1 00-9185 2 ________________________________________________ 3 United States Court of Appeals 4 for the 5 Second Circuit 6 * * * * * * * 7 UNIVERSAL CITY STUDIOS, INC., PARAMOUNT PICTURES CORPORATION, METRO GOLDWYN MAYER 8 STUDIOS, INC., TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME 9 WARNER ENTERTAINMENT COMPANY, L.P., DISNEY ENTERPRISES INC., TWENTIETH CENTURY 10 FOX FILM CORPORATION, 11 Plaintiffs-Appellees, 12 against 13 ERIC CORLEY, also known as Emmanuel 14 Goldstein, and 2600 ENTERPRISES, INC., 15 Defendants-Appellants, 16 and 17 SHAWN C. REIMERDES and ROMAN KAZAN, 18 Defendants. 19 ________________________________________________ 20 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 21 FOR THE SOUTHERN DISTRICT OF NEW YORK 22 23 TWIN COURT REPORTING, INC. CERTIFIED SHORTHAND REPORTERS 24 POST OFFICE BOX 408 CREAM RIDGE, N.J. 08514 25 609-758-2840 or 732-928-8822 1 Oral argument was held at the Whig Hall 2 Senate Chamber, Princeton University Campus, 3 Princeton, New Jersey, before DOREEN FOX 4 KRENCHICKI, License No. XI00821, a Notary Public 5 and Certified Shorthand Reporter of the State of 6 New Jersey, on April 23, 2001, commencing at 7 1:45 P.M. 8 9 10 11 12 B E F O R E: 13 THE HONORABLE JUSTICE MEREDITH DESAUTELS 14 THE HONORABLE JUSTICE TIMOTHY ALLEN 15 THE HONORABLE JUSTICE JOSHUA KAUKE 16 THE HONORABLE JUSTICE THOMAS MANDECKI 17 THE HONORABLE JUSTICE NATHANIAL ROSS 18 19 20 21 22 23 TWIN COURT REPORTING, INC. CERTIFIED SHORTHAND REPORTERS 24 POST OFFICE BOX 408 CREAM RIDGE, N.J. 08514 25 609-758-2840 or 732-928-8822 1 ATTORNEYS FOR PLAINTIFFS-APPELLEES: 2 ADAM TAGERT, ESQUIRE 3 Counsel for the Motion Picture Assoc. 4 THAIS MELO, ESQUIRE Counsel for the Motion Picture Assoc. 5 JOHN VENNEMA, ESQUIRE 6 Counsel for the Motion Picture Assoc. 7 JOHN BLATZ, ESQUIRE Counsel for the Motion Picture Assoc. 8 9 10 11 ATTORNEYS FOR DEFENDANTS-APPELLANTS: 12 JONATHAN THOMAS, ESQUIRE 13 Counsel for 2600 Magazine 14 AMIT KOREN, ESQUIRE Counsel for 2600 Magazine 15 JOSHUA TAUBERER, ESQUIRE 16 Counsel for 2600 Magazine 17 JOHN VIVENTI, ESQUIRE Counsel for 2600 Magazine 18 19 20 21 22 23 TWIN COURT REPORTING, INC. CERTIFIED SHORTHAND REPORTERS 24 POST OFFICE BOX 408 CREAM RIDGE, N.J. 08514 25 609-758-2840 or 732-928-8822 4 1 JUSTICE DESAUTELS: The Court will 2 hear first from Mr. Thomas. 3 MR. THOMAS: Good afternoon. My name 4 is Jonathan Thomas and I, along with my colleagues, 5 will be representing 2600 Magazine. These are the 6 appeals from the final judgment placing an 7 injunction on 2600 Magazine's publication of the 8 DeCSS algorithm. 9 Now, the issue at hand is more than about 10 preventing a magazine's publication of an 11 algorithm. It is about more than DVDs. The case 12 at hand is about the future of our right to speak. 13 It is about the future of journalism. 14 The publication of truthful, scientific, 15 educational and commercially viable information 16 must not be prohibited. And the final 17 interpretation -- 18 JUSTICE ROSS: Where exactly is the 19 truthfulness in a computer program? 20 MR. THOMAS: It's truth. The fact is, 21 there's an algorithm that was written by somebody 22 and that information is being passed on to the 23 public. 24 JUSTICE ROSS: (Inaudible). 25 MR. THOMAS: Well, nothing. Anything 5 1 that's written is truthful in that case. 2 May I continue? 3 Thank you. 4 Now, the final interpretation of the 5 DMCA by the District Court is unconstitutional. If 6 upheld, that decision will be used by groups such 7 as the MPAA as a way to prohibit any publication 8 that is unfavorable to that particular group, 9 regardless of its implications to the rest of 10 society; whether they're good, bad or anything. 11 Most notably the good ones. 12 Now, the publication of DeCSS is 13 undoubtedly speech. After all, that's what this 14 case is about. 15 JUSTICE ALLEN: How do you define -- 16 the alternative view would be that it's merely a 17 tool, that source code is merely a tool to 18 accomplish something; why do you say speech as 19 opposed to being -- 20 MR. THOMAS: No. I'm saying the 21 publication of DeCSS is undoubtedly speech. The 22 act of publishing it is a form of expression. 23 JUSTICE ALLEN: Well, then again, what 24 you are doing is linking merely a form of speech. 25 MR. THOMAS: No, I'm not discussing TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 6 1 linking, but I can answer that. But I'm sure -- 2 I'll be happy to do that shortly. 3 May I go on? 4 All right. Now, the fact is that a 5 magazine was taken to Court for publishing the 6 truth. And that's wrong. And not only was the 7 publication of DeCSS speech, but the code itself is 8 speech. 9 I'd like to draw the Court's attention 10 to testimony made by Dr. Edward Felton in the 11 District Court on the issue of speech. He was 12 asked this question; he was asked: Based on your 13 experience with source code and object code, is it 14 your opinion that object code is expressive? And 15 he replied: Certainly. He went on to say, and I 16 quote: You can learn a lot from reading and 17 analyzing and executing object code if you know how 18 to do it. And so can you learn about what the 19 author of the code, what the person who made the 20 code intended the program to do. You can learn 21 about how the program is constructed, you can learn 22 about aesthetic and engineering decisions that the 23 person made. And from all that, you can learn 24 things that the person who created the program put 25 in there. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 7 1 Essentially, the transmission of ideas 2 from the author to the reader is done through the 3 code. 4 I'd also like to mention the District 5 Court's interpretation of DeCSS speech issue 6 relating to computer code. They say: It cannot 7 seriously be argued that any form of computer code 8 may be regulated without reference to First 9 Amendment doctrine. 10 It goes on to say: As computer code, 11 whether source or object, is means of expressing 12 ideas, the First Amendment must be considered 13 before its dissemination may be prohibited or 14 regulated. 15 Now, because DeCSS and the publication 16 of DeCSS are undoubtedly speech, any regulation of 17 either must first undergo strict scrutiny in order 18 to guarantee its constitutionality. But the 19 District Court failed to take the Constitution 20 seriously in its ruling and it did not interpret 21 the DMCA correctly. 22 Now, the DMCA clearly states, and I 23 quote section (c)(4): Nothing in this section 24 shall enlarge or diminish any rights of free speech 25 or the press for activities using consumer TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 8 1 electronics, telecommunications or computing 2 products. 3 And the District Court did not even 4 mention these provisions. It made no attempt to 5 state how its decision was consistent with the laws 6 of the land. And essentially, it put the DMCA on a 7 crash course with the Constitution. However, there 8 is a way around this problem. And it is my hope 9 that the Court will see this today. 10 Now, if one makes a distinction 11 between acts that are clearly illegal, using such 12 theories as conspiracy and agency, from acts that 13 are, such as in this case, the publication of this 14 information, which are journalistic acts and 15 constitute no real imminent danger; then one can 16 clearly see that the laws can coexist harmoniously 17 and there isn't really -- there's no real conflict 18 between them, if you make that distinction. 19 And it's my hope that the Court can 20 find a final solution, a reasonable solution to 21 this problem today, without jeopardizing the future 22 of journalism. 23 JUSTICE DESAUTELS: How do you argue 24 that the expressiveness of computer code is more 25 legally important than its consequences; meaning, TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 9 1 the analogy to an assassin whose actions may be 2 expressed with an idea, but what an assassin does 3 at his or her actions are more legally important? 4 MR. THOMAS: See, the thing is, 5 computer code, if you relate it to computer science 6 in the field, there are -- computer scientists are 7 professionals. It is a field that's not really -- 8 that's not illegal, such as if you're a 9 professional assassin, you're not really encouraged 10 to do that, but as a professional computer 11 scientist, that's your job. If you're not allowed 12 to communicate with other computer scientists in 13 the same field, then I see that as very damaging. 14 For example, if you have ten computer 15 scientists each in their own room, they are going 16 to be much less productive than if you have ten 17 computer scientists all in one room; whereas ten 18 assassins, you don't collaborate necessarily, I 19 wouldn't imagine. I'm not an expert on assassins, 20 though. 21 I would like to reserve a final time, 22 please. 23 MR. TAGERT: Good afternoon. I'm Adam 24 Tagert. I'll be arguing that DeCSS is actually a 25 device and DMCA regulates conduct, not speech. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 10 1 First of all, you have to realize that 2 this program, which it was being trafficked, is a 3 device that decrypts DVDs and stores the result. 4 It is purely a device. It has very little and/or 5 none expressive characteristics. So it does not 6 warrant to be protected by the First Amendment. 7 This case is not about speech or 8 publicizing about the algorithm. This is about 9 trafficking a device to commit crimes. 10 JUSTICE ALLEN: He was publishing an 11 algorithm, so, he was publishing, so trafficking 12 might have (unintelligible), whether he was 13 publishing (unintelligible). 14 MR. TAGERT: Your Honor, the actual 15 form that he was posting to the web was actually a 16 device that was intended to decrypt DVDs. It was 17 not actually intended for someone to understand. 18 JUSTICE ALLEN: But, Mr. Thomas stated 19 that Mr. Felton testified that object code is in 20 fact expressive. 