DVD-hacking technology is 'pure speech,' rules California court
By The Associated Press
11.02.01
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Editor's note: The DVD Copy Control Association on Nov. 30 asked California's high court to review the Court of Appeals' ruling that publishing DeCSS is free speech. The trade organization said the lower court applied First Amendment protections for computer code in a blunderbuss manner, wholly inconsistent with governing authority and the decision of numerous courts.
SAN FRANCISCO — Chalk up a legal victory up for the computer geeks.
A California appeals court ruled yesterday that using the Internet to publish software code used for decrypting and copying DVD movies is protected by the First Amendment as an expression of free speech.
The California Court of Appeals found that Andrew Bunner's published Web site links to
software program called DeCSS represented "pure speech" and was protected by the First Amendment.
Yesterday's ruling by a three-judge panel of the 6th Appellate District in San Jose overturns a lower court injunction that prevented the program from being published by the defendants, though it is still widely available on various Web sites.
"Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about the decryption of DVDs without CSS," the judges wrote.
CSS stands for "content scramble system," the method used to protect movies on DVDs against unauthorized duplication. DeCSS stands for decrypted CSS, a way of circumventing that protection.
DeCSS allows users to unlock the security code on DVDs and copy the movies to personal computers.
Bunner and several others were sued in December of 1999 by the DVD Copy Control Association, a trade association of businesses in the movie industry.
Bunner and the other defendants maintained DeCSS was merely created to allow DVDs to be viewable on computers running the Linux operating system for which there were no legal DVD decoder programs.
The DVDCCA eventually conceded that "computer code is speech," but said it would likely win at trial.
A preliminary injunction was issued in January 2000 and the defendants were instructed to remove links to the program from their Web sites.
One of the movie industry's fears was that once the video files could be extracted from DVDs, they could be pirated like MP3 music files over programs like Napster. The large size of the video files made that impractical at first, but now several programs are available that compress those large video files to one-tenth their original size.
Entire movies can now be downloaded over file-sharing networks and burned to writeable CDs thanks to DeCSS.
The court acknowledged that DeCSS contains the trade secret algorithms to decode DVDs, but still ruled against the industry, saying the code did not fall into any of the established free-speech exceptions such as being lewd or libelous.
"Although the social value of DeCSS may be questionable, it is nonetheless pure speech," the court wrote.
The DVDCCA said it would appeal the decision.
Update
State high court to hear DVD decryption case
California appeals court had ruled it was 'prior restraint' to prohibit man from posting encryption-breaking code on Internet.
02.22.02
Previous
DVD copiers barred from Web sites
Judge orders Web site operators to stop disseminating program that allegedly makes it easy to copy DVD movies and audio discs.
01.24.00
Related
Cryptographer's arrest sparks fresh debate about copyright laws
Critics of Digital Millennium Copyright Act say it too tightly restricts public's right to access copyrighted material in electronic form.
08.02.01
Federal appeals panel takes up DVD-copying software case
Attorney for journalist who posted links to code says software should be protected under fair-use provisions of copyright law.
05.02.01
