Princeton University |
Freshman Seminar 136 |
|
Welcome to this special meeting of the Princeton University Freshman Seminar, "The Speech is a Machine".
The copyright law of the United States derives from the Constitutional power granted to the Congress, "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The history of Copyright law is in finding the best (constitutionally mandated) balance between the limited exclusive rights of authors to prohibit copying, on the one hand, and the rights of the public to use copyrighted material. In the 19th and 20th centuries, it was difficult or inconvenient for authors and publishers to maintain complete control over the use of their material -- which gave the public some freedom in its use -- but it was difficult or inconvenient for the public to make wholesale perfect reproductions of copyrighted works -- which gave the copyright holders some protection.
In the 21st century the situation promises to be very different. Ordinary people routinely make electronic copies of electronic documents (and music), sometimes on a large scale, such as via Napster. And publishers are increasingly turning to technical content-protection devices and click-through license agreements that give readers and listeners much more limited rights than they had in the old days. Most technical protection measures work by encryption of copyrighted works, with decryption under the control of a specially licensed player or viewer. But it is all to easy to find the secret keys embedded in these viewers, and circumvent the protection measures. While circumvention may have some socially desirable effects in some cases -- it will enable fair use of the copyrighted material, or enable time-shifting and space-shifting by legitimate purchasers -- circumvention also allows wholesale copyright infringement.
In the digital world, how is it possible to preserve the financial incentives for authors and artists? In 1998 the Congress passed the Digital Millennium Copyright Act, which bans circumvention devices: bans manufacture, use, or trafficking in them. At about that time, the major Hollywood movie studios started releasing movies in DVD format, protected by the Contents Scrambling System, or CSS, an encryption technology. In 1999, a 15-year-old Norwegian published on the internet a computer program called DeCSS, which decrypts DVDs. By January 2000, DeCSS was posted on many web sites around the world, and the Motion Picture Association of America, representing the eight major movie studios, filed a lawsuit in Federal court in New York, seeking an injunction against three web-site operators to stop distributing DeCSS, on the grounds that the web sites were trafficking in a circumvention device.
At trial in the District Court, the defense raised many claims: free-speech guarantees of the First Amendment, the unconstitutionality of CSS's restrictions on fair use, the fact that the movie studios could not document any real-world copyright infringement using DeCSS, and others. However, Federal Judge Lewis Kaplan ruled for the plaintiffs, deciding that the DMCA's restrictions on speech are incidental to its restrictions on conduct and are content neutral; that the Congress's decision on how to balance fair use versus the potential for piracy is within its constitutional powers; that the DMCA does not require a finding of actual infringement to ban the distribution of a circumvention device.
The defendant, 2600 Magazine and its publisher Eric Corley, has appealed the district court's decision. In January, 2600 filed appeal briefs, and friends of the court filed 7 separate amicus briefs. In February, the MPAA filed its briefs, and in an unusual move the U.S. Justice Department filed a brief in support of the MPAA. Oral arguments in this case are scheduled for May 1st.
Acting as Justices of the Appellate Court are Timothy Allen, Meredith Desautels, Joshua Kauke, Thomas Mandecki, and Nathanial Ross. These Justices have specified four particular issues, raised in the appeal briefs, on which they wish to hear oral argument:
1) Does the DMCA primarily regulate conduct or speech as applied to DeCSS in this case, and therefore which sort of scrutiny applies, intermediate or strict? If intermediate scrutiny applies, is any incidental regulation of speech content-neutral? Essentially, is this regulation consistent with the First Amendment?
This will be argued by Jonathan Thomas, for 2600 Magazine, and Adam Tagert, for the Motion Picture Association.
2) Are links speech that incidentally perform a function or are they a function that is incidentally speech? Does functionality indicate less protection under the First Amendment?
This will be argued by Amit Koren, for 2600 Magazine, and Thais Melo, for the Motion Picture Association.3) How is authority given to the consumer of a DVD, and what does this authority allow the user to do with a DVD?
This will be argued by Joshua Tauberer, for 2600 Magazine, and John Vennema, for the Motion Picture Association.4) Does the DMCA grant users fair use rights? If fair use is granted to consumers, what rights do distributors possess in order to enable consumers access to those uses?
This will be argued by John Viventi, for 2600 Magazine, and John Blatz, for the Motion Picture Association.Original transcript from court reporter
1 00-9185
2 ________________________________________________
3 United States Court of Appeals
4 for the
5 Second Circuit
6 * * * * * * *
7 UNIVERSAL CITY STUDIOS, INC., PARAMOUNT
PICTURES CORPORATION, METRO GOLDWYN MAYER
8 STUDIOS, INC., TRISTAR PICTURES, INC.,
COLUMBIA PICTURES INDUSTRIES, INC., TIME
9 WARNER ENTERTAINMENT COMPANY, L.P., DISNEY
ENTERPRISES INC., TWENTIETH CENTURY
10 FOX FILM CORPORATION,
11
Plaintiffs-Appellees,
12
against
13
ERIC CORLEY, also known as Emmanuel
14 Goldstein, and 2600 ENTERPRISES, INC.,
15 Defendants-Appellants,
16 and
17 SHAWN C. REIMERDES and ROMAN KAZAN,
18 Defendants.
19 ________________________________________________
20 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
21 FOR THE SOUTHERN DISTRICT OF NEW YORK
22
23 TWIN COURT REPORTING, INC.
CERTIFIED SHORTHAND REPORTERS
24 POST OFFICE BOX 408
CREAM RIDGE, N.J. 08514
25 609-758-2840 or 732-928-8822
1 Oral argument was held at the Whig Hall
2 Senate Chamber, Princeton University Campus,
3 Princeton, New Jersey, before DOREEN FOX
4 KRENCHICKI, License No. XI00821, a Notary Public
5 and Certified Shorthand Reporter of the State of
6 New Jersey, on April 23, 2001, commencing at
7 1:45 P.M.
8
9
10
11
12 B E F O R E:
13
THE HONORABLE JUSTICE MEREDITH DESAUTELS
14
THE HONORABLE JUSTICE TIMOTHY ALLEN
15
THE HONORABLE JUSTICE JOSHUA KAUKE
16
THE HONORABLE JUSTICE THOMAS MANDECKI
17
THE HONORABLE JUSTICE NATHANIAL ROSS
18
19
20
21
22
23 TWIN COURT REPORTING, INC.
CERTIFIED SHORTHAND REPORTERS
24 POST OFFICE BOX 408
CREAM RIDGE, N.J. 08514
25 609-758-2840 or 732-928-8822
1 ATTORNEYS FOR PLAINTIFFS-APPELLEES:
2
ADAM TAGERT, ESQUIRE
3 Counsel for the Motion Picture Assoc.
4 THAIS MELO, ESQUIRE
Counsel for the Motion Picture Assoc.
5
JOHN VENNEMA, ESQUIRE
6 Counsel for the Motion Picture Assoc.
7 JOHN BLATZ, ESQUIRE
Counsel for the Motion Picture Assoc.
8
9
10
11 ATTORNEYS FOR DEFENDANTS-APPELLANTS:
12
JONATHAN THOMAS, ESQUIRE
13 Counsel for 2600 Magazine
14 AMIT KOREN, ESQUIRE
Counsel for 2600 Magazine
15
JOSHUA TAUBERER, ESQUIRE
16 Counsel for 2600 Magazine
17 JOHN VIVENTI, ESQUIRE
Counsel for 2600 Magazine
18
19
20
21
22
23 TWIN COURT REPORTING, INC.
CERTIFIED SHORTHAND REPORTERS
24 POST OFFICE BOX 408
CREAM RIDGE, N.J. 08514
25 609-758-2840 or 732-928-8822
4
1 JUSTICE DESAUTELS: The Court will
2 hear first from Mr. Thomas.
3 MR. THOMAS: Good afternoon. My name
4 is Jonathan Thomas and I, along with my colleagues,
5 will be representing 2600 Magazine. These are the
6 appeals from the final judgment placing an
7 injunction on 2600 Magazine's publication of the
8 DeCSS algorithm.
9 Now, the issue at hand is more than about
10 preventing a magazine's publication of an
11 algorithm. It is about more than DVDs. The case
12 at hand is about the future of our right to speak.
13 It is about the future of journalism.
14 The publication of truthful, scientific,
15 educational and commercially viable information
16 must not be prohibited. And the final
17 interpretation --
18 JUSTICE ROSS: Where exactly is the
19 truthfulness in a computer program?
20 MR. THOMAS: It's truth. The fact is,
21 there's an algorithm that was written by somebody
22 and that information is being passed on to the
23 public.
24 JUSTICE ROSS: (Inaudible).
25 MR. THOMAS: Well, nothing. Anything
5
1 that's written is truthful in that case.
2 May I continue?
3 Thank you.
4 Now, the final interpretation of the
5 DMCA by the District Court is unconstitutional. If
6 upheld, that decision will be used by groups such
7 as the MPAA as a way to prohibit any publication
8 that is unfavorable to that particular group,
9 regardless of its implications to the rest of
10 society; whether they're good, bad or anything.
11 Most notably the good ones.
12 Now, the publication of DeCSS is
13 undoubtedly speech. After all, that's what this
14 case is about.
15 JUSTICE ALLEN: How do you define --
16 the alternative view would be that it's merely a
17 tool, that source code is merely a tool to
18 accomplish something; why do you say speech as
19 opposed to being --
20 MR. THOMAS: No. I'm saying the
21 publication of DeCSS is undoubtedly speech. The
22 act of publishing it is a form of expression.
