Incomplete

31 May 2000
Source: Frankfurt, Garbus, Klein & Selz for 2600.

See related files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS

Contents

Notice of Motion for Protective Order

Declaration of Kenneth A. Jacobsen

Memorandum of Law in Support of Plaintiffs' Motion for a Protective Order

[3 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
Charles S. Sims
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

PLEASE TAKE NOTICE that upon the annexed Declaration of Kenneth A. Jacobsen, and the accompanying Memorandum of Law in Support of Plaintiffs' Motion for a Protective Order, Plaintiffs will move this Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, on Friday June 2, 2000 at 4:00 p.m., or as soon thereafter as counsel may be hard, at the United States District Court, Southern District of New York, 500 Pearl Street, New York, New York, for an Order (a) precluding outsiders to the litigation, including members of the press or news organizations (hereinafter "the press"), from attending depositions, including those of individual representatives of plaintiffs or the MPAA in this matter, (b) precluding defendants from posting to the Internet all or any portion of depositions of indivdual representatives of plaintiffs or the MPAA, whether in the form of written transcripts, videotapes, or ASCII files (hereinafter "deposition materials"), and (c) precluding defendants from publicly disclosing documents and information obtained through discovery, which plaintiffs have designated, under the Confidentiality Stipulation previously agreed to, as "CONFIDENTIAL" or for "ATTORNEYS EYES ONLY", to anyone not authorized to receive the information under the Confidentiality Stipulation, whether by posting on the Internet or otherwise.

Dated: New York, New York
            May 30, 2000

PROSKAUER ROSE LLP By: [Charles Sims Signature] Leon P. Gold (LG-1434) William M. Hart (WH-1604) Charles S. Sims (CS-0624) 1585 Broadway New York, New York 10036 (212) 969-3000 Telephone (212) 969-2900 Facsimile - and - Jon A. Baumgarten PROSKAUER ROSE LLP 1233 20th Street, N.W., Suite 800 Washington, DC 20036-2396 (202) 416-6800 Telephone (202) 416-6899 Facsimile Attorneys for Plaintiffs

TO:

FRANKFURT, GARBUS, KLEIN & SELZ, P.C.

Martin Garbus
Edward Hernstadt
488 Madison Avenue
New York, New York 10022
(212) 826-5582
Attorneys for Defendant

THE VILLAGE VOICE

Barbara Cohen
Attorney for The Village Voice
Fax: 505.1698, 362.5667

THE NEW YORK OBSERVER

Brian Kempner
Attorney for The New York Observer
Fax: 753.2572

[5 pages]

Leon P. Gold (LG-1434)
William M. Hart (WH-1604)
Charles S. Sims (CS-0624)
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036
(212) 969-3000 Telephone
(212) 969-2900 Facsimile

Jon A. Baumgarten
PROSKAUER ROSE LLP
1233 20th Street, N.W., Suite 800
Washington, DC 20036-2396
(202) 416-6800 Telephone
(202) 416-6899 Facsimile

Attorneys for Plaintiffs

I, Kenneth A. Jacobsen, hereby declare:

1. I am Director of Anti-Piracy, Wordlwide, for the Motion Picture Association of America, Inc. and its international counterparts (the "MPAA"). Prior to employment by the MPAA, I was for over 25 years a special agent for the Federal Bureau of Investigation. I submit this declaration in support of the plaintiffs' motion for a protective order: (a) precluding outsiders to the litigation, including members of the press or news organizations (hereinafter, collectively, "the press"), from attending depositions of individual representatives of plaintiffs or the MPAA in this matter; (b) precluding defendants from posting all or any portion of depositions of individual representatives of plaintiffs or the MPAA, whether in the form of written transcripts, videotapes, or ASCII files (hereinafter, collectively, "deposition materials"), and (c) precluding defendants from publicly disclosing information, obtained through discovery, which plaintiffs have designated as confidential or for "attorneys eyes only," to anyone not authorized to receive the information under the Confidentiality Stipulation, whether by posting on the Internet or otherwise. I have personal knowledge of the facts set forth below.

2. As Director of Anti-Policy, Worldwide, I am responsible for the safety of hundreds of MPAA employees and representatives assigned to the MPAA's anti-piracy effort against audiovisual piracy in 67 countries around the world. It is in large measure to protect these individuals and plaintiffs' own employees who are engaged in anti-piracy work that plaintiffs oppose press attendance at the depositions, posting transcripts on the Internet, and public dissemination of confidential testimony or discovered information concerning this matter.