21 MR. TAGERT: To a select group of 22 people; correct? And the DMCA actually allows for 23 encryption research to take place. But it's not 24 available to have this -- an object oriented 25 program to be distributed over the Net. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 11 1 JUSTICE ALLEN: You're arguing that it 2 would be fine to distribute the source, but not the 3 object code? 4 MR. TAGERT: I'm arguing that he can 5 distribute the code to any person in good faith in 6 encryption research. The Court has already 7 concluded that the magazine was not in good 8 encryption research. 9 JUSTICE MANDECKI: How do you figure? 10 MR. TAGERT: That they were not in 11 good encryption research? That the actual case, 12 the way they did it, they just published it to the 13 whole world; where only a select people would 14 actually use the information in the actual 15 educational reference. And the DMCA actually 16 allows for research, and Congress had no intent to 17 stifle any type of research in the encryption 18 world. 19 JUSTICE MANDECKI: Aren't the readers 20 of 2600 Magazine actually people who might be able 21 to devote more, better programs in the future, to 22 pursue -- 23 JUSTICE ALLEN: By it's very 24 readership, it provides some sort of productivity 25 because, as they state in the brief, there are many TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 12 1 (unintelligible). So it's unlikely that many 2 (unintelligible) people read it. 3 MR. TAGERT: But it's also most likely 4 those who read it actually are trying to commit an 5 illegal purpose. Those who actually -- encryption 6 algorithm, in any form, is not prohibited. So, if 7 he actually wanted to explain how this encryption 8 research worked, and CSS encryption, wouldn't an 9 explanation in plain English be much more effective 10 in conveying an idea than some object-oriented 11 program which only a select few can understand? 12 JUSTICE ROSS: For the few that can 13 understand it, wouldn't that be better than the few 14 that can't understand it, that would be working 15 with it, wouldn't that be better to read than the 16 English... 17 MR. TAGERT: Most likely, that would 18 be correct. But this is the world we're talking 19 about. 20 He is permitted, under the DMCA, to 21 distribute, to do those select few. So, if you 22 just distribute to those which actually have 23 encryption research, it would be permitted. 24 You also have to realize that computer 25 programs are devices because, in Sega Enterprises TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 13 1 versus Accolade, the Court ruled that computer 2 programs are devices; likewise, in Computer 3 Associates versus Atari, the same result was 4 concluded. 5 Programs are not protected by the 6 First Amendment. We can see that in the case, CFTC 7 versus Vartuli. It's a case where a computer 8 program outputted plain English. Since the user of 9 the program didn't actually have to put any mental 10 thought behind it, the program was deemed not 11 protected. 12 JUSTICE ALLEN: You're arguing that 13 all programs are not covered, that no programs are 14 covered that have any (unintelligible). 15 MR. TAGERT: That's correct. 16 Especially ones that have illegal purposes. 17 JUSTICE ALLEN: How do you -- it's 18 been argued by 2600 that they are expressive 19 elements of the code. Do you deny this entirely? 20 MR. TAGERT: I deny -- 21 JUSTICE ALLEN: That code cannot 22 communicate any ideas whatsoever? 23 MR. TAGERT: Plain English 24 communicates ideas much better than zeros and ones. 25 JUSTICE ALLEN: Okay. So, object TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 14 1 code, you're compiling (inaudible) programs as 2 opposed to source code. 3 MR. TAGERT: Source code is meant to 4 be compiled. And the actual -- the most effective 5 way of communicating is actually using diagrams and 6 English explanations. The actual program, that is 7 a device. 8 JUSTICE ALLEN: I believe that Mr. 9 Tureski (ph.), in his testimony in the District 10 Court case, proved or stated that it would be far 11 more an explanation provided by a computer program 12 (unintelligible) encoded in standard programming 13 language would be far more understandable to other 14 computer scientists than would a description in 15 plain English. 16 MR. TAGERT: We're not talking about 17 publishing to the computer science world. We're 18 talking about publishing to the world. The 19 computer science world is allowed to communicate 20 with themselves in object code and source code. 21 Let's assume that this whole thing is 22 speech. The Court has ruled in United States 23 versus Rowell, that the First Amendment is not a 24 way of protecting speech, when it's the method of 25 the illegal crime. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 15 1 In Cox versus Louisiana, may I quote 2 the Court: It has never been deemed an abridgement 3 of freedom of speech or press to make a course of 4 conduct illegal merely because the conduct was in 5 part initiated, evidenced or carried out by means 6 of language, either spoken, written or printed. 7 So, even with the argument that it is 8 speech, the argument's still flawed. And we have 9 to remember the DMCA allows for, in good faith, 10 encryption research. 11 Assuming that this really is conduct, 12 we need to take the intermediate approach and 13 realize if it's content-neutral. 14 Does DMCA pay attention to what the 15 conduct is? No. It does not care if a black box 16 that took a DVD and exported in unencrypted format, 17 doesn't care if it's that, the DeCSS program or any 18 other device that actually would decrypt a DVD. It 19 does not allow devices that bypass protection on 20 material. 21 We also have to look at the actual 22 intent of Congress. 23 Congress wanted to build -- 24 JUSTICE ALLEN: So, say, for instance, 25 you had -- the example was given of a spell TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 16 1 checker, perhaps a basic example. Under the same 2 circumstances if a spell checker was distributed, 3 would it also fall under the jurisdiction of the 4 DMCA if it was applied to copyright or involved 5 copyright infringement; would it basically prohibit 6 the distribution of a spell checker? 7 MR. TAGERT: Is the spell checker 8 avoiding some -- 9 JUSTICE ALLEN: Yeah, in this case, in 10 this hypothetical example, it would be. 11 MR. TAGERT: We're prohibiting any 12 device that bypasses content security. Doesn't 13 matter what device it is. 14 JUSTICE DESAUTELS: But a spell 15 checker would not be commercially significant. 16 MR. TAGERT: That's true. But it's 17 still bypassing something that was put in there not 18 to be there. 19 The government is allowed to build a 20 device. It's allowed -- they made a law that said: 21 The purpose of this is to prevent rampant illegal 22 piracy. Without protecting it, what's the point of 23 actually encrypting it, if the user can simply 24 decrypt it? There is none. So without some form 25 of protection to the encryption, there's absolutely TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 17 1 no point and thus we would have rampant piracy. 2 The motives of Congress are actually 3 very important in this case because they want to -- 4 they wanted to ban technologies -- they did not 5 want to ban technologies, but devices. The whole 6 fact that they're not banning ideas or anything 7 else like that, that shows it's content-neutral. 8 There's a few arguments I'd like to 9 say. 10 DeCSS is not educational. This is not 11 about the education of people. This is about 12 trafficking of a device. 13 JUSTICE ALLEN: You say -- do you 14 concede that it has educational uses, such as 15 encryption research, such as allowing people 16 with -- allowing interoperability? 17 MR. TAGERT: This case isn't actually 18 about the education point of it. This is about 19 distributing a device to traffic. 20 JUSTICE ALLEN: But under 21 (unintelligible) provisions we are looking at how 22 the distribution of it allows fair use or enables 23 fair use. 24 MR. TAGERT: The fair use topic will 25 be covered slightly later. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 18 1 Also, the DMCA, we have to remember, 2 allows for encryption research. That's the main 3 key. It permits those who are actually in the 4 field of encryption research to share their ideas 5 among themselves. So these ten computer scientists 6 are actually allowed to be in the same room. 7 I'd like to stop. 8 JUSTICE DESAUTELS: The Court will 9 hear from Mr. Thomas. 10 MR. THOMAS: I was troubled by a few 11 things that Mr. Tagert mentioned there. 12 First of all, his point that 2600 was 13 not a computer science magazine, that its readers 14 were not going to benefit from the distribution of 15 DeCSS; I find that wrong. 16 The fact is that some of its readers 17 may not be computer scientists or in that field -- 18 not by profession, but by hobby. But the fact is 19 that there are undoubtedly some people who will of 20 course benefit from publication of that in the 21 field of computer science; the advancement of 22 encryption. And so, therefore, I don't agree that 23 2600 is not a computer science magazine at all. 24 Next; his point that a magazine may 25 not publish or in this case 2600 may not publish TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 19 1 secure information about -- he says it does not 2 warrant First Amendment protection because it's 3 purely a device and not anything else. There was a 4 case, Florida Star versus BJF, and in that ruling 5 the Court stated that if a newspaper lawfully 6 obtains truthful information about a matter of 7 public significance, then the government may not 8 constitutionally punish publication of the 9 information absent a need to further a state 10 interest of the highest order. 11 Two things strike me in that 12 statement. First of all, the public significance 13 clause. And, as I've argued previously, this -- 14 the DeCSS itself has significant public use in 15 education, science and also in terms of commerce. 