Supreme Court stays DVD ruling
By Paul Roberts
January 2, 2003 11:12 am PT
THE U.S. SUPREME Court last week indicated its interest in a case involving a Texas citizen who was sued in California courts for posting software that can be used to illegally copy DVDs.
On December 26, Justice Sandra Day O'Connor issued a stay on a California Supreme Court ruling in a 1999 case brought by the DVD Copy Control Association (DVD CCA) against Texas resident Matthew Pavlovich.
O'Connor's stay was issued in response to an application filed by the DVD CCA and will remain in effect pending a response from the defendant, due by the end of the day on Thursday, and further action by O'Connor. After reviewing the response from Pavlovich's attorneys, Justice O'Connor can make the stay more permanent, giving the DVD CCA time to draft further petitions asking the Supreme Court to take a look at the California case.
In the case in question, the DVD CCA charged that Pavlovich and other defendants violated California's law governing trade secrets by posting a copy of the DeCSS (De Contents Scramble System) software on a Web site that Pavlovich maintained while a student at Purdue University in Indiana.
The DVD CCA argued that Pavlovich's action was intended to harm the computer hardware industry involved in producing CSS-encrypted DVD players -- an industry that Pavlovich knew was centered in California.
In November, however, the California Supreme Court ruled that Pavlovich could not be sued in California court, saying that "the mere posting of information on a passive Internet Web site, which is accessible from anywhere but is directed at no particular audience, cannot be an action targeted at a particular [state]."
"Otherwise," the California court said in its opinion, "[the] mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible."
Practically, the stay is a stop-gap measure to prevent Pavlovich from reposting the DeCSS software following his victory in the California Supreme Court, according to Jonathan Zittrain, a co-director of the Berkman Center for Internet & Society at Harvard Law School.
"[The DVD CCA] is trying to maintain the status quo before the California Supreme Court ruled, which is that Pavlovich better have [the DeCSS software] down in the meantime," Zittrain said.
O'Connor's stay does not give any indication of whether the Supreme Court will review the California court's decision, according to Zittrain. It is more likely a response to an application by the DVD CCA arguing that the ruling against them would cause irreparable harm to makers of DVDs.
However, the decision to grant a stay may signal an interest by the court in clarifying issues of state legal jurisdiction in cases involving Internet content and Web sites, Zittrain said.
The Pavlovich case tests the U.S. Constitution's commerce clause, which ensures that no state's laws can supersede those of other states, Zittrain said.
The case also raises jurisdictional issues similar to other cases being heard in the U.S. and around the world. In December, The High Court of Australia ruled that Dow Jones & Co. Inc. could be held liable in that country for content in an article published on its U.S.-based Web site.
At the very least, O'Connor's stay will provide cheer to the DVD CCA, which is fighting to establish a precedent for others who may consider publishing software that defeats copyright protections, Zittrain said.
"They don't want to stop this one guy from posting DeCSS. What they want is to create some law that says 'If you put up the next generation of DeCSS, we're going to fast track it and you're going to lose."
AI
