Judge seals courtroom in MPAA DVD-copying case

DVD Copy Control Association says public should be barred from the courtroom because information about the technology used to encrypt DVDs is a trade secret.

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Greg Sandoval
Declan McCullagh
3 min read

SAN FRANCISCO--A federal judge sealed a courtroom on Friday after attorneys for the Motion Picture Association of America and another Hollywood group claimed that confidential information might be disclosed during testimony about DVD-encryption technology.

U.S. District Judge Marilyn Patel kicked the public out of the courtroom at around 2:30 p.m. PDT, overruling objections from CNET News and RealNetworks, which also said it opposed the unusual request.

An attorney for the DVD Copy Control Association, which is involved in a lawsuit here over DVD-backup software sold by RealNetworks, said details about the technology used to encrypt DVDs justified the request to give the public the boot during witness testimony--which, according to legal precedent, should be reserved only for rare cases.

"I find that this does meet the requirements for a trade secret," Patel said. "We're going to protect what needs to be protected. I'm ordering everyone not signed off on a confidentiality agreement to leave the courtroom."

"The MPAA is trying to seal proprietary specifications," said DVD-CCA attorney Reginald Steer. He added: "This is critical to our presentation."

Steer said the trade secrets related to licensing technology and CSS, or Content Scrambling System, which is an algorithm used to encrypt DVDs. 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, including on ties, T-shirts, and at least one haiku poem.

Corynne McSherry, an attorney at the Electronic Frontier Foundation who has been following this case and was in the courtroom, said Patel chose an unfortunate procedure when barring the public from the room on Friday.

"She implied that we should have filed a motion preemptively," McSherry said. "If that's true, the public shouldn't have to go to court to make the courtroom stay open...Presumably the plaintiffs had known for months that they were planning to close this hearing. This is not the right way to do it."

CNET News contacted the MPAA in advance and asked if the group would attempt to close the courtroom on Friday; the MPAA replied earlier this week it would not seek to do so.

The MPAA, the lobbying group for the six largest film studios, alleges that RealDVD violates the Digital Millennium Copyright Act (DMCA) because it bypasses the copy protection built into DVDs. The DMCA generally restricts companies from developing products that circumvent antipiracy protections, but Real says that its RealDVD product complies with the law.

When arguing for the courtroom to be cleared of anyone that was bound by a non-disclosure agreement, attorneys for the DVD-CCA acknowledged that some of its technology had been cracked and published on the Web. But, they said, that information represented only a small fraction of the keys, algorithms and other trade secrets which have never been appeared publicly.

Details about CSS and Johansen's DeCSS code --which was the subject of an injunction nine years ago by a court in New York--is widely distributed including through a online gallery published by a Carnegie Mellon University researcher. In addition, programs like the DVD-descrambling utility Handbrake are in common use.

Patel's initial response in the morning seemed skeptical. She joked that if DVD-CCA and the MPAA wanted to close the courtroom, "You should have gotten yourself a private judge. This is an open forum."

Under long-standing U.S. law, courtrooms are open by default. The 9th Circuit Court of Appeals, which is binding on Patel, has said that judges considering closing a courtroom or sealing records "must provide sufficient notice to the public and press to afford them the opportunity to object or offer alternatives. If objections are made, a hearing on the objections must be held as soon as possible."

Once that hearing is held, the courtroom can only be closed if specific conditions are met, including that there are no alternatives that are practical. Also, the judge must "make specific factual findings," and not just claim it was necessary.

A CNET News reporter objected to the courtroom closure. CNET News' publisher, CBS Interactive, is weighing its options in terms of a legal challenge. CNET intervened last year in federal court in a case pitting Facebook against ConnectU to unseal documents, a dispute that ended up before the 9th Circuit Court of Appeals.

Updated 12:55 p.m. PDT to add more background.

Updated 3 p.m. PDT to note the courtroom had been closed.