23 JUSTICE ALLEN: Well, then again, what
24 you are doing is linking merely a form of speech.
25 MR. THOMAS: No, I'm not discussing
6
1 linking, but I can answer that. But I'm sure --
2 I'll be happy to do that shortly.
3 May I go on?
4 All right. Now, the fact is that a
5 magazine was taken to Court for publishing the
6 truth. And that's wrong. And not only was the
7 publication of DeCSS speech, but the code itself is
8 speech.
9 I'd like to draw the Court's attention
10 to testimony made by Dr. Edward Felton in the
11 District Court on the issue of speech. He was
12 asked this question; he was asked: Based on your
13 experience with source code and object code, is it
14 your opinion that object code is expressive? And
15 he replied: Certainly. He went on to say, and I
16 quote: You can learn a lot from reading and
17 analyzing and executing object code if you know how
18 to do it. And so can you learn about what the
19 author of the code, what the person who made the
20 code intended the program to do. You can learn
21 about how the program is constructed, you can learn
22 about aesthetic and engineering decisions that the
23 person made. And from all that, you can learn
24 things that the person who created the program put
25 in there.
7
1 Essentially, the transmission of ideas
2 from the author to the reader is done through the
3 code.
4 I'd also like to mention the District
5 Court's interpretation of DeCSS speech issue
6 relating to computer code. They say: It cannot
7 seriously be argued that any form of computer code
8 may be regulated without reference to First
9 Amendment doctrine.
10 It goes on to say: As computer code,
11 whether source or object, is means of expressing
12 ideas, the First Amendment must be considered
13 before its dissemination may be prohibited or
14 regulated.
15 Now, because DeCSS and the publication
16 of DeCSS are undoubtedly speech, any regulation of
17 either must first undergo strict scrutiny in order
18 to guarantee its constitutionality. But the
19 District Court failed to take the Constitution
20 seriously in its ruling and it did not interpret
21 the DMCA correctly.
22 Now, the DMCA clearly states, and I
23 quote section (c)(4): Nothing in this section
24 shall enlarge or diminish any rights of free speech
25 or the press for activities using consumer
8
1 electronics, telecommunications or computing
2 products.
3 And the District Court did not even
4 mention these provisions. It made no attempt to
5 state how its decision was consistent with the laws
6 of the land. And essentially, it put the DMCA on a
7 crash course with the Constitution. However, there
8 is a way around this problem. And it is my hope
9 that the Court will see this today.
10 Now, if one makes a distinction
11 between acts that are clearly illegal, using such
12 theories as conspiracy and agency, from acts that
13 are, such as in this case, the publication of this
14 information, which are journalistic acts and
15 constitute no real imminent danger; then one can
16 clearly see that the laws can coexist harmoniously
17 and there isn't really -- there's no real conflict
18 between them, if you make that distinction.
19 And it's my hope that the Court can
20 find a final solution, a reasonable solution to
21 this problem today, without jeopardizing the future
22 of journalism.
23 JUSTICE DESAUTELS: How do you argue
24 that the expressiveness of computer code is more
25 legally important than its consequences; meaning,
9
1 the analogy to an assassin whose actions may be
2 expressed with an idea, but what an assassin does
3 at his or her actions are more legally important?
4 MR. THOMAS: See, the thing is,
5 computer code, if you relate it to computer science
6 in the field, there are -- computer scientists are
7 professionals. It is a field that's not really --
8 that's not illegal, such as if you're a
9 professional assassin, you're not really encouraged
10 to do that, but as a professional computer
11 scientist, that's your job. If you're not allowed
12 to communicate with other computer scientists in
13 the same field, then I see that as very damaging.
14 For example, if you have ten computer
15 scientists each in their own room, they are going
16 to be much less productive than if you have ten
17 computer scientists all in one room; whereas ten
18 assassins, you don't collaborate necessarily, I
19 wouldn't imagine. I'm not an expert on assassins,
20 though.
21 I would like to reserve a final time,
22 please.
23 MR. TAGERT: Good afternoon. I'm Adam
24 Tagert. I'll be arguing that DeCSS is actually a
25 device and DMCA regulates conduct, not speech.
10
1 First of all, you have to realize that
2 this program, which it was being trafficked, is a
3 device that decrypts DVDs and stores the result.
4 It is purely a device. It has very little and/or
5 none expressive characteristics. So it does not
6 warrant to be protected by the First Amendment.
7 This case is not about speech or
8 publicizing about the algorithm. This is about
9 trafficking a device to commit crimes.
10 JUSTICE ALLEN: He was publishing an
11 algorithm, so, he was publishing, so trafficking
12 might have (unintelligible), whether he was
13 publishing (unintelligible).
14 MR. TAGERT: Your Honor, the actual
15 form that he was posting to the web was actually a
16 device that was intended to decrypt DVDs. It was
17 not actually intended for someone to understand.
18 JUSTICE ALLEN: But, Mr. Thomas stated
19 that Mr. Felton testified that object code is in
20 fact expressive.
21 MR. TAGERT: To a select group of
22 people; correct? And the DMCA actually allows for
23 encryption research to take place. But it's not
24 available to have this -- an object oriented
25 program to be distributed over the Net.
11
1 JUSTICE ALLEN: You're arguing that it
2 would be fine to distribute the source, but not the
3 object code?
4 MR. TAGERT: I'm arguing that he can
5 distribute the code to any person in good faith in
6 encryption research. The Court has already
7 concluded that the magazine was not in good
8 encryption research.
9 JUSTICE MANDECKI: How do you figure?
10 MR. TAGERT: That they were not in
11 good encryption research? That the actual case,
12 the way they did it, they just published it to the
13 whole world; where only a select people would
14 actually use the information in the actual
15 educational reference. And the DMCA actually
16 allows for research, and Congress had no intent to
17 stifle any type of research in the encryption
18 world.
19 JUSTICE MANDECKI: Aren't the readers
20 of 2600 Magazine actually people who might be able
21 to devote more, better programs in the future, to
22 pursue --
23 JUSTICE ALLEN: By it's very
24 readership, it provides some sort of productivity
25 because, as they state in the brief, there are many
12
1 (unintelligible). So it's unlikely that many
2 (unintelligible) people read it.
3 MR. TAGERT: But it's also most likely
4 those who read it actually are trying to commit an
5 illegal purpose. Those who actually -- encryption
6 algorithm, in any form, is not prohibited. So, if
7 he actually wanted to explain how this encryption
8 research worked, and CSS encryption, wouldn't an
9 explanation in plain English be much more effective
10 in conveying an idea than some object-oriented
11 program which only a select few can understand?
12 JUSTICE ROSS: For the few that can
13 understand it, wouldn't that be better than the few
14 that can't understand it, that would be working
15 with it, wouldn't that be better to read than the
16 English...
17 MR. TAGERT: Most likely, that would
18 be correct. But this is the world we're talking
19 about.
20 He is permitted, under the DMCA, to
21 distribute, to do those select few. So, if you
22 just distribute to those which actually have
23 encryption research, it would be permitted.
24 You also have to realize that computer
25 programs are devices because, in Sega Enterprises
13
1 versus Accolade, the Court ruled that computer
2 programs are devices; likewise, in Computer
3 Associates versus Atari, the same result was
4 concluded.
5 Programs are not protected by the
6 First Amendment. We can see that in the case, CFTC
7 versus Vartuli. It's a case where a computer
8 program outputted plain English. Since the user of
9 the program didn't actually have to put any mental
10 thought behind it, the program was deemed not
11 protected.
12 JUSTICE ALLEN: You're arguing that
13 all programs are not covered, that no programs are
14 covered that have any (unintelligible).
15 MR. TAGERT: That's correct.
16 Especially ones that have illegal purposes.
17 JUSTICE ALLEN: How do you -- it's
18 been argued by 2600 that they are expressive
19 elements of the code. Do you deny this entirely?
20 MR. TAGERT: I deny --
21 JUSTICE ALLEN: That code cannot
22 communicate any ideas whatsoever?
23 MR. TAGERT: Plain English
24 communicates ideas much better than zeros and ones.
25 JUSTICE ALLEN: Okay. So, object
14
1 code, you're compiling (inaudible) programs as
2 opposed to source code.
3 MR. TAGERT: Source code is meant to
4 be compiled. And the actual -- the most effective
5 way of communicating is actually using diagrams and
6 English explanations. The actual program, that is
7 a device.
8 JUSTICE ALLEN: I believe that Mr.
9 Tureski (ph.), in his testimony in the District
10 Court case, proved or stated that it would be far
11 more an explanation provided by a computer program
12 (unintelligible) encoded in standard programming
13 language would be far more understandable to other
14 computer scientists than would a description in
15 plain English.
16 MR. TAGERT: We're not talking about
17 publishing to the computer science world. We're
18 talking about publishing to the world. The
19 computer science world is allowed to communicate
20 with themselves in object code and source code.
21 Let's assume that this whole thing is
22 speech. The Court has ruled in United States
23 versus Rowell, that the First Amendment is not a
24 way of protecting speech, when it's the method of
25 the illegal crime.
15
1 In Cox versus Louisiana, may I quote
2 the Court: It has never been deemed an abridgement
3 of freedom of speech or press to make a course of
4 conduct illegal merely because the conduct was in
5 part initiated, evidenced or carried out by means
6 of language, either spoken, written or printed.
7 So, even with the argument that it is
8 speech, the argument's still flawed. And we have
9 to remember the DMCA allows for, in good faith,
10 encryption research.
