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DeCSS Injunction Reversed In CA Case 480

Posted by timothy
from the sanity-in-california dept.
kinesis writes: "For those of you following the California DeCSS case, a court of appeal just ruled in our favor, overturning the injunction imposed by a lower court. The court's opinion is available in DOC and PDF versions. It's a great read for those who want to really understand the case. The conclusion is nicely summarized with this quote: '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 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.' " Or you can go straight to the PDF.
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DeCSS Injunction Reversed In CA Case

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  • Damn (Score:5, Funny)

    by wiredog (43288) on Thursday November 01, 2001 @03:01PM (#2508731) Journal
    I told Valenti that we needed to pay those judges more. Ah well, I wonder how much an Amendment costs?
    • Cheap (Score:3, Funny)

      by powerlord (28156)
      Don't worry, Amendments are cheap.

      We have lots of Congressman and Senators paid for.

      Maybe we can borrow a President from Microsoft for a while so we don't have to wait for our 2/3rds majority to be paid for.

      • Re:Cheap (Score:3, Insightful)

        by SnapShot (171582)
        I don't know. I'm more cynical than most, but when something good happens it seems like an opportunity to celebrate rather than bitch.

        We can go back to bashing Fritz and the other representitives from Disney in another article.
    • Re:Damn (Score:2, Funny)

      by Anonymous Coward
      PRICE LIST FOR JUDGES, CONGRESSCRITTERS, AND VARIOUS POLITICIANS

      We accept cash, credit cards, and checks. Please, no CODs.

      Lower court judges - $70000 to $80000 depending on moral stance of judge and previous history of payments.

      Marilyn Hall Patel - $900000 for a Napster-like copyright dispute. $5500000 to defend against Napster-like copyright dispute

      Judge Kaplan - $80000000 if member of MPAA. Subtract $5000000 if dealing with those skript kiddies at 2600.

      APPEALS COURT

      Our prices for appeals court judges vary widely, but generally can be pinned between 50 million and 60 million dollars due to the judges' high moral fiber, wealth, and influence. It is also more difficult to discreetly bribe an appeals court judge

      AMENDMENT TO CONSTITUTION

      We price constitutional amendments at a very competitive rate . Our $90 billion Constitutional Package covers bribes to congresscritters, all 50 state legislatures, and for a FREE bonus, a massive advertising campaign blitz that will convince Joe Q. Luser that your Intellectual Property amendment guarantees them lower prices and helps the economy.

      Don't delay. Order today!
      • Re:Damn (Score:3, Interesting)

        by Nyarly (104096)
        Woah, realization: does it matter if officials can be bought, if their price is obviously more than they're worth?

        Yeah, ha ha, but seriously, what if it some economic drive could push the price of our representives higher than is worth paying. Is it worth paying 90,000,000,000 USD for a congressional amendment that will pay that back in a thousand years? Or more simply, why buy a judge for more than the dispute is worth?

        Is it possible though to push those costs up in a reliable way, assuming that the human desire for justice and fair play is not always as strong as the human desire for personal enrichment (an assumption I don't think anyone around here is going to question.) First there's simple supply and demand: a judge's ruling (which I standardize on as the simple case) is a one time service. Very limited supply. Only the Supreme Court has a monopoly on rulings, and they can take away anything another judge gives you, which complicates the model a bit. Also note that there is an oportunity cost: a judge can only sell a case once, and the appearance of being bought might affect their ability to sell further rulings.

        But what we want is for judges to rule as if the ruling hadn't been sold. Perhaps judges would be willing to sell their privacy, so that we can be sure that none of their personal gain is dishonest, but they make a tidy profit on the side? Hrm.

  • Pinch me. (Score:3, Funny)

    by Lemmy Caution (8378) on Thursday November 01, 2001 @03:03PM (#2508750) Homepage
    It's been so long since the right thing has happened in an intellectual property-related case, that I don't believe it.
    • Re:Pinch me. (Score:5, Interesting)

      by ichimunki (194887) on Thursday November 01, 2001 @03:26PM (#2508940)
      We probably haven't heard the last of this case yet. Poring over the ruling, I have to ask some questions that didn't seem to get raised.

      Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA? Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?

