SAN FRANCISCO – Whether the public has a right to make a "fair use" copy of DVDs is on trial in a San Francisco federal court. Yet the public may never know whether the verdict was reached fairly because the presiding judge removed the press just as the nuts and bolts of the case was to be aired out.

U.S. District Judge Marilyn Hall Patel's contempt for the media is widely known by the San Francisco tech press. Patel, a Carter appointee, presided over the Napster trial in one of the smallest courtrooms in the San Francisco federal building – despite unsuccessful press pleas that the high-profile case be moved to a substantially larger courtroom that perpetually sits vacant. Hence, many reporters were excluded for lack of space.

Fast forward to Friday. Patel excluded several reporters from the same courtroom in a case testing Hollywood's lock on the DVD. The press, including Wired, CNET, Reuters, Bloomberg News Service, The New York Times, PCMAG.com and The Associated Press and other outlets were ordered removed as the guts of the case got underway.

Patel said the code of the Content Scramble System used to encrypt DVDs and prevent their copying was a "trade secret." She told the press to scram when a University of California at Davis computer science scholar was called to testify about whether RealNetworks' DVD copying software circumvented the CSS.

In a case brought by the Motion Picture Association of America, Patel has tentatively blocked distribution of the DVD copying software – known as RealDVD, pending the outcome of a three-day hearing that resumes here Tuesday. The MPAA says a ruling against the studios would send the wrong message that it's OK to copy DVDs and would likely lead to feeding frenzy by technology companies to produce the best DVD copying wares.

Still, if the RealDVD software circumvents the CSS encryption, there's no fair use right to copy DVDs, and Hollywood retains its grip on the DVD. The Seattle-based technology concern, RealNetworks, claims no circumvention, and that a contract between it and the CSS-license granter – the DVD Copy Control Association – allows for the RealDVD technology.

That said, Patel labeled the CSS a "trade secret" after only a few moments of public discourse. Greg Sandoval, a gonzo scribe for CNET, stood up and objected to the MPAA's move for closure. The judge, however, said she wasn't about to waste the court's time and parse, "bit by bit," which pieces of the code have been cracked and published on the internet and which parts have not.

So she closed the courtroom, despite every crack and hack of the code having already been slathered on the internet, on shirts and ties. Let's not forget about all the underground software programs, free or cheap, that allow for the copying of DVDs. (Check out Wired.com's how-to wiki for DVD copying instructions.)

Trial resumes here Tuesday. Here's Threat Level's trial coverage on Friday before we were kicked out.

Photo: spadgy

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