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DeCSS lost its "free speech" protection

25 August 2003 16:50 by Petteri "dRD" Pyyny | 5 comments

Californian Supreme Court decided today that a piece of code that we know as the DeCSS code, can't be protected by U.S. constitution's free speech amendment.

The case was filed originally back in 1999 by DVD CCA against dozens of Californian (and, apparently, residents from other states as well) residents, accusing them of violating DVD CCA's trade secrets by distributing a code, the DeCSS, that allows circumventing the copy protection mechanisms found on DVD-Video discs.

District court originally granted a preliminary injunction against the individuals that banned them from distributing the code. Other defendants on the case accepted the decision, but one individual, Andrew Bunner, took the case to appeals court. Appeals court stated in November 2001 that distributing the DeCSS code is protected by the First Amendment (the free speech amendment in American constitution), but DVD CCA took the case to the California Supreme Court which now delivered its decision.

However, by reading the court decision, the court decided that code is protected by the free speech, but in this particular case, its value in overall conversation was, according to court, overweighted by the accused trade secret violations. Now, California Supreme Court has asked the Appeals Court to look at its decision again and determine whether distributing the DeCSS can be classified as a trade secret violation or not.

"We are pleased that the court has found that a strong level of First Amendment scrutiny applies in trade secrets cases," said Gwen Hinze, a laywer of Electronic Frontier Foundation who has worked on the case and defended Bunner. "We don't think that there is a trade secret here."

Source: BusinessWeek

Permalink to this article

Appeals court overturned DeCSS decision (27 February 2004)

Final DeCSS case dropped unexpectedly (22 January 2004)

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Discuss this article!
mystic (Member) 26 August 2003 5:02
well if the court ruled its not protected and they have to make it public by the freedom of infomation act then it becomes public anyway right? hey and all court records are open to public inturputation... [ + quote]
Rodgers (Inactive) 26 August 2003 9:35
This is a waste of time with the California courts. This must go to the Supreme Court for interpretation. The Constitution protects Freedom of Speech etc. and this case therefore cannot be settled by any State Court. I think the recent decision will eventually be overturned. Best to All! Rodgers [ + quote]
dRD (I hate titles) 26 August 2003 12:17
They upheld the Freedom of Speech argument strongly, but court decided that the fact it might violate (which is not determined, it will be determined by the appeals court) trade secrets law, is more important than its value to the overall discussion (i.e. pretty much same stuff that applies to military secrets, etc where First Amendment doesn't count very much :-). Petteri Pyyny Webmaster http://AfterDawn.com/ Please read our guides before posting questions! Guides are available here: http://www.afterdawn.com/articles/ [ + quote]
Rodgers (Inactive) 27 August 2003 4:51
1st Amendment will prevail in my opinion. Eventually it will go to the High Court for conclusion. Best to All! Rodgers [ + quote]
davyj (Newbie) 28 August 2003 1:48
An interesting one for Americans. Are corporatation's rights to keep trade secrets, which are protected to allow 'a competitive market place', more important than the individual's right to free speech, which is protected to allow 'a free and democratic society'. If the court (of appeal) rules in favour of the corporation this will just be another nail in the coffin of 'free' society. The facts which have come to light during this process are fairly undeniable. The DVD 'copy protection' mechanism (which is really a system designed to allow the industry to time-lapse their releases across the world) appears to be based on a (weak) cypher, the workings of which are now very much in the public domain. People are even wearing the algorithm on t-shirts now, and a search for the source code on google produces far more than 500 results (the number of defendants in the court case above). Pandora's box, once opened, releases it's contents forever. However the one thing left in Pandora's box was Hope. Perhaps that's a positive sign of things to come, or perhaps not. [ + quote]