Trial of the (Digital) Millennium

Day Three: Wednesday, July 19, 2000

Read further for details about the Kayaking Genie.

A much smaller crowd today. As if to make up for that, the young girl was back. If you don't know what I mean, read the reports on Harvard's Openlaw DVD list (linked below on this page). Still no clues as to her identity, or role in the case, if any.

I learned several things today from Marsha King, head of business affairs for the Warner Brothers Studio, as she testified for the plaintiffs.

1. DVD players are in an estimated 10% of all U.S. households.
2. 5 year projections show that as DVD sales increase, so will video sales decrease significantly.
3. Nonetheless, there are no plans to stop releasing all movies on video that are released on DVD, in this 5 year projection.

   Of course, the music industry probably said the same thing about CD's too.

4. Garbus: If Warner Brothers encrypted a movie, and I created a DVD player [implied: unlicensed], could Warner Brothers sell their DVD's to me?
   King: No, I think that would violate the license with the DVD CCA.
5. The licensing agreement of the DVD CCA describes, among other things, which features of a DVD player are regulated by licenses.

   But,

6. This licensing agreement is confidential.

While Mr. Garbus was trying to get at things from an anti-trust angle, Judge Kaplan was mulling over the opportunity for a declaratory judgment.

[Sorry for the elisions, but I got the gist of the remarks, below.]

Kaplan: Is there any way to put the genie back in the bottle, the DeCSS genie, by a court order against this defendant?

King: Well, I believe... that the enforcement of the DMCA... sends a message.

Kaplan: Wouldn't your interests be better served by a declaratory judgment... whether DeCSS is illegal or not, as opposed to singling out one defendant? For example, if a thousand people were kayaking down the Hudson river, and you stopped one of them, assuming that kayaking down the Hudson river is illegal, you'd still have 999 people coming at you, kayaking down the river.

King: ...Well, we had to start somewhere.

Later, Kaplan pointedly asked Mr. Gold, lead attorney for the plaintiffs, if he had filed a declaratory judgment in this case.

Sounds to me like he's inviting one to be filed.

But today's highlight was none of these things: rather, it was the brief moment when King admitted, although she clearly didn't want to:

Garbus: Do you recall statements from Mr. Valenti that the CSS hack is useless because the cost of making illegal copies is ridiculously high>

King: (pause)

Garbus: Just answer yes or no.

King: (long pause) Yes.

Thank you, Mr. Valenti.

As usual, the afternoon is being spent putting up this report, and pretending to do work. See y'all back at the courthouse tomorrow morning.

I have also learned today that I cannot type on 5 hours of sleep after coming back from a very cold air-conditioned courtroom. Please overlook the typos.