16 JUSTICE KAUKE: To what degree and 17 what portion of the public do you think this would 18 actually have significance to -- 19 MR. THOMAS: Indirectly, I think a 20 large portion. But directly, less. Because, for 21 example, there are scientists who are working on 22 ways of using encryption to promote technology that 23 can search through video, for example, for specific 24 portions. And I think that if that's allowed to 25 progress, then there may be widespread use. But, TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 20 1 at this point, probably not. But I think in the 2 future. 3 JUSTICE KAUKE: More generally, 4 though, educated people learning and -- 5 MR. THOMAS: Actually, I think the 6 fact is that the distribution of this may allow 7 people without the education to use it, which may 8 help society more, because those who aren't 9 privileged enough to understand this can benefit by 10 those who do, so they can do that. 11 Further, it says: Absent a need to 12 further a state interest. So, therefore, unless 13 there's a need to further state interest, then a 14 newspaper can publish this. 15 And I don't see that the MPAA's 16 argument as -- decryption of DVDs as a state 17 interest of highest order. I think it may be in 18 their interest, but I don't think that that 19 necessarily trumps as law. 20 Further, Mr. Tagert said that the DMCA 21 does not care and that it's not expression in this 22 case, DeCSS. However, I remind you of the 23 provisions of the DMCA; that nothing in this 24 section shall enlarge or diminish any rights of 25 free speech or the press. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 21 1 JUSTICE ALLEN: How is DeCSS any more 2 expressive than, say, a -- any more expressive than 3 distributing a -- 4 MR. THOMAS: Like I've said before, it 5 definitely has implications for the progression of 6 science, not necessarily the destruction of 7 material. 8 So, my time is up. 9 JUSTICE DESAUTELS: The Court will now 10 hear from Mr. Koren. 11 MR. KOREN: Good afternoon. My name 12 is Amit Koren. I'm here today representing 2600 13 Magazine. 14 The injunction issued by the District 15 Court prohibiting Mr. Corley from linking to 16 certain websites containing the DeCSS source code 17 is unconstitutional. 18 In analyzing this issue, we have to 19 consider two questions: First, is it legal and/or 20 constitutional to publish the addresses of URLs of 21 websites that have the DeCSS code in any form of 22 media, whether to a newspaper, a magazine or a 23 website? Second, if so, do hypertext links that 24 direct people to these sites constitute functional 25 speech that can be controlled or limited, or do TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 22 1 they constitute nonfunctional speech protected by 2 the First Amendment? 3 The answer to the first question is 4 absolutely. The very nature of the First Amendment 5 is to protect the dissemination of information. 6 The provisions for freedom of speech and freedom of 7 the press are intended to protect this right. 8 This freedom to publish anything means 9 anybody can publish something and therefore it 10 requires an individual to verify some of the 11 information that they receive. This is only 12 possible with proper documentation and listing of 13 sources. Books, nonfiction books, historical works 14 have footnotes; newspapers quote people so that 15 people can validate the information they receive. 16 People have the right to seek out 17 these sources whether they're historical documents 18 or source code listed on the web. And, therefore, 19 since people have this right, publishers have the 20 duty to provide this information. 21 If I, a Princeton student, was to 22 write a paper about cryptography, I would be 23 obligated to cite my sources, whether -- and link 24 to certain sites in order to validate the 25 information that I provide. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 23 1 As to the second question, links are 2 nothing more than what I've just described in a 3 slightly different format. 4 HTML is the building block for most 5 web pages, but it's not a programming language. 6 There are no iterations, there's no input, there's 7 no variables, and it's not converted to executable 8 statements. As it stands for hypertext markup 9 language, basically tags that give the browser 10 formatting directions and tells the browser how to 11 lay out the text and images on the web page. The 12 links specifically tell browsers to underline the 13 text and change its colors, and then if the mouse 14 is clicked on that region of the page, the browser 15 redirects itself to the new address. 16 JUSTICE ROSS: By clicking or telling 17 the browser to do that, doesn't that indicate some 18 sort of functionality? 19 MR. KOREN: Yes and no. It indicates 20 some sort of functionality, but only in the terms 21 that it tells -- the browser itself executes the 22 function; whereas the link just tells it where to 23 go. It's just information -- it's just a footnote. 24 It's saying, this is where the information is. And 25 the browser takes that information, and when TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 24 1 it's -- and when the user clicks on that web page 2 or on that link, the browser redirects itself to 3 the other web page. 4 It's really only just a shortcut so 5 that users don't have to copy and paste URL into 6 the navigation window and press enter. 7 All this means that links are not 8 functional speech as source code is sometimes 9 interpreted to be. Rather, they're regular speech 10 protected by the First Amendment. 11 JUSTICE ALLEN: But they are at some 12 level functional? 13 MR. KOREN: They are at some level 14 functional because they provide the information as 15 to where the browser is to go. But they don't 16 actually -- they don't serve the function of going 17 to somewhere else. 18 JUSTICE DESAUTELS: Regardless of what 19 actually executes the travel from one site to 20 another, their effect of the links is a direct 21 enabling to the circumvention technology. 22 MR. KOREN: Not necessarily direct. A 23 direct enabling would be -- there are some links 24 that can automatically direct you to a different 25 web page. So that if you click and go to Yahoo, it TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 25 1 can automatically redirect you to somewhere else. 2 That would be a direct enabling. This basically 3 allows the browser to know where to go if the user 4 clicks on that page. 5 JUSTICE DESAUTELS: The user has the 6 right to click -- 7 MR. KOREN: Yes. Exactly. 8 JUSTICE MANDECKI: Are you arguing 9 that Mr. Corley is obviously a rightful man? 10 MR. KOREN: Say again? 11 JUSTICE MANDECKI: Mr. Corley is 12 obviously a rightful man? 13 MR. KOREN: Sure. 14 JUSTICE MANDECKI: Right. 15 We all here know that circumvention, 16 under the law, circumventing technology like this 17 is linking. 18 MR. KOREN: Yes. But linking to a 19 different web page is by no means circumvention. 20 JUSTICE MANDECKI: So say Mr. Corley 21 takes off the code from his website and he knows 22 that he could link to another website. Isn't 23 that -- that's obviously wrong, isn't it? 24 MR. KOREN: I disagree. Because 25 whether or not Mr. Corley has the right to publish TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 26 1 the source code is inconsequential. If you want to 2 punish the people that publish the source code, you 3 can go after the people that have the website 4 somewhere else. 5 JUSTICE ALLEN: By providing the link 6 he was trafficking in DeCSS. 7 MR. KOREN: He wasn't trafficking. He 8 was providing information as to where one could 9 find it. 10 JUSTICE ALLEN: He was providing -- 11 MR. KOREN: He wasn't saying, here's a 12 source code, you can download it and execute -- 13 JUSTICE ALLEN: He was providing easy 14 access -- 15 MR. KOREN: Yes. 16 JUSTICE ROSS: Wasn't he also 17 encouraging people to -- 18 MR. KOREN: Hosting a link to 19 something doesn't encourage people to go. It 20 provides people that want the information -- 21 JUSTICE MANDECKI: He searched out 22 websites that do have the code. 23 MR. KOREN: I'm sorry? 24 JUSTICE MANDECKI: He searched out 25 websites that do have the code. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 27 1 MR. KOREN: Yes. So he did the work 2 for others. But he didn't encourage others to do 3 it. 4 JUSTICE ALLEN: He did encourage 5 others to do it. I think he stated that he 6 encouraged others to go out and to link to other 7 sites, to disseminate as widely as possible. 8 MR. KOREN: Okay. 9 I still strongly affirm that he's not 10 trafficking the DeCSS himself, but rather providing 11 information as to where it is available for others 12 to use. That is a constitutional right that we 13 must uphold so that it can't be taken away in other 14 forms. 15 Unless the judges have any more 16 questions, I'll save my time for rebuttal. 17 JUSTICE DESAUTELS: The Court will 18 hear from Ms. Melo. 19 MS. MELO: Good afternoon. My name is 20 Thais Melo. I'm here presenting the plaintiffs. 21 Around a year ago the defendants 22 posted the code for DeCSS in their web page. They 23 did not research. They only posted the code on the 24 web page, making it easily available for anyone 25 with an Internet connection. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 28 1 We quickly brought the case to court, 2 to which defendants responded with what they called 3 an act of civil disobedience, which basically was 4 an increased effort to keep DeCSS available by 5 making people a link to it and create sites. 6 The first item I'd like to argue is 7 that HTML is not a computer code. The other things 8 you can do, it can be very functional. You can 9 create splash pages, you can -- using some 10 variations like HTML, actually using animations on 11 the web page. Obviously you can use it as computer 12 code. Just because it's not normally compiled like 13 you would compile C code doesn't mean it's not 14 code. 15 Also, linking is essentially 16 functional because it not only tells you where the 17 information is, but with a single click of the 18 mouse -- 19 JUSTICE ALLEN: -- is functional by 20 the same criteria? You have a recipe, you follow 21 that recipe and you get a result or a cake or 22 whatnot. 