Re: [dvd-discuss] Bunner Wins DeCSS Trade Secret Appeal!!

[Wendy Seltzer <wendy(at)seltzer.com>]

At 03:48 PM 11/1/01 -0500, Seth Johnson wrote:

>Congratulations, Wendy!!

Thanks, but the congratulations are due to EFF, the First Amendment 
Project, and Allonn Levy of Huber-Samuelson.  I was just reporting their 
victory.

Let's hope it's the first of many!  (Reversal of the preliminary injunction 
sends the case back to the trial court for trial, giving Bunner his costs 
of appeal and DVDCCA a warning that they don't have a tremendous likelihood 
of success on the merits.)

--Wendy
(now look at all those CC's I have to send the correction to :)


><< Big Fat GRIN >>
>
>Seth Johnson
>
>
>-----Original Message-----
>From: Wendy Seltzer <wendy@seltzer.com>
>Date: Thu, 01 Nov 2001 15:38:57 -0500
>Subject: [dvd-discuss] Bunner wins DeCSS trade secret appeal
>
> > 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."
> >
> > Good work, defense team!
> >
> > PDF Opinion:
> > 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 Seltzer -- wendy@seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html