Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 1 of 14
`Case 3:20-mc-80079—JCS Document 19-1 Filed 05/13/20 Page 1 of 14
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`EXHIBIT A
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 2 of 14
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`BRETT J. WILLIAMSON (SB # 145235)
` (bwilliamson@omm.com)
`CAMERON W. WESTIN (SB # 290999)
` (cwestin@omm.com)
`O’MELVENY & MYERS LLP
`610 Newport Center Drive, 17th Floor
`Newport Beach, California 92660
`Telephone: (949) 823-6900
`Facsimile: (949) 823-6904
`
`Attorneys for Amicus Curiae HULU, LLC
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`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`Canon, Inc.
`
`Plaintiff,
`
`v.
`TCL Electronics Holdings, Ltd., et al.
`
`Defendants.
`
`Case No. 3:20-mc-80079-JCS
`BRIEF OF AMICUS CURIAE
`HULU, LLC
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`BRIEF OF AMICUS CURIAE HULU, LLC
`CASE NO. 3:20-MC-80079-JCS
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 3 of 14
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ..................................................................................................... 1
`HULU’S AMICUS POSITIONS ............................................................................... 2
`I.
`Roku’s Motion Has Ramifications for Hulu’s Interests, Which
`Should Be Considered in Deciding Roku’s Motion ............................. 2
`Imposing Remote Review of Source Code in Patent Litigation Is
`Inherently and Incurably Insecure ........................................................ 4
`III. The Potential Consequences of Making Source Code Available
`for Remote Review Are Significant ...................................................... 7
`CONCLUSION .......................................................................................................... 8
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`II.
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 4 of 14
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`Ctr. for Biological Diversity v. Jewell,
`2013 WL 4127790 (N.D. Cal. Aug. 9, 2013) ....................................................... 2
`In re Roxford Foods Litig.,
`790 F. Supp. 987 (E.D. Cal. 1991) ....................................................................... 3
`Infineon Techs. N. Am. Corp. v. Mosaid Techs., Inc.,
`2006 WL 3050849 (N.D. Cal. Oct. 23, 2006) ...................................................... 3
`NGV Gaming, Ltd. v. Upstream Point Molate, LLC,
`355 F. Supp. 2d 1061 (N.D. Cal. 2005) ................................................................ 3
`OTHER AUTHORITIES
`Loren et al., Computer Software-Related Litigation, Discovery and the
`Overly-Protective Source Code, Fed. Courts Law Review Vol. 6,
`Issue 1 (2012)) .............................................................................................. 5, 7, 8
`U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, Standing
`Order Regarding Pretrial Procedures in Civil Cases Assigned to
`Chief District Judge Rodney Gilstrap During The Present COVID-
`19 Pandemic ......................................................................................................... 2
`U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
`Model Stipulated Protective Order for Litigation Involving Patents,
`Highly Sensitive Confidential Information, and/or Trade Secrets, §
`9(c) ........................................................................................................................ 5
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`BRIEF OF AMICUS CURIAE HULU, LLC
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 5 of 14
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`INTRODUCTION
`Hulu, LLC (“Hulu”) is a provider of both live and on-demand streaming
`video. Hulu is headquartered in Santa Monica, California. Since its initial release
`to the public in March of 2008, Hulu has offered streaming video-on-demand
`(“SVOD”) services, and in May of 2017 it launched the Hulu Live service, offering
`subscribers the ability to have access to the same TV channels provided by
`traditional cable providers, delivered through Hulu’s streaming Internet platform.
`Hulu’s SVOD and Live services are subscription-based, with an announced total of
`over 30 million subscribers as of December 2019.1 Hulu’s services are available
`through a web browser-based platform, as well as on the platforms of numerous
`device makers, including Roku, Inc. (“Roku”).2
`Hulu is not a party to the underlying litigation brought by Canon, Inc.