      Anyone else notice the slashdot.org plug right there in the ruling? That is some awesome free advertising. :)

      By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law. So we are not out of the woods yet with the federal law.
      • Re:Pinch me. (Score:4, Informative)

        by dachshund (300733) on Thursday November 01, 2001 @03:42PM (#2509047)
        By the way, we should note that this case does not appear to have had any impact on the DMCA, but on a CA trade secret law.

        Actually, the court's recognition of source code as expressive speech is a major step in the right direction, if it's upheld by higher courts.

        The susequent balance of state (and presumably federal law) against constitutional interests could presumably put an axe in the DMCA's head-- if the code==speech assumption is upheld all the way to the Supreme Court. Don't count on that, of course.

        • Re:Pinch me. (Score:4, Insightful)

          by Odinson (4523) on Thursday November 01, 2001 @04:39PM (#2509424) Homepage Journal
          If the Supreme Court does not favor speech over Hollywood's interests, our journey to the dark side will be complete.


          As physical items become (nearly) as close to free(gratis) as information can be now, I fear the effects of existing business being guarenteed a profit despite a change in technical ability and need. In that vain the, FCC owning all the airwaves and dolling them out to a few chosen ones under certain conditions is very much like feudalism. If this end justifies the means (legally destroying time shifting while defending corperate profit) We are setting up the legal tools to legally enforce true feudalism in meatspace.


          The legal decisions of the next 10 years can make the next 60 heaven or hell. Near godlike control over the structures that make up all physical matter and physical scarcity needs to distributed among all that do not abuse it. Damn Hollywood for not having vision beyond quarterly reports, and damn us for not fighting them harder.


          Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.

          • Re:Pinch me. (Score:4, Interesting)

            by maraist (68387) <michael...marais ... l...n0spam...com> on Thursday November 01, 2001 @05:21PM (#2509637) Homepage
            Respect for creativity and self reliance over profit is esential for invention, self respect and true inovation. Liberty or death.


            While I agree with you, I feel the need to at least put in the plug for capitalism.. When you acquire an MBA, econ degree, marketing degree, or any general business degree you are a highly specialized human being. Your focus is to squeeze profit out of a market better than your competitor. If you can't, then you are replaced by the board. If the board can't dictate policy effectively, then the share-holders replace the board. If the share-holders don't choose an appropriate board, then profits linger, P/E ratios drop, and investment firms lower their rating. If the rating drops, the share-price is sure to drop. Thus the investment firms sell stock, and the individual share-owners are dramatically encouraged to replace the board. Furhter, if investment firms that don't react harshly to harsh financial environments won't be invested in by individuals. Assuming Investment firms are mostly collections of lay-people's "retirement" money (401Ks, pensions, individual stocks, etc), then the entire drive to perfect the art of squeezing every last penny is largely propelled by sweet ole mom and pop. Isn't it ironic?

            The main advantage to this system is economic efficiency (which has little to do with money). We distribute scarce resources to that which desires it most (or at least is willing to trade the most of another scarce resource). There's very little waste in capitalistic societies. The main sad part is that since you can acquire tradable goods (fiat money) more easily when you already have tradable goods (equity), then the value of a fixed quantity of money to a wealthy person is orders of magnitude less than that of a poor person.. Thus when bidding for a scarce resource, the most needy usually can not compete. But I've never seen a system that avoids this problem without just trading it for other just-as-serious problems.

            Given the above, the US constitution is not in the most efficient form (nor could it be without adapting over time). Usually it any modifications to law and or constitutional rights lag behind the currently desired equilibrium (which is usually a compromise which doesn't fully meet anyone's desires, as it should be). But the mechanisms for enforcing these changes are by far not in line with economic principles. Democracy is at least closer than communism to an market-sensative adaptable system. Like the board, we remove the administration when it falls out of favor. But unlike a company, there is no clear direction (as with profit), so it's impossible to gaguge someone's resume' and determine if they stand a chance at better administration.

            The general point, however is that we can't blame the MPAA or RIAA for their direction. They are the product of evolution. Anything they'd be replaced with would come to similar decisions. We can only competed with them for legislative efficacy. But like the wealthy and poor competing for a scarse resource, the money favors the large organization in enacting new laws.

