[8 pages; Exhibits: A, 1 page; B, 33 pages; C, 15 pages; and D, 21 pages]
|[Footer first 8 pages:]
Declaration of Jonathan S. Shapiro, 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
Date: December 29, 1999
*Pro Hac Vice applications being submitted to the Court.
I, JONATHAN S. SHAPIRO, ESQ., hereby declare and state as follows:
1. I am an attorney associated with the law firm of Weil, Gotshal & Manges LLP ("WG&M"), attorneys for plaintiff DVD Copy Control Association, Inc. ("DVD CCA") and am admitted to practice law before the Courts of the State of New York. I make this declaration on personal knowledge and, if sworn as a witness, could competently testify thereto to each of the facts set forth herein, except as to the matters stated on information and belief, and as to such matters I believe them to be true.
2. This Declaration is being submitted in support of Plaintiff s Application for the Issuance of a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction Against All Defendants.
3. Plaintiff's Complaint was filed on December 27, 1999 and contains a cause of action against all defendants for misappropriation of trade secrets.
4. WG&M has worked closely with the Motion Picture Association of America ("MPA") and its attorney Harvey Shapiro, Esq., of the New York law firm Sargoy, Stein, Rosen and Shapiro, in efforts to identify and notify the operators of at least 118 web pages in at least 11 states and 11 countries, which have disclosed (or provided "links" to other web sites which have disclosed) proprietary data contained within the Content Scrambling System ("CSS") licensed by DVD CCA.
5. Nine lawyers, including myself, and two legal assistants from WG&M, have made significant efforts to identify, locate and notify the defendants. We have spent an estimated 150 hours reviewing and verifying the MPA information and Mr. Shapiro's files, searching for additional web pages with infringing information, searching for contact inforrnation for the defendants, and notifying them of our Application for a Temporary Restraining Order and Preliminary Injunction.
6. The MPA has provided us with continuously updated charts listing web pages disclosing or linking to the proprietary data at issue. These charts show (as best as can be determined) the web page address, whether the page is still operating, the country in which the web page is located, and the name and address of the person or entity to whom the domain name is registered. A domain name is an alpha numeric representation of an address where a web site is located (e.g. "www.lemuria.org"). Web pages appear on a web site (e.g. "www.lemuria.org/DeCSS"). Many web pages can appear on a single web site.
7. In some cases, the MPA list identifies a person or electronic mail address of a person believed to be responsible for the content of the web page ("content provider").
8. We have done our own independent web page searching and have continually checked the results of the MPA research for accuracy by visiting each of the listed web pages on the Internet. We have kept track of the 25 out of 66 web pages that have shut down and those that have removed the infringing content -- in response to MPA cease and desist letters -- to determine if they have re-posted the material.
9. We have checked the registration address of the domain for each site by visiting web sites which keep a database of domain addresses. We visited two domain registration web sites, http://www.networksolutions.com and another site http://www.allwhois.com, to verify the domain registration information. Network Solutions is the largest domestic domain name registry. Allwhois.com provides international registration information. These two web sites provide the name and addresses of a person or entity who registered the domains on which the defendants' web pages are found. In some cases, we have determined that the domain registrant is also responsible for the content on the web pages at issue. In other cases, the registrant of the server is not the content provider. Several different web pages, with content provided by different individuals, may be on the same domain. There is no central registry for content providers and most domain registrants simply do not provide the biographical information of the providers.
10. We thoroughly checked each web page we visited to find whether the infringing information and links to infringing information were located on the page. On each page, we searched for any name, address, or electronic mail address of an individual or entity who might be responsible for the content on the site or on the web page(s) with the infringing information. On some web sites, names, addresses, and/or electronic mail addresses of individuals responsible for the content were clearly stated. On some other sites, after reading the contents of the site, we were able to deduce that the domain registrant and the content provider were the same individual. On some sites, we were unable to identify who was responsible for the content.
11. In order to try and ascertain the identities and contact information for additional defendants, we reviewed Mr. Shapiro's files which included the cease and desist letters sent by the MPA to Internet service providers and web sites and the responses thereto. A review of these documents revealed the names and locations of some of the defendants.
12. In addition to finding web sites and defendants by utilizing and crosschecking the MPA lists and Mr. Shapiro's files, we performed independent searches using various search engines on the Internet, such as www.yahoo.com, www.lycos.com, and www.altavista.com. We found and visited additional web pages, discussion groups, and chat rooms related to DVD decryption. Through these efforts we were able to identify additional defendants and ascertain contact information.
13. The efforts outlined above have resulted in the location of 93 web pages with infringing information. Through our efforts, we were able to identify the names and electronic mail addresses of the 21 named defendants in the Complaint. In addition, we were able to identify what we believe to be the electronic mail addresses for 58 out of the 72 Doe defendants listed in the Complaint.
