R.L. ex rel. O.L. v. Miami-Dade Cnty. Sch. Bd.
R.L. ex rel. O.L.v.Miami-Dade Cnty. Sch. Bd.
R.L. and S.L., individually and on behalf of O.L., a minor, Plaintiffs, v. MIAMI-DADE COUNTY SCHOOL BOARD, Defendant.
THIS CAUSE is before the Court by Order of Reference of United States District Judge Joan A. Lenard. Pursuant to such reference, the Court has received the plaintiff parents' Motion for Attorneys' Fees and Costs (DE 195); the defendant school board's response (DE 201); and the parents' reply thereto (DE 204). The Court hereby GRANTS the parents' motion, subject, however, to certain reductions as further explained below.
The school board, on October 5, 2006, filed a request for an administrative due process hearing for a determination of whether an Individualized Education Plan ("IEP") developed in May 2006 provided R.L. and S.L.'s son, O.L., a free appropriate public education under the Individuals with Disabilities Education Act ("IDEA"). (ALJ's Final Order, DE 1-1, 2.) In addition to a response to the school board's petition, the parents also filed their own counter-petition, claiming that the school board failed to provide a free appropriate public education to O.L. (Id. at 4.) Among the parents' complaints were that Palmetto Senior High School was not an appropriate placement for O.L., (Id. at 91), and that the school board violated a number of substantive and procedural requirements, (Id. at 47-48, 50-51). One of he parents' main contentions, however, as articulated by the administrative law judge, was that O.L. should be placed at MAST Academy. (Id. at 89).
In sum then, between the administrative law judge's decision, Judge Torres's and the district court's review of that decision, and this Court's findings, adopted by the district court, the parents ultimately lost on: most of their procedural violation claims; their contention that O.L. should be placed at MAST Academy; and certain aspects of their claim that the May 2006 IEP failed to provide O.L. with a free appropriate public education. The parents prevailed, however: in establishing that the May 2006 IEP failed to provide a free appropriate public education with respect to two substantive aspects; on their contention that the school board failed to provide a free appropriate public education by placing O.L. at Palmetto; on their claim that the school board improperly predetermined O.L.'s placement at Palmetto; and on their claim that, based on the school board's failure to provide a free appropriate public education, they are entitled to some reimbursement of their expenses.
The fees currently under consideration by the Court are those that were incurred in relation to the underlying administrative hearing. The reasonableness of the fees sought will be determined based on the degree of success that the parents ultimately obtained as a result of those efforts.
The parents seek a total of $128,767.50 in attorneys' fees for amounts incurred with respect to the administrative proceedings between April 12, 2006 and January 9, 2007. (Motion, DE 195, 3.) According to the parents' motion, their attorney, Paul Liles, billed 185.2 hours prior to the filing of the school board's due process complaint and 387.1 hours between the filing of the complaint and the issuance of the ALJ's order. (Id.) Liles's rate at the time was $225 an hour.
On page three of their motion, the parents state that they are requesting $128,767.50 in fees. (Motion, DE 195, 3.) But in their final request for fees on page twelve of that same motion, the parents ask for a fee award of $157,800. (Id. at 12.) The sum of the amounts requested by Liles in his affidavit for the relevant time period is also $157,800. (Affidavit, DE 195-1, 11.) Rather than waste judicial resources on trying to divine what amount the parents are actually requesting, the Court will assume that they are asking for the lowest amount: $128,767.50.
According to Liles's affidavit, his hourly rates ranged from $225 to $300 during the time period at issue. Due to an "accounting error," (Reply, DE 204, 5), however, his bills reflect only the $225 rate and that is the rate referred to in the parents' motion. The Court will use the $225 rate in calculating the parents' fee award.
The parents additionally request a total of $9,617.76 in costs. According to the parents' motion, the costs incurred were for: copies, travel fees, overnight delivery, tolls and parking fees, postage, transcripts, and airline tickets for a deposition in Washington D.C.
While the parents request $9,617.76 in costs in their motion (Motion, DE 195, 4), Liles's affidavit states that taxable costs amount to $13,211.51 (Affidavit, DE 195-1, 13). The Court will assume that $9,617.76 is the amount that is actually being requested.
The school board does not appear to object to the parents' status as the prevailing party under 20 U.S.C. § 1415(i)(3)(B)(i)(I). Although the school board describes, at length, the analysis a court should apply in determining whether a party has attained prevailing party status, the school board never actually applies that analysis to the parents' claim for fees. (Response, DE 201, 5-8.) Instead, the school board contends that the parents are not entitled to a fee award because they did not actually benefit "from any relief granted by the Court." (Id. at 11.) The school board's focus in this regard is the parents' decision not to return O.L. to school. Ultimately, however, the parents were awarded a substantial reimbursement of the reasonable costs they incurred in providing educational services to their child. This award was the result of the parents' efforts at the administrative level, combined with the results of the parents' appeal of aspects of the administrative decision and complaint in federal court. The school board's notion that the parents somehow received no benefit because they chose not to return their child to school is misguided. The parents effected meaningful relief and they are therefore entitled to a fee award, the amount of which depends on a determination of the degree of their success. See, e.g., Linda T. v. Rice Lake Area School Dist., 417 F.3d 704, 708 (7th Cir. 2005)(applying the Supreme Court's reasoning in Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) to the IDEA's fee-shifting provision and noting that "'the most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained'"). As a threshold matter then, the Court finds that the parents are the "prevailing party" and are thus entitled to an award of "reasonable attorneys' fees" under 20 U.S.C. § 1415(i)(3)(B)(i)(I). (Emphasis added).
The Court has discretion to award attorneys' fees as part of the costs "[i]n any action or proceeding brought under [the IDEA]." 20 U.S.C. § 1415(i)(3)(B)(I). By its plain meaning, the IDEA does not contemplate the awarding of fees for efforts that are not involved in, or at least related to, an "action or proceeding brought under [the IDEA]." Id. In that regard, the Court looks to see if the legal services provided were both "useful and of a type ordinarily necessary" to further the proceedings that, with respect to this motion, took place at the administrative level. See Webb v. Bd. of Educ. of Dyer County, 471 U.S. 234, 243 (1985).
Although the parents claim that Liles "exercised 'billing judgment'" and "meticulously reviewed the billing records and excluded that which is not properly taxed against the [the school board]," they do not explain why time expended during the five months prior to the school board's due process filing should be awarded. (Motion, DE 195, 9.) In fact, Liles himself, in his affidavit, differentiates between the time period prior to the due process filing and the time period after. He says that before the school board's petition, he "provided consultation services," as opposed to afterwards, when he rendered services "for litigation of this matter." (Affidavit, DE 195-1, 10-11.) Neither the parents in their motion, nor Liles in his affidavit, make any suggestion that work product from before the administrative proceeding, or any discrete portion thereof, "was work that was both useful and of a type ordinarily necessary to advance" the administrative process to its ultimate outcome. Webb, 471 U.S. at 243. Since the parents and Liles neglected to differentiate between time spent on matters that were ultimately necessary to the administrative proceeding, if any, and time spent that wasn't, the Court will not award any fees for services performed prior to the school board's filing on October 5, 2006. The parents have failed to controvert the school board's argument that these fees are unrelated to the administrative hearing. Thus that portion of the fee request, that is $41,670.00 (or 185.2 hours at $225 an hour), is not compensable because the parents did not carry their burden of establishing that the fees were incurred "in any action or proceeding brought under [the IDEA]."
Neither party broke down or summarized which expenses were associated with which time period. The parents, in their motion, simply refer the Court to two composite exhibits, which span 61 pages, to support their claim for costs. The figures are especially challenging to reconcile since the parents' motion and Liles's affidavit state different totals. The school board, in turn, objected to all the costs without differentiating between those incurred before and those incurred after the filing of the school board's petition.
+-----------------------------------------+ ¦Date ¦Expense ¦Amount ¦ +----------+------------------+-----------¦ ¦06/14/2006¦transcript ¦$600.00 ¦ +----------+------------------+-----------¦ ¦06/20/2006¦photocopies ¦$20.00 ¦ +----------+------------------+-----------¦ ¦06/19/2006¦tolls and parking ¦$12.00 ¦ +----------+------------------+-----------¦ ¦07/18/2006¦transcript ¦$400.00 ¦ +----------+------------------+-----------¦ ¦07/31/2006¦photocopies ¦$1.40 ¦ +----------+------------------+-----------¦ ¦07/31/2006¦travel ¦$140.28 ¦ +----------+------------------+-----------¦ ¦08/03/2006¦travel ¦$140.39 ¦ +----------+------------------+-----------¦ ¦08/31/2006¦photocopies ¦$2.00 ¦ +----------+------------------+-----------¦ ¦09/06/2006¦travel ¦$296.39 ¦ +----------+------------------+-----------¦ ¦09/26/2006¦travel ¦$139.39 ¦ +----------+------------------+-----------¦ ¦09/30/2006¦photocopies ¦$.80 ¦ +----------+------------------+-----------¦ ¦10/02/2006¦travel ¦$219.86 ¦ +----------+------------------+-----------¦ ¦01/22/2007¦overnight delivery¦$14.72 ¦ +----------+------------------+-----------¦ ¦01/22/2007¦overnight delivery¦$31.21 ¦ +----------+------------------+-----------¦ ¦01/22/2007¦overnight delivery¦$29.24 ¦ +----------+------------------+-----------¦ ¦01/24/2007¦photocopies ¦$882.29 ¦ +----------+------------------+-----------¦ ¦ ¦TOTAL: ¦$2,929.97 ¦ +-----------------------------------------+ While some of these costs might have been incurred for items that were ultimately compensable and necessary to the advancement of the administrative proceedings, although many appear not to be, they were incurred either prior to the filing of the school board's petition or after the administrative proceedings had been concluded. Based on the time frame in which these expenses were incurred, the parents have failed to provide the Court with enough, or really any, information that would allow it to make a determination regarding necessity or reasonableness. The parents' conclusory statements regarding the reasonable and customary nature of the costs incurred, without more, is insufficient to establish their entitlement to these costs considering when the expenses were incurred.
