Setback For Movie Companies In DVD Decryption Case

by Glen Shapiro, LawAndTax-News.com, New York

27 August 2003

Attempts by movie industry consortium DVD-CCA to prevent publication of its DeCSS decryption software received a setback on Monday when the California Supreme Court ruled that publication of information regarding the decoding of DVDs merits a strong level of protection as free speech.

The DeCSS DVD-decoding software originally became publicly available on the Internet in 1999, and defendant Paul Bunner was one of hundreds or even thousands of people who copied the code from the Internet on to T-shirts, neck-ties and their own computers.

DVD-CCA went to law against hundreds of named defendants, including Paul Bunner, claiming that they have improperly disclosed its trade secrets, and convinced a trial court to issue an order barring publication of DeCSS pending a final decision in the case.

The Supreme Court has now required the Court of Appeal to reexamine the evidence in the case, finding that publication of the DeCSS code is an activity that requires the court to apply strong First Amendment principles. DVD-CCA had claimed originally that the courts need not consider any First Amendment issues.

"The appeals court can now examine the movie industry's fiction that DeCSS is still a secret and that a publication ban is necessary to keep the information secret," said Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties, and other media worldwide." EFF serves as co-counsel on the case.

A number of other cases are related to the DeCSS software. Norwegian teenager Jon Johansen, who originally posted the program on the Internet, was acquitted of all criminal charges, but the Norwegian government has appealed that decision, and the case is currently scheduled for re-trial in December 2003. And a coalition of movie studios prevented further publication of DeCSS by 2600 Magazine using the federal anti-circumvention provisions of the Digital Millennium Copyright Act.

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