14. We identified and found electronic mail addresses for defendants Andrew Thomas Mclaughlin, Andrew Bunner, John V. Kew, Scott Karlins, Glenn Rosenblatt, Dale Emmons, Emmanuel Goldstein, Douglas R. Winslow, Jonathan Blank, Roger Kumar, Robert Jones, En Hong, Matthew Robert Pavolich, Ian A. Gulliver, Jon Hanson, David M. Chan, Cameron Simpson, Tom Vogt, Cyril Amsellem, Thorsten Fenk, and Adrian Baugh.
15. We found electronic mail addresses for Doe defendants 1 through 13, 16, 19 through 32, 34, 35, 37 through 43, 45, 49, 50, 52 through 56, 58, 61 through 72.
16. On Monday, December 27, 1999, at 1:05 P.M. PST, an associate at WG&M, under my direction, sent, via electronic mail, copies of the Complaint and Notice of Application for Temporary Restraining Order (the "Notice") to each defendant identified in paragraphs 14 and 15 above. (A copy of the Notice is attached as Exhibit A.) Each identified defendant was sent a copy of the documents in English. A second copy of the Complaint and Notice was to sent to each international defendant in the language of the country in which, on information and belief, their web site is located. To accomplish this, we had the Complaint and Notice translated into Dutch, Polish, Finnish, German, French, Danish, Swedish, Italian and Norwegian.
17. We provided notice of our Application for Temporary Restraining Order at least 43 hours prior to the application to 79 of the defendants -- some of whom received three different methods of notice. Below are the three methods of notice that we provided to defendants. To the extent possible each defendant received notice by each method. We attempted to serve the three named defendants in California by personal service. We were able to successfully serve defendants Bunner and McLaughlin. We attempted to telephonically notify eight of the named defendants. We spoke directly with defendants Bunner and Blank. We left messages on three answering machines, believed to belong to defendants McLaughlin, Kew, and Gullii. We curtailed our telephonic notification efforts as we received e-mail and saw web postings indicating receipt of notice from the other defendants whom we intended to call. Defendants for whom we had e-mail addresses were given notice at those e-mail addresses.
18. We exercised reasonable diligence in our attempts to locate and notify all defendants of Plaintiff's application.
19. We have reason to believe that our efforts to provide notice to defendants, particularly through use of their Internet web sites, were effective. We know that notice via Internet web sites will provide actual notice based on the previous results of the MPA's antipiracy task force -- 25 web sites shut down and many responded after receiving MPA cease and desist letters on their Internet web sites. Additionally, comments of defendants on their web sites, which mock attempts to stop their improper activity, demonstrate that defendants, in fact, received such information (and disseminate and discuss this type of information on their sites and in Internet chat rooms) and, thus, that the Internet is an effective means to provide them with actual notice.
20. Within ten minutes of sending a copy of the Notice and the Complaint we received a call from defendant Andrew Bunner who indicated that he had received the Complaint and Notice via electronic mail and that he would take his web site down.
21. Within thirty minutes of sending a copy of the Notice and the Complaint we received a call from defendant Jonathan Blank who indicated that he had received the Complaint and Notice via electronic mail and that he would take his web site down.
22. Within two hours of sending a copy of the Notice and the Complaint we received electronic mail messages from defendants Robert Jones, David Chan, Cyril Amsellem, Tom Vogt (a Doe defendant), Hakan Johansson (a Doe defendant), J. Hammond (a webmaster for a web site of a Doe defendant), "jeroen" (a Doe defendant), and "Massic" (a Doe defendant), indicating that they had received the Notice and Complaint. Defendants Jones, Chan, Johansson, (Doe defendant) and Hammond (as a representive of a Doe defendant) indicated that they would take the infringing material off of their web site. Defendant Jones sent an electronic mail message several hours later to indicate that he was putting the material back on his site.
23. Also within two hours, news of the Notice and Complaint appeared on "www.slashdot.org," a popular web site for discussions regarding computers and technology. The Notice and Complaint was the lead story and the message stated "the hearing will be at the Superior Court of Santa Clara County, State of California, on December 29, 1999, at 8:30 a.m....Yes, the e-mail is real. Many people sent copies. We'll post an in-depth story within a day or two." By 6:00 P.M. PST (only five hours after the Notice and Complaint were sent) there had been over 200 responses to the posting of this news. By 9:00 P.M. PST there were over 400 responses. By 9 A.M. PST on December 28, the number of responses mushroomed to over 750. (Copies of the Slashdot web page and some of the comments are included as Exhibit B.)
