Supreme Court Withdraws Stay in DVD Encryption Case

The U.S. Supreme Court backed away from a controversial DVD encryption case Friday when Associate Justice Sandra Day O’Connor withdrew the temporary stay she issued during the week of Christmas halting a California Supreme Court decision that limited the jurisdiction of a lawsuit filed against a Texas programmer who posted to the Web computer code designed to bypass copyright protections of DVDs.

Along with hundreds of other individuals, Matthew Pavlovich was sued in December 1999 by the California-based DVD Copy Control Association after being accused of republishing an open source DVD de-scrambling program known as DeCSS. In November, the California Supreme Court ruled Pavlovich could not be sued in that state.

The Christmas stay by O’Connor put that decision on hold while the high court collected more arguments in the case. O’Connor’s latest decision withdrawing the stay puts all the parties to the lawsuit back into their pre-Christmas positions. O’Connor’s ruling makes no comment on the merits of the case.

At the time Pavlovich allegedly posted the DeCSS code, he was a student at Purdue University, where he worked to improve video and DVD support for Linux and other open source systems. Pavolich, who is now president of a Texas-based technology business known as Media Drive, claims his goals at Purdue could only be accomplished be cracking the encryption code of DVDs since the code, known as the Content Scrambling System (CSS), wasn’t available for open source systems.

Pavlovich’s attorneys also argue that he wasn’t first to publish the code. The attorneys claim that was first done by a teen-aged programmer in England.

Nevertheless, the DVD Copy Control Association, which was organized as a non-profit trade group for DVD makers in 1998 to license the CSS technology, filed suit, claiming Pavlovich and others violated DVD industry trade secrets by posting the code. CSS is not a patented or copyrighted technology. The code’s only legal protection is that of a trade secret.

Since the suit was filed in California, Pavlovich’s attorneys immediately contended the only applicable jurisdictions were in Indiana or Texas.

When the California Supreme Court decided to hear the case, its official calendar framed the legal question as: “Was a defendant in Texas who posted DVD de-encryption software on an Internet Web site subject to suit in California based on allegations he knew or should have known that his conduct could harm industries with a strong presence in California?”

Even if the U.S. Supreme Court agrees with the California high court, Pavlovich could still be subject to suits in Texas and Indiana.

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