            The only out I can consider is to define a set of measurements by which a congresman's value can be weighed. How much like "measuring the worth of poety" [dead poet society] this sounds, but this is, indeed in the name of reaching a political equilibrium.

            -Michael
      • Re:Pinch me. (Score:4, Informative)

        by sealawyer (473327) on Thursday November 01, 2001 @04:00PM (#2509178)
        "Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA?
        Who cares about Norwegian law on this matter, if Johansen lived in CA, he could not be held to such a contract because he is a minor. Can 15 year olds sign binding contracts in Norway?"

        It wasn't dealt with because the issue of whether Johansen did anything wrong was too difficult to decide without more facts, and because the court was able to decide the matter of the preliminary injunction without dealing with Johansen at all. If this case gets to a trial, even after both the trial and appellate courts have pointed out the huge holes in the plaintiff's case, then perhaps the rest of the issues will get hashed out.

        I think it's infinitely better that the court ruled on the constitutional issue rather than ducking that issue and resting the decision on Johansen being a minor.
      • Re:Pinch me. (Score:3, Insightful)

        by bwt (68845)
        Why isn't Johansen's status as a minor the key factor in his inability to agree to the Xing EULA?

        It's all a matter of civil procedure. That is a factual matter that might come into play if this made it to the trial stage. This court proceeded based on the assumption that the DVDCCA would prevail at trial on showing its claim that the EULA was valid. So no court has reached the merits of that issue yet. What this court said was basically that the trade secret act could not bar distribution of speech unless that specific person was contractually obligated to do so (ie had voluntarily waived their First Amendment right by agreeing not to disclose it). They cited the recent Bartnicki v. Vopper case to justify this viewpoint.

        In sum, it doesn't matter whether the EULA is valid -- a EULA can't stop 3rd parties from posting code. The court completely ignored Kaplan's opinion (!!!) , an act that speaks volumes through silence, and ruled that source code sitting on a web server is "pure speech".

        This is very, very good.
  • So.... (Score:2, Funny)

    by WD_40 (156877)
    Now can I wear my T-shirt with DeCSS code on it without going to jail?
    • Now can I wear my T-shirt with DeCSS code on it without going to jail?
      Yes, as long as you understand that you can still be put in jail after the court case is over and RIAA et. al. have won. Just not before.

      sPh

      • Re:So.... (Score:2, Funny)

        by Jburkholder (28127)
        >after the court case is over and RIAA et. al. have won

        The recording industry is also joining this lawsuit now!!?? Those bastards!

        You'd think they'd be satisfied with having run Napster into the ground, but nooooo! Now they have to jump on the DeCSS bandwagon as well, eh? ;-)
  • HEADLINES (Score:4, Funny)

    by throx (42621) on Thursday November 01, 2001 @03:04PM (#2508766) Homepage
    Ashcroft locks up Appeals Court.

    In an unprecedented move, Attorney General John Ashcroft locked up all the Appeals Court judges while waving his arms in the air screaming something about terrorists. In a later statement he made the comment "How could anyone imagine anyone but a terrorist thinking free speech was somehow more important than national security?". Reporters who asked provocotive questions were also taken away for correctional training.
  • I'm sorry... (Score:2, Interesting)

    by AKAJack (31058)
    I just could never worry about this a lot. It was so obvious that it was unconstitutional that it became just a matter of time before it went away.

    No, I'm not a lawyer, yes, you can flame me about not caring enough.

    I'm just a practical guy who saw the right people going balistic over this.

    Let me know when the smoke finally clears.
    • Re:I'm sorry... (Score:5, Insightful)

      by xonker (29382) on Thursday November 01, 2001 @04:10PM (#2509251) Homepage Journal
      You should worry about this -- yes, it's clearly unconstitutional, and with time and money it would obviously be overturned.

      However -- look how long it has taken. Two years, I believe. The problem is that large companies and consortiums of companies can run roughshod over individuals with impunity. Sure, it'll be overturned if someone can scrape together enough money or get enough support to go to a group like the EFF, but it takes *years* to do so. In the meanwhile, their business practices continue unabated.

      Will right prevail eventually? Kind of, maybe. But the point is that they shouldn't have the nerve to try to forbid people from playing their own DVDs with any software they choose. You buy the DVD, you should have the right to play it and enjoy it anywhere at any time. You're not infringing on their rights by doing so -- but they're infringing on yours by trying to limit what you can and can't do.

