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Declaration of Bruce H. Turnbull
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
Date: December 29, 1999
*Pro Hac Vice applications being submitted to the Court.
I, BRUCE H. TURNBULL, Esq., hereby declare and state as follows:
1. I am a member of the law firm Weil, Gotshal & Manges LLP, and am counsel to plaintiff the DVD Copy Control Administration, Inc. ("DVD CCA") in the above-captioned matter. I make this Declaration in support of plaintiff's application for a temporary restraining order and for a preliminary injunction.
2. I have been serving as counsel with respect to digital video disc ("DVD") encryption technology matters for the DVD CCA, since its formation in December 1998, and for Matsushita Electric Industrial Co., Ltd. ("MEI"), since the proprietary Contents Scramble System ("CSS") at issue was invented in July 1996. I have been involved in innumerable meetings among motion picture, computer, and consumer electronic companies concerning the adoption of the DVD video format and the development of, and licensing of, the proprietary technology designed to protect the motion picture companies' copyrighted content on DVD videos, as well as the market for computer DVD drives and DVD players, as well as the related computer chips and software necessary to run these devices.
3. I have been involved in all major drafting initiatives concerning CSS adoption and related copy protection issues. Specifically, I have been one of the primary drafters and negotiators of the license agreement pursuant to which CSS technology (including associated intellectual property rights) has been licensed and have been consulted by MEI and the DVD CCA on all aspects of the implementation and protection of the CSS technology, which is at issue in the instant application for a temporary restraining order and for preliminary injunctive relief.
The "Hack" of the CSS Technology And Actions Taken in Light of Unauthorized Disclosure
4. On information and belief, as early as October 25, 1999, the source code of a program named DeCSS was posted on the Internet by Jon Johansen, an individual residing in Norway, on the web site mmadb.no/hwplus/Software/DeCSS/decss.html. The DeCSS program which appeared on this web site embodies, uses, and/or is a substantial derivation of confidential proprietary information which DVD CCA licenses pursuant to the CSS Agreement.
5. On information and belief, the DeCSS program was designed with the specific purpose, and has the ability, to defeat DVD encryption software. As a result, the DeCSS program allows users illegally to pirate the copyrighted motion pictures contained on DVD videos -- activity which is fatal to the DVD video format and the hundreds of computer and consumer electronics companies whose businesses rely on the viability of this digital format.
6. Based on my own direct knowledge of the activities of DVD CCA and on information provided to me by the Motion Picture Association's ("MPA") anti-piracy task force and professional staff, extensive investigative efforts were immediately undertaken by DVD CCA and the MPA anti-piracy task force to locate web sites which were posting and/or "linking" to other sites posting the proprietary information, and Internet service providers which were hosting sllch site.s.
7. On October 28, 1999, I participated in a conference call among representatives of MPA and counsel for several computer companies that have participated in the CSS and DVD CCA licensing discussions. During that call, it was decided that the best course of action was for the MPA's anti-piracy group -- an existing department of the MPA which has well-trained personnel and has extensive experience conducting international investigations concerning the "pirating" of intellectual property rights -- to use its resources to locate web sites disclosing, or "linking" to other sites disclosing, CSS proprietary information and demand that such material be removed. DVD CCA would focus on a number of other activities in response to the situation, including using its technical expertise to evaluate the nature of the hack that had occurred and working with the CSS licensee whose implementation of CSS had apparently been compromised to determine the most effective countermeasures to protect the CSS technology and licensing system from further compromise.
8. In the subsequent several weeks, I participated in several additional meetings and conference calls with the MPA anti-piracy staff to learn of their activities and to assist in coordinating and providing assistance from the DVD CCA in regard to their activities. Based on the discussions during those calls and meetings, it is my understanding that the MPA sent notices to 66 web sites and Internet service providers demanding that this information be removed immediately and that after receiving such notice, approximately 25 of these web sites and Internet service providers voluntarily removed the proprietary information or "links" to the information at issue.
9. DVD CCA, with the assistance of Weil, Gotshal & Manges, LLP, and in conjunction with the MPA, has made substantial efforts up through the filing of plaintiff's action to locate websites disclosing, or "linking" to other sites, disclosing CSS proprietary information. DVD CCA's efforts in this regard are further detailed in the Declaration of Jonathan S. Shapiro, Esq., submitted in support of plaintiff's application for a temporary restraining order and for a preliminary injunction.
I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Bruce H. Turnbull
Dated: December 27, 1999
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