11 Assuming that this really is conduct,
12 we need to take the intermediate approach and
13 realize if it's content-neutral.
14 Does DMCA pay attention to what the
15 conduct is? No. It does not care if a black box
16 that took a DVD and exported in unencrypted format,
17 doesn't care if it's that, the DeCSS program or any
18 other device that actually would decrypt a DVD. It
19 does not allow devices that bypass protection on
20 material.
21 We also have to look at the actual
22 intent of Congress.
23 Congress wanted to build --
24 JUSTICE ALLEN: So, say, for instance,
25 you had -- the example was given of a spell
16
1 checker, perhaps a basic example. Under the same
2 circumstances if a spell checker was distributed,
3 would it also fall under the jurisdiction of the
4 DMCA if it was applied to copyright or involved
5 copyright infringement; would it basically prohibit
6 the distribution of a spell checker?
7 MR. TAGERT: Is the spell checker
8 avoiding some --
9 JUSTICE ALLEN: Yeah, in this case, in
10 this hypothetical example, it would be.
11 MR. TAGERT: We're prohibiting any
12 device that bypasses content security. Doesn't
13 matter what device it is.
14 JUSTICE DESAUTELS: But a spell
15 checker would not be commercially significant.
16 MR. TAGERT: That's true. But it's
17 still bypassing something that was put in there not
18 to be there.
19 The government is allowed to build a
20 device. It's allowed -- they made a law that said:
21 The purpose of this is to prevent rampant illegal
22 piracy. Without protecting it, what's the point of
23 actually encrypting it, if the user can simply
24 decrypt it? There is none. So without some form
25 of protection to the encryption, there's absolutely
17
1 no point and thus we would have rampant piracy.
2 The motives of Congress are actually
3 very important in this case because they want to --
4 they wanted to ban technologies -- they did not
5 want to ban technologies, but devices. The whole
6 fact that they're not banning ideas or anything
7 else like that, that shows it's content-neutral.
8 There's a few arguments I'd like to
9 say.
10 DeCSS is not educational. This is not
11 about the education of people. This is about
12 trafficking of a device.
13 JUSTICE ALLEN: You say -- do you
14 concede that it has educational uses, such as
15 encryption research, such as allowing people
16 with -- allowing interoperability?
17 MR. TAGERT: This case isn't actually
18 about the education point of it. This is about
19 distributing a device to traffic.
20 JUSTICE ALLEN: But under
21 (unintelligible) provisions we are looking at how
22 the distribution of it allows fair use or enables
23 fair use.
24 MR. TAGERT: The fair use topic will
25 be covered slightly later.
18
1 Also, the DMCA, we have to remember,
2 allows for encryption research. That's the main
3 key. It permits those who are actually in the
4 field of encryption research to share their ideas
5 among themselves. So these ten computer scientists
6 are actually allowed to be in the same room.
7 I'd like to stop.
8 JUSTICE DESAUTELS: The Court will
9 hear from Mr. Thomas.
10 MR. THOMAS: I was troubled by a few
11 things that Mr. Tagert mentioned there.
12 First of all, his point that 2600 was
13 not a computer science magazine, that its readers
14 were not going to benefit from the distribution of
15 DeCSS; I find that wrong.
16 The fact is that some of its readers
17 may not be computer scientists or in that field --
18 not by profession, but by hobby. But the fact is
19 that there are undoubtedly some people who will of
20 course benefit from publication of that in the
21 field of computer science; the advancement of
22 encryption. And so, therefore, I don't agree that
23 2600 is not a computer science magazine at all.
24 Next; his point that a magazine may
25 not publish or in this case 2600 may not publish
19
1 secure information about -- he says it does not
2 warrant First Amendment protection because it's
3 purely a device and not anything else. There was a
4 case, Florida Star versus BJF, and in that ruling
5 the Court stated that if a newspaper lawfully
6 obtains truthful information about a matter of
7 public significance, then the government may not
8 constitutionally punish publication of the
9 information absent a need to further a state
10 interest of the highest order.
11 Two things strike me in that
12 statement. First of all, the public significance
13 clause. And, as I've argued previously, this --
14 the DeCSS itself has significant public use in
15 education, science and also in terms of commerce.
16 JUSTICE KAUKE: To what degree and
17 what portion of the public do you think this would
18 actually have significance to --
19 MR. THOMAS: Indirectly, I think a
20 large portion. But directly, less. Because, for
21 example, there are scientists who are working on
22 ways of using encryption to promote technology that
23 can search through video, for example, for specific
24 portions. And I think that if that's allowed to
25 progress, then there may be widespread use. But,
20
1 at this point, probably not. But I think in the
2 future.
3 JUSTICE KAUKE: More generally,
4 though, educated people learning and --
5 MR. THOMAS: Actually, I think the
6 fact is that the distribution of this may allow
7 people without the education to use it, which may
8 help society more, because those who aren't
9 privileged enough to understand this can benefit by
10 those who do, so they can do that.
11 Further, it says: Absent a need to
12 further a state interest. So, therefore, unless
13 there's a need to further state interest, then a
14 newspaper can publish this.
15 And I don't see that the MPAA's
16 argument as -- decryption of DVDs as a state
17 interest of highest order. I think it may be in
18 their interest, but I don't think that that
19 necessarily trumps as law.
20 Further, Mr. Tagert said that the DMCA
21 does not care and that it's not expression in this
22 case, DeCSS. However, I remind you of the
23 provisions of the DMCA; that nothing in this
24 section shall enlarge or diminish any rights of
25 free speech or the press.
21
1 JUSTICE ALLEN: How is DeCSS any more
2 expressive than, say, a -- any more expressive than
3 distributing a --
4 MR. THOMAS: Like I've said before, it
5 definitely has implications for the progression of
6 science, not necessarily the destruction of
7 material.
8 So, my time is up.
9 JUSTICE DESAUTELS: The Court will now
10 hear from Mr. Koren.
11 MR. KOREN: Good afternoon. My name
12 is Amit Koren. I'm here today representing 2600
13 Magazine.
14 The injunction issued by the District
15 Court prohibiting Mr. Corley from linking to
16 certain websites containing the DeCSS source code
17 is unconstitutional.
18 In analyzing this issue, we have to
19 consider two questions: First, is it legal and/or
20 constitutional to publish the addresses of URLs of
21 websites that have the DeCSS code in any form of
22 media, whether to a newspaper, a magazine or a
23 website? Second, if so, do hypertext links that
24 direct people to these sites constitute functional
25 speech that can be controlled or limited, or do
22
1 they constitute nonfunctional speech protected by
2 the First Amendment?
3 The answer to the first question is
4 absolutely. The very nature of the First Amendment
5 is to protect the dissemination of information.
6 The provisions for freedom of speech and freedom of
7 the press are intended to protect this right.
8 This freedom to publish anything means
9 anybody can publish something and therefore it
10 requires an individual to verify some of the
11 information that they receive. This is only
12 possible with proper documentation and listing of
13 sources. Books, nonfiction books, historical works
14 have footnotes; newspapers quote people so that
15 people can validate the information they receive.
16 People have the right to seek out
17 these sources whether they're historical documents
18 or source code listed on the web. And, therefore,
19 since people have this right, publishers have the
20 duty to provide this information.
21 If I, a Princeton student, was to
22 write a paper about cryptography, I would be
23 obligated to cite my sources, whether -- and link
24 to certain sites in order to validate the
25 information that I provide.
23
1 As to the second question, links are
2 nothing more than what I've just described in a
3 slightly different format.
4 HTML is the building block for most
5 web pages, but it's not a programming language.
6 There are no iterations, there's no input, there's
7 no variables, and it's not converted to executable
8 statements. As it stands for hypertext markup
9 language, basically tags that give the browser
10 formatting directions and tells the browser how to
11 lay out the text and images on the web page. The
12 links specifically tell browsers to underline the
13 text and change its colors, and then if the mouse
14 is clicked on that region of the page, the browser
15 redirects itself to the new address.
16 JUSTICE ROSS: By clicking or telling
17 the browser to do that, doesn't that indicate some
18 sort of functionality?
19 MR. KOREN: Yes and no. It indicates
20 some sort of functionality, but only in the terms
21 that it tells -- the browser itself executes the
22 function; whereas the link just tells it where to
23 go. It's just information -- it's just a footnote.
24 It's saying, this is where the information is. And
25 the browser takes that information, and when
24
1 it's -- and when the user clicks on that web page
2 or on that link, the browser redirects itself to
3 the other web page.
4 It's really only just a shortcut so
5 that users don't have to copy and paste URL into
6 the navigation window and press enter.
7 All this means that links are not
8 functional speech as source code is sometimes
9 interpreted to be. Rather, they're regular speech
10 protected by the First Amendment.
11 JUSTICE ALLEN: But they are at some
12 level functional?
13 MR. KOREN: They are at some level
14 functional because they provide the information as
15 to where the browser is to go. But they don't
16 actually -- they don't serve the function of going
17 to somewhere else.
18 JUSTICE DESAUTELS: Regardless of what
19 actually executes the travel from one site to
20 another, their effect of the links is a direct
21 enabling to the circumvention technology.
22 MR. KOREN: Not necessarily direct. A
23 direct enabling would be -- there are some links
24 that can automatically direct you to a different
25 web page. So that if you click and go to Yahoo, it
25
1 can automatically redirect you to somewhere else.
2 That would be a direct enabling. This basically
3 allows the browser to know where to go if the user
4 clicks on that page.