The Court advises counsel that, in the future, if costs and fees are requested or disputed, they should be specifically and precisely supported or opposed so that the Court doesn't have to spend its own resources piecing together what the parties should have properly presented in their filings in the first place.
C. Johnson Factors ____After subtracting the 185.2 hours that are not compensable, as described in the preceding section, the parents remaining fee request amounts to 387.1 hours (or, at a rate of $225 an hour, $87,097.50). In determining the reasonableness of this request, the Court may consider the lodestar factors as enumerated in Johnson v. Georgia Highway Express: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and the ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d 714, 717-19 (5th Cir. 1974).
In considering these factors, the Court notes the school board's complaint that Liles billed an inordinate amount of time for organizing and preparing exhibits for the due process hearing, as well as similar tasks. (Response, DE 201, 13.) According to the school board, as many as perhaps 98.70 hours were billed to such endeavors. (Id. at 13-14.) The school board argues that these hours should be reduced "to a reasonable number of hours" and then billed at "paralegal rates" rather than at Liles's rate. (Id. at 14.) The parents failed to rebut the school board's argument on this point. Furthermore, the Court, based also on its own assessment of the billing record in the case and based on its own knowledge, experience, and expertise, finds merit in the school board's allegations. Thus in terms of the labor required, many of Liles's time entries appear to be for work that could have been performed by a non-lawyer. Additionally, the Court finds that the amount of time spent on such tasks and similar undertakings was inordinate.
Likewise, the Court agrees with the school board that Liles spent excessive amounts of time drafting, reviewing, and revising the proposed final order in the administrative case. It appears from Liles's billing records that as many as 158.8 hours may have been devoted to that task. The Court finds this to be unwarranted. In light of these issues, and the absence of any Johnson factors that might militate in favor of a contrary finding, the Court finds the parents fee request unreasonable and that an across-the-board reduction to the hours billed of 50% is warranted in order to arrive at a reasonable number. The lodestar amount then is $43,548.75 (193.55 hours at $225 an hour).
The parties do not dispute that $225 an hour is a reasonable hourly rate.
The Court points out that it is just this sort of hyperbole, exhibited by both parties, that has exacerbated this litigation from, it seems, the beginning.
Ultimately, while the parents eventually obtained substantial relief, they also spent a sizeable portion of their efforts at the administrative level on claims that went nowhere. And although the Court agrees with the parents, to an extent, that they obtained significant relief, the parents also unnecessarily protracted the proceedings below by raising an undue number of meritless claims. For example, the parents alleged that the school board materially violated numerous procedural requirements, none of which the administrative law judge found to have merit and only one of which the district court found to have merit. The parents also spent an inordinate amount of time insisting that O.L. should be placed at MAST Academy. This argument fell short at both the administrative level as well as in the district court. While the Court does not mean to minimize the positive results that the parents obtained, and while the Court understands that some of the issues were intertwined and overlapping, at the same time, it cannot overlook the fact that the parents were only partially successful.
The Court finds that much of the work spent on the unsuccessful procedural and substantive claims was not expended in pursuit of the ultimate results achieved. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). Thus in contemplating the administrative hearing as a whole, and the relief finally obtained in federal court, as a result, in part, of the efforts at the administrative level, the Court finds that a fee award of only 75% of the lodestar is reasonable. That is, in adjusting the lodestar to take into account the parents' partial success, the parents are awarded $32,661.56 (75% of $43,548.75) in attorneys' fees.
In addition to the costs requested for expenses incurred outside the relevant time period, as discussed above in section II.B., the parents have also asked for costs incurred during the administrative proceedings. In requesting costs, the parents cite to Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983) in support of their claim that they should be awarded amounts for costs incurred that are not authorized by 28 U.S.C. § 1920. In doing so, the parents have disregarded United States Supreme Court precedent that mandates a contrary result. Aside from attorneys' fees, the governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), does not otherwise expand the list of recoverable costs beyond those set forth in 28 U.S.C. § 1920. Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006).
Although the parents' motion cites the Murphy case for the proposition that "[t]axable costs are set forth in 28 U.S.C. section 1920," counsel appears not to have read the case, which would explain why the referenced pincite is to a page in the syllabus which, of course, is not actually part of the opinion. If counsel had read the Supreme Court's opinion in Murphy, counsel would have realized that it's reliance on Dowdell is misplaced.
28 U.S.C. § 1920. Any costs that are not specifically listed are not taxable. Thus, as an initial matter, charges for: "travel fees," "overnight delivery," "tolls and parking fees," "postage," and "airline tickets, deposition in Washington, D.C" are not taxable costs. The Court will therefore not award the amounts requested for any of these items.
O.L.'s parents were the prevailing parties in the administrative proceedings underlying this case and as such are entitled to recover fees and costs from the school board under 28 U.S.C. § 1415(i)(3)(B)(i). Based on the issues and factors outlined above, however, their requests for $128,767.50 in fees and $9,617.76 in costs are reduced to $32,661.56 and $2,774.08, respectively.
2. The parents shall recover from the school board $35,435.64 in fees and costs.
DONE AND ORDERED in Chambers at Miami, Florida this 26th day of April 2012.


16 January 2000. Thanks to 2600.
4. Declaration of Bruce E. Boyden, Esq.
YOU ARE HEREBY SUMMONED and required to serve upon PROSKAUER ROSE LLP, counsel for plaintiffs, whose address is 1585 Broadway, New York, New York 10036, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You must also file your answer with the Clerk of this Court within a reasonable period of time after service.
We have not been able to find any other difference so it is not included here.
C. THE "CRACKING" OF CSS AND DISSEMINATION OF "DeCSS"
3. Defendants' Acts of Offering to the Public, Providing, orOtherwise Trafficking in DeCSS Are in Direct Violation of the Statute.
4. DeCSS Has the Primary Purpose of Circumventing CSS and Has at Most Only a Limited Commercially Significant Purpose or Use Other than to Circumvent.
5. Defendants' Activities Are Not Protected under the First Amendment.
B. PLAINTIFFS ARE BEING, AND WILL CONTINUE TO BE, IRREPARABLY HARMED BY DEFENDANTS' DISSEMINATION OF CIRCUMVENTION DEVICES SUCH AS "DeCSS"
C. ALTERNATIVELY, PLAINTIFFS' APPLICATION PRESENTS SUFFICIENTLY SERIOUS QUESTIONS GOING TO THE MERITS OF THEIR CLAIMS, AND THE BALANCE OF EQUITIES FAVORS PLAINTIFFS.
Defendants are illegally distributing through their respective Internet web sites, a software utility which allows Plaintiffs' encrypted, copyrighted movies contained on digital versatile discs ("DVDs.") to be "decrypted," and freely copied. This utility, called "DeCSS," circumvents the proprietary Contents Scrambling System ("CSS") that protects all of the Plaintiffs' films released in the DVD format. Defendants' distribution of this utility plainly violates the "anti-circumvention" provisions of the Digital Millennium Copyright Act ("DMCA"), which were enacted, inter alia, to protect the technological measures copyright owners put in place to prevent unauthorized access to, and infringement of, their works.
Defendants are participating in a concerted effort to proliferate DeCSS via the Internet, and have made, in some cases, brazen invitations to others to engage in motion picture piracy. (See Declaration of Bruce E. Boyden, Esq., dated January 13, 2000, Exs. 1, 20 ("Boyden Decl.")) The sole function of DeCSS is to decrypt and unscramble DVD contents. As a result, Plaintiffs' movies may be perfectly copied innumerable times and then posted to, or transferred via, the Internet, thereby harming any potential market for them.
Consistent with the United States' obligations under the recently ratified World Intellectual Property Organization ("WIPO") treaties on copyright, the DMCA was designed to bring United States copyright laws into the digital age. The DMCA provisions prohibiting circumvention of encryption systems such as CSS were prompted by the need to protect copyrighted content stored on digital media from unlawful access.2 Congress clearly recognized that "[d]ue to the ease with which digital works can be copied and distributed worldwide virtually instantaneously," copyright owners, understandably, would hesitate to make their works readily available on digital media without strong protections. See S. Rep. No. 105-190 at 8 (1998). Thus, "[the DMCA] encourages technological solutions, in general, by enforcing private parties' use of technological protection measures with legal sanctions for circumvention and for producing and distributing products . . . that are aimed at circumventing" protection measures like CSS. Id. at 11. The fact that DeCSS is an unlawful "circumvention device" within the meaning of the DMCA is beyond dispute.
2 See 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT at §12A.03[c] at 12-27 n.105 (1999) (hereinafter "NIMMER") (citing "encryption on a DVD" as an example of an "access control").
Absent effective enforcement of the DMCA anti-circumvention provisions, the harm to Plaintiffs is obvious and will be incalculable. Plaintiffs' most valuable assets are now being exposed to digital proliferation without their authorization or control. If this Court fails to issue a preliminary injunction, it will be removing the most formidable obstacle Congress put into place to protect against digital piracy. Because the equities are overwhelmingly in Plaintiff's favor, an immediate injunction is warranted.
Plaintiffs in this action are the world's leading producers and distributors of numerous commercially successful and award-winning motion pictures. (Complaint ¶ 10.) Plaintiffs' respective reputations as producers and distributors of motion pictures are widely and favorably known in this judicial district, throughout the United States, and around the world.
3 The facts relevant to this motion are set forth in the accompanying declarations of Fritz Attaway, dated January 13, 2000 (the "Attaway Decl."), Michael Ostroff, dated January 13, 2000 (the "Ostroff Decl."), and the Boyden Decl.
