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DECLARATION OF FREDERIC HIRSCH, ESQ.
WEIL, GOTSHAL & MANGES LLP
JARED B. BOBROW (State Bar No. 133712)
2882 Sand Hill Road
Menlo Park, CA 94025
Telephone: (650) 926-6200
Facsimile: (650) 854-3713
WEIL, GOTSHAL & MANGES LLP
JEFFREY L. KESSLER*
ROBERT G. SUGARMAN*
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Attorneys for Plaintiff
DVD COPY CONTROL ASSOCIATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
|DVD COPY CONTROL ASSOCIATION, INC.,
a not-for-profit trade association,
ANDREW THOMAS MCLAUGHLIN, an
Case No. CV-786804
DECLARATION OF FREDERIC HIRSCH,
Date: December 29, 1999
*Pro Hac Vice applications being submitted to the Court.
I, FREDERIC HIRSCH, ESQ., hereby declare and state as follows:
1. I am employed as Senior Vice-President of the Motion Picture Association ("MPA") and am the Director of the worldwide anti-piracy program. I have held that position for two years; previously, I have held numerous other positions at the MPA over most of the last seventeen years. I make this Declaration in support of DVD Copy Control Association, Inc.'s ("DVD CCA") Application for a Temporary Restraining Order and for a Preliminary Injunction in the above-referenced matter.
2. The Motion Picture Association of America ("MPAA") and its international counterpart, the MPA, serve as the voice and advocate of the major American motion picture studios, domestically through the MPAA and internationally through the MPA. (The MPAA and MPA are referred to here collectively as the "MPA.") The MPA represents not only the theatrical film industry, but also serves as a leader and advocate for major producers and distributors of entertainment programming for television, cable, home video, digital video discs, also referred to as digital versatile discs ("DVDs") and future delivery systems not yet imagined. The members/affiliates of the MPAA include the Walt Disney Company, Sony Pictures Entertainment Inc., Metro-Goldwyn-Mayer, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corp., Universal Studios, Inc. and Warner Bros. All of the MPA member companies own internationally famous intellectual property and rely heavily on internationally accepted laws and rules for the protection of that property.
3. The MPA, as a central part of its work, directs a comprehensive anti-piracy program. Begun in the United States in 1975, the program has several objectives: to strengthen industry security measures; to strengthen existing copyright protection through legislative activity; to assist local governments in the investigation and prosecution of piracy cases; and to provide technical and legal support in the criminal and civil litigation generated by such investigators. This work is of vital importance to the motion picture industry because intellectual property theft has been estimated to cost United States motion picture companies over $2.5 billion annually .
4. The MPA has focused significant attention on the increasing problems of piracy of intellectual property on the Internet. Representatives of the MPA have testified before Congress, warning about the dangers of Internet piracy that threaten the future of the motion picture industry. While the Internet has great potential, as a medium for piracy it may also cause enormous losses and damage to consumers and to intellectual property industries. The valuable intellectual property of the United States motion picture industry is threatened by the piracy that is the subject of DVD CCA's Application.
5. When motion picture studios first began exploring the possibility of making their intellectual property available to the public in a digital format, they were insistent that a viable protection system be made available to prevent users from making copies of motion pictures. Such protection is necessary to prevent copying from discs that are rented or borrowed and to prevent broader scale piracy through widespread transmission of these motion pictures over the Internet and widespread distribution of"pirated" discs in competition with the authorized prerecorded discs. The motion picture companies insisted on a copy protection system because this new digital format increased the risks for perfect pirated copies of their motion picture copyrights. This was in contrast to the analog domain, in which VHS video cassette copies of video are noticeably degraded from the original content and subsequent copies are progressively degraded as subsequent generations of copies are made. The motion picture companies deemed necessary the creation of copy protection technology. Without motion picture companies copyrighted content for DVD video, there would be no viable market for DVD players, as well as the related hardware, computer chips and software necessary to run these devices and, thus, there would be no DVD video industry.
6. The Content Scramble System ("CSS"), was developed to provide the protection for the motion picture companies against the unauthorized copying of their copyrighted material. The motion picture industry (as well as the computer and consumer electronics industries) embraced CSS and the stringent controls that were imposed on the licensees of the CSS. These stringent controls include: restricting the number of licensees with access to CSS encryption technology; dissemination of the proprietary technology only when the knowledge is absolutely necessary to manufacturers; and strict limitation on the number of licensee's employees with access to proprietary technology. Without the development of these protections, MPA members would not have agreed to distribute their films on DVDs.
7. On or about October 25, 1999, the MPA first learned that the source code of a program named DeCSS had appeared on the Internet web site operated by Jon Johansen, an individual residing in Norway, the domain name of which is mmadb.no/hwplus/Software/DeCSS/decss.html. The DeCSS program which appeared on this web site gives persons who visit this site the ability to duplicate copyrighted motion pictures contained on a DVD.
8. In conjunction with DVD CCA, the MPA immediately commenced investigative efforts to locate web sites which were posting and/or "linking" to other sites posting the proprietary information. The MPA, through its counsel, Sargoy, Stein, Rosen & Shapiro, has sent written and e-mail notices to about 66 such web sites and Internet Service Providers, demanding that such sites be taken down. To date, the MPA has been able to determine that about 25 of the sites contacted have been taken down. However, we understand that additional sites have appeared since we sent the cease and desist letters.
9. With the support of DVD CCA, the MPA began to plan legal action against Jon Johansen. Mr. Johansen removed the DeCSS program and links to other sites offering the DeCSS program after he was contacted by letter by an attorney from Simsonsen & Musaeus, a Norwegian law firm retained by the MPA.
10. Absent an effective way to control the spread of DVD decryption technology such as DeCSS, the worth of the copyrights held by MPA members will be significantly diminished. Proliferation of circumvention technology like DeCSS could threaten the foundation of the motion picture industry by allowing a single person with a single copy of the film to distribute via the Internet thousands of perfect DVD-quality copies of that film, which may then be redistributed throughout the world. With little effort, an unauthorized distributor could do millions of dollars worth of damage to the potential market for a single motion picture.
11. The risk to the copyrighted films of MPA members is exacerbated by the nature of Internet piracy. Unauthorized copies may be distributed from anywhere in the world on any computer that is connected to the Internet. Finally, consumers may obtain unauthorized copies in private, lessening both detection rates and the social stigma associated with obtaining stolen goods.
12. Misappropriation of proprietary information will also have a chilling effect on future technological innovation in the film industry, the computer industry and the consumer electronics industry. It has already had a serious impact on the music industry, by virtue of the delay of the introduction of digital audio technology. Furthermore, it will also discourage MPA members from making their copyrighted material available to the public in new formats.
13. The MPA fully supports the efforts of DVD CCA to permanently enjoin the illegal "hacking" and distribution of the motion picture industry's intellectual property. Without a legal remedy as that sought by DVD CCA in this action7 unchallenged piracy as that alleged in the Complaint filed in this action will cause the motion picture industry to lose substantial revenues.
I declare under the penalty of periury that the foregoing is true and correct.
December 27. 1999
FREDERIC HIRSCH, ESQ.
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