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 27, 1999) Provided by Cryptome.

John J. Hoy\'s Declaration for Plaintiffs, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 24, 1999) Provided by Cryptome.

Harvey Shapiro\'s Declaration for Plaintiffs, plus samples of Exhibit, in DVD CCA v. McLaughlin, Bunner, et al. (Dec. 24, 1999) Provided by Cryptome.

Main Case

California Superior Court

Legal Complaint sent to defendants by email. Provided by Cryptome.

Nov. 28, 2001

EFF/Andrew Bunner Motion for Summary Judgment (and Memorandum in Support of Motion for Summary Judgement) in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

EFF/Andrew Bunner Notice of Motion for Summary Judment in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

EFF/Bunner Statement of Undisputed Facts in Support of Motion for Summary Judgement, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of Andrew Bunner in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of Prof. Edward W. Felten in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of Gregory Kesden in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of Roland Parviainen in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of David S. Touretzky in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Declaration of Prof. David A. Wagner in Support of Motion for Summary Judgment, in DVD-CCA v. McLaughlin, Bunner, et al. (HTML | PDF)

Misc

Definition of "misappropriation" from California Uniform Trade Secrets Act (CALIFORNIA CIVIL CODE : SECTION 3426.1)

Andreas Bogk\'s Jan. 1, 2000 critique of DVD CCA\'s claims about DeCSS, and chronology of Linux and Windows DVD reverse engineering efforts. Provided by Cryptome.

Some pithy Internet community comments (from John Young, Peter D. Junger, Carl M. Kadie; Dec. 28, 1999) on the DVD reverse engineering case. Provided by Cryptome.

Pavlovich

Press Releases

California Court Cannot Lasso Texas Resident into DVD Case

Hollywood Forces Publishers Worldwide to California Court

California Court Asserts Jurisdiction Over Non-resident Internet Publisher

Jurisdiction

US Supreme Court

USSC Order Denying Stay (PDF 48k)

Declaration of Allonee E. Levy in Opposition to DVD CCA\'s Application for Stay of Judgement (PDF 15.2MB)

Application for Stay of Judgement Granted (PDF 30k)

DVD CCA Application for Stay of Judgement of the Supreme Court of California (PDF 4.3MB)

California Supreme Court

California Supreme court opinion on the Pavlovich case

DVD-CCA opposition to Pavlovich\'s opening brief on merits. (PDF)

EFF/Matthew Pavlovich Opening Brief to the California state Supreme Court in jurisdictional appeal. (See also 2nd Petition for Review).

EFF/Matthew Pavlovich Opening Brief to the California state Supreme Court in jurisdictional appeal. (See also 2nd Petition for Review). (PDF)

CA Supreme Court order granting defenant/appellant Pavlovich\'s appeal. The California Supreme Court granted Matthew Pavlovich\'s petition for review, directing the lower courts to show why Pavlovich\'s motion to dismiss the case against him should not be granted. (Dec. 13, 2000)

EFF/Matthew Pavlovich Petition to California Supreme Court for Review after decision of Court of Appeal (Sep. 11, 2000) (PDF)

California Appeals Court

(Aug. 7, 2001) California Appellate Court ruling against Matthew Pavlovich, in Pavlovich v. Superior Court of Santa Clara County and DVD-CCA, (his appeal from DVD-CCA v. McLaughlin, et al.) Pavlovich attempted to remove himself from the case on jurisdictional grounds.

(Mar. 7, 2001) EFF/Matthew Pavlovich (2nd) Reply in Support of Petition for Writ of Mandate, to California Appeals Court, 6th Dist. (PDF)

(Sep. 21, 2000) EFF/Matthew Pavlovich Reply in Support of Petition for Writ of Mandate, to California Appeals Court, 6th Dist. (PDF)

(Sep. 11, 2000) EFF/Matthew Pavlovich Petition to California Appeals Court, 6th Dist., for Writ of Mandate to compel trial court to quash service of process (PDF)

(May 15, 2000) Andrew McLaughlin, Andrew Bunner, Matthew Pavlovich, et al., and EFF appeal the preliminary injunction as an unconstitutional prior restraint issued on very slim evidence.