5 JUSTICE DESAUTELS: The user has the
6 right to click --
7 MR. KOREN: Yes. Exactly.
8 JUSTICE MANDECKI: Are you arguing
9 that Mr. Corley is obviously a rightful man?
10 MR. KOREN: Say again?
11 JUSTICE MANDECKI: Mr. Corley is
12 obviously a rightful man?
13 MR. KOREN: Sure.
14 JUSTICE MANDECKI: Right.
15 We all here know that circumvention,
16 under the law, circumventing technology like this
17 is linking.
18 MR. KOREN: Yes. But linking to a
19 different web page is by no means circumvention.
20 JUSTICE MANDECKI: So say Mr. Corley
21 takes off the code from his website and he knows
22 that he could link to another website. Isn't
23 that -- that's obviously wrong, isn't it?
24 MR. KOREN: I disagree. Because
25 whether or not Mr. Corley has the right to publish
26
1 the source code is inconsequential. If you want to
2 punish the people that publish the source code, you
3 can go after the people that have the website
4 somewhere else.
5 JUSTICE ALLEN: By providing the link
6 he was trafficking in DeCSS.
7 MR. KOREN: He wasn't trafficking. He
8 was providing information as to where one could
9 find it.
10 JUSTICE ALLEN: He was providing --
11 MR. KOREN: He wasn't saying, here's a
12 source code, you can download it and execute --
13 JUSTICE ALLEN: He was providing easy
14 access --
15 MR. KOREN: Yes.
16 JUSTICE ROSS: Wasn't he also
17 encouraging people to --
18 MR. KOREN: Hosting a link to
19 something doesn't encourage people to go. It
20 provides people that want the information --
21 JUSTICE MANDECKI: He searched out
22 websites that do have the code.
23 MR. KOREN: I'm sorry?
24 JUSTICE MANDECKI: He searched out
25 websites that do have the code.
27
1 MR. KOREN: Yes. So he did the work
2 for others. But he didn't encourage others to do
3 it.
4 JUSTICE ALLEN: He did encourage
5 others to do it. I think he stated that he
6 encouraged others to go out and to link to other
7 sites, to disseminate as widely as possible.
8 MR. KOREN: Okay.
9 I still strongly affirm that he's not
10 trafficking the DeCSS himself, but rather providing
11 information as to where it is available for others
12 to use. That is a constitutional right that we
13 must uphold so that it can't be taken away in other
14 forms.
15 Unless the judges have any more
16 questions, I'll save my time for rebuttal.
17 JUSTICE DESAUTELS: The Court will
18 hear from Ms. Melo.
19 MS. MELO: Good afternoon. My name is
20 Thais Melo. I'm here presenting the plaintiffs.
21 Around a year ago the defendants
22 posted the code for DeCSS in their web page. They
23 did not research. They only posted the code on the
24 web page, making it easily available for anyone
25 with an Internet connection.
28
1 We quickly brought the case to court,
2 to which defendants responded with what they called
3 an act of civil disobedience, which basically was
4 an increased effort to keep DeCSS available by
5 making people a link to it and create sites.
6 The first item I'd like to argue is
7 that HTML is not a computer code. The other things
8 you can do, it can be very functional. You can
9 create splash pages, you can -- using some
10 variations like HTML, actually using animations on
11 the web page. Obviously you can use it as computer
12 code. Just because it's not normally compiled like
13 you would compile C code doesn't mean it's not
14 code.
15 Also, linking is essentially
16 functional because it not only tells you where the
17 information is, but with a single click of the
18 mouse --
19 JUSTICE ALLEN: -- is functional by
20 the same criteria? You have a recipe, you follow
21 that recipe and you get a result or a cake or
22 whatnot.
23 MS. MELO: Recipes can be somewhat
24 functional, but in this case, there is no computer
25 following your recipe. Like any other computer
29
1 code, it's basically a recipe for your computer.
2 That's not necessarily easy or human readable very
3 often.
4 So, we reached the conclusion that,
5 yes, links do have some (unintelligible) expression
6 to it.
7 The earlier Court decided to -- well,
8 the DMCA obviously benefits from linking because
9 it's the only way that you can keep people from
10 posting or linking to DeCSS, because otherwise you
11 don't have a posting on your website; but you have
12 a link to it, anyone can see it.
13 The only question here is if the DMCA
14 is consistent with the First Amendment in this
15 special injunction. Since links do have some
16 expression value, we have to use the O'Brian
17 standard test to figure if it is constitutional or
18 not.
19 JUSTICE ROSS: You only want to make
20 it apply to this specific case and it should not be
21 a general standard?
22 MS. MELO: It can be used as a general
23 standard. Just the argument right now is the
24 linking injunction.
25 JUSTICE ROSS: The linking -- the
30
1 District Court set up a new standard regarding
2 linking. Are you arguing that this standard should
3 be applied or --
4 MS. MELO: No.
5 JUSTICE ROSS: -- or for this one
6 specific case?
7 MS. MELO: I'm arguing the standards
8 apply, especially for this specific case.
9 So, the first test would be if the
10 linking injunction serves the same purpose as the
11 prohibition to post DeCSS or your own website.
12 Like I discussed before, there is no point in
13 prohibiting to post DeCSS if you can link it in the
14 mirror site. The user doesn't know the difference
15 if you click in a link and you go to some page or
16 some division of the same website or if you go to
17 another website.
18 JUSTICE DESAUTELS: Is there a
19 difference for the user between just clicking on a
20 link and copying an address and pasting it into the
21 browser?
22 JUSTICE ALLEN: By making it slightly
23 easier to access the code, is this somehow making
24 it more legal?
25 MS. MELO: No, it's not. But since we
31
1 cannot have pure control over speech, like just
2 writing down the address would be, at least to some
3 extent, we'd like to have control over this.
4 Also, it's a lot -- it's a lot easier
5 to just click in the link and see what's there,
6 than just copying it.
7 JUSTICE ALLEN: So, should something
8 be given First Amendment protection based on the
9 ease of dissemination or the ease of use?
10 MS. MELO: I'd like to go back to the
11 specific case in which we are not arguing that he
12 cannot like publish the English description of the
13 DeCSS. Of course with the English description, a
14 computer scientist (unintelligible) translate into
15 code and compile it and easy to get DVDs as a
16 circumvention device.
17 Just as links, anybody who knows, at
18 least has some familiarity of computers and
19 (unintelligible) your browser and just go to the
20 place they want. But there's a difference in
21 saying, oh, there's some information there and
22 putting a link in which you clearly tell the
23 person, like, you're encouraging them to go see it,
24 if you actually put the link there.
25 The second test would be -- this is
32
1 unrelated to the suppression of free expression.
2 And I think this is answered by the earlier
3 argument that what was posting DeCSS or linking to
4 it is basically the same thing for the user --
5 well, for the specific user.
6 The third test, and the most important
7 one, is if the regulation promotes a substantial
8 governmental interest that would not be achieved --
9 that would be achieved less efficiently, absent a
10 regulation. It is especially true in the case of
11 foreign sites.
12 Obviously, the DMCA or any American
13 regulation cannot reach foreign sites. And it's
14 fairly easy to create a site in France or in
15 Brazil, even from the US, and if those links can be
16 easily posted and linked from an American site and
17 we can have no control over that, it's fairly
18 pointless to prohibit posting to DeCSS.
19 One last point of concern is the
20 possible chilling effect in communication in the
21 Internet by creating liability for linking. While
22 the injunction is sufficiently moderate in that it
23 does not prohibit any kind of good faith linking,
24 the case here is that the defendants were obviously
25 trying to traffic the circumvention device. They
33
1 were fairly clear about their sites when they were
2 doing their act of civil disobedience, and they
3 didn't have any kind of expression involved. They
4 just wanted to keep the code for DeCSS up. And
5 they just told people to make mirror sites that
6 contain nothing but their code.
7 JUSTICE ALLEN: So you want to
8 prohibit the linking to anything that is functional
9 and might perhaps violate copyrighting?
10 MS. MELO: This injunction, the
11 linking injunction, is moderate enough in the sense
12 that if you put link to a site and you don't know
13 there is an illegal circumvention device there, or
14 if you -- well, say the New York Times website has
15 DeCSS in it, it would still not be illegal to link
16 to it because there's so much more --
17 JUSTICE ALLEN: (Unintelligible) 2600
18 website that isn't necessarily related to DeCSS.
19 MS. MELO: That's true. But the thing
20 that's in question here is the -- two things. 2600
21 website linking to thousands of mirror sites that
22 have nothing but an HML source with the code and
23 nothing else, and they clearly had the intent to
24 link to DeCSS and none of the other content -- or
25 they didn't have any interest in the other content
34
1 that was there; while their clear intention was the
2 traffic circumvention device.
3 JUSTICE KAUKE: Is it not in the
4 user's discretion whether or not to click on one of
5 these links, having seen DeCSS is not available on
6 the 2600 site, they have the option to continue
7 their search of DeCSS or not, and --
8 MS. MELO: Well, if you have a gun,
9 it's still your own discretion if you want to kill
10 someone. But you still cannot sell guns
11 instrumentally. You need some kind of a relation.
12 And of course the user -- but the thing is the site
13 is showing the users and like telling them to
14 actually go there and see it. It's not just --
15 it's not that they just gave him some address.
16 They're actually giving him the link. He can
17 easily click and see the code.
18 JUSTICE DESAUTELS: I'd like to go
19 back to the First Amendment.
20 Would you say that merely printing an
21 address without making it a direct link merits more
22 First Amendment protection than a direct link?
23 MS. MELO: Yes. Because it has no
24 functional --
25 JUSTICE DESAUTELS: But the effect
35
1 could be -- is almost exactly the same.
