<nettime> (fwd) Deceptive demands by MPAA

[t byfield <tbyfield@panix.com>]

Date:         Tue, 8 Feb 2000 07:06:59 -0500
Reply-To: Law & Policy of Computer Communications <CYBERIA-L@LISTSERV.AOL.COM>
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject:      Deceptive demands by MPAA
Comments: To: ukcrypto@maillist.ox.ac.uk
Comments: cc: "Peter D. Junger" <junger@upaya.multiverse.com>
To: CYBERIA-L@LISTSERV.AOL.COM

I have cross-posted this to the CYBERIA and ukcrypto lists.  I hope that
those of you who receive duplicate copies will forgive me. 

I have just read the demand that was sent by the Motion Picture
Association of America to John Young, the maintainor of the invaluable
Cryptome site: <http://cryptome.org/dvd-mpaa-ccd.htm>. 

In their demand letter the MPAA recite the following facts: 

   On January 20, 2000, the United States District Court for the Southern
   District of New York granted a Preliminary Injunction prohibiting the
   Internet posting or other provision of DeCSS, having found that DeCSS
   was a prohibited circumvention device within the meaning of
   ß1201(a)(2) and that the offering, providing or trafficking of DeCSS
   on the Internet violated ß1201(a)(2). That court thus enjoined:

     Posting on any Internet web site, or in any other way
     manufacturing, importing or offering to the public, providing, or
     otherwise trafficking in DeCSS, and (b) posting on any Internet web
     site, or in any other way manufacturing, importing or offering to
     the public, providing, or otherwise trafficking in any technology,
     product, service, device, component, or part thereof, that: (i) is
     primarily designed or produced for the purpose of circumventing, or
     circumvention the protection afforded by, CSS, or any other
     technological measure that effectively controls access to
     plaintiffs' copyrighted works or effectively protects the
     plaintiffs' rights to control whether an end user can reproduce,
     manufacture, adapt, publicly perform and/or distribute unauthorized
     copies of their copyrighted works or portions thereof. . .

   The Superior Court of Santa Clara County, California also recently
   granted a Preliminary Injunction against the Internet posting of
   DeCSS.

And then they say, not untruthfully,

   If you are bound by an injunction, maintaining the DeCSS utility on
   your system or network violates the above injunction[s] and risks
   court sanctions for contempt.

And finally they demand that John Young do all sorts of things that he
would in most cases not be bound to do were he bound by one of the
injunctions. 

What I find very disturbing is that the MPAA does not quote the portion of
the SDNY's preliminary injunction that says who is bound to obey the
language that they do quote, for if they had quoted that language it would
have been clear that John Young is not bound in anyway by that injunction,
which is, by its express terms and by the provisions of the Federal Rules
of Civil Procedure, binding only on named parties and their agents and
others acting in concert with them.  (Nor do they mention that John Young
is not a party to the California suit.) 

Now after quoting the courts order, the MPAA just says ``if you are bound
by an injunction'' and does not say that John Young is bound by one of the
injunctions in question, although that is the clear implication of the
rest of their letter, considering that there would be no basis for their
demands were John not bound. 

To say directly that John is bound by either of the preliminary
injunctions would be to tell a lie.  To suggest it is, if not a lie, at
least an effort to deceive. 

This seems to me to be a clear case of deliberately using misleading
language to deceive John Young and other non-parties who received similar
letters. 

I suppose that is why the demand comes from MPAA and not its attorneys,
whom I hope would be, though I fear would not be, subject to sanctions if
they had sent such a letter. 

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

----- Backwarded


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