Stay lifted; Supreme showdown's possible

WASHINGTON — After flirting with the idea of intervening in a case involving DVD copying, the U.S. Supreme Court has reversed course and will stay out of the case for now.

On Friday, Justice Sandra Day O’Connor vacated the temporary stay she had issued in the case of Matthew Pavlovich against the DVD Copy Control Assn.

The case holds significant implications for the jurisdiction of U.S. courts over certain activities on the Internet.

On Dec. 24, O’Connor temporarily stayed a decision reached last month by the California Supreme Court that held that out-of-state Internet users who post DVD-cracking software on the Web cannot be sued in California courts unless they can be shown to have some significant business interest in that state.

That decision was considered a blow to studio efforts to police copyright infringement on the Internet because it would force them to sue individuals separately in their own jurisdictions rather than all at once in California.

Pavlovich, a resident of Texas, was one of hundreds of defendants sued by DVD-CCA in 1999 for allegedly violating California’s trade secret laws by posting the DVD cracking program DeCSS on various Web sites.

Pavlovich challenged the suit on grounds that he was not subject to the jurisdiction of California courts. In November, the California Supreme Court agreed and threw out the charges against him.

In applying to the U.S. Supreme Court for a stay of that order, DVD-CCA said it was necessary to prevent Pavlovich from reposting DeCSS on the Internet.

The application was submitted only to O’Connor, who issued the temporary stay, pending response from Pavlovich.

In that response, attorneys for Pavlovich called DVD-CCA’s application for a stay of the California court’s order procedurally defective and disputed DVD-CCA’s claim that it would suffer irreparable harm if the order were allowed to go into effect.

“DVD-CCA’s assertion that relief is necessary to maintain the secrecy of DeCSS and/or CSS is demonstrably false,” Pavlovich’s attorneys said in their Thursday filing with O’Connor.

“In reality, DeCSS remains ubiquitously available throughout the world from countless sources not named in this action.”

The U.S. Supreme Court may not be finished with the case, however.

An attorney for DVD-CCA, Robert Sugarman of Weil, Gotshal & Manges, previously told Daily Variety that the application for a stay was a first step in a likely petition to the full Supreme Court to review the California court’s decision.

That step is still likely, despite the lifting of the temporary stay.

DVD-CCA has until March to file its petition with the Supreme Court.

The question of jurisdiction over the Internet has become a thorny legal tangle, making the Pavlovich case ripe for consideration by the U.S. Supreme Court.

Recently, the Australian High Court ruled that Dow Jones Co., publishers of the online versions of the Wall Street Journal and Barron’s, could be sued for defamation in Australia, where laws protecting the media are more lax than in the U.S.

(Paul Sweeting is a reporter for Daily Variety sister publication Video Business.)

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