EFF on "DVD-copying code loses free speech shield"

[Dave Farber <dave () farber net>]

> Date: Mon, 25 Aug 2003 16:17:43 -0700
> From: Cindy Cohn <cindy () eff org>
> Subject: Re: [IP] -- more on -- "DVD-copying code loses free speech shield"
> X-Sender: cindy@localhost
> To: Dave Farber <dave () farber net>
>
> Hi Dave,
>
> Here's EFF's press release.  While we would have preferred that the Court 
> of Appeals decision be affirmed, the Supreme Court set a very high 
> standard for First Amendment review of preliminary injunctions preventing 
> publication of claimed trade secrets. It is certainly not the case that 
> the court denied First Amendment protection here (and I'm happy to note 
> that it did not embrace a lower level of protection for computer code either).
> We look forward to presenting the facts to the Court of Appeals.
>
>
>
> Cindy
>
>
> For Immediate Release: Monday, August 25, 2003
>
> California Supreme Court Upholds Free Speech in DVD Case
>
> Sets High Standard for Publishing DVD Decoding Information
>
> Electronic Frontier Foundation Media Release
>
>
> San Francisco - 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.
>
> Links:
> California Supreme Court decision in DVD-CCA v. Bunner
> DVD-CCA v. Bunner and Pavlovich case archive
> 6th Appellate Court decision overturning Bunner injunction
> Jon Johansen case archive
> 2600 Case archive
> EFF Board member and Boalt Hall School of Law Professor Pam Samuelson's 
> new paper on trade secrets and the First Amendment
>
> Contact:
>
> Cindy Cohn
>   Legal Director
>   Electronic Frontier Foundation
>    cindy () eff org
>   +1 415 436-9333 x108 (office)
>
> David Greene
>   Executive Director and Staff Counsel
>   First Amendment Project
>    dgreene () thefirstamendment org
>   +1 510 208-7744
>
> About EFF:
>
> The Electronic Frontier Foundation is the leading civil liberties 
> organization working to protect rights in the digital world. Founded in 
> 1990, EFF actively encourages and challenges industry and government to 
> support free expression and privacy online. EFF is a member-supported 
> organization and maintains one of the most linked-to websites in the world 
> at http://www.eff.org/
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>
> > > Date: Mon, 25 Aug 2003 17:11:57 -0400
> > > From: Rick Adams <Rick.Adams () Cello Net>
> > >
> > > X-Spam-Level:
> > > X-Spam-Filtered-At: eList eXpress <http://www.elistx.com/>
> > >
> > > That is not a fair summary of the ruling (which I just finished reading)
> > >
> > > If says that IF the code is trade secret, then the first amendment does 
> > > not give anyone the
> > > right to post it online.
> > >
> > > They make it very clear that they are assuming as fact that the code is 
> > > trade secret and that
> > > their opinion is very narrow.
> > >
> > > They also make clear that there is some question as to whether the code 
> > > is still trade secret
> > > and remand it to the appeals.
> > >
> > > Quote from the conclusion of the opinion:
> > >
> > >         Our decision today is quite limited. We merely hold that the 
> > > preliminary
> > >         injunction does not violate the free speech clauses of the 
> > > United States and
> > >         California Constitutions, ASSUMING [italics in original] the 
> > > trial court properly issued
> > > the     injunction
> > >         under California's trade secret law. On remand, the Court of 
> > > Appeal should
> > >         determine the validity of this assumption.
> > >
> > > http://news.findlaw.com/hdocs/docs/dvd/dvdccabnnr82503opn.pdf if you 
> > > want to read the actual
> > > decision.
> > >
> > > -----Original Message-----
> > > From: owner-ip () v2 listbox com [mailto:owner-ip () v2 listbox com] On Behalf 
> > > Of Dave Farber
> > > Sent: Monday, August 25, 2003 4:57 PM
> > > To: ip () v2 listbox com
> > > Subject: [IP] "DVD-copying code loses free speech shield"
> > >
> > >
> > >
> > > > Date: Mon, 25 Aug 2003 15:29:47 -0400
> > > > From: newsfeeds () tracerlock com
> > > > Subject: news item: "DVD-copying code loses free speech shield"
> > > > To: dave () farber net
> > > >
> > > > The following news item was just submitted to the news feed:
> > > >       Censorship News
> > > >
> > > > Title: DVD-copying code loses free speech shield
> > > > URL: http://news.com.com/2100-1028_3-5067665.html
> > > > Time: 2003-08-25 15:01:23
> > > > News site: News.com
> > > > Description: The California Supreme Court has ruled that the First
> > > > Amendment does not extend to protection of computer code posted online, in
> > > > ruling against a Web publisher that had posted code for a program that
> > > > would decrypt the copy-protection mechanism on commercial DVDs.  The
> > >  >software had been developed by Norwegian teenager Jon Johansen to enable
> > >  >him to play DVDs on a Linux computer.
> > >  >
> > >  >
> > >  >You are currently subscribed as: dave () farber net
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> --
> *********************************************
> Cindy Cohn                            Cindy () eff org
> Legal Director                          www.eff.org
> Electronic Frontier Foundation
> 454 Shotwell Street
> San Francisco, CA 94110
> 415-436-9333 x 108 (tel)
> 415-436-9993 (fax)

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