[Free-sklyarov-uk] 'DeCSS' DVD descrambler ruled legal (fwd)

[Julian T J Midgley]

A significant victory for our American friends... Californian appellate
court rules that source code does indeed constitute speech, and is
therefore protected under the First Amendment.  Note that the compiled
object code may still considered infringing- so the precedent set is
unlikely to assist Dmitry significantly, although it bodes well for the
Felten case.  (IANAL, as ever - commentary from the more experienced legal
bods here present most welcome.)

Julian

---------- Forwarded message ----------
Date: Thu, 1 Nov 2001 23:06:00 -0000
From: Nexus <nexus at patrol.i-way.co.uk>
Reply-To: ukcrypto at chiark.greenend.org.uk
To: ukcrypto at chiark.greenend.org.uk
Subject: 'DeCSS' DVD descrambler ruled legal

http://www.theregister.co.uk/content/55/22613.html

'DeCSS' DVD descrambler ruled legal
By Thomas C Greene in Washington
Posted: 01/11/2001 at 21:50 GMT


The Copy Control Association (CCA), which was granted a preliminary
injunction against Andrew Bunner and other Webmasters, was handed its head
in a California appellate court Thursday.

The trial court had granted the injunction against publishing Jon Johansen'=
s
DeCSS DVD descrambler, but Brunner appealed on First Amendment free-speech
grounds.

The CCA scoffed at the notion, claiming that the source code has a mere
practical function and no expressive content.

The court saw it differently:

"Like the CSS decryption software, DeCSS is a writing composed of computer
source code which describes an alternative method of decrypting
CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a
written expression of the author's ideas and information about decryption o=
f
DVDs without CSS. If the source code were compiled to create object code, w=
e
would agree that the resulting composition of zeroes and ones would not
convey ideas.

"That the source code is capable of such compilation, however, does not
destroy the expressive nature of the source code itself. Thus, we conclude
that the trial court's preliminary injunction barring Bunner from disclosin=
g
DeCSS can fairly be characterized as a prohibition of pure speech."

And this, the court reminds us, is presumed unconstitutional unless proven
otherwise, and of course the CCA offered no such proof:

"Prior restraints on pure speech are highly disfavored and presumptively
unconstitutional. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241.)
'In the case of a prior restraint on pure speech, the hurdle is
substantially higher [than for an ordinary preliminary injunction]:
publication must threaten an interest more fundamental than the First
Amendment itself. Indeed, the [US] Supreme Court has never upheld a prior
restraint, even faced with the competing interest of national security or
the Sixth Amendment right to a fair trial.'"

The conclusion was self-evident:

"We hold only that a preliminary injunction cannot be used to restrict
Bunner from disclosing DeCSS. The order granting a preliminary injunction i=
s
reversed." And then, for a final twist of the knife, "Defendant Andrew
Bunner shall recover his appellate costs."

Well done. Now break out those old Copyleft t-shirts and celebrate. =AE