Plaintiffs distribute films theatrically, via television broadcast, and on portable media such as videocassette tapes and digital versatile discs ("DVDs"). (Id. ¶ 10.) DVDs are 5-inch wide discs with the storage capacity to hold a full-length motion picture, and they represent the most current technological advancement for private home viewing of motion pictures. (Id. ¶ 17.) DVDs can be played either on dedicated, free standing devices (i.e., "DVD players") or on personal computers ("PCs") configured with a DVD ROM "drive" and additional hardware or software modules, sometimes referred to as "media players." (Id. ¶ 18.) The audiovisual information on DVDs is stored digitally, which provides a significant improvement in the clarity and the overall quality of the motion picture when played on a television screen or computer monitor. (Id. ¶ 19.) In contrast to an analog-format VHS tape, motion pictures embodied on DVDs can be copied with no significant degradation of picture and sound clarity or overall quality. (Id.) Thus, without some form of protection through encryption, unauthorized copies of motion pictures from DVDs can be easily made, stored on computer tape or disk drives, and/or repeatedly duplicated for unlawful sale, transfer, or exchange, including over the Internet.
Immediately after the DeCSS hack appeared on the Internet in the United States, the Motion Picture Association of America ("MPAA"), on behalf of its copyright holder members, began to take action under the provisions of the DMCA. (Attaway Decl. ¶ 8.) Such action included sending demands to various Internet service providers to remove DeCSS from their Internet systems and, at least where their identities were known, demands to individuals to remove their DeCSS postings and refrain from such conduct. (Id.) These efforts succeeded in causing the removal of quite a number of Internet postings of DeCSS. (Id.) However, the proliferation of these postings recently has increased dramatically, due to a concerted effort by various individuals, including the Defendants, within the United States.
The licensor of the CSS system, the CCA,5 recently commenced in California state court an action, on trade secret grounds, to prevent the unlawful use and disclosure of any of its confidential information embodied in DeCSS. (Attaway Decl. ¶ 9.) Plaintiffs are not parties to that case and, indeed, have no standing to assert any such trade secret claim. The California Superior Court denied the CCA's application for a TRO on December 29, 1999. (Id.) Immediately thereafter, the proliferation and dissemination of the DeCSS utility facility exploded.
"[I]t's especially important that as many of you as possible all throughout the world take and mirror [the DeCSS] files . . . ."
DeCSS is plainly an unlawful circumvention device within the meaning of the DMCA, and is immediately enjoinable as such. It is irrelevant whether or not any of the Defendants personally was engaged in any purloining of CSS trade secrets, or in the unauthorized decryption or duplication of any of Plaintiffs' DVD movies. Defendants are providing the "burglary keys" in violation of the anti-circumvention provisions of the federal copyright law, and their claimed belief that they are permitted to do so (as an exercise of free speech or otherwise) is no defense.
Plaintiffs more than satisfy the standard for a preliminary injunction, which requires the moving party to demonstrate: (1) the threat of irreparable injury if the injunction is not granted; and (2) either (a) a likelihood of success on the merits of its claims or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and that the balance of equities tips decidedly in the movant's favor. Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir. 1997); Tom Doherty Assocs. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir. 1995).
One of the primary objectives of the DMCA was to bring United States copyright law in line with the World Intellectual Property Organization ("WIPO") treaties on copyright, which were ratified by the United States. See S. Rep. No. 105-190, at 8 (1998). The WIPO treaties imposed an obligation on member countries to "provide 'legal protection and effective legal remedies' against circumventing technological measures, e.g., encryption and password protection, that are used by copyright owners to protect their works from piracy . . . ." Id. at 10-11.
Such protection was essential to bring United States copyright law into the digital age, and to provide a legal framework for copyrighted creative works to be offered to the public in digital formats without the substantial risk of wholesale, high-tech infringement. See NIMMER § 12A-03[B] at 12A-12. Key provisions of the DMCA (as codified in the Copyright Act at 17 U.S.C. § 1201, et seq.) unambiguously prohibit the circumvention of copyright protection systems like CSS. These provisions were designed, inter alia, to protect the "encryption on a DVD which acts as 'access control.'" See NIMMER § 12A.03[C] at 12A-27 n.105.
7 See also Jane C. Ginsburg, Copyright Legislation For The "Digital Millennium," 23 Colum.-VLA J.L. & Arts 137, 140-42 (1999) (hereinafter "Ginsburg") (using an example of a user password and hardware verification device as methods of controlling "access" to a copyrighted work through technological measures).
Under the statute, to "circumvent a technological measure" means to "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." 17 U.S.C. § 1201(a)(3)(A) (1999). Further, "a technological measure 'effectively controls access to a work' [within the meaning of section 1201(a)(2)] if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." See 17 U.S.C. § 1201(a)(3)(B) (1999).
8 Ginsburg at 140-41 (discussing the concept of "access" controls protected under 17 U.S.C. § 1201(a)(2) and explaining that, to avoid running afoul of the statute, "the user may not . . . circumvent a technological measure that controls the user's ability to apprehend the work"); see also NIMMER 12A.03[C], at 12A-27 n.105.
Any effort to read into this bill what is not there -- a statutory definition of "technological measure" -- or to define in terms of particular technologies what constitutes an "effective" measure, could inadvertently deprive legal protection to some of the copy or access control technologies that are or will be in widespread use for the protection of both digital and analog formats.
See STAFF OF HOUSE OF REPRESENTATIVES COMM. ON THE JUDICIARY, 105TH CONG., 2D SESS., SECTION-BY-SECTION ANALYSIS OF H.R. 2281 AS PASSED BY THE UNITED STATES HOUSE OF REPRESENTATIVES ON AUGUST 4, 1998, at 9 (Comm. Print 1998) [hereinafter "HOUSE JUD. COMM. REP."] (emphasis supplied).
9 "Throughout the legislative process, the phrase 'technological measure' . . . has been treated in [the House version of the DMCA] in terms of the function such a measure would perform, rather than the specific technology to be used or the means for developing it . . . The practical, common-sense approach taken by [the DMCA] is that if, in the ordinary course of its operation, a technology actually works in the defined ways to control access to a work, or to control copying, distribution, public performance, or the exercise of other exclusive rights in a work, then the 'effectiveness' test is met, and the prohibitions of the statute are applicable. This test, which focuses on the function performed by the technology, provides a sufficient basis for clear interpretation." HOUSE JUD. COMM. REP., at 10. (emphasis supplied).
The Senate Report accompanying the DMCA explains that, "if unauthorized access to a copyrighted work is effectively prevented through use of a password, it would be a violation of this section to defeat or bypass the password and to make the means to do so, as long as the primary purpose of the means was to perform this kind of act." See S. Rep. No. 105-190, at 11 (emphasis supplied).
That is precisely what Defendants have done here. They are providing to the public (and, unless enjoined by this Court, will continue to provide) the "password" or "keys" to "unlock" DVD encryption in violation of Section 1201(a)(2).
3. Defendants' Acts of Offering to the Public, Providing, or Otherwise Trafficking in DeCSS Are in Direct Violation of the Statute.
Defendants' acts of providing DeCSS to the public blatantly violate the statutory mandate that no person shall, inter alia, "offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that circumvents an access control device such as CSS. "While this legislation is aimed primarily at 'black boxes' that have virtually no legitimate uses, trafficking in any product or service that meets one or more of the three points in [the 17 U.S.C.§ 1201(a)(2)] test could lead to liability. It is not required to prove that the device in question was 'expressly intended to facilitate circumvention.'" HOUSE JUD. COMM. REP., at 9 (emphasis supplied). See also Ginsburg at 144 ("If users may not directly defeat access controls, it follows that third parties should not enable users to gain unauthorized access to copyrighted works by providing devices or services (etc.) that are designed to circumvent access controls. Indeed the principal targets of the DMCA are the providers of circumvention devices, services, etc.") (emphasis supplied).
11 For example, some Internet discussions have, as a pretext, the possible "research utility" of the DeCSS hack. However, none of the Defendants claims to have created DeCSS; they are merely proliferating it. As such, they cannot benefit from the extremely narrow "reverse engineering" or "encryption research" exemptions that are set forth in 17 U.S.C. § 1201(f) and (g). See S. Rep. No. 105-190, at 33 ("Recognizing . . . that making such circumvention information or tools generally available [in the name of reverse engineering] would undermine the objectives of the [DMCA], this section imposes strict limitations"); see also Ginsburg at 149 ("[R]everse engineering should not become a pretext for defeating access controls in order to acquire computer programs for free, or in order to make infringing copies of the program."). Even more fundamentally, "[the reverse engineering exemption] applies to computer programs as such, regardless of their medium of fixation and not to works generally such as music or audiovisual works, which may be fixed and distributed in digital form." S. Rep. No. 105-190, at 33. Further, "out of apparent concern that 'encryption research' could degenerate into a pretext for indiscriminate hacking of access controls, [§ 1201(g)] further attempts to restrict the class of persons qualified for the exemption by listing factors [for courts] to consider: whether the information derived from the research was disseminated in a manner 'reasonably calculated to advance the state of knowledge or development or encryption technology' or whether instead it 'facilitates infringement' [or, among others,] whether and when the results of the research are disclosed to the copyright owner." Ginsburg at 150 (discussing 17 U.S.C. § 1201(g)).
