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Tuesday, August 26, 2003
California supreme court upholds free speech in DVD case


The California Supreme Court ruled today that publication of information regarding the decoding of DVDs merits a strong level of protection as free speech and sent a key case back to a lower court for a decision on whether a court can prevent Andrew Bunner from publishing this information, whether on the Internet, on a T-shirt, or elsewhere.

In the case, DVD Copy Control Association (DVD-CCA) v. Bunner, California resident Andrew Bunner was one of thousands of people worldwide who republished DVD-decryption software called DeCSS. DVD-CCA, the company that licenses the use of the DVD encryption code, convinced a trial court to issue an order barring publication of DeCSS pending a final decision in the case, claiming that DeCSS contained its trade secrets. The Court of Appeal ruled that the ban on publication was unconstitutional. The Supreme Court today required the Court of Appeal to reexamine the evidence.

"The appeals court can now examine the movie industry's fiction that DeCSS is still a secret and that a publication ban is necessary to keep the information secret," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties, and other media worldwide." EFF serves as co-counsel on the case.

In issuing its ruling, the California Supreme Court found that publication of the DeCSS code is an activity that requires the court to apply strong First Amendment principles. DVD-CCA had claimed originally that the courts need not consider any First Amendment issues.

"We are heartened that the court acknowledged that trade secret injunctions must be subject to a high level of First Amendment scrutiny," said David Greene, Executive Director of the First Amendment Project who argued the case on behalf of Bunner. "We are confident that, having looked at the facts, the Court of Appeal will remove the restriction on Bunner's right to republish publicly available information.

DVD-CCA is a consortium of the major motion picture studios and major consumer electronics manufacturers that licenses DVD encryption technology. DVD-CCA originally filed suit in December 1999, three months after the DeCSS code became available on the Internet.

DVD-CCA obtained the preliminary anti-publication order shortly thereafter. DVD-CCA named hundreds of people in the lawsuit, including those who printed DeCSS on T-shirts. DVD-CCA contends that those who republish DeCSS improperly disclose its trade secrets, despite the fact that those people didn't create the DeCSS software which is widely available on the Internet.

DVD-CCA doesn't claim that Bunner created DeCSS or stole any trade secrets. Instead, DVD-CCA is attempting to stretch trade secret law to include Bunner, a member of the public who had no inside information or contractual arrangement with DVD-CCA, but who instead found the program on a public website and decided to republish it.

Bunner is a defendant in one of several lawsuits the entertainment industry has launched since the publication of DeCSS to mixed results.

Another branch of the case, DVD-CCA v. Pavlovich, ended this spring when the U.S. Supreme Court decided not to rule in favor of DVD-CCA after the California Supreme Court decided that it was improper to force Matthew Pavlovich, another alleged republisher of DeCSS, to come to California to defend the trade secret claim.

In other DeCSS-related litigation, the original publisher of the program, Norwegian teenager Jon Johansen, was acquitted of all criminal charges. The Norwegian government has appealed that decision, and the case is currently scheduled for re-trial in December 2003.

In another case, a coalition of movie studios prevented further publication of DeCSS by 2600 Magazine using the federal anti-circumvention provisions of the Digital Millennium Copyright Act.


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