23 MS. MELO: Recipes can be somewhat 24 functional, but in this case, there is no computer 25 following your recipe. Like any other computer TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 29 1 code, it's basically a recipe for your computer. 2 That's not necessarily easy or human readable very 3 often. 4 So, we reached the conclusion that, 5 yes, links do have some (unintelligible) expression 6 to it. 7 The earlier Court decided to -- well, 8 the DMCA obviously benefits from linking because 9 it's the only way that you can keep people from 10 posting or linking to DeCSS, because otherwise you 11 don't have a posting on your website; but you have 12 a link to it, anyone can see it. 13 The only question here is if the DMCA 14 is consistent with the First Amendment in this 15 special injunction. Since links do have some 16 expression value, we have to use the O'Brian 17 standard test to figure if it is constitutional or 18 not. 19 JUSTICE ROSS: You only want to make 20 it apply to this specific case and it should not be 21 a general standard? 22 MS. MELO: It can be used as a general 23 standard. Just the argument right now is the 24 linking injunction. 25 JUSTICE ROSS: The linking -- the TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 30 1 District Court set up a new standard regarding 2 linking. Are you arguing that this standard should 3 be applied or -- 4 MS. MELO: No. 5 JUSTICE ROSS: -- or for this one 6 specific case? 7 MS. MELO: I'm arguing the standards 8 apply, especially for this specific case. 9 So, the first test would be if the 10 linking injunction serves the same purpose as the 11 prohibition to post DeCSS or your own website. 12 Like I discussed before, there is no point in 13 prohibiting to post DeCSS if you can link it in the 14 mirror site. The user doesn't know the difference 15 if you click in a link and you go to some page or 16 some division of the same website or if you go to 17 another website. 18 JUSTICE DESAUTELS: Is there a 19 difference for the user between just clicking on a 20 link and copying an address and pasting it into the 21 browser? 22 JUSTICE ALLEN: By making it slightly 23 easier to access the code, is this somehow making 24 it more legal? 25 MS. MELO: No, it's not. But since we TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 31 1 cannot have pure control over speech, like just 2 writing down the address would be, at least to some 3 extent, we'd like to have control over this. 4 Also, it's a lot -- it's a lot easier 5 to just click in the link and see what's there, 6 than just copying it. 7 JUSTICE ALLEN: So, should something 8 be given First Amendment protection based on the 9 ease of dissemination or the ease of use? 10 MS. MELO: I'd like to go back to the 11 specific case in which we are not arguing that he 12 cannot like publish the English description of the 13 DeCSS. Of course with the English description, a 14 computer scientist (unintelligible) translate into 15 code and compile it and easy to get DVDs as a 16 circumvention device. 17 Just as links, anybody who knows, at 18 least has some familiarity of computers and 19 (unintelligible) your browser and just go to the 20 place they want. But there's a difference in 21 saying, oh, there's some information there and 22 putting a link in which you clearly tell the 23 person, like, you're encouraging them to go see it, 24 if you actually put the link there. 25 The second test would be -- this is TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 32 1 unrelated to the suppression of free expression. 2 And I think this is answered by the earlier 3 argument that what was posting DeCSS or linking to 4 it is basically the same thing for the user -- 5 well, for the specific user. 6 The third test, and the most important 7 one, is if the regulation promotes a substantial 8 governmental interest that would not be achieved -- 9 that would be achieved less efficiently, absent a 10 regulation. It is especially true in the case of 11 foreign sites. 12 Obviously, the DMCA or any American 13 regulation cannot reach foreign sites. And it's 14 fairly easy to create a site in France or in 15 Brazil, even from the US, and if those links can be 16 easily posted and linked from an American site and 17 we can have no control over that, it's fairly 18 pointless to prohibit posting to DeCSS. 19 One last point of concern is the 20 possible chilling effect in communication in the 21 Internet by creating liability for linking. While 22 the injunction is sufficiently moderate in that it 23 does not prohibit any kind of good faith linking, 24 the case here is that the defendants were obviously 25 trying to traffic the circumvention device. They TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 33 1 were fairly clear about their sites when they were 2 doing their act of civil disobedience, and they 3 didn't have any kind of expression involved. They 4 just wanted to keep the code for DeCSS up. And 5 they just told people to make mirror sites that 6 contain nothing but their code. 7 JUSTICE ALLEN: So you want to 8 prohibit the linking to anything that is functional 9 and might perhaps violate copyrighting? 10 MS. MELO: This injunction, the 11 linking injunction, is moderate enough in the sense 12 that if you put link to a site and you don't know 13 there is an illegal circumvention device there, or 14 if you -- well, say the New York Times website has 15 DeCSS in it, it would still not be illegal to link 16 to it because there's so much more -- 17 JUSTICE ALLEN: (Unintelligible) 2600 18 website that isn't necessarily related to DeCSS. 19 MS. MELO: That's true. But the thing 20 that's in question here is the -- two things. 2600 21 website linking to thousands of mirror sites that 22 have nothing but an HML source with the code and 23 nothing else, and they clearly had the intent to 24 link to DeCSS and none of the other content -- or 25 they didn't have any interest in the other content TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 34 1 that was there; while their clear intention was the 2 traffic circumvention device. 3 JUSTICE KAUKE: Is it not in the 4 user's discretion whether or not to click on one of 5 these links, having seen DeCSS is not available on 6 the 2600 site, they have the option to continue 7 their search of DeCSS or not, and -- 8 MS. MELO: Well, if you have a gun, 9 it's still your own discretion if you want to kill 10 someone. But you still cannot sell guns 11 instrumentally. You need some kind of a relation. 12 And of course the user -- but the thing is the site 13 is showing the users and like telling them to 14 actually go there and see it. It's not just -- 15 it's not that they just gave him some address. 16 They're actually giving him the link. He can 17 easily click and see the code. 18 JUSTICE DESAUTELS: I'd like to go 19 back to the First Amendment. 20 Would you say that merely printing an 21 address without making it a direct link merits more 22 First Amendment protection than a direct link? 23 MS. MELO: Yes. Because it has no 24 functional -- 25 JUSTICE DESAUTELS: But the effect TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 35 1 could be -- is almost exactly the same. 2 JUSTICE MANDECKI: With two more 3 clicks. 4 JUSTICE ALLEN: Where would you draw 5 the line between functional and nonfunctional? 6 MS. MELO: If you can click onto 7 something -- links, they're a lot like road signs. 8 If you only had, without the HTML code, it would be 9 a lot more like a road sign. Like, oh, you have 10 this, if you're going this way, you have this. But 11 once you do the HTML code, you add this entire 12 layer of instrumentality to it and you can just 13 automatically click on it and go anywhere. 14 It makes life a lot easier, and also 15 when you're linking to it, you want the users to go 16 there. 17 JUSTICE ALLEN: So, it warrants First 18 Amendment protection on the basis of its use? 19 MS. MELO: It warrants First Amendment 20 protection in the sense it's a device. It's more 21 of a device than speech. 22 JUSTICE MANDECKI: Even if you were 23 able to get rid of all these links, how effective 24 do you think it would be to, like, even if you get 25 rid of them, how effective would it be to eliminate TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 36 1 the flow of say a code (inaudible). 2 MS. MELO: I would say it actually 3 creates a good amount in the sense that most of the 4 sites -- there are not thousands of DeCSS copies in 5 the Internet. There are more of like a lot of 6 mirrors connected to each other. And if you do a 7 search, you would find maybe ten unique DeCSS 8 pages. It would probably reduce the flow 9 considerably. 10 JUSTICE MANDECKI: Say hackers are 11 basically the people we're dealing with here; you 12 think just because it's written down as a URL, 13 they're going to stop right there and say, hey, 14 there's no link here, I can't go any further? 15 MS. MELO: Not necessarily. But 16 usually not -- because things are illegal doesn't 17 stop people from doing it. But it does stop the 18 majority of people from doing it. And that's good 19 enough, as our society has proved. 20 JUSTICE DESAUTELS: Thank you. 21 MR. KOREN: The representative for the 22 MPAA just conceded that it's legal to publish the 23 URL as not a link, just regular text; and then went 24 on to argue that people would stop there because -- 25 the majority of people would stop and wouldn't go TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 37 1 to this link simply because it wasn't linked and 2 you had to copy and paste it. 3 They also argued that HTML was a 4 functional language because of aspects of DHTML, 5 Flash, et cetera. But links don't have anything to 6 do with that. Links are basic, basic HTML. They 7 come from conversion HTML 1.0. They're just 8 regular tags. They're not anything complicated. 