`(“Canon”) in the Eastern District of Texas.3 Nor is Hulu’s source code the subject
`of discovery in that litigation or the subject of Roku’s Motion To Modify And/Or
`Quash Plaintiff Canon Inc.’s Subpoena and For A Protective Order To Prevent
`Remote Source Code Review (ECF No. 1) (hereinafter “Roku’s Motion”). As
`Roku’s Motion correctly notes, however, the potential exposure of Roku’s source
`code to malicious actors poses a threat to Hulu’s own efforts to secure its streaming
`content and services. ECF No. 1 at 15 (“[A]ny breach could also compromise the
`intellectual property of Roku’s content partners, such as Netflix and Hulu.”). In
`addition, Hulu, like numerous other California-based technology companies
`
`1 See Declaration of Cameron W. Westin In Support of Brief of Amicus Curiae
`Hulu, LLC (filed concurrently herewith, hereinafter “Westin Decl.”) Ex. 1 (The
`Walt Disney Company, First Quarter Earnings for Fiscal 2020 (Feb. 4, 2020),
`available at https://thewaltdisneycompany.com/app/uploads/2020/02/q1-fy20-
`earnings.pdf).
`2 See Westin Decl., Ex. 2 (Hulu - Supported Devices, available at
`https://help.hulu.com/s/article/supported-devices?language=en_US).
`3 Canon Inc. v. TCL Elecs. Holdings Ltd., Case No. 2:18-cv-00546-JRG (E.D. Tex.
`Dec. 27, 2018).
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 6 of 14
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`involved in patent litigation in courts throughout the country, is also often required
`to make its own highly valuable and sensitive source code available for inspection
`during discovery. Hulu has significant and serious concerns about the diminished
`security to that source code if similar requests are granted in patent cases where
`Hulu’s source code has been or will be made available for inspection.
`Hulu recognizes the unprecedented challenges posed to existing discovery
`procedures during the COVID-19 pandemic. Hulu appreciates and takes seriously
`the Court’s expectation that counsel and the parties will make extra efforts to
`resolve discovery issues amicably, ECF No. 12, and the Eastern District of Texas’s
`directive that parties advance the “goal of allowing code review to efficiently and
`effectively continue . . . while protecting the security of the source code—which is
`highly sensitive and valuable information—as best as possible under the
`circumstances,” U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS,
`Standing Order Regarding Pretrial Procedures in Civil Cases Assigned to Chief
`District Judge Rodney Gilstrap During The Present COVID-19 Pandemic, ¶ 19.
`Proposals such as Canon’s, however, which seek to force companies to expose their
`highly sensitive and valuable source code to the vulnerabilities inherent in remote
`inspection, do not protect that code “as best as possible under the circumstances.”
`Hulu, by and through its undersigned counsel, submits this amicus brief so that the
`Court may consider the implications of forcing remote review of source code to
`Hulu and other technology companies.
`HULU’S AMICUS POSITIONS
`Roku’s Motion Has Ramifications for Hulu’s Interests, Which Should Be
`Considered in Deciding Roku’s Motion
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`I.
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`“District courts frequently welcome amicus briefs from non-parties
`concerning legal issues that have potential ramifications beyond the parties directly
`involved or if the amicus has unique information or perspective that can help the
`court beyond the help that the lawyers for the parties are able to provide.” Ctr. for
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`Biological Diversity v. Jewell, 2013 WL 4127790, at *4 (N.D. Cal. Aug. 9, 2013)
`(quoting NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061,
`1067 (N.D. Cal. 2005)). “There are no strict prerequisites that must be established
`prior to qualifying for amicus status; an individual seeking to appear as amicus
`must merely make a showing that his participation is useful to or otherwise
`desirable to the court.” Infineon Techs. N. Am. Corp. v. Mosaid Techs., Inc., 2006
`WL 3050849, at *3 (N.D. Cal. Oct. 23, 2006) (quoting In re Roxford Foods Litig.,
`790 F. Supp. 987, 997 (E.D. Cal. 1991)).
