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RealDVD judge again boots public from courtroom

For the second time in three days of court hearings, the federal judge presiding over RealDVD dispute bars public to protect "trade secrets."

SAN FRANCISCO--The film industry once again successfully convinced U.S District Marilyn Patel to boot the public from the courtroom during the RealDVD hearing on Wednesday.

Attorneys from the DVD Copy Control Association, the group formed to protect DVDs from piracy, informed Patel that they wanted the courtroom closed during the testimony that would discuss anything the DVD-CCA considered a trade secret.

Roger Myers, representing CNET News, told Patel that he objected to the closing of the court.

Myers told Patel he wanted to propose an alternative. He asked the court to limit testimony in court that didn't include any trade secrets. He then suggested that testimony about the secrets be done on video and submitted under seal. Such a procedure would not hold up the court or reveal trade secrets. Anybody who still wanted to object to the sealed testimony could do so and she could rule on those objections.

"The issue of whether there is a trade secret should have briefed in advanced," said Myers, from the law firm of Holme Roberts & Owen. "They should have filed a motion to close. There may be a trade secret but it also may mean that the court is being closed to protect something that doesn't exist."

On Friday, the DVD-CCA convinced Patel that testimony would include details about the technology used to encrypt DVDs. Patel ordered everyone who wasn't bound by a non-disclosure agreement to leave the courtroom. But before that occurred, Patel asked that as much testimony that didn't include sensitive information be given.

Much of the DVD-CCA's encryption code can easily be found online or even on T-shirts and ties. The DVD-CCA once filed a lawsuit against programmer Jon Johansen, who wrote a DVD-descrambling utility that circumvented CSS--a suit that had the unintended consequence of publicizing the code widely.

But the DVD-CCA's lawyers said much of their code is not publicly available and any disclosure of it would cause economic harm.

"I think it's very clear from the licensing with respect to specifications the indepth nature of those specifications," Patel told Myers. "There are trade secrets and there is economic value to them...I'm not going to stop the court proceedings now, not at this late hour."

Patel once said she would only keep the court sealed for the testimony on what DVD-CCA claimed were trade secrets.