2 JUSTICE MANDECKI: With two more
3 clicks.
4 JUSTICE ALLEN: Where would you draw
5 the line between functional and nonfunctional?
6 MS. MELO: If you can click onto
7 something -- links, they're a lot like road signs.
8 If you only had, without the HTML code, it would be
9 a lot more like a road sign. Like, oh, you have
10 this, if you're going this way, you have this. But
11 once you do the HTML code, you add this entire
12 layer of instrumentality to it and you can just
13 automatically click on it and go anywhere.
14 It makes life a lot easier, and also
15 when you're linking to it, you want the users to go
16 there.
17 JUSTICE ALLEN: So, it warrants First
18 Amendment protection on the basis of its use?
19 MS. MELO: It warrants First Amendment
20 protection in the sense it's a device. It's more
21 of a device than speech.
22 JUSTICE MANDECKI: Even if you were
23 able to get rid of all these links, how effective
24 do you think it would be to, like, even if you get
25 rid of them, how effective would it be to eliminate
36
1 the flow of say a code (inaudible).
2 MS. MELO: I would say it actually
3 creates a good amount in the sense that most of the
4 sites -- there are not thousands of DeCSS copies in
5 the Internet. There are more of like a lot of
6 mirrors connected to each other. And if you do a
7 search, you would find maybe ten unique DeCSS
8 pages. It would probably reduce the flow
9 considerably.
10 JUSTICE MANDECKI: Say hackers are
11 basically the people we're dealing with here; you
12 think just because it's written down as a URL,
13 they're going to stop right there and say, hey,
14 there's no link here, I can't go any further?
15 MS. MELO: Not necessarily. But
16 usually not -- because things are illegal doesn't
17 stop people from doing it. But it does stop the
18 majority of people from doing it. And that's good
19 enough, as our society has proved.
20 JUSTICE DESAUTELS: Thank you.
21 MR. KOREN: The representative for the
22 MPAA just conceded that it's legal to publish the
23 URL as not a link, just regular text; and then went
24 on to argue that people would stop there because --
25 the majority of people would stop and wouldn't go
37
1 to this link simply because it wasn't linked and
2 you had to copy and paste it.
3 They also argued that HTML was a
4 functional language because of aspects of DHTML,
5 Flash, et cetera. But links don't have anything to
6 do with that. Links are basic, basic HTML. They
7 come from conversion HTML 1.0. They're just
8 regular tags. They're not anything complicated.
9 Furthermore, they argued that one
10 should prohibit people from linking to DeCSS
11 websites or sites that contain that code. As soon
12 as you prohibit one person from linking to it,
13 can't you also prohibit everybody else from linking
14 to it? Can you prevent search engines from linking
15 to certain sites just because they don't want to
16 link to? Like if you go to Google and you search
17 for DeCSS, you'll probably find the sites and
18 they'll be linked. Does that mean that as soon as
19 you -- this injunction will be applied to Google or
20 Yahoo or any other search engine? It doesn't
21 link --
22 JUSTICE ROSS: I think the intent of
23 Google and other search engines is slightly
24 different than 2600 Magazine.
25 MR. KOREN: The intent is to tell
38
1 people where to find this information. That's
2 exactly the intent of Google. So, say I'm looking
3 for this information, where can I find it? People
4 go to 2600 and they say, where can I find this
5 information? And there's a list right there of
6 links they can go to.
7 JUSTICE KAUKE: Do you see any
8 difference whether it's on the web page or written
9 in the magazine?
10 MR. KOREN: I see no difference.
11 Either way, you start up your browser, type it in
12 and you're there. It's like the difference between
13 stairs and escalators. Escalators get you there
14 automatically, but stairs you have to climb up.
15 But either way, you start someplace and you get to
16 the same place. There's no difference in the path
17 you take.
18 JUSTICE ALLEN: So you're conceding
19 the act of linking itself is illegal, but the act
20 of publishing (unintelligible) is not?
21 MR. KOREN: No. I'm saying publishing
22 links is legal. It's unconstitutional to prohibit
23 linking.
24 I'm saying that, yes, you have to go
25 up the stairs, but if you have to get from point A
39
1 to point B, you're going to do it either way. You
2 might as well take the easier route if there's an
3 escalator there.
4 JUSTICE DESAUTELS: The Court is going
5 to take a short recess. Five minutes.
6 (Whereupon a brief recess was
7 taken.)
8 JUSTICE DESAUTELS: The Court will now
9 hear from Mr. Tauberer.
10 MR. TAUBERER: Good afternoon. My
11 name is Josh Tauberer. I'm representing 2600.
12 I'm going to look at the authority
13 that's given to the use of DeCSS. We should take a
14 look at why authority is, firstly, important.
15 The basis of this case is that DeCSS
16 is or is not a circumvention device. The District
17 Court ruled that it is a circumvention device and
18 they in fact said it was clearly a circumvention
19 device. But they failed to look at what a
20 circumvention device -- what is required of DeCSS
21 for it to be a circumvention device.
22 By section 1201 (a)(2) or (a)(3), a
23 circumvention device must decrypt; and we concede
24 that DeCSS does do decryption. However, it has to
25 do that without the authority of the copyright
40
1 owner.
2 If DeCSS is -- if DeCSS indeed has the
3 authority of the copyright owner, the DeCSS is not
4 a circumvention device, and this case is moot.
5 So, where does the authority come
6 from? In fact, in the house of -- a House of
7 Representatives statute in 1998, they ruled that --
8 they wrote that an individual would not be able to
9 circumvent in order to gain unauthorized access to
10 a work, but would be able to do so in order to make
11 fair use of the work which he or she has lawfully
12 acquired.
13 So let's say I have the matrix in DVD,
14 first I take the green pill, then I go put it into
15 my computer and I start with DeCSS. By the
16 statute, I've already lawfully acquired the matrix.
17 DeCSS has nothing to do with whether I've lawfully
18 acquired it or not. It can't help me lawfully
19 acquire it in any way.
20 So, by the statute I also have
21 authority to make fair use of the matrix how I
22 want. I can go and write software code to analyze
23 video frames, to do video searching or make any
24 other use that I want that is legal for any other
25 purpose.
41
1 So we see that statutorily, authority
2 is granted. Well, perhaps, then, you might say,
3 well, it has to be expressed by the copyright
4 owner. In fact, the District Court, in the middle
5 of the trial testimony, preemptively ruled that it
6 was a matter of law, not fact, of whether the user
7 had authority or not. So we were unable to go into
8 the facts of whether authority was expressly
9 granted or not.
10 In fact, we would have found that no
11 authority is granted at any time by anyone to play
12 any DVDs. So, I have my matrix -- at this time I'm
13 going to take the red pill -- and I bring it into
14 my DVD player. Well, I don't have authority to do
15 that because I never received authority from the
16 DVD copyright owners.
17 So, if the Court was to rule that one
18 requires expressed authority, then 11 million users
19 of DVDs or whatever the number might be would then
20 be illegally using a DVD player, licensed by the
21 DVD authorities, as a circumvention device. Of
22 course this can't be the case.
23 So, for -- maybe it's more implicit in
24 where the authority comes from.
25 Well, when I paid my $26, what did it
42
1 go for? I got this piece of plastic. I think it's
2 because I can now play my DVD. It didn't say
3 otherwise. It didn't say I couldn't play my DVD.
4 It didn't say I couldn't use DeCSS. It didn't say
5 I could use a DVD player.
6 JUSTICE ALLEN: But this of course
7 falls under the copyright work which falls under
8 copyright law and, so, by the terms of DMCA it's
9 still illegal to circumvent regardless of whether
10 you have authority or not to view it or even to
11 perform the work (unintelligible).
12 MR. TAUBERER: Well, for a device to
13 be a circumvention device, it must be -- for a
14 device to be classified as a circumvention device,
15 whether it's primarily for that purpose or not, it
16 has to be used without the authority of the
17 copyright owner. In fact, one of the tests would
18 be that it has to be primarily used as a, let's
19 say, a decryption device without authority of the
20 copyright owner. And we argue that there is
21 authority there.
22 JUSTICE ROSS: Are you now arguing
23 that this is not a circumvention device at all?
24 MR. TAUBERER: Correct.
25 JUSTICE ROSS: Okay.
43
1 MR. TAUBERER: Perhaps the wording of
2 the DMCA would have been more clear if authority
3 was placed elsewhere. However, it's placed in the
4 definition of circumvention device. So, therefore,
5 with authority, it is not a circumvention device.
6 One other thing. Going back to the
7 Honorable Allen's statement; it sounded as if it
8 was leaning toward, well, it would require express
9 privileges. So, for a device -- if you were to say
10 that -- you were going in the direction, I believe,
11 that this applies to every work. And, so, it
12 seemed as if you were saying that you would need
13 express permission.
14 JUSTICE ALLEN: (Unintelligible) DMCA?
15 MR. TAUBERER: Correct. For
16 authority. But if it was -- if you need express
17 permission, then the 11 million DVD player users
18 would also be in violation. So this isn't where
19 the authority has come from.
20 JUSTICE KAUKE: Without express
21 permission, are you assuming that you have
22 permission to do whatever you want to do with that?
23 MR. TAUBERER: By the House of
24 Representatives statute, once you've already
25 lawfully acquired the DVD, you have the authority
44
1 to make any use you want with it. It says fair
2 use. But its use would be fair.