      People *should* go ballistic when their rights are trampled on. Thank God this guy was willing to fight.

      While you have certain rights on paper as a citizen of the United States, if no one stands up for those rights it's the same as not having them at all. Look at what Ashcroft and his cronies are trying to do... until the Terrorist Act makes its way to the Supreme court, it'll be used to abuse the rights of many people -- I guarantee it. People who are not a threat to the country or our safety, just people who are nuisances to large corporations and/or the present administration. I have no doubt that that law will be overturned eventually -- but probably five to six years from now, after doing amazing damage to people who don't deserve it. Someone will challenge it and prevail, others without the money to go through the process of appeals and whatnot will simply have to take their lumps or worse.

      If that's not worth getting upset about, I don't know what is.
  • This just rocks.. (Score:5, Insightful)

    by cOdEgUru (181536) <cherian@abraham.gmail@com> on Thursday November 01, 2001 @03:09PM (#2508806) Homepage Journal
    The fact that a medium of expression has a functional capacity should not preclude constitutional protection.... Computer source code, thought unintelligible to many is the preferred method of communication among
    computer programmers. Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment"

    This confirms my theory that there are more sensible people in the world than I previously expected. I just loved the part where they upheld the belief that "computer source code" being an expressive means for the exchange of information among geeks. I mean, that just rocks..

    • while (!TiredOfHearingIt)
      System.out.println("This decision Rocks!");

      System.out.println("Score one for the good guys!");
  • Wow (Score:2, Insightful)

    by scott1853 (194884)
    So, what they're saying is basically is that the RIAA's profits don't rank as high as the 1st amendment. Anybody else been waiting a couple years to hear that.
    • Yes, *but* (Score:5, Informative)

      by jonabbey (2498) <jonabbey@ganymeta.org> on Thursday November 01, 2001 @03:43PM (#2509049) Homepage

      If you read the decision, you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright, just that the First Amendment trumps prior restraint in the form of preliminary injunctions in a trade secret case of this kind. The appeals court could still conceivaly come back and approve a final judgement against the distribution of DeCSS, and the court will surely uphold actions against individuals distributing copyrighted DVD materials through benefit of DeCSS.

      Which puts matters back into the interesting realm of practical enforcement of copyright on an open Internet.

      • Re:Yes, *but* (Score:4, Insightful)

        by Amazing Quantum Man (458715) on Thursday November 01, 2001 @03:49PM (#2509107) Homepage
        you'll see that the judges are not establishing that the First Amendment always or typically trumps Copyright,

        Agreed. They explicitly state that there are Constitutional issues with Copyright. However, this is a "Trade Secret" suit, brought under UTSA, and the court held that the First Amendment trumps trade secrets, since there is no constitutional basis for trade secrets (unlike Copyright).
      • Yes, but...

        If the "source code==expressive speech" argument is upheld by higher courts, the DMCA anti-circumvention clauses get a whole lot weaker. While there are protections for copyright in the constitution, there's no language that backs up something like the DMCA; that is, preventing the publication of uncopyrighted "speech" because it might be used to circumvent something else.

        Essentially, if code is expressive speech, then the DMCA cannot stand against a 1st amendment claim.

        The problem with cases like this, is that for all the judicial expertise involved, the decision always comes down to some silly issue that could go either way. It's generally an issue that the judges aren't terribly informed about-- what the heck do they know about Source Code?-- and therefore are free to vote any way they like to acheive a desired outcome. If the Supreme Court (assuming they eventually have to hear a DMCA case) decides that code isn't speech, then that's that. Too bad.

      • Re:Yes, *but* (Score:3, Interesting)

        More specifically, prior restraint on "pure speech" is looked upon very poorly, except in cases of grave national concern. The court's statement says:
        DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is "more fundamental" than the First Amendment right to freedom of speech or even on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint. Our respect for the Legislature and its enactment of the UTSA cannot displace our duty to safeguard the rights guaranteed by the First Amendment. Accordingly, we are compelled to reverse the preliminary injunction.
        If read a certain way, it almost sounds like the court is being sarcastic. "No, you silly DVDCCA, your trade secret isn't more important than Mr. Bunner's right to free speech. So don't try to slap a prior restraint on him!"
  • text version (Score:4, Informative)

    by Anomymous Coward (303315) on Thursday November 01, 2001 @03:13PM (#2508840) Homepage Journal
    for those who prefer text over .pdf or .doc, try here [hmc.edu] ....

