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

Damn

[wiredog]

I told Valenti that we needed to pay those judges more. Ah well, I wonder how much an Amendment costs?

This just rocks..

[cOdEgUru]

The fact that a medium of expression has a functional capacity should not preclude constitutional protection.... Computer source code, thought unintelligible to many is the preferred method of communication among
computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"

This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..

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

Re:My Favorite citation from the Decision:

[gorgon]

Yeah, but even better than the fact that they cite the Junger case is the fact that they seem to agree that code is speech. From page 14:

That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude the trial court's preliminary injunction barring Bunner from disclosing the DeCSS can fairly be characterized as a prohibition of "pure" speech.

So this court seems to be affording source code "strong" speech status, so that the expressive parts of code are more inmportant than the functional part. This court seems to be going further in protecting the speech rights of code than in the Junger case. This is great news. The Junger case seemed like a better test case since it involved academics studying encryption, but this Bunner case may end up being more important.

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.

Re:Why America Doesn't Suck

[ryanr]

Thanks for the sentiment. We've still got a few more things to fix though. I'm waiting for the day when all the Berne Convention countries have adopted our draconian IP laws, and then the Supreme Court overturns them in the US.

That would be kinda like the town bully organizing a gang, only to have his mom tell him he can't go out on the night they had planned to spray paint the school.

Boasting

[dachshund]

"Plaintiff's case is problematic at this [stage]. Clearly they have no direct evidence at this point that Mr. Jon Johansen did the reverse engineering, and that he did so after clicking on any license agreement." Nevertheless, the court concluded that "the circumstantial evidence, available mostly due to the various defendants' inclination to boast about their disrespect for the law, is quite compelling on botht he issue of Mr. Johansen's improper means and the Defendants' knowledge of impropriety."

So essentially, nobody ever boasted that they reverse-engineered the thing, or that they clicked on a license... But simply by saying "CSS sucks" and "the DMCA is a stupid law, I should be allowed to post whatever I want", you can find yourself the defendant in a trial for which the plaintiff has minimal evidence against you?

Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.

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:Hip Hip Horay!

[Anonymous Coward]

Now we can all say goodbye to the pending DeCss cases and litigation. Now is it possible to counter sue for all the money spent defending ourselves against DeCSS or is that just a lost cause?

No, you cannot.

This reversed the preliminary injunction only. That means that DeCSS can be distributed in source code form. If you read the PDF carefully (hint, hint) the appeals court says that, indeed, the trial court might decide to assess financial penalties for the improper disclosure, if any is found to exist. The case is still headed to trial--just without the odious preliminary injunction.

The other posters who pointed out how bad a ruling the PI was are right; it was just a matter of time before someone with judicial authority understood the "if it can be put on a T-shirt, it's speech" argument.

There are still a lot of scary, possible outcomes relating to reverse-engineering, jurisdictions which govern license agreements, and other issues. We're NOT out of the woods on this one yet, folks.

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.

Yes, *but*

[jonabbey]

If you read the decision, you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright, just that the First Amendment trumps prior restraint in the form of preliminary injunctions in a trade secret case of this kind. The appeals court could still conceivaly come back and approve a final judgement against the distribution of DeCSS, and the court will surely uphold actions against individuals distributing copyrighted DVD materials through benefit of DeCSS.

Which puts matters back into the interesting realm of practical enforcement of copyright on an open Internet.

Re:I'm sorry...

[xonker]

You should worry about this -- yes, it's clearly unconstitutional, and with time and money it would obviously be overturned.

However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.

Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.

People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.

While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.

If that's not worth getting upset about, I don't know what is.

The real issue is the trade secret status of DeCSS

[jms]

Yes, it's a win, but the court made it perfectly clear that it holds no opinion on the REAL stakes in this war.

The real stakes are the loss of the DVDCCA monopoly over permissable player features.

The entire DVD industry, through the DVDCCA, have devised a set of mutual licensing handcuffs that they are all to wear -- DVD player manufacturers may not manufacture DVD players with unencrypted digital outputs. They may not manufacture and sell region-free players. This keeps the ability to make fair use of DVDs out of the hands of consumers.

If the trade secret status of the decryption algorithms is found to be lost, then third parties, not bound by restrictive DVDCCA licenses, may well be free to offer DVD players with such consumer-friendly features as unencrypted digital outputs, no region codes, and the ability to fast-forward over unwanted trailers and FBI "notices", while the entire current DVD player industry will be unable to match those features, due to their contracts with the DVDCCA, without in effect dissolving the entire licensing structure and having to compete in, horrors, an open, unrestricted marketplace.

Those are the real stakes. They have nothing to do with copyright infringement, and everything to do with what may turn out to be a "suicide pact" amongst all DVD hardware manufacturers.

