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

[Peter Clay]

On Fri, 2 Nov 2001, Julian T J Midgley wrote:

> "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.'"

This is really excellent news. I'd urge everyone to read the PDF of the
ruling, as it is quite clear and comprehensive. It also makes clear that
this is about an injunction under _trade secret_ law, not copyright law,
and explains how these differ.

It is also worth reading the courts analysis of why trade secret law is
subject to First Amendment considerations and copyright law
isn't: copyright arises from the consitution, is for limited time, and has
"fair use" exemptions for "legitimate study".

> "We hold only that a preliminary injunction cannot be used to restrict
> Bunner from disclosing DeCSS. The order granting a preliminary injunction is
> reversed."

Note "only" - this isn't the real trial, this is an injunction granted
before the trial on the presumption of success in the actual trial. The
wheels of justice grind slowly...

Pete
-- 
Undiscovered band of the minute: The Expels Triangles