Out-Law News 1 min. read

DVD cracking case heard in California Supreme Court


Oral arguments began on Thursday in an appeal to the California Supreme Court over another court's decision permitting publication of software code known as DeCSS on the internet. This code can be used to break the anti-copying protection used in DVDs.

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.

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