Victory for Code as Free Speech in California

Posted 2 Nov 2001 at 08:34 UTC by Qbert Share This

California appellate court has ruled that code is code is constitutionally protected free speech, and that the First Amendment's protections trump trade secrets legislation. The case is DVD-CCA v. Bunner. Bunner published DeCSS on his Web site, the DVD-CCA brought suit against him, and Bunner won. However, a higher court still has to rule on MPAA v. 2600.

If you haven't joined the EFF yet, this is a good to do so.

I just received this message from the EFF mailing list. (The news has yet to appear on the site.)

>For Immediate Release: November 1, 2001
>David Greene, Executive Director, First Amendment
>   Project, +1 415 336-3566 (cell)
>James Wheaton, Senior Counsel, First Amendment
>   Project, +1 510 208-7744
>Robin Gross, EFF Intellectual Property Attorney,
>, +1 415-637-5310 (cell)
>First Amendment Right to Publish Computer Code Upheld
>Court Overturns Ban on Publication in Trade Secret Case
>In a tremendous victory for freedom of speech on the
>Internet, a California appellate court today unanimously
>overturned a trial court's injunction banning dozens of
>individuals from publishing on their websites DeCSS
>computer code that unscrambles DVDs. Unscrambled DVDs
>may be played on any computer.
>The appellate court held that a lower court judge
>violated the First Amendment rights of defendant Andrew
>Bunner in ordering Bunner and other publishers of the
>software to remove it from the web on a preliminary
>request by the major movie studios' DVD licensing
>organization, DVD-CCA. Bunner had republished the
>software after learning about it on Slashdot News. The
>lower court enjoined Bunner from publishing DeCSS based
>on claims of trade secret misappropriation even though
>he found the program in the public domain and simply
>republished it.
>"The court recognized that trade secrets do not trump
>the First Amendment rights of citizens to publish and
>discuss information readily available in the public
>domain," stated David Greene, Executive Director of the
>First Amendment Project who argued the appeal before the
>6th District Appellate Court.
>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 characterized as a prohibition
>of 'pure' speech."
>"In an era of expanding dubious legal claims by
>intellectual property owners that threaten to stifle
>speech and innovation, this decision paves the way for
>preserving liberty online by balancing legitimate
>restrictions with First Amendment guarantees," stated
>Robin Gross, an EFF intellectual property attorney
>handling the case.
>The studios objected to DeCSS software, which
>programmers wrote in the fall of 1999 as part of an
>independent project to create a DVD player for the Linux
>operating system. In early 2000, DVD-CCA filed this
>lawsuit against hundreds of Web publishers seeking to
>ban the publication of DeCSS. Santa Clara County trial
>court Judge William Elfving granted the request for a
>preliminary injunction on January 21, 2000, and ordered
>defendants to remove DeCSS from their personal websites.
>The case is expected to go to trial next spring before
>Judge Elfving.
>Andrew Bunner was represented on appeal by David Greene
>and James Wheaton of the First Amendment Project, Allonn
>Levy of San Jose's HS Law Group, Tom Moore of Tomlinson
>Zisko Morosoli & Maser in Palo Alto, Professor Eben
>Moglen of Columbia University Law School, and Electronic
>Frontier Foundation attorneys Cindy Cohn and Robin Gross.
>The 6th Appellate Court's decision overturning the
>More information on DVD-CCA v. Bunner including legal
>filings and media releases:
>The U.S. 2nd Circuit Court of Appeals will likely decide
>soon a separate case in which EFF appealed an injunction
>banning 2600 Magazine's Editor-in-Chief Emmanuel
>Goldstein from publishing or linking to DeCSS under the
>Digital Millennium Copyright Act's anti-circumvention
>provisions. Dean Kathleen Sullivan of Stanford Law
>School argued that case on behalf of the EFF in May 2001.
>About EFF:
>The Electronic Frontier Foundation is the leading civil
>liberties organization working to protect rights in the
>digital world. Founded in 1990, EFF actively encourages and
>challenges industry and government to support free
>expression, privacy, and openness in the information
>society. EFF is a member-supported organization and
>maintains one of the most linked-to websites in the world:
>About FAP:
>The First Amendment Project is a nonprofit, public interest
>law firm and advocacy organization dedicated to protecting
>and promoting freedom of information, expression, and
>petition. FAP provides advice, educational materials, and
>legal representation to its core constituency of activists,
>journalists, and artists in service of these fundamental
>liberties and has a website at:
>                       - end -

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Robin D. Gross - Cyberspace Attorney @ Law Director - Campaign for Audiovisual Free Expression (CAFE) Electronic Frontier Foundation 454 Shotwell Street, San Francisco, CA 94110 e: w: p: 415.863.5459 f: 415.436.9993

Two corrections, posted 3 Nov 2001 at 01:29 UTC by schoen » (Master)

  1. Bunner hasn't won the case yet; it's just that the preliminary injunction against him was overturned. The appeals court said he had a free speech interest in being allowed to post DeCSS while the case goes ahead. This is a great and significant step, but it doesn't mean that Bunner wins the whole case.

  2. The appeals court (the 2nd Circuit Court of Appeals) which is reviewing Universal v. Reimerdes (the 2600 case) isn't "higher" or "lower" than the appeals court (the 6th Appellate District) which decided this appeal. They're just different. The former is a Federal appeals court, the latter a State appeals court. There is no appeal from one court to the other.

... if the 2nd Circuit doesn't overturn Judge Kaplan's decision in Reimerdes, though, then people in the 2nd Circuit will still have a legal hurdle or cloud around publishing DeCSS. In additional, although the 2nd Circuit's views aren't officially precedential for other Circuits (like the 9th Circuit, where Advogato and I live), they could be influential for them.

Bunner's Mistake?, posted 3 Nov 2001 at 02:04 UTC by ncm » (Master)

I notice, in reading the decision, the judge mentioned that when Andrew took down his posting of DeCSS at the DVDCCA's request, he made it much easier for the court to impose the injunction.

Apparently it's easier for a court to order somebody not to do something (e.g. post DeCSS again) than to order them to do something (take it down).

To me this means that if you're planning to mount a First Amendment defense, you might better leave the stuff posted so they have to take the bigger, less defensible step of ordering you to "cease publication".

It's not as if the original judge actually cared what the law said, or the Constitution. But maybe the difference would make it easier for an appellate court to overturn such an injunction.

(I Am Not A Lawyer. I Welcome Correction.)

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