3. In addition to the protection of our employees from the kinds of harassment and invasion of privacy that have previously occurred (described below), a second major concern is that public disclosure of testimony concerning such sensitive matters as anti-piracy investigative techniques, ongoing anti-piracy investigations, and future plans for DVD encryption and security will harm our proprietary interests by hampering our confidential investigative efforts and maek "next generation" securitydevices more vulnerable to attack.

4. It is critical that the Court prevent public dissemination of three categories of information: (a) home addresses of the deponents andothers; (b) names of employees and representatives or [sic] the MPAA who are engaged in anti-piracy work and not normally in the public eye; and (c) sensitive business information, such as future plans for DVD encryption and security, anti-piracy investigative techniques and onging investigations, and other non-public information.

5. Public dissemination of the information described in subsections (a) and (b) of paragraph 4 above, especially over the Internet, would facilitate harassment of plaintifs, ehteir witnesses, and other persons who may be identified in deposition testimony, as I understand plaintiffs' counsel have previously advised the Court. Disclosure of the information described in subsection (c) of paragraph 4 would substantially hinder ongoing anti-piracy investigations, frustrate future investigations, and undermine future security measures. Just as the FBI needs to protect its agents, sources, and methods, so as to safeguard their safety and effectiveness, so too the MPAA needs to protect those engaged in its anti-piracy operations. The foucs of audiovisual piracy is rapdily shifting to Internet, DVDs and other digital transmissions. Posting information about MPAA's anti-piracy operations and techniques will make that information easily available to those engaged in, or planning for, digital piracy of individual works.

6. Since the filing of this lawsuit and the issuance of the Court's preliminary injunction, the MPAA and its counsel have received dozens of harassing, profane, and (in some cases) anti-Semitic e-mail messages, some of them even containing death threats. Copies of some of these messages are annexed as Exhibit A. The authors of some e-mails received at MPAA have complained the did not have the names of people to target directly. See, for example, Exhibit B.

7. Attorneys who have been engaged in anti-piracy efforts on plaintiffs' behalf have had their private credit records hacked into and interfered with. While I do not suggest that defendants were responsible for these e-mails or harassing conduct, they demonstrate the violent reaction some people have to the MPAA's anti-piracyh efforts, especially among Internet users. In the past, MPAA anti-piracy personnel have experienced home burglaries and beatings, have been assaulted with weapons, and have received death threats, as a direct result of their anti-piracy work. The witnesses who testify in this case should not have to concern themselves with whethere testimony will place themselves and/or others at risk.

8. On May 24, 2000, a country manager for the MPAA in Malaysis was returning home from dinner with a female friend when the two were confronted by a man who brutally slashed the friend's face, inflicting a wound which required 22 stitches to close. Again, while I do not suggest that defendants were responsible for this attack, I believe, based on the circumstances known to me, that the attacker intended to hurt the MPAA representative, rather than her companion, because the MPAA representative had received threats recently as the result of her anti-piracy work, and that this deplorable incident reflects the very real danger faced by MPAA personnel and others who work to fight piracy in an increasingly tontentious atmosphere. Similar incidents have occurred in the past.

9. The plaintiffs' accompanying memorandum of law addresses the reasons why the Court should not permit the press to attend depositions, and why the Court should prevent dissemination of information properly designated as confidential or for "attonreys eyes only" under any circumstances. For the forgoing reasons, I respectfully request that the Court grant plaintiffs' motion for a protective order.

Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the forgoing is true and correct. Executed on May 30, 2000.

[Signature]
Kenneth A. Jacobsen

___________________

EXHIBIT A

[9 pages]

["REDACTED"s below in original]

____________________________________________

REDACTED

____________________________Forward Header
________________________________
Subject: DeCSS will rule yer ass yer filthy Jew>:[
Author:  "James McLaren" <jamesmcl@mweb.co.za> at smtp_link
Date:    1/6/00 11:48 AM

____________________________________________

REDACTED

--Original Message----
From:  lake456@aol.com [mailto:lake456@aol.com]<mailto:lake@aol.com>
Sent:  Saturday, January 29, 2000 4:10 PM
To:    hotline@mpaa.org
Subject:   i support your fight against piracy

Below is the result of your feedback form. It was submitted by
(lake456@aol.com) on, January 30, 2000 at 00:09:37
__________________________________________________________

M-2510

content: If you even dare try to put forward your litigation 
and lawsuits, I will kill you and your lawyers and anyone else 
who supports you in your fight against piracy. I will also kill 
your attorneys and judges who think piracy is bad.

