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[dvd-discuss] Bunner wins DeCSS trade secret appeal
- To: dvd-discuss(at)cyber.law.harvard.edu
- Subject: [dvd-discuss] Bunner wins DeCSS trade secret appeal
- From: Wendy Seltzer <wendy(at)seltzer.com>
- Date: Thu, 01 Nov 2001 15:38:57 -0500
- Reply-To: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
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
Regardless of who authored the program, DeCSS is a written expression of
ideas and information about decryption of DVDs without CSS. If the source
"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
pp. 482-483.) That the source code is capable of such compilation, however,
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
characterized as a prohibition of "pure" speech.
DVDCCA's statutory right to protect its economically valuable trade secret
an interest that is "more fundamental" than the First Amendment right to
speech or even on equal footing with the national security interests and
governmental interests that have previously been found insufficient to
justify a prior
restraint. Our respect for the Legislature and its enactment of the UTSA
our duty to safeguard the rights guaranteed by the First Amendment.
are compelled to reverse the preliminary injunction.
Wendy Seltzer -- email@example.com
Fellow, Berkman Center for Internet & Society at Harvard Law School