`Roku’s Motion, and the risk to Hulu’s source code that Roku’s Motion seeks
`to avoid, has direct ramifications for Hulu. Hulu’s streaming content is provided
`securely on compatible devices from numerous manufacturers, including various
`digital media players sold by Roku.4 The content provided by Hulu’s services and
`its technology drives the demand for Hulu’s subscription services, and comes from
`content partners including networks, cable television providers, studios, and from
`Hulu’s own developed content. Declaration of Brett Henry In Support of Brief of
`Amicus Curaie Hulu, LLC (filed concurrently herewith, hereinafter “Henry Decl.”)
`at ¶ 4. Hulu has strict obligations to its content providers to maintain their content
`in a secure and piracy-free environment. Henry Decl., ¶ 5. Hulu must do so in an
`environment where it receives millions of malicious requests for data from hackers
`per day. Henry Decl., ¶ 6. Hulu thus expends significant efforts to ensure that all
`of its device manufacturing partners’ systems, including Roku’s, contain the
`strongest security measures possible to protect its services’ content from being
`improperly downloaded and pirated. For example, Roku’s native development kit
`(“NDK”) is extremely restrictive, and only a subset of Hulu programmers has
`
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`4 See Westin Decl., Ex. 3 (Hulu | Roku Channel Store, available at
`https://channelstore.roku.com/details/2285/hulu); Ex. 4 (Hulu - Supported Roku
`Models, available at https://help.hulu.com/s/article/supported-
`roku?language=en_US). See also ECF No. 1 at 2, 15.
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`access to it. Henry Decl., ¶ 15. Were Roku’s source code to be exposed publicly or
`to malicious actors⎯a possibility that would increase significantly due to remote
`review (see ECF No. 1 at 13-14)⎯Hulu’s content would also be less protected from
`such hacking, and its relationship with content partners could in turn be irreparably
`damaged. Henry Decl., ¶¶ 16-17.
`Moreover, Canon’s attempt to force Roku to expose its source code to the
`risks inherent in remote review has ramifications for Hulu and other technology
`companies beyond the immediate dispute. Hulu, like Roku, is often required to
`make its own highly sensitive and valuable source code available for inspection in
`connection with patent litigations.5 To do so, Hulu, like Roku, depends on
`protective orders that limit this inspection to standalone computers that are isolated
`from the Internet and local or external networks.6 Canon’s request that the Eastern
`District of Texas modify the protective order under which Roku’s source code was
`originally produced would mean that Hulu, as well as other technology companies
`subject to discovery in the legal process, may similarly be forced to forego the time-
`tested practice of source code review on secured standalone computers for the
`inherently more vulnerable risks associated with connecting that source code and
`transmitting it on the Internet.
`II.
`Imposing Remote Review of Source Code in Patent Litigation Is
`Inherently and Incurably Insecure
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`The industry standard of permitting source code review only on standalone
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`5 Like Roku in the underlying Eastern District of Texas litigation, Hulu is also
`regularly subpoenaed to make its source code available for inspection in connection
`with litigations where Hulu is not a party. Westin Decl., Ex. 5 (third party
`subpoena for Hulu source code in Uniloc 2017 LLC v. Vudu, Inc., C.A. No. 19-183
`(CFC) (D. Del. Jan. 30, 2019)).
`6 See, e.g., DivX, LLC v. Hulu, LLC, 2:19-cv-1606 (PSG)(DFMx), ECF No. 111, 15
`(C.D. Cal. Mar. 5, 2019); Sound View Innovations, LLC v. Hulu, Inc., 2:17-cv-
`04146-JAK-PLA, ECF No. 57, 16 (C.D. Cal. June 2, 2017); Transvideo Elec., Ltd.
`v. Hulu, Inc., 13-cv-1399 (LPS), ECF No. 43, 20 (D. Del. Aug. 7, 2013).
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`non-Internet connected computers is based on the established understanding that
`source code made available for inspection on a computer connected to the Internet
`is more vulnerable to malicious access or hacking by unauthorized third parties.
