11/2/2001

Court Rules DVD Code Crack Is Free Speech


 A three-judge appellate court in California has ruled that a published DVD code crack is
 constitutionally protected free speech. In doing so, the court rejected the movie industry's
 claim that copy protection is a trade secret, striking a blow against the digital encryption of
 DVD content. 

 The 6th District California Appeals Court opinion unanimously held that a lower court judge's
 injunction violated the First Amendment rights of defendant Andrew Bunner. The programmer
 was sued by an organization consisting of Hollywood studios and a DVD encryption group for
 publishing DeCSS, a DVD decryption code, on the Internet. 

 Free speech advocates who argued in Bunner's defense, such as First Amendment Project
 executive David Greene and the Electronic Frontier Foundation (EFF), hailed the decision as a
 "tremendous victory for freedom of speech on the Internet," but the DVD Copy Control
 Association (DVDCAA), a DVD licensing organization of the Motion Picture Association of
 America (MPAA), said it is appealing the decision. 


 Prior Restraint 

 The court ruled that by banning publication of the
 DeCSS code on the Web, the lower court was
 executing "prior restraint," which the judges said
 is inappropriate and overridden by the right to free
 speech. 

 "We must conclude that Bunner's re-publication of
 DeCSS was 'pure speech' within the [meaning] of
 the First Amendment," the court wrote. "It is
 therefore necessary for us to apply independent
 review to the trial court's issuance of a preliminary
 injunction. 

 "Prior restraints on pure speech are highly
 disfavored and presumptively unconstitutional,"
 the judges wrote. 

 Trade Secret Tumbles 

 The DVDCAA argued that anyone, such as Bunner, who spread the code that cracked their DVDs
 was guilty of divulging trade secrets. 

 That argument missed the mark with the three-judge panel, however, which said it failed to
 see that Bunner either stole or actually misused the code that he had re-published on the Web.

 "The cases on which [DVDCAA] relies are not comparable to the situation presented here, as
 they involved the actual use of a secret or the breach of a contractual obligation," the judges
 wrote. 

 "DVDCCA also relies heavily on cases that upheld injunctions in copyright infringement cases,"
 the court continued. "Protections for trade secrets, however, are not comparable to protections
 for copyrights with respect to the First Amendment." 

 Publishing Protection 

 The court indicated its decision was limited to the lower court's use of a preliminary injunction
 to stop the Web posting of the DeCSS code. However, the judges applied the free speech
 protection in broad terms, and observers say the opinion is the strongest definition of software
 code as free speech to date. 

 "It makes no difference that Bunner is a re-publisher rather than the original author of DeCSS,"
 the court said, adding in a citation, "nor does it matter that the disclosure was made by an
 individual on his Web site rather than a media publication in a newspaper. 

 "The right to freedom of speech 'does not restrict itself depending upon the identity' or legal
 character of the speaker, 'whether corporation, association, union or individual.'" 

 Still Not Over 

 The DVDCAA, calling the case an economic setback to several industries, has indicated it will
 continue to fight the case, which goes to trial in the spring, and that it may appeal the ruling
 on the injunction to the California Supreme Court. 

 EFF legal director Cindy Cohn told NewsFactor Network that the decision was the latest in a
 series of victories for free speech online. 

 "It's a great, great thing, but it's not over," Cohn said. "It's just another court to adopt what is
 becoming the rule now."