DeCSS Loses Free Speech Shield

JohnGrahamCumming writes "BusinessWeek/CNET is reporting that the California Supreme Court has ruled that 'a Web publisher could be barred from posting DVD-copying code online without infringing on his free speech rights.' They also say that 'the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case.'" According to the article, this "...overturned an earlier decision that said blocking Web publishers from posting the controversial piece of software called DeCSS, which can be used to help decrypt and copy DVDs, would violate their First Amendment rights."

Comments

Still a shot

[Anonymous Coward]

Notice that the decision is based on the code being a trade secret. The lower appeals court can still decide that the code is not a trade secret, and it could still be published

What's next? Arrest Securityfocus folks?

[sdriver]

Maybe it's good reason all the tech jobs are going overseas. At least in India/Russia they have the freedom to post security related software without going to jail...

Err... trade secret rights??

[Abcd1234]

What does that mean? Correct me if I'm wrong, but last I checked, there's no such thing as "trade secret rights". Trade secrets are secret because you keep them secret (via NDA or whatever). Once they escape, they're public knowledge, end of story. I wonder how long it'll take before trade secrets are lumped together with patents, copyrights, and trademarks as "IP". *sigh*

Re:Err... trade secret rights??

[Sanity]

Once they escape, they're public knowledge, end of story.

IANAL, but IIRC the law still tries to put the toothpaste back in the tube if the original disclosure was a breach of trade-secret law (such as a violation of an NDA or license agreement), no matter how widely that toothpaste has been spread around.

For this reason trade secret law is, in many ways, much more powerful (and restrictive to the general population) than copyright.

Re:What is this DeCSS?

[N8F8]

OK: decss.c

It's not hard to copy DVDs

[Josh Booth]

...[DeCSS] could more broadly be used in the process of decrypting and copying DVDs.

That's balogna, and everyone on Slashdot knows it. Just because the orginization is called the DVD Copy Control Association doesn't mean that the encryption used has anything to do with copying the DVDs. I can easily and full "cp /dev/dvd ~/copied-dvd.iso" without DeCSS. But you need DeCSS to access the content, which has nothing to do with copying (well, permenantly), only playing.

Re:It's not hard to copy DVDs

[Experiment 626]

But you need DeCSS to access the content, which has nothing to do with copying (well, permenantly), only playing.

I'm glad someone else caught this. It's a bit disturbing when even the Slashdot posting describes DeCSS as "DVD-copying code". DeCSS would not be necessary to make exact copies, and while it could be useful for other types of copies (like downsampling), its main use is not for copying, but playback.

Obviously, this is not the way the RIAA wants people to think of DeCSS. It's much harder to demonize a DVD playing program than some kind of copying tool used by Nasty Evil Pirates. The fact that when DeCSS is mentioned the latter comes to mind, even for a Slashdot poster or tech journalist shows just how effective the RIAA's propaganda really is.

To win this battle, it has to be recast not as a fight for our right to bootleg movies, but put the focus on the legitimate questions that have nothing to do with copying anything.

• How ARE users of Linux and other non-MS operating systems supposed to watch the movies they've paid for?
• How common-knowledge can a process be and still enjoy "trade secret" legal status?
• What gives the RIAA the right to effectively right their own international import/export laws through some ridiculous region encoding scheme and giving them the force of real laws?
• Does (and should) watching a DVD you legitimately bought and own from Japan or England in the United States make you a criminal?

Re:Trade secret case depends on Norway

[EinarH]

The norwegian economical crime unit appealed the case. The case is scheduled to be raised again in a new court in December.
But they might decide to drop the whole case because the possibility for failure.

The case will anyway only (in Norway) be off historical interest since Norway anyway probably will addopt the new Infosoc directive from EU planned to take affect from January 2004.

But the way it is today, Johansen is not sentenced for anything and per se not guilty according to Norwegian laws.

The trade secret status is still doomed

[Sloppy]

I have an idea. I keep it a secret for a while. Lots of people want to use my idea, so I license my idea to them, on the condition they aren't allowed to tell my idea to someone else.

My licensees then start to sell boxes that contain my idea inside of them. The boxes are difficult, but not impossible, to open. They sell these boxes far and wide, to anyone who wants them, without any contractual terms. You can walk into a store and anonymously buy one of these boxes with cash.

Someone eventually opens one of the boxes and peeks inside to see how it works. He happens to have picked one of the easier-to-open boxes, but really, all of the boxes were openable. It was just a question of how hard someone was willing to work.

Did I exercise due dilligence in keeping my idea a secret?

That's about how solid DVDCCA's trade secret is: not at all. The widespread publication of the already-reverse-engineered DeCSS isn't what screwed them. The sale of DVD players themselves is what doomed them. As soon as the first DVD player was sold to an end-user without any contractual obligation to keep the inner workings a secret, the DVDCCA had lost control of their secret. Anyone could have opened their box, even here in USA. Some guy in Norway just happened to be the first to get the glory.

That this loss of control was known about in advance (the whole point was that consumer electronics would implement the algorithm) rather than one of their licensees surprising them by producing a DVD player, is devestating.

If they wanted to keep CSS as a trade secret, they should have made it so DVDs could only be played in theaters, with the descrambling happening on equipment that was under control of people with whom they had secrecy agreements.