`See, e.g., Westin Decl., Ex. 6 (Loren et al., Computer Software-Related Litigation,
`Discovery and the Overly-Protective Source Code, Fed. Courts Law Review Vol. 6,
`Issue 1 (2012)) at 59 (“Prohibiting the stand-alone computer from being connected
`to the internet or existing internal networks is an appropriate solution to guard
`against unauthorized access via the ‘back door’ of the Internet or an Intranet in the
`same office.”). Indeed, this District’s Model Protective Order for Patent Cases
`anticipates source code being made available for inspection and provides for
`precisely these protections, requiring that “source code shall be made available for
`inspection on a secured computer in a secured room without Internet access or
`network access to other computers.” U.S. DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF CALIFORNIA, Model Stipulated Protective Order for Litigation
`Involving Patents, Highly Sensitive Confidential Information, and/or Trade Secrets,
`§ 9(c).
`As noted in Section I, supra, Hulu relies on such protections in connection
`with discovery of its own source code, making its source code available for
`inspection by opposing counsel and experts only on standalone computers with no
`connectivity to the Internet, and in secure facilities at outside counsel’s office in
`order to strictly control who has access, what tools can be connected to the
`reviewing device, and what devices are brought into and out of the review room.
`The risk posed by the exposure of its highly sensitive and valuable source
`code is so great that Hulu imposes restrictions on its own engineers’ access to that
`code. Their access is limited to only the portions of the source code necessary to
`perform their assigned tasks, rather than to the vast swaths of source code that may
`be made available during litigation. Henry Decl., ¶ 9. Moreover, Hulu engineers
`are not permitted any access to source code unless they are physically on the
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`premises at Hulu, or utilizing Hulu’s secure and heavily regulated virtual private
`network (“VPN”). Henry Decl., ¶ 10. That VPN access, like all access, is limited
`to the portions of code necessary to complete the engineer’s assigned tasks, guarded
`by multi-factor authentication requirements, and monitored to ensure that engineers
`do not violate established security protocols during use or attempt to venture
`beyond their authorized portions of the source code. Id. To implement these
`security protocols, Hulu spends significant financial and physical security resources
`every time an engineer is authorized to access its source code remotely. Id. No
`such authorization can be provided in connection with outside experts or opposing
`counsel in the course of litigation, due to the heightened risk and lack of complete
`control over their activities, whether malicious or merely lacking in the necessary
`security protocols. Henry Decl., ¶ 11.
`Allowing remote review of Hulu’s source code by opposing counsel and their
`retained experts would introduce myriad security challenges, even if those counsel
`and experts acted according to the protocols proposed by Canon. See ECF No. 1 at
`9-10. Counsel and experts cannot be permitted to review the source code remotely
`via their own personal computers, because Hulu would be unable to evaluate
`whether those computers were free from malware or other malicious software
`through which an unauthorized third-party might access the source code. Henry
`Decl., ¶ 13. Instead, Hulu would be required to prepare and provide, for each
`counsel conducting the review and for each expert, a computer and monitoring
`equipment securely connected to its VPN (or containing encrypted versions of the
`source code itself), and ship these materials to the reviewing experts. Henry Decl.,
`¶ 13. For each individual reviewing the source code, Hulu would then need to
`employ one person to monitor an expert’s activities via a Wi-Fi or cellular camera
`during the review, while another person monitors usage of the computer to ensure
`no improper activity occurs. Henry Decl., ¶ 12; see also ECF No. 1 at 13-15. Even
`if Hulu had the ability to enforce such supervision and surveillance for limited
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`periods of time during regular business hours, the cost in resources and employee
`time to Hulu (multiplied by each individual granted remote access to the source
`code) would be significant, if not prohibitive.
`Despite such efforts, the risks inherent in allowing remote review of source
`code by multiple individuals in connection with litigation cannot be eliminated.
`Source code made available for third party inspection on computers connected to
`the Internet is inherently more vulnerable to malicious activity. Henry Decl., ¶ 8.
`For example, even when source code is stored on a computer in encrypted form,
`during review the source code may necessarily be unencrypted inside a computer’s
`memory, or on the screen itself. Henry Decl., ¶ 14; see also Westin Decl., Ex. 6
`(Loren et al., Computer Software-Related Litigation) at 23. This unencrypted
`source code is particularly susceptible to hacking. Id. Making source code
`available for inspection on standalone computers significantly reduces these risks
`by limiting that unencrypted viewing to an isolated room with no Internet
`connection and no available recording devices. Id.