3 JUSTICE ALLEN: So basically you would
4 require us all to define the terms of fair use as
5 (unintelligible).
6 MR. TAUBERER: I believe so. Can you
7 say that again?
8 JUSTICE ALLEN: You'd require this
9 Court to define fair use.
10 MR. TAUBERER: I don't believe it's
11 necessary for the Court to relate fair use to
12 DeCSS, because the use of DeCSS -- of DeCSS is
13 not -- it would be primarily fair use, most likely,
14 or predominantly or primarily designed to be for
15 fair use. But you don't necessarily need to define
16 what fair use is.
17 JUSTICE ROSS: Are you saying the 11
18 million users of DVD are doing something illegal
19 by --
20 MR. TAUBERER: No. I'm saying that to
21 believe that one requires expressed authority to
22 have authority is a contradiction because if that
23 were the case, then the 11 million users would be
24 illegally using their DVD players.
25 If there are no other comments or
45
1 questions, I'd like to reserve my time.
2 JUSTICE DESAUTELS: The Court will now
3 hear from Mr. Vennema.
4 MR. VENNEMA: Good afternoon. My name
5 is John Vennema.
6 Defendants clearly believe that the
7 argument over the nature of authority is the
8 centerpiece of their case. Frankly, we disagree.
9 In fact, we maintain, as we have since the
10 beginning of this case, that this argument is a
11 little more than a rhetorical contortion of the
12 DMCA, which is quickly and easily dismissed. This
13 belief is reflected in our limited treatment of the
14 issue of authority in our appeal brief and of the
15 limited treatment of the issue of authority in
16 Judge Kaplan's decision.
17 So, case against. The defendants make
18 many arguments about the notion of authority.
19 However, they boil down to one simple point. In
20 short, the defendants maintain that the purchase of
21 a DVD somehow inherently grants them the authority
22 to legally circumvent an electronic protection
23 measure. They have twisted this argument out of
24 the provision of the DMCA that defines
25 circumvention, as we heard as well, without the
46
1 authority of the copyright -- circumvention, I'm
2 sorry, circumvention as decryption occurring
3 without the authority of the copyright holder.
4 So, rebuttal. As Judge Kaplan stated
5 in his opinion, the argument is sophistry. It's a
6 rhetorical argument. Kaplan continues: The DMCA
7 proscribes trafficking in technology that decrypts
8 or avoids an access control measure without the
9 copyright holder consenting to the decryption or
10 avoidance.
11 Clearly, the copyright holders, the
12 studios, which we represent, do not consent to this
13 type of decryption, or they would not have
14 established an encryption and licensing system in
15 the first place. In fact, this construal [sic] of
16 the DMCA provision of not granting encryption
17 without the authority of the copyright holder would
18 in essence completely truncate the DMCA and the
19 entire system of encryption of DVDs in the first
20 place.
21 Furthermore, if the DMCA had intended
22 to provide an exemption for circumvention after the
23 content had been purchased, said exemption would
24 have been included in the DMCA. As it stands, it
25 is mostly certain not. In fact, the DMCA makes
47
1 several provisions of what legal circumvention
2 measures are present, and are legal in the DMCA,
3 makes four or five, I believe; none of which
4 include anything having to do with the purchase of
5 the content.
6 So, the questions. How is authority
7 given? Authority is granted only with the purchase
8 of both the DVD and a licensed DVD player, both
9 licensed under CSS. This granting of authority is
10 implicit and relatively easy to understand. It's
11 implicit in the studio's encryption of DVDs and the
12 subsequent establishment of a licensing system.
13 Once again, why would the studio go to
14 the trouble of encrypting DVDs in the first place
15 if they intended to use them to be able to encrypt
16 them as well. Clearly, they established the
17 licensing and decryption system to maintain a
18 specific system of use for the user.
19 JUSTICE ROSS: Are you saying that
20 because there are certain things -- certain uses
21 that would normally be legal that you can't use a
22 licensed player for, that, therefore, they are now
23 illegal?
24 MR. VENNEMA: Indeed. That is largely
25 the point of the DMCA, we're arguing.
48
1 For instance, consider this: This
2 granting of authority is not vague or
3 unsubstantial, as defendants would have you
4 believe. In the same way that password-protecting
5 content is clearly a sign that the user does not
6 wish the content to be accessed unless they have
7 given that user the specific password.
8 So --
9 JUSTICE ALLEN: In this case, you're
10 saying it's legal for the player to view the movie.
11 MR. VENNEMA: No.
12 JUSTICE ALLEN: The encryption
13 (unintelligible) you're saying -- you're making the
14 legality of allowing the player to --
15 MR. VENNEMA: No, I'm not in any
16 way --
17 JUSTICE ALLEN: Not debating legality
18 of the user --
19 MR. VENNEMA: No. The player is
20 perfectly legal because the creator of the content,
21 the studios, have granted the players licensed
22 access to decrypt that, therefore granting their
23 authority in all conceivable ways to decrypt that
24 content, in the specific ways explained under the
25 issues of that license.
49
1 No such license has been issued to the
2 user. The user has been given access to the
3 material that we decrypted under certain
4 circumstances, with a licensed DVD player, easily
5 available anywhere, and any user who wishes to
6 purchase a DVD and purchase a DVD player will gain
7 full use of --
8 JUSTICE ALLEN: Now, you're saying any
9 user who has a license to a DVD player can play any
10 DVD because the user has signed nothing or has --
11 under no circumstances is he restrained by a
12 password or anything like that, as may be the
13 player which is restricted by an encryption scheme.
14 MR. VENNEMA: The user has been
15 granted the use of the DVD in the DVD player. It's
16 as simple as that. The argument doesn't get much
17 more complicated. Because, frankly, anything
18 further than that requires breaking an encryption
19 scheme. And breaking an encryption scheme is
20 clearly illegal under the DMCA.
21 So, what does this authority allow --
22 we've covered this somewhat, but what does this
23 authority allow the user to do with a DVD? The
24 authority allows the user to view and use their
25 licensed DVD with their licensed DVD player. This
50
1 authority obviously does not allow a user to do
2 anything that requires the unlicensed decryption of
3 a DVD, except where provided in the DMCA.
4 These terms are, once again,
5 imminently implicit in the studio's system of
6 encrypting DVD systems in the first place.
7 So, frankly, the issue is as simple as
8 that. Any other construal [sic] of the DMCA's
9 policies would, as we have said, on the most
10 fundamental level, eviscerate the trafficking
11 proscriptions of the DMCA and eliminate the
12 proscription for -- and eliminate the protection
13 for which Congress enacted them in the first place.
14 If any user could purchase a DVD and willfully
15 break the encryption scheme and do with that pure
16 initial content what they would, the DMCA would
17 have no tangible purpose whatsoever.
18 Just to quickly address one point
19 that -- we may have covered it, but since I'm
20 almost certainly not going to use all of my time,
21 because, frankly, this argument is fairly simple, I
22 believe. The appellants brought up a point that
23 it's vague as to whether even viewing it is legal
24 and that there's nothing express. Once again, the
25 express granting permission to view the DVD with a
51
1 DVD player is very clear and implicit. No regular
2 user would argue anything otherwise.
3 I believe that's all there is to it.
4 JUSTICE ROSS: I have one quick
5 question. When did some fair uses become
6 unauthorized?
7 MR. VENNEMA: This discussion is not
8 about fair use at the moment. I'm going to leave
9 that to my colleagues.
10 JUSTICE ROSS: I'm asking when some of
11 these fair uses became unauthorized, since we're
12 talking about authority.?
13 MR. VENNEMA: These fair uses became
14 unauthorized when they required breaking a lawful
15 encryption scheme. It's illegal under the DMCA.
16 JUSTICE ROSS: So you're saying that
17 we should get rid of fair use because the MPAA
18 placed an -- the studios placed an encryption
19 scheme on the DVDs?
20 MR. VENNEMA: I'm not saying we should
21 get rid of fair use. I'm saying we should follow
22 the laws of the DMCA which provide that one cannot
23 break an encryption scheme, which is what's
24 occurring right here.
25 JUSTICE DESAUTELS: We should allow
52
1 technology to prevent fair use.
2 MR. VENNEMA: Again, I'm not arguing
3 fair use. I'm arguing the specific issue of
4 authority, which is truncated and misconstrual
5 [sic] of a specific DMCA line.
6 I will leave fair use argument to my
7 colleague.
8 JUSTICE KAUKE: If there are people
9 out there that feel they have the right to encrypt
10 the digital content, are these users aware of their
11 rights of authority as -- which you point out to be
12 so clear-cut and obvious?
13 MR. VENNEMA: The users who wish to
14 decrypt their DVD must be aware of the law. Our
15 law does not give any credence to the defense that
16 I was unaware of the law. And the law is, quite
17 simply --
18 JUSTICE ALLEN: In this circumstance
19 the laws aren't as explicit; it's implicit --
20 MR. VENNEMA: The law is always
21 explicit. You have to be aware of the law. You
22 can't use the argument that you're not aware it was
23 illegal to break an encryption scheme.
24 JUSTICE ALLEN: You could argue that
25 they were not aware -- that they did not have the
53
1 authority to break the encryption scheme because
2 they couldn't easily construe themselves as having
3 the authority of breaking the encryption scheme --
4 MR. VENNEMA: I would argue that it's
5 still breaking the encryption scheme, no matter
6 which way you look at it. There's nothing explicit
7 anywhere that says anything about buying the DVD,
8 granting the authority to break the encryption
9 scheme. It's a constructed argument out of
10 nothing.
