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

Congratulations, Wendy!!

<< 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