, Newsbytes 2002-05-23
The Electronic Frontier Foundation and the First Amendment Project today asked the California Supreme Court to uphold a lower court's decision to permit publication of the source code for DeCSS technology, which circumvents digital copy protection systems.
Today's brief is in response to a March 26 filing by the DVD Copy Control Association. On that date, the DVD CCA asked the California Supreme Court to reverse a Court of Appeals decision to overturn a preliminary injunction that had blocked the posting of the source code for DeCSS by defendant Andrew Bunner.
According to the Electronic Frontier Foundation (EFF), Bunner republished DeCSS on his Web site after reading about it on Slashdot and deciding it was "newsworthy."
"Well established trade secret law clearly holds that only those individuals who have undertaken an affirmative duty to treat information as a trade secret are required by law to keep it secret," EFF attorney Robin Gross said in a written statement.
"People who obtain information from the public domain have a First Amendment right to republish that information," she added.
"We're confident the Supreme Court will recognize, as the Court of Appeal did, that this is a classic First Amendment case," David Greene, executive director for the First Amendment Project, said in a written statement.
Attorneys for the DVD CCA declined to comment on today's filing. When the group filed its appeal two months ago, it said a November 2001 ruling in New York supports its assertion that the First Amendment was not intended to block courts from preventing the illegal distribution of a program that improperly uses DVD CCA's trade secrets.
In that decision, a panel of the 2nd Circuit Court of Appeals in New York upheld a N.Y. District Court's decision to prohibit hacker magazine 2600 from posting DeCSS. The panel also upheld the ruling that 2600 could not link to other Web sites that have DeCSS available for download.
In March, the DVD CCA said the California Supreme Court would hear oral arguments in this case early this fall, with a decision early in 2003. Today, attorneys for the EFF and the First Amendment Project said oral argument will be scheduled before the court sometime in the next 18 months.
Today's brief is the latest legal maneuver in a drama that has played out for months in courtrooms in California and New York.
In January 2000, a Santa Clara County Superior Court judge imposed a preliminary injunction that ordered Bunner and numerous other defendants to cease Internet publication of the source code for DeCSS.
On Nov. 1, 2000, the Court of Appeal in the Sixth Appellate District of California reversed the lower court's injunction. The court said the temporary injunction was a "prior restraint" violation of Bunner's First Amendment right to freedom of speech.
In the decision, the Court of Appeal said the DVD CCA's statutory right to protect its economically valuable trade secret, "is not an interest that is 'more fundamental' than the First Amendment right to freedom of speech or even on equal footing with the national security interests or other vital governmental interests that have previously been found insufficient to justify a prior restraint."
"Our respect for the Legislature and its enactment of the UTSA cannot displace our duty to safeguard the rights guaranteed by the First Amendment," the court wrote. "Accordingly, we are compelled to reverse the preliminary injunction."
In addition, the court found that DeCSS is "pure speech" for the purposes of First Amendment protection.
On Nov. 30, 2001, the DVD CCA filed a petition for review with the California Supreme Court. On Feb. 20, 2002, the court agreed to hear the organization's arguments.
In the brief, the DVD CCA argued that, "neither DeCSS nor Bunner's posting of it on the Internet is pure speech." Instead, the group said, courts have treated computer code as "nonspeech" or "mixed speech and content."
"Historically, the dissemination of stolen trade secrets has not been protected by the First Amendment," the DVD CCA wrote in its brief. It said the injunction, "was not aimed at restricting speech, but was intended solely to protect against the evisceration of trade secrets that are the motion picture industry's critical means of defense against widespread digital pirating of its valuable copyrighted works."
The DVD CCA asserted the appeals court "fundamentally erred" in its finding that DeCSS was pure speech, and insisted that if the ruling were allowed to stand, "the value of trade secrets in California will be virtually destroyed."
"No stolen trade secret can survive if the courts are powerless to enjoin its widespread disclosure," the brief said.
More information on the DVD CCA is available at http://www.dvdcca.org .
Information on the DVD and DeCSS cases is at http://www.legal.wao.com .
The EFF is at http://www.eff.org .
The EFF has information on the Bunner case at http://www.eff.org/pub/Intellectual_property/DVDCCA_case .
The Nov. 1, 2001, appellate decision is at http://www.eff.org/sc/20011101_bunner_appellate_decision.html .
Reported by Newsbytes.com, http://www.newsbytes.com .
