DVD-CCA, the organisation that licenses DVD technology for
Hollywood movie studios, originally filed the lawsuit in December
1999 and obtained the lower court's injunction in January 2000
against Andrew Bunner, who had published the code on his web
site.
The appeals court overruled the lower court injunction in
November 2001. It had ruled 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 Slashdot.org and deciding it was
newsworthy.
DVD-CCA then appealed to the California Supreme Court to
challenge the appeals court's ruling. It contends that
republication of DeCSS software constitutes illegal
misappropriation of a trade secret.
According to legal journal The Recorder, California Attorney
General Bill Lockyer told the Supreme Court: "The program we are
talking about is a burglary tool", used for "breaking, entering and
stealing". He argued that the program was not "pure speech" in
terms of the First Amendment, but a system used for a functional
purpose.
David Greene, Bunner's lawyer, argued that the code was indeed
"pure speech", because the code was "the transmission of
information via a language".
He insisted that the prohibition on publishing the program on
the internet was a violation of free speech. "This is an
injunction, the purpose of which is to stop the flow of
information," he said.
Greene went on to say that Bunner had only been reproducing a
code that had been published many times before. He argued, "A trade
secret, by its nature, is a limited right," adding, "Any right you
have disappears when it becomes publicly known."
While there have been several successful cases preventing the
publishing of such security cracking codes on the internet, these
were prosecuted under a different act - the Digital Millennium
Copyright Act, which protects copyrighted products, not trade
secrets.
The court is expected to make its ruling within three
months.
