-----Original Message----- From: Tyler Ochoa [SMTP:[email protected]] <mailto:[SMTP:[email protected]]> Sent: Thursday, November 01, 2001 8:44 PM To: Multiple recipients of list Subject: Re: Bunner wins DeCSS trade secret appeal I am forwarding the following message to the list (with permisison). Although the case is not a copyright case, its First Amendment ruling that software is protected speech may have implications for the Reimerdes case in the Second Circuit. Tyler T. Ochoa Associate Professor Whittier Law School >>> [email protected] <mailto:[email protected]> 11/01/01 12:38PM >>> The California appeals court has reversed the trade secret injunction against publication of DeCSS, concluding that DeCSS is "pure speech" that must not be subjected to the prior restraint of injunction before trial. Without any mention of Kaplan's decision, the court rejected DVDCCA's characterization of DeCSS as purely "functional." PDF Opinion: http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF <http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF> 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. (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. and DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is "more fundamental" than the First Amendment right to freedom of speech or even on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint. Our respect for the Legislature and its enactment of the UTSA cannot displace our duty to safeguard the rights guaranteed by the First Amendment. Accordingly, we are compelled to reverse the preliminary injunction. -- Wendy [email protected] <mailto:[email protected]> Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html <http://cyber.law.harvard.edu/seltzer.html>
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