[wordup] DVD-cracking code is free speech

[Adam Shand]

who would have thought that something good would happen in times like
these ...

Via: The Eristocracy <Eristocracy at merrymeet.com>
From: http://news.cnet.com/news/0-1005-200-7751876.html?tag=mn_hd


Court: DVD-cracking code is free speech
By John Borland
Staff Writer, CNET News.com
November 1, 2001, 2:20 p.m. PT

A California court has dealt a potentially serious setback to the movie
industry's attempt to rid the online world of software that can help break
through copy protections on DVDs.

The appeals court released a decision Thursday overturning an earlier
order that barred hundreds of people from publishing the code for a
software program called "DeCSS" online. Posting the code is just like
publishing other types of controversial speech and is protected by the
constitution, the appellate judges said.

"Although the social value of DeCSS may be questionable, it is nonetheless
pure speech," Thursday's decision reads. "Our respect for the legislature
and its enactment of the (trade secrets law) cannot displace our duty to
safeguard the rights guaranteed by the First Amendment."

The decision, while not a final one on the legality of the software
program, nevertheless marks a severe blow for the movie industry's legal
battle against online threats. Hollywood studios have contended that
software that can break through their anti-piracy techniques is simply a
tool and does not warrant free-speech protections. A federal judge has
agreed with much of that reasoning.

The California appeals court's ruling Thursday goes the farthest to date
in explicitly defining software code as speech. Under that legal
reasoning, programmers could still be prosecuted for posting illegal
software but could not be prevented from doing so in the first place.

The difference is important for both sides, particularly in software
cases. If publishers can release something online, even if it might be
deemed illegal later, it can take on a life of its own as it is read,
copied, and distributed by others. If copyright holders could get a prior
restraint on publication, the spread of a piece of software or information
could more effectively be stopped.

The DeCSS software, in several legal manifestations, has become a cause
celebre among open-source programmers and much of the computer
underground.

Allegedly created by a 15-year-old Norwegian programmer named Jon
Johansen, the DeCSS software was designed to let DVDs play on computers
running the Linux operating system. But it wound up being a tool useful to
those who want to copy movies stored on CDs and distribute them online.

The movie industry has sued to stop the spread of the software in several
ways. A federal case is still going on, in which the industry argues that
the code is explicitly designed to break through a copyright protection
system and therefore illegal under the Digital Millennium Copyright Act.

In that case, publisher Eric Corley has been blocked from posting the code
online or linking to other sites that post the code. He's appealing that
ruling, saying that the decision violates his free-speech rights.

Prior to the federal case, the movie industry filed its suit in California
against hundreds of people who had posted the code online. In this case,
the DVD Copyright Control Association, an industry group aimed at fighting
DVD piracy, claimed that Johansen and anyone who posted the code was
illegally spreading trade secrets.

The unusual argument states that Johansen reverse engineered the
anti-piracy technology to create DeCSS. Although he didn't actually have
access to trade secrets to steal, the reverse engineering was barred by a
license agreement distributed along with software DVD players.

The judges did not evaluate that argument Thursday, as they looking only
at the issue of whether blocking the code's publication was appropriate.
The court said that blocking publication would amount to "prior
restraint." Judges typically see this as a legal no-no and have use the
term to allow publication of instructions for building a nuclear weapons
and to protected The New York Times ability to print the Vietnam Pentagon
Papers documents.

The movie 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," the judges wrote. Nor is it "on
equal footing with the national security interests and other vital
governmental interests that have previously been found insufficient to
justify a prior restraint."

Nevertheless, the decision has re-energized online civil liberties
activists.

"I really think the court of appeals reinstituted the cyberliberties of
individuals worldwide," said Allonn Levy, an HS Law Group attorney working
for the defense. "We are a free society, and we are entitled to free
speech."

A representative for the Motion Picture Association of America could not
immediately be reached for comment.

The California case is currently in the middle of a pre-trial phase, with
both parties seeking information from the other.