Any defense based upon Defendants' alleged "entitlement" under the First Amendment to traffic in decryption devices should be given short shrift by this Court. The DMCA is, itself, based upon constitutional imperatives, and Congress took into account any First Amendment considerations when it enacted the DMCA. See 17 U.S.C. §§ 1201(c)(4) and 1203(b)(1). "[T]he first amendment is not a license to trammel on legally recognized rights in intellectual property'. . . Since the Copyright Act is the congressional implementation of a constitutional directive . . . , copyright interests also must be guarded under the Constitution." Cable/Home Communication Corp. v. Network Prod., 902 F.2d 829, 849 (11th Cir. 1990) (citation omitted); see also United Video, Inc. v. F.C.C., 890 F.2d 1173, 1190-91 (D.C. Cir. 1989) ("The Constitution grants Congress the power to secure for limited times to authors the exclusive right to their works, and this power generally supersedes the first amendment rights of those who wish to use another's copyrighted work").
The First Amendment does not prohibit Congress from preventing Defendants' proliferation of DeCSS. Just as the federal and state governments may protect private property by criminalizing breaking and entering, or the sale of specialized tools for picking locks,12 Congress also can protect intellectual property stored on digital media by criminalizing the distribution of devices that provide the keys to the proverbial "DVD castle."
12 See generally 18 U.S.C. § 642 (prohibiting theft or embezzling tools and devices used for counterfeiting purposes); see also N.Y. Pen. Law § 140.35 (criminalizing possession of burglary tools); Conn. Gen. Stat. Ann. § 53a-106 (1999) (same); Or. Rev. Stat. § 164.235 (1998) (same).
13 Moreover, the emergence of mainstream DeCSS products outside of the hacker community will only ensure that such unauthorized access and copying is not confined to the fringe elements of the Internet.
14 Under well-established copyright jurisprudence, once a plaintiff establishes a prima facie case on the merits of a Copyright Act claim, courts generally presume irreparable harm flowing therefrom. See Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115 (9th Cir. 1999); Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119 (2d Cir. 1994).
15 Defendants' actions not only give rise to civil liability, but to serious potential criminal liability as well. See 17 U.S.C. § 1204 (providing that violations of § 1201 "willfully and for purposes of commercial advantage or private financial gain" are subject to fine and imprisonment.) The definition of "commercial advantage or private financial gain" in the Copyright Act was amended by the "Net Act" in 1997 to impose criminal liability where no commercial gain is sought or obtained by the offender. See 17 U.S.C. § 506(a)(2).
Plaintiffs' entitlement to injunctive relief is also established by showing sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of equities tipping decidedly in their favor. See Genesee Brewing Co., 124 F.3d at 142, Jim Doherty Assocs., 60 F.3d at 33. Plaintiffs have demonstrated the great hardship threatened by Defendants' conduct, including the enormous irreparable harm threatened by widespread distribution of DeCSS should an injunction be denied. Plaintiffs respectfully submit there is no harm resulting to Defendants from the imposition of an injunction prohibiting their provision of an unlawful circumvention device to the public.
This case presents a very basic but critical need for the application of recent key amendments to the Copyright Act that were necessitated by the demands of digital technological innovation. As discussed, the DMCA anti-circumvention provisions were enacted precisely to prevent the sort of conduct engaged in by Defendants. If Defendants' actions are permitted to go unchecked, the hardship to Plaintiffs will be grave and the balance of equities does not merely tip, but topples, in Plaintiffs' favor. Although Plaintiffs submit that they have more than amply demonstrated a probability of success on the merits, there certainly are sufficiently serious questions going to the merits of Plaintiffs' claims to justify the entry of immediate injunctive relief. Given the relative equities at stake, including the lack of any cognizable harm to Defendants from the imposition of an appropriate injunction, such relief is mandated.
For the foregoing reasons, Plaintiffs' application for a preliminary injunction should be granted in all respects.
Metro-Goldwyn-Mayer, Inc. MGM Grand, Inc.
1. I am an attorney associated with Proskauer Rose LLP, attorneys for plaintiffs Universal City Studios, Inc.; Paramount Pictures Corporation; Metro-Goldwyn-Mayer, Inc.; TriStar Pictures, Inc.; Columbia Pictures Industries, Inc.; Time Warner Entertainment Co., L.P.; Disney Enterprises, Inc.; and Twentieth Century Fox Film Corporation (collectively "Plaintiffs"), in the above-captioned matter. I submit this declaration in support of Plaintiffs' motion for a preliminary injunction. 1.
2. On January 7 through 12, 2000, either I or a legal assistant working under my direct supervision visited several web sites that contain copies of an unauthorized circumvention utility commonly referred to as "DeCSS," which, as described further in the Complaint, allows for motion pictures in DVD format to be illegally copied. As described in further detail below, attached to this declaration are printed copies of those and other web sites, as well as confirming evidence that defendants' and other sites have the DeCSS circumvention utility on their sites and are making it available for download.
3. We performed these searches as follows: every web site has an "address" so that other computers may locate it, otherwise known as the Uniform Resource Locator or URL. These addresses are composed of several parts: an initial clause (e.g., "http://") stating what sort of site it is; a "root URL," which is everything before the first single slash; any additional subdirectories, which precede additional slashes; and finally, the name of the actual page, followed by .htm or .html (if no page is typed in, most computers look for one called "index.htm"). Thus, in the URL "http://www.nysd.uscourts.gov/rules/Rules.htm," www.nysd.uscourts.gov is the root URL of the servers (the computers that actually host the site), /rules/ is a subdirectory on the server computers, and Rules.htm is the name of the actual page.
4. The most important parts of a web address are the two (or sometimes three) segments that end the root URL. These segments are known as the "domain name." The domain name in the example above is "uscourts.gov." An individual or company can purchase a domain name from one of several private domain name registries (or DNS registry, for "Domain Name System"), much like purchasing a post office box at the post office. The purchaser of a domain name then controls what or how content is placed at that web address. To register a domain name, the purchaser must supply a contact address and phone number. The registries, the best known of which is Network Solutions, Inc., maintain indexes of their registered domain names on the web, as well as the names and addresses of the owners of the domain name. To discover the owner of a particular domain name, we consulted these registries and searched for the domain name in their indices.
5. Typing a URL into a web browser such as Internet Explorer or Netscape causes the user's computer to request a copy of a web page from the server computer, which is downloaded to the user's hard drive. Netscape or Internet Explorer then displays the information that was downloaded. Another, faster way to move from one page to another is by use of "hypertext links", which are URLs embedded in a web page that, when clicked on with a mouse, act the same as typing in the URL into the browser manually.
6. Clicking on a link can not only download web pages; it can also download larger files containing programs such as DeCSS. Many of the pages we visited had such links to files containing DeCSS on the web sites' computers. When clicked on, these files were then downloaded to our computers. I saved each file to a separately named directory on my own computer, then printed out a copy of my computer screen showing the downloaded file in that directory.
7. On January 9, 2000, we visited the web site designated by the host URL www.dvd-copy.com. The index page of that site lists defendant Reimerdes as the site's author. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 1. We then visited the DNS registry information server located at www.networksolutions.com. The information retrieved from the DNS registry confirms that defendant Reimerdes is the owner of dvd-copy.com. A true and correct copy of the DNS registry report is annexed hereto as Exhibit 2.
8. On January 9, 2000, I revisited defendant Reimerdes's web site. By clicking on the hypertext link marked "DeCSS - DVD Decryption Module," I proceeded to download a copy of the file DeCSS.zip, which contains the unauthorized circumvention device, from the servers hosting defendant's web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 3 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from defendant Reimerdes's web site.
9. On January 8, 2000, we visited the web site designated by the host URL www.krackdown.com. The site contains a directory of files at www.krackdown.com/decss/. We downloaded this directory to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 4. We then visited the DNS registry information server located at www.networksolutions.com. The information retrieved from the DNS registry indicates that defendant Roman Kazan is listed as the technical contact for krackdown.com. The identity of the server computers is listed as "escape.com." Information retrieved from the DNS registry for escape.com lists the Kazan Corporation, administrative contact Roman Kazan, as the owner of escape.com. A true and correct copy of the DNS registry reports for krackdown.com and escape.com is annexed hereto as Exhibit 5.
10. On January 9, 2000, I revisited defendant Kazan's web site. By clicking on the hypertext link marked "DeCSS.zip" within the /decss directory, I proceeded to download a copy of the file DeCSS.zip from defendant's servers to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 6 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from defendant Kazan's web site.
11. On January 10, 2000, we visited the web site designated by the host URL www.2600.com, and other pages within the same directory. We downloaded these pages to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 7. We then visited the DNS registry information server located at www.networksolutions.com. The information retrieved from the DNS registry indicates that defendant Corley, a/k/a Emmanuel Goldstein, is the owner of the site. A true and correct copy of the DNS registry report is annexed hereto as Exhibit 8.
12. On January 10, 2000, I revisited defendant Corley's web site. By clicking on the hypertext link marked "DeCSS.zip" on the page 1112.html within the /news/1999/ subdirectory, I proceeded to download a copy of the file DeCSS.zip from the servers hosting defendant's web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 9 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from defendant Corley's web site.
13. On January 9, 2000, we visited the web site designated by the host URL dvd.zgp.org. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 10.
14. On January 10, 2000, we visited the web site designated by the host URL www.geocities.com/decss_forever/. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 11.
15. On January 12, 2000, I revisited the above web page, and by clicking on the link marked "decss121b.zip", I proceeded to download a copy of the file decss121b.zip, which contains the unauthorized circumvention device, from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 12 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
16. On January 12, 2000, we visited the web site designated by the host URL www.humpin.org/decss/. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 13.
17. On January 12, 2000, I revisited the above web page, and by clicking on the link marked "http://www.humpin.org/decss/DeCSS.zip", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 14 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
18. On January 10, 2000, we visited the web page designated by the URL www.wired.com/news/technology/0,1282,32249,00.html, which is an article from Wired Magazine. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 15.
19. On January 10, 2000, we visited the web page designated by the URL www.variety.com/article.asp?articleID=1117757707, which is an article from the newspaper Variety. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 16.
