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: http://www.politechbot.com/cgi-bin/politech.cgi?name=dvdcca And the New York federal DMCA case: http://www.politechbot.com/p-02083.html -Declan ********* 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: http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF (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 http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/574aa79ff518021188256aed006ea2dc/$FILE/CV00-04161DDP.pdf 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 Case Electronic Frontier Foundation Media Release For Immediate Release: November 1, 2001 Contacts: 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 injunction: http://eff.org/sc/20011101_bunner_appellate_decision.html More information on DVD-CCA v. Bunner including legal filings and media releases: http://www.eff.org/pub/Intellectual_property/DVDCCA_case 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: http://www.eff.org/ 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: http://thefirstamendment.org/ - end - ********* ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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