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.
