Legal Matters: Supreme Court Unscrambles Dvd Descrambling Decision

There's a war raging in cyberspace, and this time it is the movie industry that's feeling the heat.

The U.S. Supreme Court reversed an emergency stay on a case involving DVD descrambling Jan. 3.

In so doing, the high court affirmed a decision of the California Supreme Court, which had ruled that the entertainment industry could not force a Texas resident who had published DVD descrambling software on the Internet to stand trial in California.

This means that the defendant, Matthew Pavlovich, who posted the software called DeCSS, is able to distribute the program online.

To the high court, it is a question of geography: The court says Pavlovich cannot be sued in California because he is a Texas resident who does not have "substantial ties" to the Golden State.

Pavlovich's legal woes began in 1999, when a group of film studios and consumer electronics makers sued hundreds of people, including Pavlovich, for distributing DeCSS online, citing a violation of California trade secret laws. A state judge ruled for the plaintiffs and granted an injunction.

Three years later, the California Supreme Court ruled that Pavlovich could not be sued for violating state trade secrets simply because he knew that his actions could hurt the state's film industry.

In the latest ruling, U.S. Supreme Court Justice Sandra Day O'Connor lifted the injunction, saying there was no need to keep DeCSS a secret.

Internet groups wholeheartedly support the decision.

"The entertainment companies should stop pretending that DeCSS is a secret," says Cindy Cohn, legal director of the Electronic Frontier Foundation.

"The Supreme Court wisely recognized that there is no need for an emergency stay to prevent Mr. Pavlovich from publishing DeCSS," Cohn adds.

The decision affects numerous defendants, but the sole California resident is Andrew Bunner.

Bunner isn't fighting the jurisdictional issue but is arguing that he has a First Amendment right to distribute the software.

A California appeals court in 2001 agreed, saying that barring Bunner from future disclosures of DeCSS was "a restraint on [his] First Amendment right."

Bunner's case is awaiting an argument date before the California Supreme Court.

A similar case in Europe has already been resolved.

Norwegian teenager Jon Johansen was acquitted Jan. 7 of criminal charges for writing and publishing DeCSS.

In 1999, 15-year-old Johansen published DeCSS on the Internet. He used the program to watch his own DVDs on his Linux computer.

Under tremendous pressure from the Motion Picture Assn. of America, the Norwegian Economic Crime Unit charged Johansen with violating a Norwegian criminal code that outlaws breaking into another person's locked property to gain access to privileged data.

The case was the first time the Norwegian government had attempted to punish an individual for accessing his own property.

DeCSS, which is distributed for free, enables people to play DVDs without technological restrictions, such as forced watching of commercials imposed by movie studios.

The program widely became popular shortly after its dubious debut, being distributed online by thousands of individuals worldwide the first year it was posted.



URGE TO MERGE: Manatt Phelps & Phillips is on a roll.

Through its acquisition last month of New York litigation boutique Parcher Hayes & Snyder, Los Angeles-based Manatt is now arguably the largest bicoastal entertainment law firm in the world.

"This move greatly enhances our ability to serve our clients in New York and on a national scale," says Paul H. Irving, Manatt CEO/managing partner.

But word in the legal community is that the buying binge isn't over yet for this 290-lawyer powerhouse.

With a stunning 40 to 50 lawyers in its entertainment, media and advertising law practice, Manatt's A-list client roster includes the Rolling Stones, Bruce Springsteen, Barbra Streisand, Cher, Bob Dylan, Paul Simon, Eagles, Michael Douglas, Robin Williams, Time Warner, Sony, DreamWorks, Yahoo, ESPN and HBO.

Twelve Parcher attorneys have joined Manatt: partners Peter Parcher, Steven Hayes, Orin Snyder, Cynthia Arato and Gregory Clarick; counsels Andrew DeVore, Robert Jacobs and Alon Markowitz; and associates Marc Isserles, Avi Weitzman, Monica Youn and Elise Zealand. The move boosts Manatt's New York office to 65 lawyers.