Ban on posting of DVD-cracking code overturned

Out-Law News | 02 Mar 2004 | 12:00 am | 2 min. read

The DVD Copy Control Association has lost a long running lawsuit over the publication of software code known as DeCSS on the internet. The code can be used to break the anti-copying protection in DVDs known as CSS.

DeCSS was co-authored by Norwegian Jon Johansen at the age of 15, who claimed to have written the software to allow him to play his own DVDs on his Linux-based PC. The Linux operating system is incompatible with CSS, the Content Scrambling System.

Now 20, Johansen, known by some as 'DVD Jon', was cleared by a Norwegian appeals court in December of all charges relating to the DVD security cracking software.

But DVD companies had also taken action against people and businesses that had published the DeCSS software code on the internet.

DVD-CCA, the organisation that licences CSS for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained an injunction in January 2000 against Andrew Bunner, who had published the code on his web site. The injunction was granted on the basis that republication of DeCSS software constituted illegal misappropriation of a trade secret.

The appeals court overruled the lower court injunction in November 2001, stating that the trial judge failed to consider the First Amendment (free speech) rights of Bunner to republish information readily obtainable in the public domain when it issued the injunction. Bunner had republished DeCSS on his web site after reading about it on "news for nerds" site and deciding it was newsworthy.

DVD-CCA then appealed to the California Supreme Court, which ruled that there was no violation of Bunner's free speech rights, but that the injunction could only be valid if properly warranted under the trade secrets law. The case was remitted back to the appeals court for consideration.

The appeals court issued its ruling on Friday:

"The preliminary injunction [...] burdens more speech than necessary to protect DVD CCA's property interest and was an unlawful prior restraint upon Bunner's right to free speech."

The ruling continued:

"DVD CCA presented no evidence as to when Bunner first posted DeCSS and no evidence to support the inference that the CSS technology was still a secret when he did so. Further, there is a great deal of evidence to show that by the time DVD CCA sought the preliminary injunction prohibiting disclosure of the DeCSS program, DeCSS had been so widely distributed that the CSS technology may have lost its trade secret status."

Gwen Hinze of civil rights group the Electronic Frontier Foundation (EFF), one of the lawyers acting on behalf of Bunner, commented:

"We are thrilled that the Appeal Court recognised that the injunction restricting Andrew Bunner's freedom of speech was not justified".

She added:

"The Court's ruling that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS vindicates what we have said all along: DeCSS has been available on thousands of web sites around the world for many years."

"A number of court rulings have now clearly established that DeCSS had already lost its trade-secrecy status and entered the public domain when Andrew Bunner and hundreds of others re-published the computer code on web in 1999," said IP Justice Executive Director Robin Gross, who worked on the case as an attorney with the EFF.

"Traditional freedom of expression rights may not be sacrificed simply because information that is published on the internet was once a trade secret," he continued.

According to the EFF the case will now return to the trial court where Bunner has a pending motion for summary judgment. This seeks a similar ruling, that Bunner is not liable to DVD CCA because the CSS information is no longer a trade secret and is in the public domain.

In a surprise move late last month the DVD CCA sought to dismiss this case against Bunner without prejudice to suing him again in the future, but the motion was refused.

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