20. On January 10 and 11, 2000, we visited the web site designated by the host URL www.pzcommunications.com/decss/, and several pages within the same directory. We downloaded these pages to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 17.
21. On January 11, 2000, I revisited the web page at www.pzcommunications.com/ decss/main.htm. By clicking on the hypertext link marked "Browse forum Now!", I downloaded a page showing the directory for a discussion forum from the host URL ultimatedvd.community. everyone.net to my computer. I printed a paper copy of that directory. By clicking on the link marked "General Discussion" under the topic "DeCSS", I downloaded a page showing a subdirectory, and then I printed a copy of that page. By clicking on the link marked "DVD games?", I downloaded a forum message written by "Akuma539" and dated 1/4/2000 to my computer, and printed that message. A true and correct copy of these printouts is attached hereto as Exhibit 18.
22. On January 10, 2000, we visited the web site designated by the host URL home.rmci.net/bert/fuckthelawyers/. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 19.
23. On January 10, 2000, I revisited the above web page, and by clicking on the link marked "DeCSS.zip" I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 20 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
24. On January 11, 2000, we visited the web page designated by the URL www.azillionmonkeys.com/qed/recess_for_css.html. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 21.
25. On January 11, 2000, I revisited the above web page, and by clicking on the link marked "decss binaries for win32", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 22 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
26. On January 10, 2000, we visited the web page designated by the URL members.xoom.com/_XMCM/chapter3/MammaNo.htm. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 23.
27. On January 10, 2000, I revisited the above web page, and by clicking on the link marked "DeCSS.zip", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 24 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
28. On January 8, 2000, we visited the web page designated by the URL home.att.net/~phreakonaleash/css_mirror--screw_the_feds/. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 25.
29. On January 11, 2000, I revisited the above web page, and by clicking on the link marked "DeCSS.zip", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 26 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
30. On January 8, 2000, we visited the web page designated by the URL www.geocities.com/corporatemindcontrol/. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout, apart from the proprietary CSS authorization source code which has been redacted, is annexed hereto as Exhibit 27.
31. On January 11, 2000, I revisited the above web page, and by clicking on the link marked "download the windows binary", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 28 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
32. On January 10, 2000, we visited the web page designated by the URL www.devzero.org/freecss.html. We downloaded this page to our computers and printed a paper copy. A true and correct copy of that printout is annexed hereto as Exhibit 29.
33. On January 10, 2000, I revisited the above web page, and by clicking on the link marked "available here", I proceeded to download a copy of the file DeCSS.zip from the servers hosting the web site to my computer. I saved this file to my computer's hard drive. Attached as Exhibit 30 is a true and correct copy of the directory listing of my hard drive, showing the file downloaded from the web site.
I make this declaration based upon my own personal knowledge and my familiarity with the matters recited herein and could and would testify under oath to same, should I be called as a witness before the Court.
1. I am a Senior Vice President for Government Relations and Washington General Counsel of the Motion Picture Association of America ("MPAA"), a not-for-profit trade association, incorporated in New York, representing the motion picture companies that are plaintiffs in this action. The MPAA, among other functions, combats motion picture piracy, an illegal underground industry that steals billions of dollars annually from the creative talents, tradespeople, producers, and copyright owners in the motion picture industry. The MPAA runs a comprehensive anti-piracy program that includes investigative, educational, legislative, and technical efforts in the United States and over 70 other countries. I was personally involved in the process that led to the passage of the Digital Millennium Copyright Act ("DMCA") and in the negotiations that let to the adoption of the Contents Scramble System ("CSS") as an industry-wide standard.
2. Each of the plaintiffs is in the business of producing and/or distributing copyrighted motion pictures which are typically first released for theatrical exhibition and subsequently (and sometimes directly) released to consumers in "home video" formats, such as videotape, laserdisc and, most recently, digital versatile disc ("DVD"). DVDs are also used to distribute video games and other software.
3. DVDs, five-inch-wide discs that hold full-length motion pictures, represent the latest technology for private home viewing of recorded motion pictures. This technology drastically improves the clarity and overall quality of a motion picture shown on a television or computer screen, and allows the inclusion of ancillary features such as multiple language tracks.
DVDs contain motion pictures in digital form. This digital format presents an enhanced risk of unauthorized reproduction and distribution because, unlike with analog formats such as VHS and laserdisc, when material is copied digitally from a DVD the quality of the copy does not degrade from generation to generation. Also, it is a relatively simple matter to transmit digital content over the Internet, which could allow pirate copies of DVDs to proliferate exponentially and thwart efforts to detect or prevent such transmissions.
4. Concerned about this enhanced risk, motion picture companies, including the plaintiffs, insisted upon the development of an access control and copy prevention system to inhibit the unauthorized reproduction and distribution of motion pictures released before they released films in the DVD format. Matsushita Electric Industrial Co. Ltd. and Toshiba Corporation developed the CSS standard for copy protection which was ultimately adopted both by content providers (including the motion picture, video game, and computer software industries) and manufacturers of consumer electronics. CSS has been licensed to hundreds of DVD player manufacturers (both hardware and software) and DVD content distributors in the United States and around the world.
5. CSS is an encryption-based, security and authentication system that requires the use of appropriately--configured hardware (for example, a DVD player or computer DVD drive) to decrypt, unscramble and play back copies of motion pictures on DVDs. Under the terms of the CSS license, such players may not enable the user to make a digital copy of a DVD movie.
6. DVD movies were first introduced in the United States in 1996. Over four thousand motion pictures have been released in the DVD format in the United States and movies are being issued in this format at the rate of over forty new titles per month, in addition to re-releases of classic films. This new format is rapidly being adopted by the American public; over five million DVD players have been sold and DVD disc sales now exceed one million units per week.
7. I am informed that, on or about October 25, 1999, an individual or group of individuals, believed to be in Europe, managed to "hack" the DVD encryption system and began offering, via the Internet, a software utility called "DeCSS" that enables users to effectively "break" the CSS copy protection system and thereby make and distribute digital copies and distribution of DVD movies.
8. Almost immediately upon the appearance of the DeCSS hack on the Internet, the MPAA acted under the provisions of the recently enacted Digital Millennium Copyright Act ("DMCA"). The MPAA demanded that Internet access providers remove DeCSS from their servers and, at least where the identities of the individuals responsible were known, that those individuals stop posting DeCSS. These efforts succeeded in removing a considerable share of the known postings of DeCSS.
9. On December 29, 1999, the licensor of the CSS technology (DVD CCA) commenced a state court action in Santa Clara, California for the mis-appropriation of its trade secrets as embodied in the DeCSS software. When, on that same date, the court (without stating reasons) declined to issue a temporary restraining order, members of the hacker community took this as a vindication of their actions. Displaying an "in your face" attitude, hackers taunted CCA and the MPAA by stepping up their efforts to distribute DeCSS to the widest possible worldwide audience. I am informed that one enterprising individual even announced a contest with prizes (copies of DVDs) for the greatest number of copies distributed, for the most elegant distribution method, and for the "lowest tech" method.
10. As explained in the accompanying memorandum of law, DeCSS is an illegal circumvention device within the meaning of the DMCA. I also understand that various participants in the scheme to proliferate DeCSS have admitted as much.
11. DeCSS is a software utility that allows a non-CSS-compliant DVD device (for example, a computer with a DVD drive) to play, store, copy, or transmit digital copies of films or other protected DVD content. In essence, DeCSS breaks the CSS encryption. In contrast, a CSS-compliant DVD player (under the terms of the CSS license) can only allow a DVD to be played, but cannot enable the making or transmission of digital copies of the contents.
12. Plaintiffs, along with hundreds of companies in the consumer electronics and computer industries, have made substantial investments in the DVD format. Consumers have invested great sums to purchase DVD equipment and software. All of these parties would suffer if plaintiffs were to abandon DVD in favor of another format. The consequent injury to plaintiffs' businesses and goodwill would be immense.
13. Plaintiffs' potential loss from unauthorized copying of digital content is incalculable. The MPAA estimates annual lost revenues from analog content piracy in the billions of dollars. Losses from the unauthorized copying and distribution of DVDs could well be higher.
14. Plaintiffs rely upon sales of DVDs and other home media to finance increasingly expensive film productions. In most cases, revenues derived from theater ticket sales are not sufficient for a movie studio to recoup the costs of production. Thus, DVD piracy undercuts the ability of studios to finance productions. Any decline in the level of production would hurt not only the Plaintiffs but also those who work in the motion picture industry, and would narrow the range of films available to the public.
15. To my knowledge, DeCSS remains (for the moment) a "hacker phenomenon." One of our principal concerns is that, in the absence of a judicial finding that DeCSS is illegal, its use will become more widespread. Unless the distribution of DeCSS is enjoined, the MPAA's ability to have DeCSS (and similar hacking tools) removed from websites and from Internet Service Provider servers would be severely constrained. There is even the risk that DeCSS would be commercialized and offered to the general public, either in the form of retail software or as part of a DVD player that allows users to copy DVDs, or to transmit digital copies of films over the Internet to their friends and relations. Such a development would threaten the viability of the DVD format and the worldwide investment in that format by the plaintiffs, by hundreds of other companies, and by consumers.
1. I am the Executive Vice President Business and Legal Affairs of Universal Music Group ("Universal") which owns or controls copyrights in thousands of different popular sound recordings. I make this declaration in support of the relief requested by the Plaintiffs with respect to proliferation of the DeCSS "hack."
2. Our industry reached an accord in or about 1999 to adopt a version of the Contents Scramble System ("CSS") as security for the Digital Versatile Disc - Audio ("DVD-Audio") format.
