Out-Law / Your Daily Need-To-Know

Software code is pure speech, says court in DVD ruling

02 Nov 2001, 12:00 am

An appeals court in California has unanimously overturned a lower court’s order which banned individuals from publishing on their web sites a piece of computer code known as DeCSS which can be used to break the anti-copying protection used in DVDs, known as CSS.

The ruling is a significant development in a series of cases concerning the controversial code which was first developed by a Norwegian teenager who claims to have written the software to allow him to play DVDs on his Linux-based PC. The Linux operating system is incompatible with CSS.

The appeals court ruled that a lower court judge violated the First Amendment (free speech) rights of Andrew Bunner in ordering him and other publishers of the software to remove it from the web at the original request of the major movie studios' DVD licensing organisation, DVD-CCA. The lower court forbid Bunner from publishing DeCSS based on claims of trade secret misappropriation, although Bunner had argued that he found the program in the public domain and simply republished it.

According to the court's ruling, "the California Legislature is free to enact laws to protect trade secrets, but these provisions must bow to the protections offered by the First Amendment." The court found that the injunction barring Bunner's publication of DeCSS "can fairly be characterised as a prohibition of 'pure' speech."

Its reasoning was as follows:

"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… That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself."

The ruling effectively says that software code can still be deemed illegal and programmers could be prosecuted for posting it on-line; but they cannot be prohibited from posting it on-line in the first place, before it is deemed illegal. This reasoning, if upheld, will likely make the movie industry more nervous, given the ease with which on-line postings can be copied.

Another US appeals court is expected to decide soon a separate case in which US civil liberties group the Electronic Frontier Foundation appealed an injunction banning hacker-magazine 2600's Editor-in-Chief Emmanuel Goldstein, aka Eric Corley, from publishing or linking to DeCSS under provisions of the US Digital Millennium Copyright Act (DMCA) which make illegal the deliberate circumvention of copyright protections.