DVD lawyers spill "secret" code

Santa Clara County Superior Court Judge William Elfving today placed under seal source code submitted in a trade secrets case filed by the DVD Copy Control Association against 72 Web sites and individuals earlier this month.

The order for now erases an embarrassing gaffe by attorneys for the group, which is seeking to stop the defendants from publishing or linking to the very same program on the Internet. It was unclear whether the apparent slip-up could have deeper consequences for the case.

Court papers are generally considered public documents, available to anyone for the asking. Although parties in a case can file a request with the court to make sensitive documents off-limits, the Copy Control Association's attorneys apparently filed the request only after openly submitting the source code as a supporting document to the complaint.

As a result, the document has been legally available at the courthouse for the past two weeks. But the document was lifted from the court and made available on the Internet at the Cryptome.org Web site.

The association's lead attorney in the case, Jeffrey Kessler of the New York law firm Weil, Gotshal & Manges, called today's ruling a non-event.

"Everyone knew (the exhibit) would be placed under seal," he said. Kessler declined to elaborate on how the exhibit was introduced in the case, saying only that after today's decision the issue "has no further significance whatsoever."

But lawyers for the defense and intellectual property attorneys uninvolved in the case said the gaffe could hurt the plaintiffs' case.

"It sounds like the plaintiffs goofed," said Judy Jennison, head of Perkins Coie's Silicon Valley intellectual property litigation practice and an experienced trade secrets trial attorney who is not involved in the case. "If they didn't file it under seal, they could be seen to have given up the their (trade secret) rights."

Attorney Allonn Levy, who is representing defendant Andrew Bunner in the case, agreed. Even if the document was inadvertently made public, he said, it could jeopardize the trade secret status of the material.

"Anyone could have copied out the trade secrets from the file before it was sealed," he said, although he added that he did not know whether anyone had done so. "That raises a serious question of whether that material is protectable."

According to defendants in the case, DeCSS was created by legal reverse engineering techniques to allow DVDs to be played on the Linux platform.

Since its release, however, the film industry has vilified the program as an illegal hack aimed at producing illegal copies of DVD movies.

In addition to the Copy Control Association's suit in California, member companies of the Motion Picture Association of America (MPAA) filed a lawsuit in New York against individuals for alleged violations of the Digital Millenium Copyright Act.

The judges in both cases have issued preliminary injunctions prohibiting the defendants from posting the code throughout the trials' durations.

The Electronic Frontier Foundation, which is defending the parties in both cases, argues that people have a right to discuss the "the technical insecurity of DVD" and to demonstrate their points through reverse engineering.

The DVD association was formed in December of last year by member companies of the MPAA, the Business Software Alliance and the Electronic Industries Alliance to license out the DVD Content Scrambling System.

News.com's Courtney Macavinta contributed to this report.