At 02:17 PM 11/3/2001 -0500, Steve Bellovin wrote: >"SAN FRANCISCO (November 2, 2001 6:20 p.m. EST) - Publishing software >code to decrypt and copy digital movies is protected by the First >Amendment as an expression of free speech, a California appeals >court ruled. > >"The state's 6th Appellate District in San Jose found Thursday that >Andrew Bunner's publishing of links to a software program called >DeCSS on his Web site represented "pure speech" protected under >the First Amendment." > >http://www.nando.net/technology/story/162761p-1549723c.html
In the main, it is a good decision (available at http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF), but before folks get too excited, a few things should be pointed out. First, the court made a clear and less than helpful distinction between source and object: "Like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSSencrypted 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. (See generally Junger v. Daley, supra, 209 F.3d at pp. 482-483.) That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech." Second, the court ruled that the preliminary injunction which the lower court had issued was an unconstitutional prior restraint on speech, but went out of its way not to answer whether damages and/or a permanent injunction after trial would suffer the same fate. Third, this is not a DMCA case, it is a case brought by the DVD Copy Control Association under the California Uniform Trade Secrets law. The court, without specifically mentioning DMCA, also made the point of discussiing how a claim against DeCSS might be handled differently under copyright law than under trade secrets law. So, except for the source/object distinction drawn by the court, its a nice decision, but its utility in DMCA cases is questionable. -------------------------------------------------------------------- James S. Tyre mailto:[EMAIL PROTECTED] Law Offices of James S. Tyre 310-839-4114/310-839-4602(fax) 10736 Jefferson Blvd., #512 Culver City, CA 90230-4969 Co-founder, The Censorware Project http://censorware.net --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to [EMAIL PROTECTED]