24. Many messages on Slashdot state contempt for the DVD CCA and its lawyers. Some openly flout the suit. Brian Ristuccia, who is not named a defendant, queried, [c]an I be a defendant too?" and posted a link to his site containing the DeCSS decryption code at osiris.978.org/~brianr/css/. An anonymous individual posted a link to his site www.bard.org.il/~marc/dvd. Several others have posted codes and links. Several others questioned DVD CCA's motives behind filing suit and mused that DVD CCA will never be able to stop the dissemination of the DeCSS decryption code. There are many other messages on the Slashdot website seeking to organize protests at the Court on the day of the hearing. (Representative samples of these responses are included in Exhibit C.)
25. Defendant Andrew McLauglin has received notice of the action. He posted the following message on Slashdot: "It's interesting to note, having the dubious distinction of being the first listed on this restraining order application, the activity to my web site has taken a sharp increase. More people have downloaded the program from my server today than in the last 30 days! I suppose I have the law firm to thank for that. 'Thanks!' "
26. Within six hours of sending a copy of the Notice and the Complaint, copies of both documents appeared on several web sites including the sites of defendants Emmanuel Goldstein (www.2600.com/news/1999/1227.html) and Dale Emmons (www.frozenlinux.com/local/decss/letter.html). Goldstein's web site includes a plea for individuals to copy the DeCSS code and post it on more web sites. (Copies of relevant information from these sites are attached as Exhibit D.
27. Within sixteen hours of sending a copy of the Notice and the Complaint we received electronic mail messages from defendant Adrian Baugh indicating that he received the Notice and that he wanted another copy of the Complaint in a different file format. We also received electronic mail messages from various individuals hostile towards the DVD CCA's position.
28. The Hacker News Network another popular Internet based news service at www.hackernews.com posted comment about the hearing and a copy of the Notice and Complaint on the morning of December 28, 1999.
29. The response to the Notice and Complaint continues to grow by the minute.
30. It is clear that many named and Doe defendants received notice of our application for a TRO from the methods outlined above. Information regarding the date of the proceeding has spread quickly through the Internet and has provoked quite a reaction. It is extremely likely that many of the defendants whom we have been unable physically to locate, despite reasonable diligence as detailed above, have received notice of the action via the Internet.
31. We are continuing in our efforts to identify and notify all defendants.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: December 28 1999
New York, New York
[Exhibit A, 1 page]
ATTENTION: LEGAL NOTICE
NOTICE OF APPLICATION FOR TEMPORARY RESTRAINING ORDER
Notice is hereby given pursuant to California Code of Civil Procedure, section 527(c), California Rule of Court 379, and Local Rule 1.3.5 of the Santa Clara Superior Court of the State of California that the DVD Copy Control Association, Inc. ("DVD CCA") is filing an ex parte application for the issuance of a Temporary Restraining Order and an Order to Show Cause re: Preliminary Injunction in Department 2, 9 or 12 of the Superior Court of Santa Clara County, State of California, on December 29, 1999, at 8:30 a.m. The address of the Court is 191 North First Street, San Jose, CA. A Complaint will be filed no later than 8:30 a.m. on that day and the matter will be assigned either to Department 2, 9, or 12. A representative of DVD CCA will be outside all three departments and will identify himself to you as a representative of DVD CCA.
The Application will seek to enjoin you (and those working with or for you) from making any further use or otherwise disclosing or distributing on your web site or elsewhere, or linking to other web sites which disclose, distribute or link to, any proprietary information or property or trade secrets of DVD CCA, including, but not limited to, DeCSS or any program which includes proprietary information which is designed to, or enables one to, decrypt data on DVD dics.
DVD CCA will provide you with further Notice at your web site address, and to the extent that we know it, to your street address via the United States postal system, of the Order issued by the Court regarding DVD CCA's Application for a Temporary Restraining Order, including the dates of any further hearing set by the Court.
Please find, as an attached file, the Complaint being filed against you both in English and in the language of the country in which your web site appears to be based.
[Exhibit B ]
[This exhibit consists of 33 pages of printout of the Slashdot discussion on "DVD CCA Applies for Restraining Order," commencing with the Roblimo post on Monday December 27, @06:10PM and ending with the PimpSmurf post on Monday December 27, @07:10PM EST (#135), all pages with this footer:
[This exhibit consists of 15 pages of printout of selected Slashdot comments on the DVD thread, with footers:
[This exhibit consists of:
First, 6 pages of printouts of The Hacker Quarterly 2600 News Archive pages on the "DVD Industry Takes 2600 To Court" with this footer:
"How You Can Help," with this footer:
And a revised "How You Can Help," with this footer:
And, second, 17 pages of printout of the local @ frozenlinux pages showing the DVD CCA Letter of Notice (Exhibit A above) and the Complaint (mirrored at http://www.eff.org/pub/Intellectual_property/DVDCCA_case/19991228-complaint.html), all pages with this footer:
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