11 JUSTICE ALLEN: There's nothing
12 anywhere in the DMCA that says -- that defines the
13 term authority and what is given to, what authority
14 is given to the (unintelligible).
15 MR. VENNEMA: The term authority --
16 the authority is granted under the terms --
17 everything with the DVD applies to the terms of
18 DMCA.
19 JUSTICE DESAUTELS: The Court will
20 hear from Mr. Tauberer.
21 MR. TAUBERER: All right. I would
22 like to, should it please the Court, go through all
23 the arguments one by one and just refute them all
24 because they're all refutable.
25 I'm going to start at the bottom with
54
1 the implicitly expressed authority that was
2 claimed; if it's expressed, then it's not implicit,
3 and if it's implicit, then it's not expressed.
4 What the MPAA is asking you to do is
5 to take the implicit authority that the movie
6 players want to give to only the DVD players, and
7 have the law recognize what they want as what the
8 law should be. This can't be done because it's a
9 clearly or a simple matter. This isn't sophistry.
10 You can't say, well, it's a made up argument. We
11 have to analyze this.
12 Okay. Starting at the top now.
13 Limited treatment. The District Court looked at
14 this very limited and so did the prosecution. In
15 fact, in their appeal brief they dropped this point
16 entirely. And while this is not a minor fact, we
17 have to look at where the authority comes from.
18 Because the District Court judged this, it is more
19 important that you look at the authority and rule
20 on whether it is important or not.
21 Nextly, the MPAA claims that the
22 intent was not to grant consent. But the District
23 Court, during the trial, made it very clear that it
24 wasn't a matter of fact that was important, it was
25 a matter of law. If we had the trial transcript,
55
1 we could find this, but no one has.
2 In fact, their intent is, by the
3 District Court's ruling, not relevant. So, once
4 again, you have to look at this and make another
5 judgment, not relying on the District Court.
6 Nextly, the DMCA had intended, they
7 claim, to not allow circumvention -- to never allow
8 circumvention. They claim that if the DMCA was to
9 allow this, then they would have said so. Well, in
10 the next line it says so, that it should not impede
11 on fair use which will be addressed in the next
12 topic. So this is something that can't be just
13 accepted.
14 Nextly, why the MPA uses DeCSS. They
15 claim that, well, without -- why would they need to
16 use DeCSS if it wasn't protected by law. Well,
17 just because they want it to be protected by law
18 and maybe hope it is, that doesn't mean it has any
19 bearing on the actual law. So -- okay.
20 Nextly, the MPA -- Mr. Vennema
21 explicitly stated that the MPA explicitly granted
22 license to players to play the DVDs. However, this
23 is perhaps irrelevant because it's the authority of
24 the user in question and, so, to say that the user
25 has authority based on the authority granted from
56
1 the MPA to the DVD players, therefore gives some
2 legal meaning to the authority granted to the
3 users, is like saying some sort of a personal
4 contract between two people is legally binding on
5 other people who have not signed a contract.
6 It's irrelevant. The license between
7 the MPA and DVD players is completely irrelevant.
8 JUSTICE ALLEN: Why do you construe
9 that the authority might or might not be given to
10 the owner of the DVD, purchaser of the DVD? You
11 could also -- it's just as easy to go the other
12 way, that because it wasn't explicitly stated, that
13 they did have authority to decrypt it, they don't
14 have authority to decrypt it because, quite
15 frankly, it's not necessarily (unintelligible).
16 MR. TAUBERER: That's true. However,
17 they stated that no expressed authority was ever
18 granted to DVD player use or to DeCSS use. And,
19 so, they're saying that most -- in fact, all of
20 their users are in violation of the DMCA.
21 So, to claim that it requires
22 expressed authority does not make sense.
23 JUSTICE MANDECKI: How far do you
24 expect this Court to go? Obviously Mr. Vennema
25 makes a good point by saying that using DVDs, it's
57
1 implicit that you just pop it in and watch a movie.
2 You expect us to say it's okay to do the DeCSS
3 thing?
4 MR. TAUBERER: The legality of using a
5 DVD player is equivalent to the legality of using
6 DeCSS, because there's no distinction between the
7 two.
8 If that answers your question. I'm
9 not sure I understood the question.
10 JUSTICE ROSS: Doesn't DeCSS also
11 enable you to infringe copyright in a sense, where
12 a licensed player doesn't?
13 MR. TAUBERER: DeCSS can in no way
14 enable you to violate copyright any more than a DVD
15 player can.
16 For a DVD player, there is an analog
17 output. You can go and make copies of that output
18 as many times as you want and violate a copyright
19 act. Using DeCSS, you could use DeCSS to make
20 copies of it. But no different than for using a
21 DVD player.
22 Furthermore, the fact that one can use
23 a device to -- that is not fair use, does not
24 necessarily mean that the device is therefore a
25 circumvention device. In fact, it's not related at
58
1 all in any way. For it to fall into the DMCA's
2 provision, it would have to be primarily designed
3 for that, or with marginal other uses.
4 And, so, we could debate that another
5 time. But there are no -- it's not primarily
6 designed for infringement and there are certainly
7 many other uses that are testimony.
8 JUSTICE DESAUTELS: Thank you.
9 MR. TAUBERER: Thank you.
10 JUSTICE DESAUTELS: The Court will now
11 hear from Mr. Viventi.
12 MR. VIVENTI: Ladies and gentlemen of
13 the Court, my name is John Viventi. I'm here today
14 on behalf of 2600 Magazine. I intend to clarify
15 fair use, its relations to the DMCA, and its
16 application to DeCSS. First, let's examine the
17 provisions of copyright law regarding fair use.
18 I quote the Copyright Law of the
19 United States of America, Chapter 107, Limitations
20 on exclusive rights: Fair use. The fair use of a
21 copyrighted work, including such use by
22 reproduction in copies or phonorecords or by any
23 other means specified by that section, for purposes
24 such as criticism, comment, news reporting,
25 teaching, scholarship, or research, is not an
59
1 infringement of copyright. In determining whether
2 the use made of a work in any particular case is a
3 fair use, the factors to be considered shall
4 include the purpose and character of the use,
5 including whether such use is of a commercial
6 nature or is for nonprofit educational purposes;
7 the nature of the copyrighted work; the amount and
8 substantiality of the portion used; and the effect
9 of the use upon the potential market for the value
10 of the copyrighted work. Specifically, I draw
11 attention to news reporting and scholarly research,
12 which we'll come back to later.
13 I continue. Fair use is rooted in the
14 Constitution. The fair use doctrine permits courts
15 to avoid rigid application of the copyright statute
16 when, on occasion, it would stifle the very
17 creativity which that law is intended to foster.
18 This is taken from a court case,
19 Stewart versus Abend.
20 Furthermore, it is -- the Court reads:
21 Fair use has been viewed by courts as a safety
22 valve that accommodates the exclusive rights
23 conferred by copyright with the freedom of
24 expression granted by the First Amendment. Another
25 Court case, Universal versus Nation Enterprises...
60
1 Sorry about that.
2 Furthermore, fair use is maintained by
3 DMCA. The DMCA cannot be utilized in any way to
4 rob consumers of their right to fair use. Congress
5 inserted specific provisions into 1201 of the
6 copyright statute to prevent interpretations that
7 would hurt these vital constitutional interests.
8 In particular, nothing in this section shall affect
9 rights, remedies, limitations or defenses to
10 copyright infringement, including fair use under
11 the title. Therefore, it remains to be proven that
12 DeCSS is a necessary tool to facilitate fair use on
13 DVDs.
14 I'd like to cite the court case, Time,
15 Incorporated versus Bernard Geis Associates. A
16 researcher intent on criticizing the conclusions of
17 the Warren Commission's inquiry into the
18 assassination of President Kennedy reproduced six
19 frames of the famous Zapruder film of the shooting
20 in his book. Plainly, a mere verbal description of
21 the frames would have been a poor substitute for
22 the actual historical evidence. Therefore, the
23 Court concluded that the copying was allowed by the
24 fair use doctrine.
25 If this -
61
1 JUSTICE ALLEN: (Unintelligible) why
2 should DeCSS necessarily -- why could you not take
3 a photograph of a TV screen, for instance, or a
4 projector screen? Or make a tape recording of what
5 was going on in the movie? Why do you need to be
6 able to decrypt the movie?
7 MR. VIVENTI: Actually, I'd like to
8 continue. I'll get to that.
9 Basically, if this film had only been
10 available on DVD format, the author would not have
11 been able to obtain those frames for his
12 presentation -- his book, actually, despite the
13 Court's ruling that he had every right to do so.
14 Many times photographing a TV screen
15 is very difficult in regards to the refresh rate of
16 the monitor itself. Recording audio tracks is very
17 difficult. It's much easier to take the actual
18 frame from the film in the way that it has been
19 done for generations as of right now. You have a
20 copy of the frame and you can use it.
21 Therefore, DeCSS is required for the
22 balance of copyright monopoly and free expression.
23 Without it, fair use is impossible with the current
24 DVD technology that's been presented by the MPAA.
25 JUSTICE ALLEN: What if the MPAA makes
62
1 available on the Internet a service provider for a
2 small fee or for no fee whatsoever, you could apply
3 for and receive small clips of (unintelligible).
4 MR. VIVENTI: If they were to provide
5 a utility, a comparable useful utility as useful as
6 DeCSS, I'm sure it would be satisfied, at least in
7 respect to fair use. As of right now there is no
8 means for accessing all fair use criteria.
