Defendant's Objections to Plaintiff's Evidence
in DVD CCA v. McLaughlin, Bunner, et al.

(Defendant's Objections to Evidence Submitted by Plaintiff in Support of Order to Show Cause Re: Preliminary Injunction; Jan. 7, 2000)

RICHARD ALLAN HORNING - SB #45349
THOMAS E. MOORE  III- SB #115107
MICHAEL W. STEBBINS - SB #138326
TOMLINSON ZISKO MOROSOLI & MASER LLP
200 Page Mill Road, Second Floor
Palo Alto, California  94306
Telephone: (650) 325-8666
Facsimile:   (650) 324-1808

ALLONN E. LEVY - SB#187251
HUBER & SAMUELSON, P.C.
210 N. Fourth Street, Suite 400
San Jose, CA  95112
Telephone:  (408) 295-7034
Facsimile:    (408) 295-5799

ROBIN D. GROSS - SB#200701
ELECTRONIC FRONTIER FOUNDATION
1550 Bryant Street, Suite 725
San Francisco, CA  95103
Telephone: (415) 436-9333
Facsimile:   (415) 436-9993

Attorneys for Defendant
ANDREW BUNNER
 

 SUPERIOR COURT OF THE STATE OF CALIFORNIA  COUNTY OF SANTA CLARA
 

DVD COPY CONTROL ASSOCIATION, INC., a not-for-profit trade association,
Plaintiff,

          v.

ANDREW THOMAS MCLAUGHLIN, et al.,
Defendants.

NO.   CV 786804

DEFENDANT'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

Date:  January 14, 2000
Time:  1:30 p.m.
Dept:  2
Honorable William J. Elfving

Defendant ANDREW BUNNER hereby objects and moves to strike the evidence submitted by plaintiff DVD COPY CONTROL ASSOCIATION, INC. ("DVD CCA") in support of its Application for the Issuance of a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction as set forth below.

 I.  OBJECTIONS TO EVIDENCE

  A. Declaration of Frederic Hirsch, Esq.

Defendants object to Paragraph 7 of this declaration pursuant to Evidence Code Sections 702, 800 and 412 to the extent it is offered to prove how and why DeCSS was developed.  The declarant has no (and/or does not evince) personal knowledge of those facts.

Defendants object to Paragraph 12 of this declaration pursuant to Evidence Code Sections 702, 800, 412 and 1520 through 1523 in that it is based on speculation, lacks personal knowledge and/or is based on hearsay, is inherently weak, and is not the best evidence of any such alleged chilling effect.    The statement regarding the music industry is rank hearsay, and clearly not the best evidence of any alleged delay in the introduction of digital audio technology (not to mention the fact that it ignores the major changes occurring in the music industry relating to MP3 technology -- which goes well beyond the scope of this proceeding), and is therefore inadmissible.  Declarant has provided no competent evidence to support the statements, and the paragraph is therefore irrelevant and inadmissible pursuant to Evidence Code Section 350.

Defendants object to the final sentence of Paragraph 13 of this declaration pursuant to Evidence Code Sections 702, 800, 412 and 1520 through 1523 in that it is based on speculation, lacks personal knowledge and/or is based on hearsay, is inherently weak, and is not the best evidence of any such alleged loss of substantial revenues.  Declarant has provided no competent evidence to support the statement, and the sentence is therefore irrelevant and inadmissible pursuant to Evidence Code Section 350.

Neither this, nor any other declaration provided by plaintiff, provides any competent evidence of any alleged harm caused by denial of the preliminary injunction.

B. Declaration of Bruce H. Turnbull, Esq.

Defendants object to Paragraphs 4 and 5 of this declaration pursuant to Evidence Code Sections 702, 800 and 412 to the extent it is offered as evidence of how and why DeCSS was developed.  On its face, the Paragraph is improper to support the requested relief because it is made "on information and belief" and declarant has no personal knowledge of the facts regarding the development of DeCSS.  Declarant has provided no competent evidence to support the statements contained therein, and the paragraph is therefore irrelevant and inadmissible pursuant to Evidence Code Section 350.

Defendants object to Paragraph 7 of this declaration pursuant to Evidence Code Sections 702, 800, 412 and 1520 through 1523 regarding the discussion of the "CSS licensee whose implementation of CSS had apparently been compromised. . . ." (p. 3:27-28.)  Declarant's statement is based on hearsay and fails to attach the license agreement with - or even mention by name -- the "CSS licensee."

Neither this, nor any other declaration provided by plaintiff, provides any facts presented on personal knowledge regarding the development of DeCSS or the alleged misappropriation of the CSS algorithm or keys.

C. Declaration of John J. Hoy

Defendants object to Paragraphs 12 through 19 of this declaration pursuant to Evidence Code Sections 702, 800, 412 and 1520 through 1523 regarding the "substantial amounts of money and resources in the development of the DVD application and the necessary safeguards, such as the CSS licensing mechanism, to protect the DVD copyright content" (p. 5:2-4), and the "CSS Agreement" (p. 5:18).  Declarant's statements  regarding the resources invested is conclusory, lacks foundation, does not evince personal knowledge and fails, under the best evidence rule, to demonstrate the terms of the alleged "licensing mechanism."