3. As a result of the recent DeCSS "hack" our company has deferred releasing sound recordings on the DVD Audio format.
IT IS FURTHER ORDERED that service of a copy of this Order to Show Cause, the annexed complaint, and all of the papers filed in support of Plaintiffs' application for a preliminary injunction shall be sufficient if served on each Defendant on or before January 14, 2000, by hand, by 5 pm, if possible, or, if not possible, by leaving a copy of those papers at the address listed for each Defendant in the registration for that Defendant's website alleged in the annexed Complaint (the "Registrations"), by sending an electronic copy of those papers to the e-mail address listed as that of a Defendant in the Registrations, and by contacting each of the Defendants at the telephone number listed as that of a Defendant in the Registrations.


Sanger Ins. Co. v. Hub Int'l Texas, Inc.
Sanger Ins. Co.v.Hub Int'l Texas, Inc.
SANGER INSURANCE COMPANY, Plaintiff, v. HUB INTERNATIONAL TEXAS, INC., ET AL., Defendants.
Now before the court is the motion to remand filed by plaintiff, Sanger Insurance Agency, Inc., the response filed by defendant HUB International, Ltd., and plaintiff's reply. Having reviewed the parties' filings, the court concludes (1) that it has subject matter jurisdiction based on the diversity of citizenship between plaintiff and defendant HUB International, Ltd. ("HUB International"), the only properly joined defendant; (2) that the state of citizenship of defendants HUB International Texas, Inc. ("HUB Texas"), and Wm. Rigg Co. d/b/a HUB International Rigg, Inc. ("HUB Rigg"), should be disregarded because they have not been properly joined as defendants; (3) that the motion to remand should be denied; and (4) that the claims against the improperly joined defendants should be dismissed.
On March 1, 2012, plaintiff filed this action in the 271st District Court of Tarrant County, Texas, against HUB International, HUB Texas, HUB Rigg, and American Veterinary Medical Association ("AVMA"). HUB International removed the action to this court by notice of removal filed on April 4, 2012. AVMA, HUB Texas, and HUB Rigg all consented to the notice of removal. On April 23, 2012, plaintiff filed a stipulation of dismissal without prejudice as to AVMA. The court dismissed AVMA from the action in an order and final judgment signed on April 27, 2012.
Plaintiff alleged in its state court petition that the HUB Defendants possess a monopoly on liability insurance offered to large animal and equestrian veterinarians in Texas through four major insurance companies, and that none of these insurance companies will allow other agencies to market such insurance without permission from the HUB Defendants. Plaintiff additionally alleged that the HUB Defendants have entered into agreements with those insurance companies to restrain trade and exercise monopoly to exclude others, including plaintiff, from the market, in violation of Texas law. Plaintiff asserted claims for interference with prospective business relations, and for violations of section 15.05 of the Texas Business and Commercial Code and sections 541.003 and 541.054 of the Texas Insurance Code. As relief, plaintiff sought unspecified actual damages, statutory treble damages, attorney fees, attorney's fees, and injunctive relief.
For convenience, HUB International, HUB Texas, and HUB Rigg are sometimes referred to as the "HUB Defendants."
HUB International removed the case based on diversity jurisdiction. See 28 U.S.C. § 1332; § 1441(a). At first glance, there does not appear to be complete diversity of citizenship among the parties. Plaintiff, a Texas corporation with its principal place of business in Sanger, Texas, is a citizen of Texas. HUB International is a citizen of Delaware and Illinois and AVMA is a citizen of Illinois. The other two defendants, HUB Texas and HUB Rigg, are citizens of Texas. The notice of removal stated, however, that these two Texas corporations were improperly joined, and that, accordingly, their state of citizenship should be disregarded for purposes of determining subject matter jurisdiction. The notice of removal further asserted that the court has subject matter jurisdiction because of complete diversity of citizenship between plaintiff and the remaining diverse defendants and an amount in controversy-exceeding the sum or value of $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332(a). On May 4, 2012, plaintiff filed a motion to remand this action to state court. HUB International filed a response, and plaintiff replied.
In order to prove that a non-diverse defendant was improperly joined, the removing party must show either that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts or that there is no possibility that the plaintiff would be able to recover against the non-diverse defendant in state court. See Smallwood v. I11. Cent. R. R. Co., 385 F. 3d 568, 573 (5th Cir. 2004).
The scope of the inquiry for improper joinder is broader than a simple Rule 12(b)(6) analysis "because the court may 'pierce the pleadings' and consider summary judgment-type evidence to determine whether the plaintiff has a basis in fact for the claim." Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). Where a plaintiff has stated a claim under a 12(b)(6) analysis, but has "misstated or omitted discrete facts that would determine the propriety of joinder," the court may "pierce the pleadings and conduct a summary inquiry ... to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant." Smallwood. 385 F.3d at 573-74.
2. "HUB Texas does not sell or offer, and has never sold or offered, insurance products to large animal and equine veterinarians in connection with any program run, administered or offered by the American Veterinary Medical Association ("AVMA") or the American Veterinary Medical Association Professional Liability Insurance Trust ("AVMA PLIT").
3. "HUB Texas does not participate in or offer insurance products through the AVMA PLIT program. . . .
4. "HUB Texas does not have any contractual agreement or other relationship with the AVMA or the AVMA PLIT.
5. "HUB Texas does not have any contractual agreement with HUB Midwest as it relates to large animal and equine veterinarian insurance products.
6. "HUB Texas does not solicit or market large animal and equine veterinarian insurance products.
7. "HUB Texas has not entered into any agreement with any insurer, including, but not limited to Hartford, Zurich, CNA or Travelers, relating to insurance offered or sold to large animal or equine veterinarians.
8. "Products offered to large animal or equine veterinarians through the AVMA PLIT program are offered solely through HUB International Midwest Ltd. They are not offered through HUB Texas."
Id. Plaintiff has offered no controverting evidence that would convince the court plaintiff has even a theoretical possibility of recovering upon its claims against HUB Texas and HUB Rigg, for interference with prospective business relations or for violations of the Texas Business and Commercial Code or the Texas Insurance Code.
In short, HUB International has met its burden to show that plaintiff cannot recover upon any of its alleged causes of action against HUB Texas or HUB Rigg. Smallwood, 385 F.3d at 573. Consequently, the court is denying plaintiff's motion to remand and is dismissing the claims alleged against HUB Texas and HUB Rigg.
The court ORDERS that plaintiff's motion to remand be, and is hereby, denied.
The court further ORDERS that all claims and causes of action asserted by plaintiff against HUB Texas and HUB Rigg be, and are hereby, dismissed with prejudice.


text:
Stability and control of hybrid and switched systems.
Plenary section sessions will be organized during the conference. The duration of a talk at the plenary session is 45 minutes, the duration of a talk at the section session is 20 minutes.
The papers included into the Program of the conference are supposed to be presented at the conference. The non-presented papers will not be included into the proceedings of the conference.
By the end of eighties it has occured to Eugeniy S. Pyatnitskiy to gather scientists of all leading schools specialized on the theory of stability. E.S. Pyatnitskiy proposed to organize a forum where scientists could present their new results, exchange ideas, discuss the future directions of the development of the theory of stability. It’s then that the Workshop ‘Stability and Oscillation of Nonlinear Control Systems’ was born. Now scientists who take part in the Workshop regularly call it just ‘the Pyatnitskiy conference’.
E.S. Pyatnitskiy was the Organizing Committee chairman of the Workshop till his very last day, he was its ideological locomotive. He was glad to share his indefatigable energy with the participants of the Workshop, created a friendly climate of cooperation.
Since 2004 the Workshop ‘Stability and Oscillations of Nonlinear Control Systems’ is named after E.S. Pyatnitskiy.
The E.S. Pyatnitskiy X International Workshop ‘Stability and Oscillation of Nonlinear Control Systems’ is held in Moscow, in the Institute of Control Sciences of RAS.
The first Workshop was held in 1987 in Tallinn. The most important topics discussed during this Workshop was the theory of stability and the theory of oscillations.
The scientific world celebrated in 1992 the 100th anniversary of the A.M. Lyapunov’s fundamental work, his thesis titled ‘The General Problem of Motion Stabilty’. The second Workshop, which was held in Moscow, in the Institute of Control Sciences, was devoted to that date. The scientific program of that Workshop included plenary lectures, sectional presentations and a round-table discussion. Academician Valentin V. Rumyantsev presented the plenary lecture concerning Alexander M. Lyapunov and his ideas in the theory of stability. The following sections were organized : Stability and Stabilizaton of Control Systems; Oscillations in Control Systems, Optimal Control and Game Theory Problems. The round-table discussion was devoted to the future trends of the theory of stability and control theory.
Since 1992 the Workshop became biannual.
In 1994 the Workshop was held in Samara with the assistance of the Samara state university. The plenary lectures were presented by Alexander B. Kurzhanskiy (On Two Approaches to Control Problems Under Uncertainties), Alexander A. Krasovskiy (Synthesis of Auto-oscillation Systems and its Application for a New Type Wind Power Plant), Vladimir M. Matrosov (Analysis of Dynamical Characteristics of Complex Nonlinear Systems).
Since 1996 the Workshop is held in the Institute of Control Sciences of RAS. In 1996 the following scientists presented plenary lectures: Alexander B. Kurzhanskiy (On the Collision Method in the Synthesis of Nonlinear Control Systems), Felix L. Chernousko (Approximation of Attainability Sets for Linear Systems with Uncertain Matrices), Eugeniy S. Pyatnitskiy (Control of Black Box of Mechanical Nature), Valentin V. Rumyantsev (Comparison of Three Methods of Lyapunov Function Construction), Alexander A. Krasovskiy (Some Actual Problems of the Current Control Theory), Vladimir M. Matrosov (Methods of Dynamical Analysis of Control Systems).
