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Major motion picture studios will be unable to protect copyrighted, digitized films on the Internet if subversive anti-encryption software is allowed to flourish, a lawyer for the studios claimed in court Monday. During opening arguments before Southern District of New York Judge Lewis A. Kaplan, Leon P. Gold of Proskauer Rose said that “hacker zealots” are doing their best to undermine copyright control for Digital Versatile Discs (DVDs), in violation of the Digital Millennium Copyright Act. But the attorney for defendant Eric Corley said that the motion picture studios are overstating their case. Attorney Martin Garbus, of Frankfurt, Garbus, Klein & Selz, said the studios had yet to show that one person has used the anti-encryption software to copy movies on DVD using the Internet. The studios are essentially arguing, Mr. Garbus said, that “the sky is going to fall sometime in the future,” during his opening argument in Universal City Studios Inc. v. Reimerdes, 00 Civ 0277. The Digital Millennium Copyright Act (DMCA), 17 U.S.C � 1201, offers protection for copyright holders who use technological measures to prevent copying of DVDs. The act bars the distribution of technology that is designed to circumvent the measure installed to protect the copyrighted material. The measure employed by the studios is the CSS, Content Scramble System, which requires hardware such as a DVD player or computer DVD in order to display a film. The studios claim that Mr. Corley has been promoting and distributing via his Web site, 2600.com, a software utility called DeCSS, which allegedly enables users to break through CSS and make their own copies of DVDs. The defense argues that the technology is hard to use and unlikely to lead to widespread copying. It also claims that suppression of the right to simply post information about DeCSS is a violation of the First Amendment. Judge Kaplan granted a preliminary injunction sought by the studios in January. The injunction barred the defendants, including Mr. Corley, from posting DeCSS on their Web sites. Since that time, Mr. Corley’s co-defendants opted to settle the case, including name plaintiff Shawn C. Reimerdes, who operated a Web site called dvd-copy.com. Yesterday, about 20 supporters of Mr. Corley demonstrated outside of the federal courthouse at 500 Pearl Street, distributing copies of a leaflet that said the movie industry is “up to their old dirty tricks.” The leaflets claimed that the DeCSS is a “legally developed computer program designed to let people watch DVDs” that they have “legally bought or rented,” without being forced to watch the commercials the studios impose before the movie begins. VISIONS OF THE FUTURE Upstairs in Judge Kaplan’s 12th floor courtroom, Mr. Gold said the issue was out and out theft. “The hacker zealots are wrong. Pirated movies made for decrypted DVDs are also being made from hard copies,” he said. “They are wrong because decryption has begun. It has begun to [pick] up steam and it will be an avalanche. Once a film is decrypted and downloaded on the Internet, that film is gone for good.” One argument the defense has made is that Mr. Corley’s activities fall within the “reverse reengineering exception,” in � 1201(f) of the statute. The exception allows a user to circumvent the technological measure for the “sole purpose” of finding those elements of the program that are needed to “achieve interoperability of an independently created computer program with other programs.” In his January decision, Judge Kaplan rejected the contention of Mr. Corley and his co-defendants that DeCSS was needed to achieve “interoperability between computers running on the Linux system and DVDs.” Yesterday, Mr. Gold talked of the “chaos” to come if digitized films were to suffer the same fate confronting the music industry, which is currently in litigation in California over Napster, the software program that allows Internet users to freely exchange digitized music files. But Mr. Gold said that unlike the music industry, the movie business recognized the threat the latest technology posed to its copyrights, pressed Congress to pass the DMCA and adopted protectable encryption technology. “The movie studios,” he said. “. . . were able to take action and prevent against waking up one morning and finding they had been Napsterized.” “This is not the Napster case,” countered Mr. Garbus, insisting that the “horrors” detailed by Mr. Gold might never come to pass. “How fast will things move? How long will DVDs be around?” “The case is larger than I think Mr. Gold interprets it,” Mr. Garbus said. At stake, he added, was “the future of the Internet,” as well as the proper interplay between copyright interests, the First Amendment, the Fair Use Doctrine, and rapidly evolving technology. But Mr. Gold said this kind of rhetoric obscures the real issue: the ability of copyright holders to prevent “piracy” by using protective measures recognized as appropriate by Congress. “A good deal of loud noise, much of irrelevant, much of it untrue, has preceded this case,” he said. “Today the rule of law asserts itself. It is a good day.” RECUSAL MOTION Judge Kaplan said discovery in the case has been contentious, with both sides resorting to name-calling and accusing the other of misrepresenting facts to the court. One event that led to a breakdown in communication between counsel came in April, when plaintiff Time Warner tried unsuccessfully to disqualify Mr. Garbus because his law firm represents the company on another matter. Mr. Garbus, who claims the court has been unfair to him since he entered the case in March, has moved for sanctions against the plaintiffs based on alleged discovery misconduct, and has also tried several times without success to postpone the expedited bench trial before Judge Kaplan. His last maneuver was summarily rejected Monday — a motion to have Judge Kaplan recuse himself from the case because the judge once worked at Paul, Weiss, Rifkind, Wharton & Garrison, which had purportedly represented Time Warner in a matter “concerning DVDs” in 1993. Judge Kaplan left the firm for the federal bench in 1994. In a 50-page opinion, Judge Kaplan said he would not permit the defendants to “parlay a baseless attack on the judge into the delay they seek.”

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