Advanced Copyright Issues on the Internet - Fenwick & West LLP

interested in obtaining them.” 736 Accordingly, the plaintiff had not established a likelihood ofsuccess on its trade secret claim because DeCSS had been so widely published that the CSStechnology “may have lost its trade secret status.” 737In a related DeCSS case involving jurisdictional issues, defendant Matthew Pavlovich, aTexas resident who posted DeCSS on the web, was sued by the movie industry in California. Astate judge granted an injunction against his posting of DeCSS on trade secret grounds. TheCalifornia Supreme Court ruled that Pavlovich could not be sued in California because he didnot have substantial ties to the state. In January of 2004, the U.S. Supreme Court reversed anemergency stay of the California Supreme Court’s decision and lifted the injunction. JusticeO’Connor noted in the order that there was no need to keep DeCSS a secret. 738Jon Johansen(v)A Related DVD Case – Norwegian Prosecution ofIn January 2002, Norwegian prosecutors brought criminal charges against Jon Johansen,one of the original three authors of the DeCSS program, for violating Norwegian hackinglaws. 739 On Jan. 11, 2002, the civil rights organization Electronic Frontier Norway (EFN) issueda press release calling for Johansen’s acquittal and full redress. 740 After a trial, a three-judgecourt in Oslo acquitted Johansen, ruling that consumers have rights to view legally obtainedDVD films “even if the films are played in a different way than the makers had foreseen.” Onappeal, Johansen was again acquitted. 741(vi) Another Challenge to the DMCA – The Felten Case.During 2000, the Secure Digital Music Initiative (SDMI) offered a cash prize to anyonewho could break its watermark encryption scheme for the protection of digital content. A teamof scientists, led by Prof. Edward Felten of Princeton University, was able to crack the schemeand desired to publish a paper on how they were able to do it. The RIAA threatened Prof.Felten, contending that publication of the paper would violate the anti-circumvention provisionsof the DMCA. As a result of the threats, Prof. Felten withdrew publication of his paper from anApril 2001 conference. In June 2001, he and seven other researchers, together with the UsenixAssociation (a professional organization that had accepted Felten’s paper for a securitysymposium to be held during August 2001), filed a lawsuit against the RIAA, seeking adeclaration that publication of their work would not violate the DMCA, and against the Justice736737738739740741Id. at 252-53.Id. at 255.Samantha Chang, “Supreme Court Unscrambles DVD Decision” (Jan. 17, 2004), available as of Jan. 19, 2004at www.reuters.com/newsArticle.jhtml?type=musicNews&storyID=4152687.Declan McCullagh, “Norway Cracks Down on DVD Hacker” (Jan. 10, 2002), available as of Jan. 19, 2002 atwww.wired.com/news/politics/0,1283,49638,00.html.The press release was available as of Jan. 19, 2002 at www.efn.no/freejon01-2002.html.“Court Surprised DVD-Jon’s Lawyer” (Dec. 22, 2003), available as of Dec. 22, 2003 atwww.aftenposten.no/english/local/article.jhtml?articleID=696470.- 172 -