FC: California state court reverses injunction against DeCSS

[Declan McCullagh <declan () well com>]

Excerpt from state appeals court ruling this week:
> Although the social value of DeCSS may be questionable, it is nonetheless 
> pure speech. DVDCCA maintains, however, that courts "routinely enjoin 
> trade secret misappropriation," even over a First Amendment defense. The 
> cases on which it relies, however, 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 trial court's prohibition of future 
> disclosures of DeCSS was a prior restraint on Bunner's First Amendment 
> right to publish the DeCSS program... We hold only that a preliminary 
> injunction cannot be used to restrict Bunner from disclosing DeCSS.

There are two ongoing cases involving the DeCSS DVD-descrambling utility. 
Background on the California state trade secret case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=dvdcca

And the New York federal DMCA case:
http://www.politechbot.com/p-02083.html

-Declan

*********

From: GRubin () CCIANET ORG
Subject: DeCSS injunction reversed by Ca Ct of Appeals
To: declan () well com
Date: Thu, 1 Nov 2001 15:22:03 -0500

I trust you have seen this already, but in case you haven't, with attached
opinion in pdf, or you can get it here:
http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF
(See attached file: deCSS opinion.pdf)

Gabe Rubin
Senior Associate
Computer & Communications Industry Association
(202)783-0070 x 107

*********

Date: Thu, 1 Nov 2001 17:51:11 -0800 (PST)
From: Bryan Taylor <bryan_w_taylor () yahoo com>
To: declan () well com

Two huge wins on the legal front for the open source community:

The Court reversed the injunction in the DVDCCA case, ruling that distribution
of DeCSS was "pure speech".

Judge Pregerson of the Central District of California gives a resounding
rejection to Adobe's claim that their software is "licenced and not sold". The
case is Softman v Adobe
http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/574aa79ff518021188256aed006ea2dc/$FILE/CV00-04161DDP.pdf

The latter opinion actually may have more far reaching consequences.

*********

Date: Thu, 01 Nov 2001 17:21:35 -0800
From: Will Doherty <wild () eff org>
Subject: EFF: Court Overturns Ban on Code Publication in Trade Secret
  Case

Electronic Frontier Foundation Media Release

For Immediate Release: November 1, 2001


Contacts:

David Greene, Executive Director, First Amendment
  Project, +1 415 336-3566 (cell)

James Wheaton, Senior Counsel, First Amendment
  Project, +1 510 208-7744

Robin Gross, EFF Intellectual Property Attorney,
  robin () eff org, +1 415-637-5310 (cell)


First Amendment Right to Publish Computer Code Upheld

Court Overturns Ban on Publication in Trade Secret Case

In a tremendous victory for freedom of speech on the
Internet, a California appellate court today unanimously
overturned a trial court's injunction banning dozens of
individuals from publishing on their websites DeCSS
computer code that unscrambles DVDs. Unscrambled DVDs
may be played on any computer.

The appellate court held that a lower court judge
violated the First Amendment rights of defendant Andrew
Bunner in ordering Bunner and other publishers of the
software to remove it from the web on a preliminary
request by the major movie studios' DVD licensing
organization, DVD-CCA. Bunner had republished the
software after learning about it on Slashdot News. The
lower court enjoined Bunner from publishing DeCSS based
on claims of trade secret misappropriation even though
he found the program in the public domain and simply
republished it.

"The court recognized that trade secrets do not trump
the First Amendment rights of citizens to publish and
discuss information readily available in the public
domain," stated David Greene, Executive Director of the
First Amendment Project who argued the appeal before the
6th District Appellate Court.

According to the court's ruling, "the California
Legislature is free to enact laws to protect trade
secrets, but these provisions must bow to the
protections offered by the First Amendment." The court
found that the injunction barring Bunner's publication
of DeCSS "can fairly be characterized as a prohibition
of 'pure' speech."

"In an era of expanding dubious legal claims by
intellectual property owners that threaten to stifle
speech and innovation, this decision paves the way for
preserving liberty online by balancing legitimate
restrictions with First Amendment guarantees," stated
Robin Gross, an EFF intellectual property attorney
handling the case.

The studios objected to DeCSS software, which
programmers wrote in the fall of 1999 as part of an
independent project to create a DVD player for the Linux
operating system. In early 2000, DVD-CCA filed this
lawsuit against hundreds of Web publishers seeking to
ban the publication of DeCSS. Santa Clara County trial
court Judge William Elfving granted the request for a
preliminary injunction on January 21, 2000, and ordered
defendants to remove DeCSS from their personal websites.
The case is expected to go to trial next spring before
Judge Elfving.

Andrew Bunner was represented on appeal by David Greene
and James Wheaton of the First Amendment Project, Allonn
Levy of San Jose's HS Law Group, Tom Moore of Tomlinson
Zisko Morosoli & Maser in Palo Alto, Professor Eben
Moglen of Columbia University Law School, and Electronic
Frontier Foundation attorneys Cindy Cohn and Robin Gross.

The 6th Appellate Court's decision overturning the
injunction:
http://eff.org/sc/20011101_bunner_appellate_decision.html

More information on DVD-CCA v. Bunner including legal
filings and media releases:
http://www.eff.org/pub/Intellectual_property/DVDCCA_case

The U.S. 2nd Circuit Court of Appeals will likely decide
soon a separate case in which EFF appealed an injunction
banning 2600 Magazine's Editor-in-Chief Emmanuel
Goldstein from publishing or linking to DeCSS under the
Digital Millennium Copyright Act's anti-circumvention
provisions. Dean Kathleen Sullivan of Stanford Law
School argued that case on behalf of the EFF in May 2001.

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, privacy, and openness in the information
society. EFF is a member-supported organization and
maintains one of the most linked-to websites in the world:
http://www.eff.org/

About FAP:

The First Amendment Project is a nonprofit, public interest
law firm and advocacy organization dedicated to protecting
and promoting freedom of information, expression, and
petition. FAP provides advice, educational materials, and
legal representation to its core constituency of activists,
journalists, and artists in service of these fundamental
liberties and has a website at:
http://thefirstamendment.org/

                      - end -
*********




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