Among the plenary lecturers for the Workshop in 1998 there were: Alexander A. Krasovskiy (Hstorical Outline of Development and a Modern Approach to the Problem of Self-organizing Optimal Regulator), Lyubomir T. Gruyitch (Consistent Lyapunov Methodology: Global Exponential Stability of Sets), Alexander B. Kurzhanskiy (On the Attainability Problem in the Control Theory), Iveri V. Prangishvili (General-system Unpartial Laws of the Functioning of Different Nature Complex Systems and Problems of Control Organization), Semyon M. Meerkov (Feedback Control of Congestion in Data Network: Oscillation Suppression by a Rate Based Algorithm), Vladimir M. Matrosov (Nonlinear Analysis of Logic-dynamical Systems with Variable Structure), Youriy I. Neymark (Dynamic Model as a Basic of Modern Natural Science), Eugeniy S. Pyatnitskiy (Conception of Motion Control in Biomechanics).
In the Workshop of 2000 Eugeniy S. Pyatnitskiy presented the lecture ‘Theoretical Basis of Biomechanics’. Plenary sessions lasted two working days and included also the following lectures: Valentin V. Rumyantsev (On the Forms of the Hamilton Principle for Nonholonomic Systems), Felix L. Chernousko (Controllable Motions of Multi-link Systems on Plane), Vladimir M. Matrosov (Development of the Theory of Stability in the Academy of Sciences during the XXth Century), Alexander A. Krasovskiy (Synthesis of the Attractors for Polynomial Dynamic Systems of the Fifth Order. Applications to Fundamental Theoretical and Applied Problems), Alexey V. Pokrovskiy and J. McInerney (Rotation Theory and Chaotic Dynamics), C. Gokcek, P.T. Kabamba and S.M. Meerkov (Practical Control Theory).
Eugeniy S. Pyatnitskiy organized the last his Workshop in 2002. The plenary lectures were given by Alexander B. Kurzhanskiy (Dynamic Programming Method in Non-typical Control Problems), Victor F. Zhuravlev (Invariant Normalization of Perturbations in Hamiltonian Systems), Anatoliy D. Myshkis (Early Stages of the Modern Theory of Functional-Differential Equations: Personal Reminiscences), Vladimir M. Matrosov (Nonlinear Control Theory for Large-Scale System), Alexander A. Krasovskiy (Synthesis of Polynomial Auto-oscillating Systems of the Fifth to Seventh Order).
The Workshop of 2004 was held in commemoration of Eugeniy S. Pyatnitskiy. The colleagues of Pyatnitskiy (I.N. Barabanov, V.F. Krotov, V.I. Matyukhin, L.B. Rapoport, and V.N. Tkhai) prepared the plenary presentation "Correspondent Member of the Russian Academy of Sciences Evgeniy S. Pyatnitskiy". Other plenary lectures were presented by V.S. Kozyakin and N.A. Kuznetsov (Stability of Linear Mistiming Systems), L.T. Gruyitch (Time, System and Control), S. Boyd (Linear Matrix Inequalities and Semidefinite Programming), P.H. Bauer (Stability Theory in Communication Networks: New Problems and a New Application), Yu.N. Pavlovskiy (On Decomposition of Mathematical Models), S.N. Vassilyev (Towards the Reduction Theory), and M. Pascal and S.Ya. Stepanov (An Analytical Investigation of the Periodic Motions of Two Degree of Freedom Oscillator with Elastic Obstacles). The participants decided to name the biannual Workshop ‘Stability and Oscillations of Nonlinear Control Systems’ after Eugeniy S. Pyatnitskiy. The proceedings of this Workshop were published as electronic publication.
The Workshop of 2006 was dedicated to the 70th anniversary of Eugeniy S. Pyatnitskiy. The presentation of the Pyatnitskiy's concept of theoretical biomechanics was made by Professors A.A. Frolov and E.V. Biryukova from the Institute of Higher Nervous Activity and Neurophysiology of Russian Academy of Sciences. Plenary lectures were also presented by F.L. Chernousko (Control of Motion of a Mechanical System by Means of Internal Mass Displacement), A.B. Kurzhanskiy (Dynamic and Control Problems for Hybrid Systems), V.F. Zhuravlev (Control of Isotropic Oscillator Functioning as Inertial Sensor), L.B. Rapoport (Control of Wheeled Robots Using GNSS Navigation Methods), A.S. Andreev and V.V. Rumiantsev (On Stabilization of Controlled Mechanical Systems Motions), S.N. Vassilyev (Development of the Comparison Method in the Qualitative Theory of Dynamical Systems), G. Reiszig (Convexity Criteria and their Application), and G.A. Leonov (The Colonius-Hinrichsen-Wirt Problem in Theory of Linear Control Systems). Selected papers presented in the Workshop were published in the special issue of the journal ‘Automation and Remote Control’ (2007, Nos. 8 and 9).
All the Workshops held in the Institute of Control Sciences got the support of the Director of the Institute Iveri V. Prangishvili.
Scientific programs of the Workshops since 1994 may be found on the site of the Institute of Control Sciences, in the archive of conferences section.
The Conference of 2008 was dedicated to the memory of academician Valentin V. Rumyantsev, who took part in the Programme Committee of the Conference since the very first Conference in Tallinn and usually presented plenary lectures concerning the state-of-the-art in the theory of stability.
The scope of problems discussed in the workshop is constantly widening. It is including the most interesting and the most challenging questions. So, in the middle of nineties, the usual topics of the Workshop, such as theory of motion stability, theory of oscillations, controllability and stabilization problems, have been enriched by the robust stability, control of mechanical systems, hybrid system control, decomposition in control problems. In the recent years a lot of attention is attracted by the questions of control in engineering systems, as well as that of numerical modeling of control systems.

matches: V. V. V. V. V. V. V.


In Virginia, it is unlawful for any person to drive or operate a motor vehicle while such person is under the influence of marijuana to a degree which impairs his ability to drive or operate the motor vehicle safely. Va. Code Ann. § 18.2-266 (West 2010).
Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway in the Commonwealth shall be deemed thereby as a condition of such operation to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the presence of controlled substance. Id. § 18.2-268.2(A).
If accused does not wish to submit to chemical testing, no test(s) shall be given. However, such refusal will be in violation of implied consent statutes and subject to penalties. Id. § 18.2-268.3(A).
Offender's first refusal to submit to testing is a civil offense and subsequent violations are criminal offenses. Id. § 18.2-268.3(C).
First refusal the court shall suspend the defendant's privilege to drive for a period of one year. Id.
Second refusal (w/i 10 years) refusal is a Class 2 misdemeanor -the court shall suspend the offender's privilege to drive for a period of three years. Id.
Third refusal (w/i 10 years) Class 1 misdemeanor - the court shall suspend the offender's privilege to drive for a period of three years. Id.
A person charged with DUI has no constitutionally guaranteed right to speak with an attorney before submitting to testing. In some cases accused may attempt to contact an attorney, but unreasonable delays, failure to reach attorney or anything else which would frustrate or nullify the intent of the Implied Consent statute will not shield accused from penalties for refusal if accused does not submit to testing -- notwithstanding lack of counsel. Coleman v. Com., 187 S.E.2d 172(1972); Deaner v. Com., 170 S.E.2d 199, 204(1969); Law v. City of Danville, 187 S.E.2d 197(1972).
Accused does not have a right to choose which test (breath/blood/urine) is to be administered. Virginia Implied Consent statute calls for breath test, but if a breath test is unavailable or an officer suspects impairment by drugs, a blood test may be given. Lamay v. Com.,513 S.E.2d 411(1999).
First offense class one misdemeanor – mandatory fine of $250; offender is denied the right to drive for one year; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. Va. Code Ann. § 18.2-270(A) (West 2010); Va. Code Ann. § 18.2-271(A) (West 2010).
Fourth and subsequent (w/i 10 years) felony - mandatory minimum term of imprisonment of one year; mandatory minimum fine of $ 1,000; license suspension of up to three years; offender's vehicle is subject to seizure by state; offender's license is suspended indefinitely; as a condition of restoration of driving privileges the court may order the installation of an ignition interlock device on any vehicle driven by offender. 18.2-270(C)(2),(3); 18.2-271(C); 18.2-270.1(B).
Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, punishment may not exceed maximum punishment allowed by statute. 18.2-270(F).
In Virginia, sobriety checkpoints are upheld under state and federal Constitution.
Legally executed driving maneuvers which reverse a driver's course and take driver away from a checkpoint do not justify an investigatory stop, Bass v. Commonwealth, 525 S.E.2d 921 (2000); Murphy v. Commonwealth, 384 S.E. 2d 125 (1989).
However, certain conspicuous avoidance maneuvers which do not fit with the flow of traffic may justify an investigatory stop, Commonwealth v. Eaves, 408 S.E. 2d 925 (1991); Stroud v. Commonwealth, 370 S.E. 2d 721 (1988); Brown v. Commonwealth, 440 S.E, 2d 619 (1994).
Coffey v. Com., 116 S.E.2d 257 (1960) -- To convict for DUI, prosecution must do more than engender only a suspicion probability of guilt - prosecution may not even leave a hypothesis of innocence.
Oliver v. Com., 577 S.E.2d 514 (2003) -- Test results from a breath or blood test are not necessary or required to prove driving under the influence of alcohol or drugs; test results are additional proof that can corroborate evidence of the objective symptoms of impairment.
Ngomondjami v. Com., 54 Va.App. 310, 317, 678 S.E.2d 281, 284 (Va.App.,2009) --"'Operating" a car not only includes the process of moving the vehicle from one place to another, but also includes "starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion. It means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.'"
Virginia's law took effect in July 2005.


The Rules are set by The Institute, the founder and organizer of the competition. If you have any questions please teodora.calin [at] institute.ro.