9 Among them, there is -- let's see.
10 The need for access to the entire movie in regards
11 to research involving video searching and other
12 scholarly works that require large portions of
13 video not necessarily to be accessed in any
14 specific way, but as a whole.
15 The District Court admitted that its
16 interpretation of 1201 nearly eliminates all fair
17 use entirely by leaving, and I quote,
18 technologically unsophisticated persons who wish to
19 make fair use of encrypted copyrighted works
20 without the technical means of doing so.
21 The Court later went on to list
22 several fair uses that would be impacted by its
23 ruling, including quotations from the script by a
24 movie reviewer; broadcast of an excerpt of a scene
25 to illustrate a review; performing portions of the
63
1 sound track by musicologists; and making clips of
2 scenes by a film scholar to make a comparative
3 point. All these uses have been granted under the
4 fair use statute of the copyright law and are now
5 being removed by the DMCA in a way that was not --
6 the DMCA was never intended to allow.
7 Countless other cases have been
8 presented in the written briefs where fair use was
9 prohibited by the CSS architecture. These cases
10 further strengthen the legitimate and
11 non-infringing uses of DeCSS. The public interest
12 in these uses of DeCSS is substantial and is
13 essential to progress.
14 Therefore, I encourage you to rule in
15 favor of technological progress and allow the
16 publishing of valid encryption research.
17 Thank you.
18 JUSTICE KAUKE: I have a question.
19 If you were looking, for example, at a
20 20 second clip of a movie as we witnessed in
21 matrix, would it not be possible to go out and buy
22 the VHS cassette which is more easily copied and
23 get the same 20 second clip with comparable
24 difference between -- for the purposes of what
25 you're examining, the difference would be minimal.
64
1 And why -- I guess I'm asking, why is digital
2 quality necessary?
3 MR. VIVENTI: If you're doing research
4 that involves specific compression involved in a
5 movie, say you're interested in researching MPEG
6 layer two applications on certain types of video,
7 you necessarily need to access that digital data.
8 Furthermore, in the future, if movies
9 are no longer released on VHS tape, and they're
10 only released on DVD, you may not have access to
11 certain clips, you may not have that ability.
12 JUSTICE ALLEN: In terms of DMCA,
13 Congress specifically banned decryption, and while
14 that is not subject to fair use, what makes
15 decryption any more valid in terms of -- without
16 regard to fair use? I mean, apart from statutory
17 fair use -- I don't know how to put this.
18 Never mind.
19 MR. VIVENTI: Were you trying to refer
20 to the use of -- how the use of DeCSS has any
21 relevance outside of fair use?
22 JUSTICE ALLEN: Yes.
23 MR. VIVENTI: I'm basically not
24 arguing that there's any use outside of DeCSS, I
25 mean that there's any legal backing for -- by use
65
1 of DeCSS outside of fair use. That is entirely --
2 the legal aspect of DeCSS is completely involved in
3 fair use. Without it, it is not capable to utilize
4 your rights of fair use.
5 JUSTICE DESAUTELS: The Court will
6 hear from Mr. Blatz.
7 MR. BLATZ: Good afternoon. My name
8 is John Blatz. I represent the Motion Picture
9 Studios.
10 In Mr. Viventi's argument, he claims
11 that, first, people have the right to fair use.
12 And that since DeCSS software facilitates fair use,
13 then it should therefore be legal to traffic in the
14 DeCSS software.
15 He goes on to list several possible
16 uses that third parties besides Corley could have
17 for the DeCSS program which could possibly be
18 considered fair use under the DMCA. However, it's
19 not these people that are on trial.
20 This trial is about Mr. Corley. And
21 he is not being accused of infringement. He's
22 accused of trafficking in circumvention tools. As
23 Mr. Viventi quotes from section 1201 (c)(1) of the
24 DMCA, a fair use is a defense, but only for
25 copyright infringement. Mr. Corley is not being
66
1 sued for infringement. He's being sued for
2 trafficking.
3 The DMCA explicitly disallows
4 trafficking -- offering to the public circumvention
5 devices in section 1201 (a)(2) and section 1201
6 (b). It disallows any circumvention device whose
7 primary purpose is to circumvent access and whose
8 other uses are not commercially significant.
9 JUSTICE ALLEN: By providing DeCSS,
10 you're enabling users to exercise their fair use
11 rights.
12 MR. BLATZ: That's correct. However,
13 this case is not required -- this case is not
14 about -- it's not about fair use rights to
15 circumvent access controls. It's about trafficking
16 and tools that allow you to circumvent the access.
17 JUSTICE DESAUTELS: I believe what
18 they're arguing is that because DeCSS enables
19 consumers to exercise their fair use rights, it
20 should be allowed to be trafficked.
21 MR. BLATZ: However, that's contrary
22 to the letter of the law and to legal precedent.
23 Congress explicitly decided --
24 Congress purposely decided not to include such a
25 provision because it would undermine the very
67
1 purpose of the DMCA, which is to encourage
2 production of copyrighted works.
3 JUSTICE DESAUTELS: Are you saying,
4 then, that the DMCA is allowing technology to limit
5 fair use?
6 MR. BLATZ: That's true. The DMCA
7 does not restrict fair use. Users -- people, like
8 Mr. Viventi claim, may have the rights to make
9 scholarly uses and other such uses of copyrighted
10 works. If they use DeCSS to do so, that would be
11 legal, perhaps. But that's not what's at issue.
12 What's at issue is, can this be offered to the
13 general public?
14 Mr. Corley is offering these tools to
15 the general public without regard for what they're
16 using it for.
17 JUSTICE DESAUTELS: How else can the
18 general public exercise its fair use rights if it
19 doesn't have access to DeCSS?
20 MR. BLATZ: I'm not arguing that
21 people who are going to make fair use of
22 copyrighted work should not have access to DeCSS or
23 other such things. I'm arguing that --
24 JUSTICE ALLEN: Given that DeCSS does
25 not enable any fair use exemptions whatsoever, how
68
1 does the DMCA propose to enable fair use?
2 MR. BLATZ: A person who wishes to
3 make fair use of a copyrighted work is allowed to
4 break the encryption in order to do so. If they
5 come -- if a program such as DeCSS were made
6 available to them by some means whereby the
7 government agreed -- the government approved of
8 their use, and it was understood that they would
9 only be using it for purposes outlined in the DMCA,
10 such distribution would be acceptable; however, not
11 to the general public.
12 JUSTICE ALLEN: You would hold that
13 generally fair use rights in this particular
14 instance are limited to technically sophisticated
15 people and people who have the knowledge and
16 contacts to be able to gain access to DeCSS code?
17 MR. BLATZ: Fair use rights are given
18 to anyone who has the right to do so. The DMCA
19 does not require people -- dot not require
20 manufacturers to facilitate the use of their fair
21 use rights.
22 If the Court has no further questions,
23 I believe I'm finished.
24 JUSTICE DESAUTELS: Okay. Mr.
25 Viventi.
69
1 MR. VIVENTI: I maintain that the fair
2 use is not possible under the current CSS
3 encryption algorithm; and that since the entire
4 public is granted rights to fair use, it is
5 necessary the private public also be granted rights
6 to access its fair uses, and to accomplish this,
7 DeCSS must be trafficked, it must be provided to
8 the people.
9 The MPA scheme of government control
10 on permission to utilize its fair use goes against
11 copyright's natural assumed fair use qualities, and
12 would impede the flow of educational and scholarly
13 works with undue process if everyone had to apply
14 for a license to make use of their own rights.
15 Therefore, I maintain that it should
16 be possible to distribute DeCSS in accordance with
17 the necessity for fair use.
18 JUSTICE KAUKE: Can 2600 guarantee
19 that everyone that has access to DeCSS from their
20 website is using it for purposes of studying and
21 research?
22 MR. VIVENTI: I don't believe that
23 it's our responsibility to control what uses people
24 make of their own -- of their software. That is
25 their entire legal responsibility. Because
70
1 everyone is granted rights to this fair use
2 material, it is not -- we can't deny rights to some
3 people and not others on the basis of whether or
4 not we believe they are conducting sound
5 educational research or not.
6 JUSTICE MANDECKI: Do you not agree
7 that the majority of people who have the
8 availability of using DeCSS are using it for the
9 uses that are potentially dangerous to greater
10 society?
11 MR. VIVENTI: We don't have any
12 information related to specific numbers of people
13 who are using it for any specific purpose.
14 However, if there is any significant use for DeCSS
15 that is non-infringing, it should not be allowed to
16 ban its trafficking or use because of that specific
17 use, and, irregardless of its nonlegal uses.
18 JUSTICE DESAUTELS: Thank you,
19 Mr. Viventi.
20 Okay. Court is adjourned.
21 (Whereupon Court was adjourned at
22 3:15 P.M.)
23
24
25 * * * * * *
71
1 C E R T I F I C A T E
2
3
4 I, DOREEN FOX KRENCHICKI, License No.
5 XI00821, a Notary Public and Certified Shorthand
6 Reporter of the State of New Jersey, do hereby
7 certify that the foregoing is a true and accurate
8 transcript of the notes as taken stenographically
9 by and before me at the time, place and on the date
10 hereinbefore set forth.
11
12 I DO FURTHER CERTIFY that I am neither
13 a relative nor employee nor attorney nor counsel of
14 any of the parties to this action, and that I am
15 neither a relative nor employee of such attorney or
16 counsel, and that I am not financially interested
17 in the action.
18
19
20
DOREEN FOX KRENCHICKI,
21 CSR, RPR, CM, CRR
22
23
Dated: April 25, 2001
24
25