9 Furthermore, they argued that one 10 should prohibit people from linking to DeCSS 11 websites or sites that contain that code. As soon 12 as you prohibit one person from linking to it, 13 can't you also prohibit everybody else from linking 14 to it? Can you prevent search engines from linking 15 to certain sites just because they don't want to 16 link to? Like if you go to Google and you search 17 for DeCSS, you'll probably find the sites and 18 they'll be linked. Does that mean that as soon as 19 you -- this injunction will be applied to Google or 20 Yahoo or any other search engine? It doesn't 21 link -- 22 JUSTICE ROSS: I think the intent of 23 Google and other search engines is slightly 24 different than 2600 Magazine. 25 MR. KOREN: The intent is to tell TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 38 1 people where to find this information. That's 2 exactly the intent of Google. So, say I'm looking 3 for this information, where can I find it? People 4 go to 2600 and they say, where can I find this 5 information? And there's a list right there of 6 links they can go to. 7 JUSTICE KAUKE: Do you see any 8 difference whether it's on the web page or written 9 in the magazine? 10 MR. KOREN: I see no difference. 11 Either way, you start up your browser, type it in 12 and you're there. It's like the difference between 13 stairs and escalators. Escalators get you there 14 automatically, but stairs you have to climb up. 15 But either way, you start someplace and you get to 16 the same place. There's no difference in the path 17 you take. 18 JUSTICE ALLEN: So you're conceding 19 the act of linking itself is illegal, but the act 20 of publishing (unintelligible) is not? 21 MR. KOREN: No. I'm saying publishing 22 links is legal. It's unconstitutional to prohibit 23 linking. 24 I'm saying that, yes, you have to go 25 up the stairs, but if you have to get from point A TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 39 1 to point B, you're going to do it either way. You 2 might as well take the easier route if there's an 3 escalator there. 4 JUSTICE DESAUTELS: The Court is going 5 to take a short recess. Five minutes. 6 (Whereupon a brief recess was 7 taken.) 8 JUSTICE DESAUTELS: The Court will now 9 hear from Mr. Tauberer. 10 MR. TAUBERER: Good afternoon. My 11 name is Josh Tauberer. I'm representing 2600. 12 I'm going to look at the authority 13 that's given to the use of DeCSS. We should take a 14 look at why authority is, firstly, important. 15 The basis of this case is that DeCSS 16 is or is not a circumvention device. The District 17 Court ruled that it is a circumvention device and 18 they in fact said it was clearly a circumvention 19 device. But they failed to look at what a 20 circumvention device -- what is required of DeCSS 21 for it to be a circumvention device. 22 By section 1201 (a)(2) or (a)(3), a 23 circumvention device must decrypt; and we concede 24 that DeCSS does do decryption. However, it has to 25 do that without the authority of the copyright TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 40 1 owner. 2 If DeCSS is -- if DeCSS indeed has the 3 authority of the copyright owner, the DeCSS is not 4 a circumvention device, and this case is moot. 5 So, where does the authority come 6 from? In fact, in the house of -- a House of 7 Representatives statute in 1998, they ruled that -- 8 they wrote that an individual would not be able to 9 circumvent in order to gain unauthorized access to 10 a work, but would be able to do so in order to make 11 fair use of the work which he or she has lawfully 12 acquired. 13 So let's say I have the matrix in DVD, 14 first I take the green pill, then I go put it into 15 my computer and I start with DeCSS. By the 16 statute, I've already lawfully acquired the matrix. 17 DeCSS has nothing to do with whether I've lawfully 18 acquired it or not. It can't help me lawfully 19 acquire it in any way. 20 So, by the statute I also have 21 authority to make fair use of the matrix how I 22 want. I can go and write software code to analyze 23 video frames, to do video searching or make any 24 other use that I want that is legal for any other 25 purpose. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 41 1 So we see that statutorily, authority 2 is granted. Well, perhaps, then, you might say, 3 well, it has to be expressed by the copyright 4 owner. In fact, the District Court, in the middle 5 of the trial testimony, preemptively ruled that it 6 was a matter of law, not fact, of whether the user 7 had authority or not. So we were unable to go into 8 the facts of whether authority was expressly 9 granted or not. 10 In fact, we would have found that no 11 authority is granted at any time by anyone to play 12 any DVDs. So, I have my matrix -- at this time I'm 13 going to take the red pill -- and I bring it into 14 my DVD player. Well, I don't have authority to do 15 that because I never received authority from the 16 DVD copyright owners. 17 So, if the Court was to rule that one 18 requires expressed authority, then 11 million users 19 of DVDs or whatever the number might be would then 20 be illegally using a DVD player, licensed by the 21 DVD authorities, as a circumvention device. Of 22 course this can't be the case. 23 So, for -- maybe it's more implicit in 24 where the authority comes from. 25 Well, when I paid my $26, what did it TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 42 1 go for? I got this piece of plastic. I think it's 2 because I can now play my DVD. It didn't say 3 otherwise. It didn't say I couldn't play my DVD. 4 It didn't say I couldn't use DeCSS. It didn't say 5 I could use a DVD player. 6 JUSTICE ALLEN: But this of course 7 falls under the copyright work which falls under 8 copyright law and, so, by the terms of DMCA it's 9 still illegal to circumvent regardless of whether 10 you have authority or not to view it or even to 11 perform the work (unintelligible). 12 MR. TAUBERER: Well, for a device to 13 be a circumvention device, it must be -- for a 14 device to be classified as a circumvention device, 15 whether it's primarily for that purpose or not, it 16 has to be used without the authority of the 17 copyright owner. In fact, one of the tests would 18 be that it has to be primarily used as a, let's 19 say, a decryption device without authority of the 20 copyright owner. And we argue that there is 21 authority there. 22 JUSTICE ROSS: Are you now arguing 23 that this is not a circumvention device at all? 24 MR. TAUBERER: Correct. 25 JUSTICE ROSS: Okay. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 43 1 MR. TAUBERER: Perhaps the wording of 2 the DMCA would have been more clear if authority 3 was placed elsewhere. However, it's placed in the 4 definition of circumvention device. So, therefore, 5 with authority, it is not a circumvention device. 6 One other thing. Going back to the 7 Honorable Allen's statement; it sounded as if it 8 was leaning toward, well, it would require express 9 privileges. So, for a device -- if you were to say 10 that -- you were going in the direction, I believe, 11 that this applies to every work. And, so, it 12 seemed as if you were saying that you would need 13 express permission. 14 JUSTICE ALLEN: (Unintelligible) DMCA? 15 MR. TAUBERER: Correct. For 16 authority. But if it was -- if you need express 17 permission, then the 11 million DVD player users 18 would also be in violation. So this isn't where 19 the authority has come from. 20 JUSTICE KAUKE: Without express 21 permission, are you assuming that you have 22 permission to do whatever you want to do with that? 23 MR. TAUBERER: By the House of 24 Representatives statute, once you've already 25 lawfully acquired the DVD, you have the authority TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 44 1 to make any use you want with it. It says fair 2 use. But its use would be fair. 3 JUSTICE ALLEN: So basically you would 4 require us all to define the terms of fair use as 5 (unintelligible). 6 MR. TAUBERER: I believe so. Can you 7 say that again? 8 JUSTICE ALLEN: You'd require this 9 Court to define fair use. 10 MR. TAUBERER: I don't believe it's 11 necessary for the Court to relate fair use to 12 DeCSS, because the use of DeCSS -- of DeCSS is 13 not -- it would be primarily fair use, most likely, 14 or predominantly or primarily designed to be for 15 fair use. But you don't necessarily need to define 16 what fair use is. 17 JUSTICE ROSS: Are you saying the 11 18 million users of DVD are doing something illegal 19 by -- 20 MR. TAUBERER: No. I'm saying that to 21 believe that one requires expressed authority to 22 have authority is a contradiction because if that 23 were the case, then the 11 million users would be 24 illegally using their DVD players. 25 If there are no other comments or TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 45 1 questions, I'd like to reserve my time. 2 JUSTICE DESAUTELS: The Court will now 3 hear from Mr. Vennema. 4 MR. VENNEMA: Good afternoon. My name 5 is John Vennema. 6 Defendants clearly believe that the 7 argument over the nature of authority is the 8 centerpiece of their case. Frankly, we disagree. 9 In fact, we maintain, as we have since the 10 beginning of this case, that this argument is a 11 little more than a rhetorical contortion of the 12 DMCA, which is quickly and easily dismissed. This 13 belief is reflected in our limited treatment of the 14 issue of authority in our appeal brief and of the 15 limited treatment of the issue of authority in 16 Judge Kaplan's decision. 17 So, case against. The defendants make 18 many arguments about the notion of authority. 