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A federal judge June 6 denied a motion by movie studios seeking a blanket protective order barring disclosure of deposition testimony on the Internet ( Universal City Studios Inc. v. Reimerdes, S.D.N.Y., Case No. 00 Civ. 277 (LAK), motion denied June 6, 2000). The underlying case concerns whether the dissemination and linking to a DVD decryption utility known as DeCSS is actionable as a violation of the Digital Millennium Copyright Act’s anticircumvention provisions. The case was brought earlier this year by a group of movie-studio plaintiffs against defendants who either had published the source code for the DeCSS utility on their websites or who had linked to websites where the DeCSS program or source code could be found. The suit is widely regarded by intellectual-property experts and the computer industry as a landmark case addressing questions of the scope of the DMCA’s anticircumvention provisions and the applicability of “fair use” doctrine in the digital world. In response to a motion from the plaintiffs to categorically bar press access to depositions and to bar parties from disclosing deposition transcripts and evidence to the press — or to the public through the Internet — Judge Lewis A. Kaplan invited intervention on the issue from members of the press. The parties and the intervenors argued on the plaintiffs’ motion at the June 6 hearing. Attorneys for defendant Eric Corley, who publishes 2600 Magazine and who operates a related website (, argued for press access to the depositions and evidence. Press intervenors contended that the press and the public were harmed by closed depositions, and some intervenors criticized the parties for agreeing to any confidentiality stipulation. PRIOR CONFIDENTIALITY AGREEMENT Ruling from the bench, Kaplan denied the plaintiffs’ blanket protective order but held that the parties already-signed confidentiality agreement enabled them to redact any confidential, proprietary, or trade-secret information from deposition transcripts and evidence. Except for such redacted information, he ruled, deposition transcripts and testimony will generally be available to the press — and publishable on the Internet — 10 days after the deposition dates. Kaplan made important exceptions to the 10-day rule: With regard to the testimony of Motion Picture Association of America CEO Jack Valenti and other “prominent” witnesses such as Disney chief executive Michael Eisner, the parties will make the transcripts and evidence available in three rather than 10 days. Valenti’s deposition, which took place on the morning of June 6, was included in Kaplan’s ruling. ENCRYPTION INFORMATION GETS LIMITED PROTECTION At the hearing on the plaintiffs’ motion to bar public and press access to depositions, arguments for media intervenors were made by lawyers for the Times Mirror Co. and for the Village Voice, and by Mike Godwin, senior legal editor of E-Commerce Law Weekly and columnist for American Lawyer, who argued pro se. Kaplan also held that parties’ confidentiality stipulation, which Kaplan had approved June 5, will remain unmodified. The Times Mirror Co. and the Village Voice had sought to overturn the confidentiality stipulation, under which parties are bound to keep confidential certain kinds of information that may be disclosed in the discovery phase of the case. Among the types of information that qualify as “confidential information” to be redacted under the stipulation, Judge Kaplan ruled, are: information that could lead to harm of a deponent; trade or business secrets; and information on present or future DVD-movie encryption protection measures. Excluded is information or testimony that is embarrassing to deponents. Kaplan said protection of the encryption information is limited to the discovery phase of the case because the encryption technology used in manufacturing DVD movies is central to the lawsuit and thus will likely become public at trial. Although he did not grant a broad protective order to the plaintiffs, Kaplan did modify the confidentiality stipulation as a result of the hearing on press access. He held that publicly released material may be posted on the Internet as well as released to other communications media and that videotapes of the depositions, if made, could also be released subject to the redaction of stipulated information. Kaplan also held that parties could propose that other “prominent” deponents’ testimony be subject to the three-day rule rather than the 10-day rule. Kaplan stated that he will rule promptly on any disputes as to whether particular material falls within the terms of the confidentiality stipulation but warned that parties will be subject to sanctions if there is any attempt to use this adjudication process either to force disclosure of confidential information or to slow parties’ preparation for trial, which is set for July. MERE EMBARRASSMENT NOT ENOUGH FOR REDACTION In response to complaints by the plaintiffs that their filings appear on the Internet within a day or two of submission, Kaplan commented that this kind of rapid publication on the Internet is something parties will have to get used to, and noted that federal judges’ own financial statements are now subject to disclosure on the Internet. Kaplan also noted that mere embarrassment of a deponent — as when a deponent does not know an answer to a question or answers incorrectly — does not rise to the level of the kind of harm that would lead to testimony being blocked or redacted by the confidentiality order. The plaintiffs had expressed concern, in their argument for a blanket protective order, that deponents were being asked questions that would publicly embarrass them. Kaplan said Valenti, Eisner, and other prominent deponents do not need his court to protect them from embarrassment. Both sides of the dispute and the media intervenors proposed alternative arrangements under which the court could make particularized rulings as to whether information should be blocked from disclosure to the press or the public. But Kaplan said he was unwilling to open the proceedings up to the kind of delay those arrangements — such as a review by an independent magistrate — would cause. Because the case is set to go to trial in July, he said, his ruling is designed to avoid procedures and proceedings that would lead to further delay. Editor’s note: Mike Godwin’s motion was made on his own behalf, and his appearance at the hearing was pro se. Godwin’s argument and motion do not necessarily represent the views of American Lawyer Media Inc., the publisher of E-Commerce Law Weekly.

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