Also, I hope kill at least one thousand of you!
I have hired several hitmen to kill
Elian when comes back into cuban soil

__________________________________________________________

M-2511

REDACTED

Subject: Fwd:fuck you

Screw you. You mother fuckers need to learn what
battles to fight and when to fucking learn the laws
you think are being broken. we're going to kill each
and everyone of you.

__________________________________________________________
Do You Yahoo?
Talk to your friends online with Yahoo! Messenger.
http://im.yahoo.com

M-2512

[Apparently a duplicate]

HotLine
__________________________________________________________

From:                        lake456@aol.com
Sent:                        Saturday, January 29, 2000 4:10 PM
To:                          hotline@mpaa.org
Subject:                     i support your fight against piracy

Below is the result of your feedback form. It was submitted by
(lake456@aol.com) on, January 30, 2000 at 00:09:37
__________________________________________________________

content: If you even dare try to put forward your litigation and lawsuits, 
I will kill you and your lawyers and anyone else 
who supports you in your fight against piracy. 
I will also kill your attorneys and judges who 
think piracy is bad.
Also, I hope kill at least one thousand of you!
I have hired several hitmen to kill
Elian when comes back into cuban soil

__________________________________________________________

M-4091

                                                             Page 1 of 1

Austin, Kathy
__________________________________________________________
From:    Nate Watson [nwatson@einet.com]
Sent:    Tuesday, January 25, 2000 7:47 PM
To:      hotline@mpaa.org
Subject: This emphasis has paid off as 6.163 VCRs have been seized since 1996.

What the h"ll kind of comment is that. You people are a bunch of overbearing,
fascist, corporate bastards. You arrest a norwegian teenager because he is
smarter then you asshol*s. Isn't that a shame, some 16 year old reversed
your lame ass encryption. Got news for you bastar's You think your "Anti-Piracy"
campaign is paying off, haha I laugh...it's to late about the CSS too. you
should have supported the world. not the U.S. Windows isn't the only operating
system out there. Others wish to view DVD players you didn't support it.
Well I lust wanted to rant cuz I hate you fuck"rs. You guys are gonna loose
madd money. One last note, what makes a corporation thnky they can have someone
arrested overseas. Your the association of AMERICA.


Pissed off:
Nate W.

M-4100

Austin; Kathy-

From:     Cuck999999@aol.com
Sent:     Wednesday, January 26, 2000 5:25 PM
To:       hotline@mpaa.org
Subject: INformation

Dont worry about piracy...it wont effect you income...id didnt with the MP3's
and it wont with DVD's... just like it didnt with VHS cassetts...if you had
competent people or you if really cared about piracy...you would have your
own security personell try to crack the code... then you could fix the SECURITY
FLAWS before you lost some of your precious income...Also, if you werent
so interested in obtaining revenues from the public...even more than you
already are (from movies and copyrights and such...you would have made DVD's
playable on non Windows systems...if you (the industry or whatever big corporate
machine claims "Intellectual property") only you werent so greedy...

The people will make a stand...are you (explanation as above)willing to bleed
for your beliefs?
One day it may come to that...

M-4141

Austin; Kathy-
From:     Anthony Teague [ATeague@arcmail.com]
Sent:     Friday, January 21, 2000 2:29 PM
To:       hotline@mpaa.org
Subject:  2600 magazine

You guys fucking are assholes. I hope you all rot in hell. Goddamn corporate
lackey fuck-up capitalist shitheads. ANARCHY!

M-4160

__________

HotLine
________________________________________________________________

From:           John Schultz [johnschultz@mindspring.com]
Sent:           Friday, January 28, 2000 12:45 PM
To:             hotline@mpaa.org
Subject:        DeCSS

Shame on you. you jack-booted thugs. The lies you're telling to the 
ignorant courts will come back to haunt you when the public catches on.

