[dvd-discuss] Bunner wins DeCSS trade secret appeal

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

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