The court offers soothing, reassuring words to the DVDCCA and current player manufacturers:

We express no opinion as to whether permanent injunctive relief may be obtained after a full trial on the complaint, as that issue is not before us.9 We further have no occasion to decide whether damages for Bunner's disclosure would be appropriate in these circumstances. DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech.

"violates the Act by conduct" presumably means to manufacture an unlicensed player, and that's the real reason that the MPAA/DVDCCA is spending millions of dollars suppressing DeCSS.

Re:Nonsense

[jaoswald]

Computer source code, thought unintelligible to many is the preferred method of communication among computer programmers.

"that's like saying bridges are the preferred method of communication among civil engineers. code is for compilers, text is for people."

Source code *is* text, except in languages like National Instruments' LabView.

Blueprints and engineering drawings, not bridges, are a suitable method of communication between civil engineers. They can be "converted" to bridges by builders reading the blueprints. That does not destroy their value as a medium of communication.

Source code is a way to express an algorithm in a way that it may be *both* understood by humans and converted into executable form.

The court specifically recognized that the corresponding object code would not be a medium of human-human communication, but rather in the nature of a mechanical device.

The quote you made from the decision is in the context of discussions of encryption. Surely, for a complicated encryption algorithm, the clearest, most precise, and most unambiguous expression would be a code-like representation, whether in pseudo-code or a real programming language.

Are you suggesting that bridge designers communicating with bridge builders by text alone would work? Do you think the bridge would at all resemble the true intentions of the designer? Would it even be safe to walk across? I believe we would clearly prefer that communication to take place through accurate drawings.

Likewise, discussions between cryptographers and people implementing encryption systems would almost certainly be most accurate if conducted using code-like constructions. Accurate descriptions of encryption technology are essential to avoid potentially serious errors, such as security flaws. Therefore, communication in source code is far preferable to ordinary text.

Implications of the decision

[WillSeattle]

OK, I've read thru the PDF of the decision.

IANAL, but it seems to me that it boils down to the appelate court saying (with a lot of other things):

Source Code is Free Speech. DCMA cannot override the right of free speech, especially if it does not involve the use of slander, libel, or "fighting words".

Therefore, you cannot have a trade secret law, especially one from a state, override the constitutional right to free speech. Ever.

This implies that I can thereby describe WINE as free speech, and MSFT can't sue me for trade secrets, since it's an alternate method for responding to inputs and outputs.

This also implies that DCMA is functionally flawed on a constitutional basis.

This lastly implies that the only way to overturn this is to have the US Supreme Court or some higher court overturn this decision.

Good.

Time to start coding!

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.

Re:Look out, Taco.

[ewhac]

This "slashdot.org" is full of people who have no regard whatsoever for traditional IP laws and rights and discuss ways to subvert them at every turn.

Dur-hey.

This is because those of us who actually understand these machines have realized their economic implications, and that they make copyrights obsolete.

Computers are designed to copy things. Indeed, computers as we understand them today would be useless if they lacked the ability to copy data and move it around. What the Feudal Intellectual Property Lords are trying to do is tell you, down to the smallest detail, what you can and can't make copies of, and what you can and can't do with those copies.

Consider the program Cthugha, which is an audio visualization program. It takes the digital representation of the music on CD and turns it into a light and color show. The IP Lords assert that, unless you have been granted explicit permission by them to do something with "their" music, you should be held criminally accountable. They have never granted explicit permission for you to run "their" music through a color organ. Hence, copyright violation.

Further, since the output of Cthugha is directly related to the musical input, the output could be construed as a derivative work (since there is no new "creative material", only a purely mechanical translation from audio space to visual space). Absent a license, derivative works are expressly prohibited by copyright law. Hence, using Cthugha is a copyright violation; and Cthugha could be held as a device whose sole purpose is to violate copyrights, and would be banned. (And after all, why should Cthugha's authors profit even reputationally from a color organ that would be useless without "their" music, when the major labels should be able to make money by selling you one?)

This is how adherents to current IP law think. This is not reasonable. This is not forward-thinking. This is not socially redeeming in any way. This is stupid. It is reductio ad absurdum, except that it is being taken seriously. On the contrary, it merits nothing but ridicule.

That's why you're seeing so little regard for, "traditional IP laws and rights." It's because they don't merit respect. The era of ubiquitous and zero-cost manufacturing, as heralded by the computer, makes them irrelevant and obsolete.

Please note extremely carefully: I am not saying artisans and inventors should not be justly compensated for their creative works. But the "traditional" laws we have in place for doing this no longer have any realistic bearing on the real world, since the machines themselves defy the fundamental assumptions made by the law. The whole system needs to be scrapped and re-designed anew.

Schwab