19 However, they boil down to one simple point. In 20 short, the defendants maintain that the purchase of 21 a DVD somehow inherently grants them the authority 22 to legally circumvent an electronic protection 23 measure. They have twisted this argument out of 24 the provision of the DMCA that defines 25 circumvention, as we heard as well, without the TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 46 1 authority of the copyright -- circumvention, I'm 2 sorry, circumvention as decryption occurring 3 without the authority of the copyright holder. 4 So, rebuttal. As Judge Kaplan stated 5 in his opinion, the argument is sophistry. It's a 6 rhetorical argument. Kaplan continues: The DMCA 7 proscribes trafficking in technology that decrypts 8 or avoids an access control measure without the 9 copyright holder consenting to the decryption or 10 avoidance. 11 Clearly, the copyright holders, the 12 studios, which we represent, do not consent to this 13 type of decryption, or they would not have 14 established an encryption and licensing system in 15 the first place. In fact, this construal [sic] of 16 the DMCA provision of not granting encryption 17 without the authority of the copyright holder would 18 in essence completely truncate the DMCA and the 19 entire system of encryption of DVDs in the first 20 place. 21 Furthermore, if the DMCA had intended 22 to provide an exemption for circumvention after the 23 content had been purchased, said exemption would 24 have been included in the DMCA. As it stands, it 25 is mostly certain not. In fact, the DMCA makes TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 47 1 several provisions of what legal circumvention 2 measures are present, and are legal in the DMCA, 3 makes four or five, I believe; none of which 4 include anything having to do with the purchase of 5 the content. 6 So, the questions. How is authority 7 given? Authority is granted only with the purchase 8 of both the DVD and a licensed DVD player, both 9 licensed under CSS. This granting of authority is 10 implicit and relatively easy to understand. It's 11 implicit in the studio's encryption of DVDs and the 12 subsequent establishment of a licensing system. 13 Once again, why would the studio go to 14 the trouble of encrypting DVDs in the first place 15 if they intended to use them to be able to encrypt 16 them as well. Clearly, they established the 17 licensing and decryption system to maintain a 18 specific system of use for the user. 19 JUSTICE ROSS: Are you saying that 20 because there are certain things -- certain uses 21 that would normally be legal that you can't use a 22 licensed player for, that, therefore, they are now 23 illegal? 24 MR. VENNEMA: Indeed. That is largely 25 the point of the DMCA, we're arguing. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 48 1 For instance, consider this: This 2 granting of authority is not vague or 3 unsubstantial, as defendants would have you 4 believe. In the same way that password-protecting 5 content is clearly a sign that the user does not 6 wish the content to be accessed unless they have 7 given that user the specific password. 8 So -- 9 JUSTICE ALLEN: In this case, you're 10 saying it's legal for the player to view the movie. 11 MR. VENNEMA: No. 12 JUSTICE ALLEN: The encryption 13 (unintelligible) you're saying -- you're making the 14 legality of allowing the player to -- 15 MR. VENNEMA: No, I'm not in any 16 way -- 17 JUSTICE ALLEN: Not debating legality 18 of the user -- 19 MR. VENNEMA: No. The player is 20 perfectly legal because the creator of the content, 21 the studios, have granted the players licensed 22 access to decrypt that, therefore granting their 23 authority in all conceivable ways to decrypt that 24 content, in the specific ways explained under the 25 issues of that license. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 49 1 No such license has been issued to the 2 user. The user has been given access to the 3 material that we decrypted under certain 4 circumstances, with a licensed DVD player, easily 5 available anywhere, and any user who wishes to 6 purchase a DVD and purchase a DVD player will gain 7 full use of -- 8 JUSTICE ALLEN: Now, you're saying any 9 user who has a license to a DVD player can play any 10 DVD because the user has signed nothing or has -- 11 under no circumstances is he restrained by a 12 password or anything like that, as may be the 13 player which is restricted by an encryption scheme. 14 MR. VENNEMA: The user has been 15 granted the use of the DVD in the DVD player. It's 16 as simple as that. The argument doesn't get much 17 more complicated. Because, frankly, anything 18 further than that requires breaking an encryption 19 scheme. And breaking an encryption scheme is 20 clearly illegal under the DMCA. 21 So, what does this authority allow -- 22 we've covered this somewhat, but what does this 23 authority allow the user to do with a DVD? The 24 authority allows the user to view and use their 25 licensed DVD with their licensed DVD player. This TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 50 1 authority obviously does not allow a user to do 2 anything that requires the unlicensed decryption of 3 a DVD, except where provided in the DMCA. 4 These terms are, once again, 5 imminently implicit in the studio's system of 6 encrypting DVD systems in the first place. 7 So, frankly, the issue is as simple as 8 that. Any other construal [sic] of the DMCA's 9 policies would, as we have said, on the most 10 fundamental level, eviscerate the trafficking 11 proscriptions of the DMCA and eliminate the 12 proscription for -- and eliminate the protection 13 for which Congress enacted them in the first place. 14 If any user could purchase a DVD and willfully 15 break the encryption scheme and do with that pure 16 initial content what they would, the DMCA would 17 have no tangible purpose whatsoever. 18 Just to quickly address one point 19 that -- we may have covered it, but since I'm 20 almost certainly not going to use all of my time, 21 because, frankly, this argument is fairly simple, I 22 believe. The appellants brought up a point that 23 it's vague as to whether even viewing it is legal 24 and that there's nothing express. Once again, the 25 express granting permission to view the DVD with a TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 51 1 DVD player is very clear and implicit. No regular 2 user would argue anything otherwise. 3 I believe that's all there is to it. 4 JUSTICE ROSS: I have one quick 5 question. When did some fair uses become 6 unauthorized? 7 MR. VENNEMA: This discussion is not 8 about fair use at the moment. I'm going to leave 9 that to my colleagues. 10 JUSTICE ROSS: I'm asking when some of 11 these fair uses became unauthorized, since we're 12 talking about authority.? 13 MR. VENNEMA: These fair uses became 14 unauthorized when they required breaking a lawful 15 encryption scheme. It's illegal under the DMCA. 16 JUSTICE ROSS: So you're saying that 17 we should get rid of fair use because the MPAA 18 placed an -- the studios placed an encryption 19 scheme on the DVDs? 20 MR. VENNEMA: I'm not saying we should 21 get rid of fair use. I'm saying we should follow 22 the laws of the DMCA which provide that one cannot 23 break an encryption scheme, which is what's 24 occurring right here. 25 JUSTICE DESAUTELS: We should allow TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 52 1 technology to prevent fair use. 2 MR. VENNEMA: Again, I'm not arguing 3 fair use. I'm arguing the specific issue of 4 authority, which is truncated and misconstrual 5 [sic] of a specific DMCA line. 6 I will leave fair use argument to my 7 colleague. 8 JUSTICE KAUKE: If there are people 9 out there that feel they have the right to encrypt 10 the digital content, are these users aware of their 11 rights of authority as -- which you point out to be 12 so clear-cut and obvious? 13 MR. VENNEMA: The users who wish to 14 decrypt their DVD must be aware of the law. Our 15 law does not give any credence to the defense that 16 I was unaware of the law. And the law is, quite 17 simply -- 18 JUSTICE ALLEN: In this circumstance 19 the laws aren't as explicit; it's implicit -- 20 MR. VENNEMA: The law is always 21 explicit. You have to be aware of the law. You 22 can't use the argument that you're not aware it was 23 illegal to break an encryption scheme. 24 JUSTICE ALLEN: You could argue that 25 they were not aware -- that they did not have the TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 53 1 authority to break the encryption scheme because 2 they couldn't easily construe themselves as having 3 the authority of breaking the encryption scheme -- 4 MR. VENNEMA: I would argue that it's 5 still breaking the encryption scheme, no matter 6 which way you look at it. There's nothing explicit 7 anywhere that says anything about buying the DVD, 8 granting the authority to break the encryption 9 scheme. It's a constructed argument out of 10 nothing. 11 JUSTICE ALLEN: There's nothing 12 anywhere in the DMCA that says -- that defines the 13 term authority and what is given to, what authority 14 is given to the (unintelligible). 15 MR. VENNEMA: The term authority -- 16 the authority is granted under the terms -- 17 everything with the DVD applies to the terms of 18 DMCA. 19 JUSTICE DESAUTELS: The Court will 20 hear from Mr. Tauberer. 21 MR. TAUBERER: All right. I would 22 like to, should it please the Court, go through all 23 the arguments one by one and just refute them all 24 because they're all refutable. 25 I'm going to start at the bottom with TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 54 1 the implicitly expressed authority that was 2 claimed; if it's expressed, then it's not implicit, 3 and if it's implicit, then it's not expressed. 4 What the MPAA is asking you to do is 5 to take the implicit authority that the movie 6 players want to give to only the DVD players, and 7 have the law recognize what they want as what the 8 law should be. This can't be done because it's a 9 clearly or a simple matter. This isn't sophistry. 