[dvd-discuss] Bunner wins DeCSS trade secret appeal

[John Schulien <jms(at)johns.cc.uic.edu>]

Yes, it's a win, but the court made it perfectly
clear that it holds no opinion on the REAL stakes
in this war.

The real stakes are the loss of the DVDCCA 
monopoly over permissable player features. 

The entire DVD industry, through the DVDCCA, 
have devised a set of mutual licensing handcuffs 
that they are all to wear -- DVD player 
manufacturers may not manufacture DVD players
with unencrypted digital outputs. They may
not manufacture and sell region-free players.
This keeps the ability to make fair use of DVDs 
out of the hands of consumers. 

If the trade secret status of the decryption
algorithms is found to be lost, then 
third parties, not bound by restrictive DVDCCA
licenses, may well be free to offer DVD players 
with such consumer-friendly features as 
unencrypted digital outputs, no region codes, 
and the ability to fast-forward over unwanted
trailers and FBI "notices", while the entire 
current DVD player industry will be unable to 
match those features, due to their contracts 
with the DVDCCA, without in effect dissolving
the entire licensing structure and having to
compete in, horrors, an open, unrestricted
marketplace.

Those are the real stakes.  They have nothing
to do with copyright infringement, and 
everything to do with what may turn out to 
be a "suicide pact" amongst all DVD hardware
manufacturers.

The court offers soothing, reassuring words to 
the DVDCCA and current player manufacturers:

> We express no opinion as to whether permanent 
> injunctive relief may be obtained after a full 
> trial on the complaint, as that issue is not 
> before us.9  We further have no occasion to 
> decide whether damages for Bunner's disclosure 
> would be appropriate in these circumstances.  
> DVDCCA may, of course, bring an action for 
> damages or even injunctive relief against 
> anyone who violates the Act by conduct rather 
> than speech.  

"violates the Act by conduct" presumably means 
to manufacture an unlicensed player, and that's
the real reason that the MPAA/DVDCCA is spending 
millions of dollars suppressing DeCSS.

- John