`Thus, even under the best of circumstances, assuming total compliance with
`applicable protective orders by opposing counsel and their experts, requiring remote
`review of Hulu’s source code by an opposing litigants’ attorneys and experts
`presents unjustifiable costs and risks to Hulu. These costs and risks to Hulu would
`multiply with each additional individual reviewing the code. Henry Decl., ¶ 13.
`III. The Potential Consequences of Making Source Code Available for
`Remote Review Are Significant
`
`The potential consequences, both to Hulu’s content and its business
`relationships, of unsecure remote reviewing of Roku’s source are discussed above.
`See Section I, supra. The potential consequences of Hulu’s source code being
`subjected to such insecure protocols are, to Hulu, far greater.
`Hulu’s source code is among its most vital assets. Henry Decl., ¶ 7. That
`source code is the product of investing enormous sums of money and countless
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`person-hours on the part of Hulu’s engineers over the companies’ twelve years of
`existence, id., resulting in numerous filed and issued U.S. patents and the
`development of countless additional trade secrets.7 If, however, this proprietary
`source code were to be made publicly available, the source code’s value could
`irreparably be destroyed. See Westin Decl., Ex. 6 at 21 (“[I]n this age of rapid and
`global dissemination, parties fear that if proprietary source code being disclosed
`were to be leaked to the outside world the value could be totally destroyed in a
`matter of hours, if not minutes, and could never be recaptured.”).
`Moreover, were Hulu’s operating system (“OS”) source code to become
`publicly available, malicious actors could hijack that code to essentially sell access
`to a free and uncontrolled version of Hulu, or download and pirate Hulu’s
`proprietary and copyrighted content. Henry Decl., ¶ 18. Hulu would thus lose its
`paying subscribers drawn to Hulu’s content and its proprietary user interface, and
`its ability to sell advertisements contained in that content (Hulu’s other primary
`source of revenue). Moreover, such a scenario would deeply impair Hulu’s
`relationships with its content providers, and thus Hulu’s entire business model. Id.
`CONCLUSION
`Hulu’s source code, like that of numerous technology companies located in
`this District and throughout the State, is among its most valuable assets. Placing
`that source code at increased risk of falling into the hands of malicious actors
`presents dire consequences for Hulu and its business.
`
`
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`7 See Westin Decl., Ex. 7 (U.S. Patent and Trademark Website listing 151 issued
`U.S. Patents and published U.S. patent applications assigned to Hulu, LLC,
`available at https://assignment.uspto.gov/patent/index.html#/patent/search/
`resultAssignee?assigneeName=HULU%20LLC).
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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 13 of 14
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`Dated: May 13, 2020
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`O’MELVENY & MYERS LLP
`BRETT J. WILLIAMSON
`CAMERON W. WESTIN
`
`By: /s/ Brett J. Williamson
`
`Brett J. Williamson (SB # 145235)
`bwilliamson@omm.com
`Cameron W. Westin (SB # 290999)
`cwestin@omm.com
`O’MELVENY & MYERS LLP
`610 Newport Center Drive, 17th Floor
`Newport Beach, California 92660
`Telephone: (949) 823-6900
`Facsimile: (949) 823-6904
`
`Attorneys for Amicus Curiae
`Hulu, LLC
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`BRIEF OF AMICUS CURIAE HULU, LLC
`CASE NO. 3:20-MC-80079-JCS
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`

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`Case 3:20-mc-80079-JCS Document 19-1 Filed 05/13/20 Page 14 of 14
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on May 13, 2020, a true and accurate
`copy of the BRIEF OF AMICUS CURIAE HULU, LLC was electronically filed
`with the Court to be served by operation of the Court’s electronic filing system.
`
`Dated: May 13, 2020
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`Respectfully submitted,
`
`By:
`
`/s/ Brett J. Williamson
`Brett J. Williamson
`
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`- 10 -
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`BRIEF OF AMICUS CURIAE HULU, LLC
`CASE NO. 3:20-MC-80079-JCS
`
`