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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."
The "knew or should have known" test should not have been applied to the original trade-secret violation case. It appears that not even Norway's prosecutor "knows", and its court certainly thinks not. How would some kid who's never been there be expected to "know"? The only outcome that would not embarrass California's courts any further would be to decide that there was no remaining trade secret at the time of the original filing.
See, that's why I just ignore laws like that. I bought the DVD. It's mine. I own it. If I want to crack the copy protection, it's my choice. Since, you know, I own it and all. If I wanna take a razor and scratch up the surface, it's my choice. Since, you know, I own it and all.
I really don't understand how it came to be that if you buy something it's still not yours.
Then again, I live in canada so that DeCSS ruling probably doesn't effect me... yet.
I am a filthy pirate.
the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case.'"
If this is in fact what they said, it'll never hold up. Freedom of speech is the First Amendment to the US Constitution (for those of you who don't live here). It cannot be "outranked" by property and trade secrets rights. No state or federal law can "outrank" the Constitution of the United States.
The article may have misinterpreted the decision, but if that indeed was the decision, it will be overturned.
If I'm not mistaken, this code wasn't stolen, it was reengineered from scratch, wasn't it? If that's the case, what does it matter if the code was "meant to be" public? It became public the minute its author wrote it. Is the court really saying that the manufacturer's intent bars me from writing original descriptions of a product?
PS I realize that this may be an issue of the code containing "stolen" trade secrets such as keys. If this is the case, would the decision still apply to a truly "clean-room" version of DeCSS?
That's not so much a 'solution' as a 'quick-fix.'
For how long will it work? Really, with the EU and the WIPO both following the disturbing trends in the US, its not very likely that safe havens from the current American copyright regime will exist for long.
On the contrary, when the issue is lost here, at least in the current international climate, the world has no choice but to listen--and the being complacent and hosting on outside servers instead of fighting it simply gives these absurd copyright laws more time to become 'written in stone' so to speak in US law. Remember Eldred v Ashcroft? During oral arguments, the soon-to-be majority opinion Justices kept bringing up the question, as though it were a justification, of "why haven't copyright extensions been challenged before?" The longer these laws stay on the books, the harder its going to be to find respite from them in any country.
Dude, you're mixing up your IP. Trade secrets and patents are pretty well diametrically opposed. A patent on an item gives you the right to a limited monopoly on the production/use/whatever of that item. However, in exchange for those rights, you must publically disclose, in detail, the workings of your item. A trade secret, OTOH, is just that. A secret. It absolutely must not be publically disclosed (hence the use of contracts, NDAs, etc, to prevent exposure of the secret).
Of course, that doesn't change your point that trade secrets are valuable (your Coca-Cola formula example is, actually, a good one... it's a trade secret, not a patent), however, one must not allow corporations to trump the rights of the public in order to protect their bottom line (a disturbing trend these days).
Patents could be, and perhaps once were, beneficial to society. They do not currently have a net posititve impact on society. On the bottom lines of certain companies, perhaps, but that's a separate matter. And one might question which of those companies have a net positive impact on society.
Patents are essentially nothing more or less than one particular method for creating monopolies. Monopolies have, except when relatively weak, a net negative impact on society. Thus when an individual owns a patent, there can be an argument that the net impact on society is positive. It distributes the power base, and thus strengthens democracy. But when some centralized agency, say an employer, owns or controls the patent then net benefit on society becomes negative because it acts of further strengthen already unusually strong elements. And thus weakens democracy.
Note that while a republic does not depend on being egalitarian, and often isn't, a democracy does so depend. Thus as centralizations of power accumulate the country becomes less and less democratic (small d). Not, however, necessarily more republican. If the power is quite centralized oligarcies are more likely. Or even some sort of virtual feudal system (with, e.g., people being forbidden by contract from changing masters [perhaps employers?])
I think we've pushed this "anyone can grow up to be president" thing too far.
I was under the impression that the only way that publishing a "trade secret" was wrong was if the owner had entrusted you with it and you disclosed it.
I cannot see how Brunner can be found liable for publishing the DVDCCA's "trade secrets" when Johanssen's code was independently developed in a reverse engineering environment even more stringent than the classic "clean room." I may be incorrect on the facts, but as I understand the Norwegian case, Johanssen did not dismantle his DVD player, download the ROMs and then disassemble the code. Most of what he did involved examining the data on the disk and trying to find the decryption key by means of quasi-brute-force cracking.
I see no violation of "trade secrets" here primarily because neither Johanssen nor Brunner were ever entrusted with the "secret" by the DVDCCA in the first place. Johanssen discovered it by independent reverse engineering, which the US Supreme Court has already determined to be protected as "fair use."
But, then again, I MIGHT be wrong on that.
utter rubbish
If computer code is not creative expression, why can it be copyrighted?
This is only the state Supreme Court. If the appeal makes its way to the US Supreme court, they might disagree with: "the state Supreme Court ruled that property and trade secrets rights outranked free speech rights in this case."
Last time I looked, the US Constitution specifically protects free speech, but only indirectly protects property rights (and specifically limits so-called intellectual property), and says nothing at all about trade secrets.
OTOH, courts -- even Supreme Courts -- have been known to come up with screwy decisions.
-- Alastair
You can read the PDF version of the California Supreme Court decision at: DVD Copy Control Association, Inc. v. Andrew Bunner.
The opinion is neatly summarized in its first paragraph:
Prof. Eugene Volokh of UCLA Law Schooland the Volokh Conspiracy has some comments.
Only Women Bleed (Sex, Sharia remix)
IANAL and my english isn't that great sometimes, but EFF's release concerning this doesn't match BuisnessWeek's, from what I can tell.
Check out EFF's release: California Supreme Court Upholds Free Speech in DVD Case.
I am misunderstanding it?
This case is about the source code to decss.exe in specific, not about open-source CSS decoders in general. DeCSS is *not* what lets you watch DVDs in Linux. That's done by libdvdread and libdvdcss, which (so far) have not been sued, harassed, or even mentioned by the big bad MPAA! DeCSS is a *Windows-only* utility that decrypts DVD images copied to a hard drive. That might be fair use, but it's certainly not a DVD player for Linux.
So go on, expend all your political energy whining about DeCSS and your God-given right to watch DVDs on your Linux box, and ignore Ashcroft, the TIA, the PATRIOT act, and a hundred DMCA cases you've never heard of that are the real threats to your freedom.
Flame away, I'll be watching The Two Towers DVD with xine on my Gentoo box...
0 1 - just my two bits