Art.1. Internetics awards the best online strategies and communication ideas that developed into online websites, tools or campaigns. Internetics is the first branding, marketing and online advertising competition in Romania. The festival reaches this year its 18th edition.
Art.2. Internetics can receive entries into 3 main categories: Digital Platforms, Digital Strategies & Interactive Campaigns.
Art.3. Any Romanian company or agency that created the work / the campaign can enter the competition. The works can be submitted by companies or online agencies, full-service agencies, PR agencies, media agencies and others, with the approval of all parties or by the clients themselves, who developed and implemented the creative ideas with online in-house departments. To present an accurate image of the online advertising market, agencies must submit works for which they are responsible for the main creative idea, not only for the implementantion process, with credits to all the other involved agencies or entities.
Art.4. The organizers do not request documents proving the approval of all the involved entitites in the entry form; still, participants must inform and take consent from all involved parties and take full responsibility of the submitted entries. The participants should credit all companies and agencies involved in the submitted works.
Art.5. Entries must be created by Romanian and Romania registered companies, agencies or NGOs and for the Romanian market.
Art.6. Participants can enter works in all categories and in one or more sections, depending on the category. Participants can submit a work in more than one section (only if it fits), in all sections & sub-categories, except for SITES in Digital Platforms (where you must choose between "Website” and „Microsite” – the same web platform cannot be entered in both sections), COMMUNITIES in Digital Strategies (where you must choose between „Brand Associated Communities” and „Brand Built Communities”, depending on your type of community) and Interactive Campaigns (participants must choose one sub-category between DIGITAL COMPONENT OF AN INTEGRATED CAMPAIGN or FULL DIGITAL CAMPAIGN and then one section). In Interactive Campaigns, the chosen section must represents the brand and its main activity, not the specifics of the campaign (e.g: a campaign for a beer brand must be submitted in the „FMCG – Drinks” section, no matter the subject of the campaign). For campaigns developed as a collaboration between two brands from different areas, the participant can choose the sub-category that best fits its entry, from the two main activities of the involved brands. The form must be filled in separately and the content must be adapted according to each section, to best explain the work and its presence in the specific section.
Art. 7. An entry can be submitted in 5 sections at maximum (an entry meaning a campaign or different components of the same campaign).
Art.8. The organizers can decline an entry is it isn’t considered eligible, after discussing the reasons with the participant.
Art.9. Each entry is paid for separately.
Art.10. To enter the Internetics competition, your work must have run between 17th of October 2017 and 22nd of October. You can enter a work introduced on the market earlier or that ends after the mentioned period, but having a minimum of two thirds within the eligible period and showing results for the same eligible period. For websites and digital platforms no longer active, the participants must show to the judges, in the entry form, the online version, in the form in which it ran in the eligible period (17th of October 2017 – 22nd of October). Keep in mind that a winning entry is an entry that can provide results, so please read all the criteria before entering, to be sure you have all the information needed for the judging stage.
Art.11. Organizers will not accept entries that contain illegal, abusive, obscene or threatening content or sexually / racially abusive content.
Art.12. Organizers will not accept entries that are not created in Romania, by Romanian companies and adapted versions of international campaigns. The participant can enter a campaign part of an international strategy, showing the local component, with original strategy, idea and implementantion.
Art.13. Organizers will not accept entries that are not fully functional (e.g.: websites or applications with pages / sections under construction or malfunctioning).
Art.14. Organizers will not accept entries if the participant did not pay the entry fee until October 23rd October 30th, 6 p.m.
c) to use the "Participant" / "Nominee" / "Winner" title in order to promote themselves.
f) not to mention the entrant name on the entry materials (exceptions: if the name is a signature on the website and cannot be removed or the entry is a self-promo material).
g) in addition to the entry form for each submitted work, the participant will be required to send a presentation movie for the Internetics Awarding Gala 2018 using a transfer website (e.g.: wetransfer.com), no later than November 12th (1 minute long, only mov format is accepted). The Participants take full responsibility for all copyright issues. The movie will be used for the Awarding Gala & online, on the Internetics website, Facebook and YouTube page, in order to promote the winners.
Organizers can refuse an entry, should any of the above not be respected.
b) a work that has been copied and the organizer has evidence to support this.
Art.18. Participants can enter the competition by filling in an entry form on this website after creating an account, between October 1st and October 22nd October 29th, 6 p.m.
Art.19. Organizers will thoroughly check all entry forms within 2 days after the closing date for the entries and will send them back to the participants to be corrected, should the entry have any problems or missing data.
Art.20. For an entry to be validated, participants must pay the entry fee by October 23rd October 30th, 6 p.m.. The payment is made via bank transfer (one payment for all submitted works). The Organizer will contact the Participant for all details regarding the payment.
Art. 21. Each section of the competition has a different set of criteria for the judging phase, with different weighting factors. The criteria are as follows: Concept and Strategy, Brand Ownability, Usability & User Experience, Social Media Concept and Strategy, Interactivity, Efficiency, Content, Design and Execution. See the Criteria page on the website before submmiting your case. For the online judging phase, each criteria will get a grade from the judges and the final grade will consist on a weighted average for each work.
Art.22. Entries materials and descriptions will remain property of the organizers.
Art.23. Organizers reserve the right to use participants' names, entry names, public case-studies or other public materials in order to promote the competition. The movies galas will be used after the gala for the Internetics Facebook & YouTube accounts, in order to promote the winning works.
Art.24. Organizers take no responsibility for the entries, should these contain any copyright infringing materials. Participants take full responsibility for all the materials, including the gala movie (sent to the organizers separately from the rest of the entry).
Art.25. The deadline for entering your works is October 22th 2018 October 29th, 6 p.m. and for the payment October 23rd October 30th, 6 p.m.. Organizers can extend the entry & payment deadline.
Art.26. Participants must call / write the organizers if they receive no payment forms or entry confirmation.
Art.27. The entry fee is 250 euro, plus VAT for the Digital Platforms category, 300 euro, plus VAT for the Digital Stategies category and 350 euro, plus VAT for the Interactive Campaigns category. The "Social campaigns, political and awareness messages" sections in both sub-categories in Interactive Campaigns can be entered for free, if the brand/client is an NGO or civic initiative. The payment is made via bank transfer; all the details for the payment will be send by the oganizers after the entrant submits all cases.
Art.28. Participants must pay a different fee for every entry, but all entries should be paid with a single payment / invoice.
Art.29. The jury is made up of the best online marketing professionals.
Art.30. Judging is made online and offline in October – November 2018 in 3 judging groups, one for each main category: a special jury for the Digital Platforms category, one for Digital Strategies and one for Interactive Campaigns. They will choose the nominess, the Silver and Golds in each category and the Grand Prix in Interactive Campaigns and also the special distinctions of the competition: Best Use of Technology and others (if decided so).
Art.31. The jury can move an entry in a different category or they can remove an entry if it does not respect the entry rules. There will be no refunds for disqualified entries or withdrawals after the closing date.
Art. 32. The Jury will choose the winners and nominees for all the categories and sections. The trophies are as follows: for each section in the Digital Platforms, Digital Strategies and Interactive Campaigns there will be a Gold and a Silver; in the Interactive Campaigns category, for each sub-category: Digital component of an integrated campaign and Full Digital Campaign, there will be a Grand Prix (1 Grand Prix for the DIGITAL COMPONENT OF AN INTEGRATED CAMPAIGN sub-category and 1 Grand Prix for the FULL DIGITAL CAMPAIGN sub-category, chosen from the Gold Winners in the sub-categories sections).
The Digital Platforms category has the following sections: Websites and Microsites (in the SITES sub-category), Viral Video, Viral Non-Video, Social Media Pages, Social Media Special Mechanics and Online PR Special Projects (in the SOCIAL MEDIA sub-category), Mobile Apps and Mobile Campaigns (in MOBILE sub-category), Best Website Design, Best Website Content and Best App Design (in the DIGITAL CRAFT sub-category).
The Digital Strategies category has the following sections: Brand Associated Communites and Brand Built Communities (in the COMMUNITIES sub-category), ONLINE BRANDED CONTENT, DIGITAL BRAND EXPERIENCE and GAMIFICATION (considered as sections in the big category).
The Interactive Campains category has the following sections for each of the 2 sub-categories (DIGITAL COMPONENT OF AN INTEGRATED CAMPAIGN and FULL DIGITAL CAMPAIGN): FMCG – Food, FMCG – Drinks, FMCG – Non food, Services, Retail, Durables, Art, Culture, Media and Entertainment, Social campaigns, political and awareness messages and Others.
Art. 33. The Jury can choose not to award any trophy in certain sections / categories or to award more than one trophy per section/category.
The Grand Prix trophy will be awarded in each sub-category of the Interactive Campaigns category only if at least one Gold was awarded in the sub-category. The jury can decide not to award a Grand Prix if no Gold is considered best of the sub-category.
The agency with the most points gathered in the competition receives the Agency of the Year title, the client with the most points gathered in the competition receives the Digital Client of the Year title.
- the agency with the highest number of highest ranking trophies (Gold or Silver - if no Gold is awarded) is the winner.
Points go to the entity that submitted and paid for the entry and not to other credited agencies from the competition.
e.g.: if an agency wins with a work, it will receive the assigned points for that award. If the same agency is credited by another participant as second agency and this participant also wins, the credited agency will not receive extra points, only the participant who submitted the work.
The same system apllies for the Digital Client of the Year in case of a tie.
All nominees and winners will be announced during the Internetics Awarding Gala 2018. No lists will be made public before the gala.
- The distinction doesn’t get points and doesn’t count for the Agency of the Year / Digital Client of the Year title.
- The Jury/organizers can choose not to offer the distinction, if no participant is considered suitable.
- Each jury group will nominee suitable works from their category to compete for the special Best Use of Technology award. The full jury will vote all nominated works and choose the Best Use of Technology Award.