M-4167

HotLine
_______________________________________________________________
From:           The BoZ [the_boz@email.com]
Sent:           Friday, January 21, 2000 12: 38 PM
To:             hotline@mpaa.org; root@mpaa.org
Subject:        Violation of laws

I just thought I'd let you know that you guys are violating the first amendment
by suing innocent citizens who post material that is not copyrighted. You
do not own the deCSS programs, and you do not own cryptography. I will never
pay to watch another movie again, since the law does not apply to your
organization, then it must not apply to me neither. You people can't take
on everyone in the world and win. You will win the benefits of the actions
you have taken against freedom by trying to circumvent the law. The double
edged sword of the law will come back at you.
You can sincerely bite my ass and suck my nuts, 


The BoZ
_______________________________________________________________
FREE! The World's Best Email Address @email.com
Reserve your name now at http://www.email.com

M-4067

EXHIBIT B

HotLine
_______________________________________________________________
From:              Jake Stevenson [Jake.Stevenson@dacg.com]
Sent:              Friday, january 28, 2000 8:44 AM
To:                'hotline@mpaa.org'
Subject:           Recent MPAA Actions Concerning DeCSS

To whom it may concern:

I was unable to find any better contact point for feedback from your
website, so I'd like to ask that you please forward this to the appropriate
parties in your organization.

I am very concerned about the actions of the MPAA over the recent release of
code which allowed software-reading of DVD disks, especially teh recent
action taken against Jon Johansen and his father. It is my job to follow
technical news quite closely, and I've kep well abreast of the news
regarding this controversy.

I understand that Mr. Johansen and his associates wrote the code by reverse
engineering the encryption scheme that DVD players use. I also know taht
the code is not intended to be used as a method of copying DVD information,
but simply allowing access to that information for users of the Linux
operating system. I have read the Digital Millennium Copyright Act (DMCA),
and my understanding is that it allows for properly reverse-engineerined
products.

Due to my concerns over the MPAA's actions in this matter, I would like to
make it known that I am boycotting films at the theater, DVD, and otherwise
from the following companies:

Disney
Saony Pictures Entertainment
Metro-Goldwyn-Mayer
Paramoutn Pictures
Twentieth Century Fox
Universal Studios
Warner Brothers

This action upsets me, as I an avid attender of films at theaters,
but I find involvement of these companies in these actions so appaling [sic]
that I cannot support them. I am forwarding my notice to each company and
will encourage my friends and family to do the same.

I urge you to discontinue your actions in this case and work with the
community to find a way to protect the movie industry without detriment to
our rights.

Thank you.
Jake A. Stevenson

M-2863

HotLine
_______________________________________________________________
From:              ? [kmb51@hotmail.com]
Sent:              Sunday, January 31, 1999 12:47 AM [year as written]
To:                hotline@mpaa.org'
Subject:           Forward to a Mpaa exec. :0) Thanks

I could not find any other email address contained within your web-site
so I assume you will forward this on to the right people.

I was recently "surfing" on the Internet and came across a article that
to do with the mpaa taking to court several people and organizations
over DVD copyright protection. I thought this does not seem right.
A dvd is ruffly 3.5 gigabits and for the average Internet user would
take something like 6 days to download, so that cant be what there
trying to protect hmmmm... OK A blank DVD cost some-where in the
range of 3 times as muchas a dvd bought from a store with content
already on it hmmm.. O.K. IM still searching and wondering for the
answer to why the mpaa a organization with corporations that hold all
the media giants, would want to suppress first amendment rights of
the people. Tapes where copied they survived. CD's where copied they
survived. DVD's can be copied and they will survive. Why should you
decide that I can only watch my DVD movie on a windows platform
machine! Who made you God?

Nor the first or the last

Eric Smith

M-2874

REDACTED

From:     Donovan Hill [alt@teius.net]
Sent:     Saturday, January 16, 2000 xxxx
To:       hotline@mpaa.org
Subject:  DVD

Since this seems to be the only mail link on the entire MPAA site,
I am writing you here. The recent lawsuits regarding the DeCSS program
concern me greatly. In my opinion, these are bully cases and therefore
I fell I have no choice to respond. I have decided to NOT purchase
anything related to DVD until this case is resolved. Also, I
sincerely hope you lose in a court case[?].

Thank you.

Donovan Hill

M-2793

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