10 You can't say, well, it's a made up argument. We 11 have to analyze this. 12 Okay. Starting at the top now. 13 Limited treatment. The District Court looked at 14 this very limited and so did the prosecution. In 15 fact, in their appeal brief they dropped this point 16 entirely. And while this is not a minor fact, we 17 have to look at where the authority comes from. 18 Because the District Court judged this, it is more 19 important that you look at the authority and rule 20 on whether it is important or not. 21 Nextly, the MPAA claims that the 22 intent was not to grant consent. But the District 23 Court, during the trial, made it very clear that it 24 wasn't a matter of fact that was important, it was 25 a matter of law. If we had the trial transcript, TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 55 1 we could find this, but no one has. 2 In fact, their intent is, by the 3 District Court's ruling, not relevant. So, once 4 again, you have to look at this and make another 5 judgment, not relying on the District Court. 6 Nextly, the DMCA had intended, they 7 claim, to not allow circumvention -- to never allow 8 circumvention. They claim that if the DMCA was to 9 allow this, then they would have said so. Well, in 10 the next line it says so, that it should not impede 11 on fair use which will be addressed in the next 12 topic. So this is something that can't be just 13 accepted. 14 Nextly, why the MPA uses DeCSS. They 15 claim that, well, without -- why would they need to 16 use DeCSS if it wasn't protected by law. Well, 17 just because they want it to be protected by law 18 and maybe hope it is, that doesn't mean it has any 19 bearing on the actual law. So -- okay. 20 Nextly, the MPA -- Mr. Vennema 21 explicitly stated that the MPA explicitly granted 22 license to players to play the DVDs. However, this 23 is perhaps irrelevant because it's the authority of 24 the user in question and, so, to say that the user 25 has authority based on the authority granted from TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 56 1 the MPA to the DVD players, therefore gives some 2 legal meaning to the authority granted to the 3 users, is like saying some sort of a personal 4 contract between two people is legally binding on 5 other people who have not signed a contract. 6 It's irrelevant. The license between 7 the MPA and DVD players is completely irrelevant. 8 JUSTICE ALLEN: Why do you construe 9 that the authority might or might not be given to 10 the owner of the DVD, purchaser of the DVD? You 11 could also -- it's just as easy to go the other 12 way, that because it wasn't explicitly stated, that 13 they did have authority to decrypt it, they don't 14 have authority to decrypt it because, quite 15 frankly, it's not necessarily (unintelligible). 16 MR. TAUBERER: That's true. However, 17 they stated that no expressed authority was ever 18 granted to DVD player use or to DeCSS use. And, 19 so, they're saying that most -- in fact, all of 20 their users are in violation of the DMCA. 21 So, to claim that it requires 22 expressed authority does not make sense. 23 JUSTICE MANDECKI: How far do you 24 expect this Court to go? Obviously Mr. Vennema 25 makes a good point by saying that using DVDs, it's TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 57 1 implicit that you just pop it in and watch a movie. 2 You expect us to say it's okay to do the DeCSS 3 thing? 4 MR. TAUBERER: The legality of using a 5 DVD player is equivalent to the legality of using 6 DeCSS, because there's no distinction between the 7 two. 8 If that answers your question. I'm 9 not sure I understood the question. 10 JUSTICE ROSS: Doesn't DeCSS also 11 enable you to infringe copyright in a sense, where 12 a licensed player doesn't? 13 MR. TAUBERER: DeCSS can in no way 14 enable you to violate copyright any more than a DVD 15 player can. 16 For a DVD player, there is an analog 17 output. You can go and make copies of that output 18 as many times as you want and violate a copyright 19 act. Using DeCSS, you could use DeCSS to make 20 copies of it. But no different than for using a 21 DVD player. 22 Furthermore, the fact that one can use 23 a device to -- that is not fair use, does not 24 necessarily mean that the device is therefore a 25 circumvention device. In fact, it's not related at TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 58 1 all in any way. For it to fall into the DMCA's 2 provision, it would have to be primarily designed 3 for that, or with marginal other uses. 4 And, so, we could debate that another 5 time. But there are no -- it's not primarily 6 designed for infringement and there are certainly 7 many other uses that are testimony. 8 JUSTICE DESAUTELS: Thank you. 9 MR. TAUBERER: Thank you. 10 JUSTICE DESAUTELS: The Court will now 11 hear from Mr. Viventi. 12 MR. VIVENTI: Ladies and gentlemen of 13 the Court, my name is John Viventi. I'm here today 14 on behalf of 2600 Magazine. I intend to clarify 15 fair use, its relations to the DMCA, and its 16 application to DeCSS. First, let's examine the 17 provisions of copyright law regarding fair use. 18 I quote the Copyright Law of the 19 United States of America, Chapter 107, Limitations 20 on exclusive rights: Fair use. The fair use of a 21 copyrighted work, including such use by 22 reproduction in copies or phonorecords or by any 23 other means specified by that section, for purposes 24 such as criticism, comment, news reporting, 25 teaching, scholarship, or research, is not an TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 59 1 infringement of copyright. In determining whether 2 the use made of a work in any particular case is a 3 fair use, the factors to be considered shall 4 include the purpose and character of the use, 5 including whether such use is of a commercial 6 nature or is for nonprofit educational purposes; 7 the nature of the copyrighted work; the amount and 8 substantiality of the portion used; and the effect 9 of the use upon the potential market for the value 10 of the copyrighted work. Specifically, I draw 11 attention to news reporting and scholarly research, 12 which we'll come back to later. 13 I continue. Fair use is rooted in the 14 Constitution. The fair use doctrine permits courts 15 to avoid rigid application of the copyright statute 16 when, on occasion, it would stifle the very 17 creativity which that law is intended to foster. 18 This is taken from a court case, 19 Stewart versus Abend. 20 Furthermore, it is -- the Court reads: 21 Fair use has been viewed by courts as a safety 22 valve that accommodates the exclusive rights 23 conferred by copyright with the freedom of 24 expression granted by the First Amendment. Another 25 Court case, Universal versus Nation Enterprises... TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 60 1 Sorry about that. 2 Furthermore, fair use is maintained by 3 DMCA. The DMCA cannot be utilized in any way to 4 rob consumers of their right to fair use. Congress 5 inserted specific provisions into 1201 of the 6 copyright statute to prevent interpretations that 7 would hurt these vital constitutional interests. 8 In particular, nothing in this section shall affect 9 rights, remedies, limitations or defenses to 10 copyright infringement, including fair use under 11 the title. Therefore, it remains to be proven that 12 DeCSS is a necessary tool to facilitate fair use on 13 DVDs. 14 I'd like to cite the court case, Time, 15 Incorporated versus Bernard Geis Associates. A 16 researcher intent on criticizing the conclusions of 17 the Warren Commission's inquiry into the 18 assassination of President Kennedy reproduced six 19 frames of the famous Zapruder film of the shooting 20 in his book. Plainly, a mere verbal description of 21 the frames would have been a poor substitute for 22 the actual historical evidence. Therefore, the 23 Court concluded that the copying was allowed by the 24 fair use doctrine. 25 If this - TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 61 1 JUSTICE ALLEN: (Unintelligible) why 2 should DeCSS necessarily -- why could you not take 3 a photograph of a TV screen, for instance, or a 4 projector screen? Or make a tape recording of what 5 was going on in the movie? Why do you need to be 6 able to decrypt the movie? 7 MR. VIVENTI: Actually, I'd like to 8 continue. I'll get to that. 9 Basically, if this film had only been 10 available on DVD format, the author would not have 11 been able to obtain those frames for his 12 presentation -- his book, actually, despite the 13 Court's ruling that he had every right to do so. 14 Many times photographing a TV screen 15 is very difficult in regards to the refresh rate of 16 the monitor itself. Recording audio tracks is very 17 difficult. It's much easier to take the actual 18 frame from the film in the way that it has been 19 done for generations as of right now. You have a 20 copy of the frame and you can use it. 21 Therefore, DeCSS is required for the 22 balance of copyright monopoly and free expression. 23 Without it, fair use is impossible with the current 24 DVD technology that's been presented by the MPAA. 25 JUSTICE ALLEN: What if the MPAA makes TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 62 1 available on the Internet a service provider for a 2 small fee or for no fee whatsoever, you could apply 3 for and receive small clips of (unintelligible). 4 MR. VIVENTI: If they were to provide 5 a utility, a comparable useful utility as useful as 6 DeCSS, I'm sure it would be satisfied, at least in 7 respect to fair use. As of right now there is no 8 means for accessing all fair use criteria. 9 Among them, there is -- let's see. 10 The need for access to the entire movie in regards 11 to research involving video searching and other 12 scholarly works that require large portions of 13 video not necessarily to be accessed in any 14 specific way, but as a whole. 