November 02, 2001, 10:00 AM — DeCSS, the code used to descramble DVDs, cannot be barred from publication, a California appeals court ruled Thursday. The code, whose initials stand for De-Contents Scramble System, the name of the encryption mechanism used to keep the contents of DVDs from being copied, had been barred from publication as part of a case brought by the DVD Copy Control Association (DVDCCA).
The DVDCCA's case is a separate one from the more well-known, but already decided, New York State case that pitted 2600: the Hacker Quarterly against the Motion Picture Association of America (MPAA). In that case, DeCSS was ruled to be illegal as it violated the anti-circumvention provision of the 1998 Digital Millennium Copyright Act (DMCA), which holds that it is illegal to provide information or tools to circumvent copy control technologies.
The DVDCCA brought suit under the Uniform Trade Secrets Act, charging that the disclosure of the code to descramble CSS -- either its posting or linking to Web sites that hosted it -- was a violation of its trade secrets. The defendants in this case include Jon Johansen, the 15-year-old Norwegian who created DeCSS, and Andrew Bunner, who posted the DeCSS code on his Web site.
On Jan. 21, 2000, the trial court hearing the case issued an injunction against the "posting or otherwise disclosing or distributing, on ... Web sites or elsewhere, the DeCSS program, the master keys or algorithms of the Contents Scramble system ('CSS'), or any other information derived from this proprietary information." Unlike the New York case, however, the court refused to bar the use of links to sites hosting DeCSS as links are crucial to the Internet and one site owner cannot be responsible for the content at another site. That injunction was appealed by Andrew Bunner, leading to Thursday's ruling.
The Court of Appeal for the State of California Thursday ruled that DeCSS cannot be enjoined from publication, because doing so would violate the First Amendment as an unconstitutional prior restraint to publication.
"The 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 or even on equal footing with the national security interests and other vital government interests that have previously been found insufficient to justify a prior restraint," the court said in its decision.
Further breaking from the New York court's decision, the California court held that the source code to programs, such as the code to DeCSS, has an expressive nature and is thereby protected by the First Amendment. The New York court had ruled that source code was not protected by freedom of speech because it could be compiled into a functional program. The California court ruled that though "the source code is capable of such compilation, (that), does not destroy the expressive nature of the code itself."
The court took pains however to make it clear that it held no opinion as to whether a permanent injunction might be issued at the end of the trial. It also upheld the DVDCCA's right to bring action against anyone who violates the Uniform Trade Secrets Act by conduct, as opposed to speech, or who was contractually bound by a "click-through" agreement not to disclose the code. The court also said that anyone who infringes DVDCCA copyrights could be acted against under copyright law.
The lifting of the preliminary injunction will only last until the original trial is concluded and a decision is made, though it is not clear when that will be.
The court's decision can be found online at http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF.
