Free speech wins over trade protection
- This came over the wire yesterday.
Good news for Linux users for once.
Posted at 2:13 a.m. PST Friday, Nov. 2, 2001
Ruling a blow for DVD industry
Free speech wins over trade protection
BY HOWARD MINTZ
Ruling that free speech deserves more protection than trade secrets in cyberspace, a state
appeals court dealt a blow Thursday to the DVD industry in its legal fight to prevent Web sites
from posting software to unscramble the encryption on DVDs.
Concluding that First Amendment rights trump California's stringent trade secrets laws, the 6th
District Court of Appeal in San Jose overturned an injunction that in practice has blocked dozens
of Web sites from distributing DeCSS, a popular method for cracking the encryption scheme
used by the industry to prevent copying of digital versatile discs.
DVDs are an increasingly popular medium for distributing movies and music, and the industry
argues that the encryption format is a trade secret that must be protected. However, the First
Amendment is more important, the court said.
The DVD industry'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,'' Justice
Eugene Premo wrote for an unanimous three-judge panel.
The California appeals court ruling won't result in the DVD decryption information being
immediately unleashed on the Internet. In a related case, a federal judge in New York last year
issued a similar injunction against Web site operators that remains in force.
But if upheld, the California ruling marks an unprecedented establishment of free speech rights
in cyberspace and could have sweeping ramifications for the ability of businesses to police their
trade secrets on the Internet.
The California appeals court ruling stems from a 2-year-old lawsuit filed by the Morgan Hill-
based DVD Copy Control Association, which has sought to bar Web sites with links throughout
the world from posting the software keys to the DVD encryption program.
The injunction had been issued against Andrew Bunner, the operator of one of the sites, but
Thursday's ruling applies broadly to the many sites named as defendants by the industry.
The DVD industry, which is also backed by a computer industry trade group, vowed to quickly
appeal the ruling to the California Supreme Court.
``The decision would be a devastating blow to the U.S. economy, and it makes absolutely no
sense,'' said New York attorney Jeffrey Kessler, who represents the DVD Copy Control
Association. ``The decision is crazy. Beyond our case, if this decision becomes the law of the
United States, all trade secrets laws are unconstitutional.''
Civil liberties groups and lawyers for the Web site operators, meanwhile, called the decision a
landmark endorsement of First Amendment rights on the Internet.
``What this case isn't about is intellectual property rights,'' said Robin Gross, an attorney with the
Electronic Frontier Foundation. ``What it is about is the First Amendment rights of people who
come across information in the public domain who want to republish and discuss that
The ruling was a change of fortune for free speech advocates, who have repeatedly lost in their
legal fight with the DVD industry.
Many of the Web site operators are Linux enthusiasts who have said they legitimately reverse-
engineered the DVD technology to allow DVDs to be played on computers using the Linux
operating system, and the dispute traces back to a 15-year-old computer whiz in Norway who
first posted the technology in 1999.
In January 2000, Santa Clara County Superior Court Judge William Elfving issued a sweeping
injunction barring the posting of the code after finding the industry's trade secrets would be lost if
scofflaws were allowed to post it, unrestricted, on the Internet. Elfving concluded that unfettered
access to information on the Internet does not equal a license to steal or distribute protected
But the appeals court determined that the injunction goes too far, cutting off the exchange of
information -- in this case, source code -- among people who may not even know they are
distributing a trade secret.
# # #
Richard "Don't call me Mr." Jobity, Trinidad and Tobago.
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