15 The District Court admitted that its 16 interpretation of 1201 nearly eliminates all fair 17 use entirely by leaving, and I quote, 18 technologically unsophisticated persons who wish to 19 make fair use of encrypted copyrighted works 20 without the technical means of doing so. 21 The Court later went on to list 22 several fair uses that would be impacted by its 23 ruling, including quotations from the script by a 24 movie reviewer; broadcast of an excerpt of a scene 25 to illustrate a review; performing portions of the TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 63 1 sound track by musicologists; and making clips of 2 scenes by a film scholar to make a comparative 3 point. All these uses have been granted under the 4 fair use statute of the copyright law and are now 5 being removed by the DMCA in a way that was not -- 6 the DMCA was never intended to allow. 7 Countless other cases have been 8 presented in the written briefs where fair use was 9 prohibited by the CSS architecture. These cases 10 further strengthen the legitimate and 11 non-infringing uses of DeCSS. The public interest 12 in these uses of DeCSS is substantial and is 13 essential to progress. 14 Therefore, I encourage you to rule in 15 favor of technological progress and allow the 16 publishing of valid encryption research. 17 Thank you. 18 JUSTICE KAUKE: I have a question. 19 If you were looking, for example, at a 20 20 second clip of a movie as we witnessed in 21 matrix, would it not be possible to go out and buy 22 the VHS cassette which is more easily copied and 23 get the same 20 second clip with comparable 24 difference between -- for the purposes of what 25 you're examining, the difference would be minimal. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 64 1 And why -- I guess I'm asking, why is digital 2 quality necessary? 3 MR. VIVENTI: If you're doing research 4 that involves specific compression involved in a 5 movie, say you're interested in researching MPEG 6 layer two applications on certain types of video, 7 you necessarily need to access that digital data. 8 Furthermore, in the future, if movies 9 are no longer released on VHS tape, and they're 10 only released on DVD, you may not have access to 11 certain clips, you may not have that ability. 12 JUSTICE ALLEN: In terms of DMCA, 13 Congress specifically banned decryption, and while 14 that is not subject to fair use, what makes 15 decryption any more valid in terms of -- without 16 regard to fair use? I mean, apart from statutory 17 fair use -- I don't know how to put this. 18 Never mind. 19 MR. VIVENTI: Were you trying to refer 20 to the use of -- how the use of DeCSS has any 21 relevance outside of fair use? 22 JUSTICE ALLEN: Yes. 23 MR. VIVENTI: I'm basically not 24 arguing that there's any use outside of DeCSS, I 25 mean that there's any legal backing for -- by use TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 65 1 of DeCSS outside of fair use. That is entirely -- 2 the legal aspect of DeCSS is completely involved in 3 fair use. Without it, it is not capable to utilize 4 your rights of fair use. 5 JUSTICE DESAUTELS: The Court will 6 hear from Mr. Blatz. 7 MR. BLATZ: Good afternoon. My name 8 is John Blatz. I represent the Motion Picture 9 Studios. 10 In Mr. Viventi's argument, he claims 11 that, first, people have the right to fair use. 12 And that since DeCSS software facilitates fair use, 13 then it should therefore be legal to traffic in the 14 DeCSS software. 15 He goes on to list several possible 16 uses that third parties besides Corley could have 17 for the DeCSS program which could possibly be 18 considered fair use under the DMCA. However, it's 19 not these people that are on trial. 20 This trial is about Mr. Corley. And 21 he is not being accused of infringement. He's 22 accused of trafficking in circumvention tools. As 23 Mr. Viventi quotes from section 1201 (c)(1) of the 24 DMCA, a fair use is a defense, but only for 25 copyright infringement. Mr. Corley is not being TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 66 1 sued for infringement. He's being sued for 2 trafficking. 3 The DMCA explicitly disallows 4 trafficking -- offering to the public circumvention 5 devices in section 1201 (a)(2) and section 1201 6 (b). It disallows any circumvention device whose 7 primary purpose is to circumvent access and whose 8 other uses are not commercially significant. 9 JUSTICE ALLEN: By providing DeCSS, 10 you're enabling users to exercise their fair use 11 rights. 12 MR. BLATZ: That's correct. However, 13 this case is not required -- this case is not 14 about -- it's not about fair use rights to 15 circumvent access controls. It's about trafficking 16 and tools that allow you to circumvent the access. 17 JUSTICE DESAUTELS: I believe what 18 they're arguing is that because DeCSS enables 19 consumers to exercise their fair use rights, it 20 should be allowed to be trafficked. 21 MR. BLATZ: However, that's contrary 22 to the letter of the law and to legal precedent. 23 Congress explicitly decided -- 24 Congress purposely decided not to include such a 25 provision because it would undermine the very TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 67 1 purpose of the DMCA, which is to encourage 2 production of copyrighted works. 3 JUSTICE DESAUTELS: Are you saying, 4 then, that the DMCA is allowing technology to limit 5 fair use? 6 MR. BLATZ: That's true. The DMCA 7 does not restrict fair use. Users -- people, like 8 Mr. Viventi claim, may have the rights to make 9 scholarly uses and other such uses of copyrighted 10 works. If they use DeCSS to do so, that would be 11 legal, perhaps. But that's not what's at issue. 12 What's at issue is, can this be offered to the 13 general public? 14 Mr. Corley is offering these tools to 15 the general public without regard for what they're 16 using it for. 17 JUSTICE DESAUTELS: How else can the 18 general public exercise its fair use rights if it 19 doesn't have access to DeCSS? 20 MR. BLATZ: I'm not arguing that 21 people who are going to make fair use of 22 copyrighted work should not have access to DeCSS or 23 other such things. I'm arguing that -- 24 JUSTICE ALLEN: Given that DeCSS does 25 not enable any fair use exemptions whatsoever, how TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 68 1 does the DMCA propose to enable fair use? 2 MR. BLATZ: A person who wishes to 3 make fair use of a copyrighted work is allowed to 4 break the encryption in order to do so. If they 5 come -- if a program such as DeCSS were made 6 available to them by some means whereby the 7 government agreed -- the government approved of 8 their use, and it was understood that they would 9 only be using it for purposes outlined in the DMCA, 10 such distribution would be acceptable; however, not 11 to the general public. 12 JUSTICE ALLEN: You would hold that 13 generally fair use rights in this particular 14 instance are limited to technically sophisticated 15 people and people who have the knowledge and 16 contacts to be able to gain access to DeCSS code? 17 MR. BLATZ: Fair use rights are given 18 to anyone who has the right to do so. The DMCA 19 does not require people -- dot not require 20 manufacturers to facilitate the use of their fair 21 use rights. 22 If the Court has no further questions, 23 I believe I'm finished. 24 JUSTICE DESAUTELS: Okay. Mr. 25 Viventi. TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 69 1 MR. VIVENTI: I maintain that the fair 2 use is not possible under the current CSS 3 encryption algorithm; and that since the entire 4 public is granted rights to fair use, it is 5 necessary the private public also be granted rights 6 to access its fair uses, and to accomplish this, 7 DeCSS must be trafficked, it must be provided to 8 the people. 9 The MPA scheme of government control 10 on permission to utilize its fair use goes against 11 copyright's natural assumed fair use qualities, and 12 would impede the flow of educational and scholarly 13 works with undue process if everyone had to apply 14 for a license to make use of their own rights. 15 Therefore, I maintain that it should 16 be possible to distribute DeCSS in accordance with 17 the necessity for fair use. 18 JUSTICE KAUKE: Can 2600 guarantee 19 that everyone that has access to DeCSS from their 20 website is using it for purposes of studying and 21 research? 22 MR. VIVENTI: I don't believe that 23 it's our responsibility to control what uses people 24 make of their own -- of their software. That is 25 their entire legal responsibility. Because TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 70 1 everyone is granted rights to this fair use 2 material, it is not -- we can't deny rights to some 3 people and not others on the basis of whether or 4 not we believe they are conducting sound 5 educational research or not. 6 JUSTICE MANDECKI: Do you not agree 7 that the majority of people who have the 8 availability of using DeCSS are using it for the 9 uses that are potentially dangerous to greater 10 society? 11 MR. VIVENTI: We don't have any 12 information related to specific numbers of people 13 who are using it for any specific purpose. 14 However, if there is any significant use for DeCSS 15 that is non-infringing, it should not be allowed to 16 ban its trafficking or use because of that specific 17 use, and, irregardless of its nonlegal uses. 18 JUSTICE DESAUTELS: Thank you, 19 Mr. Viventi. 20 Okay. Court is adjourned. 21 (Whereupon Court was adjourned at 22 3:15 P.M.) 23 24 25 * * * * * * TWIN COURT REPORTING, INC. 609-758-2840 or 732-928-8822 71 1 C E R T I F I C A T E 2 3 4 I, DOREEN FOX KRENCHICKI, License No. 5 XI00821, a Notary Public and Certified Shorthand 6 Reporter of the State of New Jersey, do hereby 7 certify that the foregoing is a true and accurate 8 transcript of the notes as taken stenographically 9 by and before me at the time, place and on the date 10 hereinbefore set forth. 11 12 I DO FURTHER CERTIFY that I am neither 13 a relative nor employee nor attorney nor counsel of 14 any of the parties to this action, and that I am 15 neither a relative nor employee of such attorney or 16 counsel, and that I am not financially interested 17 in the action. 18 19 20 DOREEN FOX KRENCHICKI, 21 CSR, RPR, CM, CRR 22 23 Dated: April 25, 2001 24 25