DeCSS Injunction Reversed In CA Case

kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions. It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.' " Or you can go straight to the PDF.

Comments

My Favorite citation from the Decision:

[chrisd]

From Page 13:

[C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an espressive means for the exchagne of information and ideas about computer programming, we hold that it it protected by the first amendment. (junger v. Daley (6th Cir. 2000)))

This is too cool. As another posted said earlier, pinch me. I hope andrew bunner goes after the DVDCCA in an Anti-SLAPP (abuse of process) lawsuit if he comes out of this unscathed.

Chris DiBona

Why America Doesn't Suck

[sparks]

"DVDCCA'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"

You know, that old constitution thing you have is pretty cool. I wish we had one.

Nice conclusion (part of conclusion copied)

[Hektor_Troy]

"Like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS encrypted 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. 482483.) 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. "

Conclusion:

Code == Free Speech

Compiled Code != Free Speech

So what else is new? Other than this fact is now recognized by the court?

Re:Pinch me.

[ichimunki]

We probably haven't heard the last of this case yet. Poring over the ruling, I have to ask some questions that didn't seem to get raised.

Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA? Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?

Anyone else notice the slashdot.org plug right there in the ruling? That is some awesome free advertising. :)

By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law. So we are not out of the woods yet with the federal law.

"In our favor"

[BierGuzzl]

Oh really, didn't realize slashdot went to court -- oh wait -- they made it into page 4 of the ruling!

Of interest is the explanation as to why source code is a valid means of communication and should be given first ammendment protection -- it's simply the most efficient means for programmers to communicate ideas about encryption. Even a much simpler concept, say a regular expression would take much longer to say in words than it would take to just write the damn regexp.

One thing that really annoyed me was DVDCSS's argument that there wasn't any evidence indicating that Bunner would suffer serious consequences if he'd have to stop his disclosure of DeCSS code vs what would happen if it were freely copied everywhere -- irreperable damage to DVDCSS. First, the damage has been done, although I suppose that there cuold be new dvd players coming out with that Xing master key without having paid licensing fees to DVDCSS. Second, and most importantly, being denied the right to free speech is some pretty darn serious stuff to have to live with. You can't put a dollar figure on that, and you shouldn't have to in order to justify the importance of your rights to some corporation.

I'm glad the judge ruled in "our favor".

This is the best possible circuit for it...

[JWhitlock]

Sixth Circuit (West Coast, + maybe Hawaii) is known as the most liberal of the appeals courts. This means that the ruling is truly the best case for the free speech arguement, but doesn't neccesarily mean that it would survive a Supreme Court review.

I assume that the ruling, if the Supreme Court doesn't hear it, will stand, but that another circuit court may interpret differently, in which case it will eventually go to the Supreme Court. Looks like it's time to donate to the EFF, so that they will have the funds to argue the case at the next level.

Re:I thought it was about the DMCA

[WillSeattle]

it seems that they are actually using Trade Secret law to suppress DECSS, not the DMCA...

Not just Trade Secret Law, but California's Trade Secret Law, which is quite different from that of other states.

I think you're correct that the appeals court did not directly rule on the use of the DCMA to suppress free speech, but they implied that even the DCMA must bow to the constitution, since it is not a constitutional amendment in its own right. Free speech wins against all but other constitutional laws, from what I can gather of the decision.