Furthermore, all discussion of the alleged terms of any so-called "CSS Agreement" is inadmissible under the best evidence rule since neither this, nor any other declaration provided by plaintiff, submits any license agreement with any CSS licensee.  As such, the statements contained in Paragraphs 12-19 regarding the CSS Agreement are irrelevant and inadmissible pursuant to Evidence Code Section 350. Plaintiff therefore fails to provide the best evidence of the alleged "means which are reasonable under the circumstances" to support the finding of a trade secret under Civil Code Section 3426.1 et seq.

Defendants object to Paragraphs 25 through 27 of this declaration pursuant to Evidence Code Sections 702, 800 and 412 to the extent they are offered as evidence of how and why DeCSS was developed and when it "first appeared."  On its face, the Paragraphs are improper to support the requested relief because they are made "on information and belief" and declarant has no personal knowledge of the facts regarding the development of DeCSS or when it "first appeared."  Declarant has provided no competent evidence to support the statements contained in such paragraphs, and they are therefore irrelevant and inadmissible pursuant to Evidence Code Section 350.

Defendants object to Paragraph 28  and 29 of this declaration pursuant to Evidence Code Section 702 and 412 as lacking foundation or the requisite personal knowledge and as conclusory speculation.  Declarant presents no facts to support the statements that defendants "knew or should have known" the DeCSS program was created through the alleged unauthorized used of CSS, that by providing Internet links to the DeCSS program on their own websites they were allegedly "misusing" allegedly "proprietary information", or that they would be subject to prosecution for alleged trade secret misappropriation.  (p. 9:14-21.)
Neither this, nor any other declaration submitted by plaintiff, provides any facts to support the allegation that defendants "knew or should have known" the alleged trade secret "was acquired by improper means" under Civil Code Section 3426.1(d).

Defendants object to Paragraphs 32 through 34 of this declaration pursuant to Evidence Code Sections 702, 800 and 412 as to the allegations regarding the alleged irreparable harm to the DVD industry and to plaintiff in the future.  Declarant's statements lack foundation or personal knowledge, consist of conclusions, speculation and hyperbole, and provide no evidence of any harm to the DVD industry or to plaintiff.  The statements regarding the music industry in Paragraph 34 are rank hearsay (not to mention the fact that they ignore the major changes occurring in the music industry relating to MP3 technology -- which goes well beyond the scope of this proceeding) and therefore inadmissible.
 

D. Declaration of Harvey Shapiro, Esq.

Defendants object to this declaration in its entirety pursuant to Evidence Code Sections 350 as irrelevant to the issues before the court on plaintiff's motion for preliminary injunction.  The declaration discusses the efforts of declarant (or rather, declarant's law firm) to send "letters" to various Internet service providers and websites relating to the alleged "infringement" of certain intellectual property rights of the Motion Picture Association of America and the Motion Picture Association (collectively "MPA") allegedly resulting from the posting of CSS technology or providing links to other sites discussing CSS and/or DeCSS.  The declaration provides no evidence of any alleged "infringement" of MPA's intellectual property rights, no evidence of any alleged trade secret misappropriation, and no evidence of any harm allegedly caused to the MPA.  The declaration attach no website or web page printouts showing the alleged "infringement".

Moreover, the efforts taken by the MPA to protect the alleged "infringement" of copyrighted material contained in DVDs are not evidence of the efforts taken by plaintiff, pursuant to Civil Code Section 3426.1 et seq., to protect the alleged trade secrets embodied in the CSS algorithm and keys.
E. Declaration of Jonathan S. Shapiro, Esq.

Defendants object to this declaration in its entirety to the extent it is submitted to prove that any of the defendants other than ANDREW THOMAS MCLAUGHLIN and ANDREW BUNNER have been properly served with the complaint or other papers in this action under any method recognized in Code of Civil Procedure Sections 415.10 et seq.  Except as to defendants MCLAUGHLIN and BUNNER, the service efforts described therein are not in compliance with California law.  Furthermore, although plaintiff had agreed to complete service by December 31, 1999 on all other defendants in the United States via service by mail with return receipt requested pursuant to Code of Civil Procedure 415.40, and to serve foreign defendants in compliance with the provisions of the Hague Convention Treaty (see 12/29/99 Hearing Transcript, pp. 9:21-10:20), as of the date of this filing, counsel for defendants MCLAUGHLIN and BUNNER are unaware of any such service.  Plaintiff has admitted that service via the Internet was "[b]ut as an added safeguard."  (Id., p. 10:4).

Defendants also object to Paragraph 8 of this declaration discussing removal of "the infringing content" (p. 3:11) because there is no "infringement" of any kind at issue in this case.

 II.   CONCLUSION
Based upon the foregoing, defendant respectfully requests that the court decline to consider the above described evidence and strike it from plaintiff's supporting papers.
 
 

By: Richard A. Horning
TOMLINSON ZISKO MOROSOLI & MASER LLP
Thomas E. Moore III
Michael W. Stebbins
Dated: January 7, 2000

Attorneys for Defendant
ANDREW BUNNER
 
 

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