FC: California state court reverses injunction against DeCSS

From: Declan McCullagh (declanat_private)
Date: Sat Nov 03 2001 - 12:22:53 PST

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    Excerpt from state appeals court ruling this week:
    >Although the social value of DeCSS may be questionable, it is nonetheless 
    >pure speech. DVDCCA maintains, however, that courts "routinely enjoin 
    >trade secret misappropriation," even over a First Amendment defense. The 
    >cases on which it relies, however, are not comparable to the situation 
    >presented here, as they involved the actual use of a secret or the breach 
    >of a contractual obligation... The trial court's prohibition of future 
    >disclosures of DeCSS was a prior restraint on Bunner's First Amendment 
    >right to publish the DeCSS program... We hold only that a preliminary 
    >injunction cannot be used to restrict Bunner from disclosing DeCSS.
    There are two ongoing cases involving the DeCSS DVD-descrambling utility. 
    Background on the California state trade secret case:
    And the New York federal DMCA case:
    From: GRubinat_private
    Subject: DeCSS injunction reversed by Ca Ct of Appeals
    To: declanat_private
    Date: Thu, 1 Nov 2001 15:22:03 -0500
    I trust you have seen this already, but in case you haven't, with attached
    opinion in pdf, or you can get it here:
    (See attached file: deCSS opinion.pdf)
    Gabe Rubin
    Senior Associate
    Computer & Communications Industry Association
    (202)783-0070 x 107
    Date: Thu, 1 Nov 2001 17:51:11 -0800 (PST)
    From: Bryan Taylor <bryan_w_taylorat_private>
    To: declanat_private
    Two huge wins on the legal front for the open source community:
    The Court reversed the injunction in the DVDCCA case, ruling that distribution
    of DeCSS was "pure speech".
    Judge Pregerson of the Central District of California gives a resounding
    rejection to Adobe's claim that their software is "licenced and not sold". The
    case is Softman v Adobe
    The latter opinion actually may have more far reaching consequences.
    Date: Thu, 01 Nov 2001 17:21:35 -0800
    From: Will Doherty <wildat_private>
    Subject: EFF: Court Overturns Ban on Code Publication in Trade Secret
    Electronic Frontier Foundation Media Release
    For Immediate Release: November 1, 2001
    David Greene, Executive Director, First Amendment
       Project, +1 415 336-3566 (cell)
    James Wheaton, Senior Counsel, First Amendment
       Project, +1 510 208-7744
    Robin Gross, EFF Intellectual Property Attorney,
       robinat_private, +1 415-637-5310 (cell)
    First Amendment Right to Publish Computer Code Upheld
    Court Overturns Ban on Publication in Trade Secret Case
    In a tremendous victory for freedom of speech on the
    Internet, a California appellate court today unanimously
    overturned a trial court's injunction banning dozens of
    individuals from publishing on their websites DeCSS
    computer code that unscrambles DVDs. Unscrambled DVDs
    may be played on any computer.
    The appellate court held that a lower court judge
    violated the First Amendment rights of defendant Andrew
    Bunner in ordering Bunner and other publishers of the
    software to remove it from the web on a preliminary
    request by the major movie studios' DVD licensing
    organization, DVD-CCA. Bunner had republished the
    software after learning about it on Slashdot News. The
    lower court enjoined Bunner from publishing DeCSS based
    on claims of trade secret misappropriation even though
    he found the program in the public domain and simply
    republished it.
    "The court recognized that trade secrets do not trump
    the First Amendment rights of citizens to publish and
    discuss information readily available in the public
    domain," stated David Greene, Executive Director of the
    First Amendment Project who argued the appeal before the
    6th District Appellate Court.
    According to the court's ruling, "the California
    Legislature is free to enact laws to protect trade
    secrets, but these provisions must bow to the
    protections offered by the First Amendment." The court
    found that the injunction barring Bunner's publication
    of DeCSS "can fairly be characterized as a prohibition
    of 'pure' speech."
    "In an era of expanding dubious legal claims by
    intellectual property owners that threaten to stifle
    speech and innovation, this decision paves the way for
    preserving liberty online by balancing legitimate
    restrictions with First Amendment guarantees," stated
    Robin Gross, an EFF intellectual property attorney
    handling the case.
    The studios objected to DeCSS software, which
    programmers wrote in the fall of 1999 as part of an
    independent project to create a DVD player for the Linux
    operating system. In early 2000, DVD-CCA filed this
    lawsuit against hundreds of Web publishers seeking to
    ban the publication of DeCSS. Santa Clara County trial
    court Judge William Elfving granted the request for a
    preliminary injunction on January 21, 2000, and ordered
    defendants to remove DeCSS from their personal websites.
    The case is expected to go to trial next spring before
    Judge Elfving.
    Andrew Bunner was represented on appeal by David Greene
    and James Wheaton of the First Amendment Project, Allonn
    Levy of San Jose's HS Law Group, Tom Moore of Tomlinson
    Zisko Morosoli & Maser in Palo Alto, Professor Eben
    Moglen of Columbia University Law School, and Electronic
    Frontier Foundation attorneys Cindy Cohn and Robin Gross.
    The 6th Appellate Court's decision overturning the
    More information on DVD-CCA v. Bunner including legal
    filings and media releases:
    The U.S. 2nd Circuit Court of Appeals will likely decide
    soon a separate case in which EFF appealed an injunction
    banning 2600 Magazine's Editor-in-Chief Emmanuel
    Goldstein from publishing or linking to DeCSS under the
    Digital Millennium Copyright Act's anti-circumvention
    provisions. Dean Kathleen Sullivan of Stanford Law
    School argued that case on behalf of the EFF in May 2001.
    About EFF:
    The Electronic Frontier Foundation is the leading civil
    liberties organization working to protect rights in the
    digital world. Founded in 1990, EFF actively encourages and
    challenges industry and government to support free
    expression, privacy, and openness in the information
    society. EFF is a member-supported organization and
    maintains one of the most linked-to websites in the world:
    About FAP:
    The First Amendment Project is a nonprofit, public interest
    law firm and advocacy organization dedicated to protecting
    and promoting freedom of information, expression, and
    petition. FAP provides advice, educational materials, and
    legal representation to its core constituency of activists,
    journalists, and artists in service of these fundamental
    liberties and has a website at:
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