California court allows posting of DVD decrypt code

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.

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