California appeals court holds that DeCSS code is protected speech

James S. Tyre jstyre at jstyre.com
Sat Nov 3 15:11:11 EST 2001


At 02:17 PM 11/3/2001 -0500, Steve Bellovin wrote:
>"SAN FRANCISCO (November 2, 2001 6:20 p.m. EST) - Publishing software
>code to decrypt and copy digital movies is protected by the First
>Amendment as an expression of free speech, a California appeals
>court ruled.
>
>"The state's 6th Appellate District in San Jose found Thursday that
>Andrew Bunner's publishing of links to a software program called
>DeCSS on his Web site represented "pure speech" protected under
>the First Amendment."
>
>http://www.nando.net/technology/story/162761p-1549723c.html


In the main, it is a good decision (available at 
http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF), but before 
folks get too excited, a few things should be pointed out.

First, the court made a clear and less than helpful distinction between 
source and object:

"Like the CSS decryption software, DeCSS is a writing composed
of computer source code which describes an alternative method
of decrypting CSSencrypted DVDs. Regardless of who authored the
program, DeCSS is a written expression of the author's ideas and
information about decryption of DVDs without CSS. If the source
code were "compiled" to create object code, we would agree that
the resulting composition of zeroes and ones would not convey
ideas.  (See generally Junger v. Daley, supra, 209 F.3d at pp.
482-483.) That the source code is capable of such compilation,
however, does not destroy the expressive nature of the source
code itself. Thus, we conclude that the trial court's preliminary
injunction barring Bunner from disclosing DeCSS can fairly be
characterized as a prohibition of "pure" speech."

Second, the court ruled that the preliminary injunction which the lower 
court had issued was an unconstitutional prior restraint on speech, but 
went out of its way not to answer whether damages and/or a permanent 
injunction after trial would suffer the same fate.

Third, this is not a DMCA case, it is a case brought by the DVD Copy 
Control Association under the California Uniform Trade Secrets law.  The 
court, without specifically mentioning DMCA, also made the point of 
discussiing how a claim against DeCSS might be handled differently under 
copyright law than under trade secrets law.

So, except for the source/object distinction drawn by the court, its a nice 
decision, but its utility in DMCA cases is questionable.

--------------------------------------------------------------------
James S. Tyre                               mailto:jstyre at jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
Co-founder, The Censorware Project             http://censorware.net




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