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The U.S. Supreme Court has indicated its interest in a case involving a Texas citizen who was sued in California courts for posting software that can be used to illegally copy DVDs.

On December 26, Justice Sandra Day O'Connor issued a stay on a California Supreme Court ruling that shot down a 1999 case brought by the DVD Copy Control Association against Texas resident Matthew Pavlovich.

O'Connor's stay was issued in response to an application filed by the DVD CCA. It remains in effect pending a response from the defendant, due by the end of the day on January 2, and further action by O'Connor.

After reviewing the response from Pavlovich's attorneys, Justice O'Connor can make the stay permanent, giving the DVD CCA time to draft further petitions asking the Supreme Court to take a look at the California case.

Jurisdiction Challenged

In the case in question, the DVD CCA charged that Pavlovich and other defendants violated California's law governing trade secrets by posting a copy of the DeCSS (De-Content Scramble System) software on a Web site that Pavlovich maintained while a student at Purdue University in Indiana.

The DVD CCA argued that Pavlovich's action was intended to harm the computer hardware industry that was involved in producing CSS-encrypted DVD players--an industry that Pavlovich knew was centered in California.

In November, however, the California Supreme Court ruled that Pavlovich could not be sued in California court, saying that "the mere posting of information on a passive Internet Web site, which is accessible from anywhere but is directed at no particular audience, cannot be an action targeted at a particular [state]."

"Otherwise, mere use of the Internet would subject the user to personal jurisdiction in any forum where the site was accessible," the California court said in its opinion.

Practically, the stay is a stop-gap measure to prevent Pavlovich from reposting the DeCSS software following his victory in the California Supreme Court, according to Jonathan Zittrain, a codirector of the Berkman Center for Internet & Society at Harvard Law School.

"[The DVD CCA] is trying to maintain the status quo before the California Supreme Court ruled, which is that Pavlovich better have [the DeCSS software] down in the meantime," Zittrain says.

Complaints Questioned

But those involved with Pavlovich's defense say that the DVD CCA's arguments about the threat posed by Pavlovich lack credibility.

"We think there's no harm here in letting this decision stand until the disappointed plaintiffs can seek a Supreme Court review," says Fred Von Lohmann, senior IP attorney for the Electronic Frontier Foundation, which has supported Pavlovich's defense team.

"DeCSS is available on thousands of sites around world--and not just Web sites. There's [File Transfer Protocol] and every other form you can imagine," Von Lohmann says.

No Hint of Inclination

O'Connor's stay does not give any indication of whether the Supreme Court will review the California court's decision, according to Zittrain. It is more likely a response to an application by the DVD CCA arguing that the ruling against the DVD CCA would cause irreparable harm to makers of DVDs.

However, the decision to grant a stay may signal an interest by the court in clarifying issues of state legal jurisdiction in cases involving Internet content and Web sites, Zittrain says.

The Pavlovich case tests the U.S. Constitution's commerce clause, which ensures that no state's laws can supersede those of other states, Zittrain says.

The case also raises jurisdictional issues similar to those in other cases being heard in the United States and around the world. In December, the High Court of Australia ruled that Dow Jones could be held liable in that country for content in an article published on its U.S.-based Web site.

At the very least, O'Connor's stay will provide cheer to the DVD CCA, which is fighting to establish a precedent for others who may consider publishing software that defeats copyright protections, Zittrain says.

"They don't want to stop this one guy from posting DeCSS. What they want is to create some law that says, 'If you put up the next generation of DeCSS, we're going to fast-track it and you're going to lose."

Other Interests

The stay may also have been granted in recognition of the case's high profile, according to Cindy Cohn, legal director at the EFF.

"The case has generated a considerable amount of attention, and the justices might have wanted to hold on to things so that they can think about them for a minute," Cohn says.

The Supreme Court generally agrees to hear cases when there are inconsistent rulings on similar cases from different U.S. circuit courts, or where legal precedent is at stake, according to Cohn.

While the California Supreme Court's ruling in the Pavlovich case is consistent with others from the ninth and fourth circuit, Cohn says the Supreme Court may use the case as an opportunity to weigh in on murky jurisdictional questions raised by content posted on the Internet, or to clarify issues raised by the legal precedent governing such jurisdictional issues, known as the "Calder test," that the California court used in making its decision.

"I was surprised that the jurisdiction issue has become so big," Cohn says.

"This case was more about trade secrets, but it's turned into a case on jurisdiction, and the entertainment companies' position is to extend the reach of the California courts beyond where they've reached before," Cohn says.

Cohn expects the Supreme Court to uphold the stay while it waits for the DVD CCA to file a petition to have the case heard by the full court--a far more contentious issue on which each side will make arguments for or against the need to consider the case.

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