  • by rtkluttz (244325) on Thursday November 01, 2001 @03:13PM (#2508843) Homepage
    Finally a small amount of sanity in this insane world. The DMCA and the legal clout that it gives big business may have another small crack now. But it seems everytime the ball gets rolling a little something stops it in its track. Just the idea of them trying to limit how I can watch a DVD or media that I legally obtained burns me up. I have just about had enough of the RIAA and MPAA and other big business shoving people around. I from this point on am not going to "buy" another cd or watch another movie that I don't get for free on the internet. But wait... don't jump to hasty conclusions about me or anyone else that is finally thinking this way. A common misconception in the world these days is that breaking the law is always wrong. WRONG. Many many times the morally correct thing to do is at odds with the "law". If the proper forum were available where appreciative listeners could pool money to send DIRECTLY to the artists that they enjoy listening to, I think many people would line up give their fair share. Its just that these strong arm tactics have me seeing red. NO ONE should be able to dictate how I listen to music or watch TV. Its a sad state of affairs when things have gotten so bad that I even feel animosity towards the cable company for upgrading my cable from analog to digital. Now I am forced to decide between one single show to watch or tape unless I pay more money for another decoder. It would not have been to this point had all of the other things not been going on in this industry. I will resist HDTV until the bitter end. What I watch is my own business... if I want to fast forward past commercials on a show I taped, so be it. I'm just plain tired of being pushed around by these people, and until there is a better way, I simply will not support it/them any longer, and I argue that this does not make me a bad person. It simply means that I am choosing the lesser of two evils. It would take a few big name artists to buck the system and back their listeners and drop out of contracts with RIAA and allow listeners to pay them directly but it has to start somewhere. The bands themselves are the logical starting point. Lawsuits will fly. People will lose money but in the long run we will all come out better than we were before if this were to happen.
    • If the proper forum were available where appreciative listeners could pool money to send DIRECTLY to the artists that they enjoy listening to, I think many people would line up give their fair share.

      www.fairtunes.com exists for just this purpose. Go ahead and line up!

    • by GPool (413097) on Thursday November 01, 2001 @03:31PM (#2508981)
      If the proper forum were available where appreciative listeners could pool money to send DIRECTLY to the artists that they enjoy listening to, I think many people would line up give their fair share.

      You also have to pay the people who fronted the money to pay for the production of the album. Hmm... that's often the record companies, isn't it? Yes, they do end up charging more than they really need to, and so do the record stores. HMV will sell a CD for $25CDN that I could pick up at an independent store for $18CDN.

      The best method I saw for paying the artists directly was a band I listen to allowing people to pre-order their next CD (which they hadn't even started writing/recording) for double-price ($30 US), with only the promise of having it autographed. A year later, I've got my shiny new CD, plus a free t-shirt, and $5 off other band-related merch. Very nice. Still, not really any less than a record-company-produced album would cost. Hopefully the artists will see more money out of this, though.
    • if i had mod points, i'd mod the parent up.
  • by shibut (208631) on Thursday November 01, 2001 @03:13PM (#2508844)
    notice the quote:
    "We express no opinion as to whether permanent injunctive relief may be obtained
    after a full trial on the complaint, as that issue is not before us."

    This only prevents the preliminary injunction, it does not prevent a full trial....
    • by swillden (191260) <shawn-ds@willden.org> on Thursday November 01, 2001 @09:38PM (#2510600) Homepage Journal

      Also, it appears to me that the ruling is quite limited in its focus on speech. It only protects source code, and it only protects "speech", not "conduct". So where is the line that divides speech from conduct? Would distributing the source code of a complete DVD player that includes deCSS along with build scripts and instructions on how to build and use it to play DVDs be considered "speech"? Or would it cross the line from speech about the DVD CCA trade secrets into use of the DVD CCA trade secrets?

      Does this ruling mean that the developers of Xine [sourceforge.net] can go ahead and distribute a CSS-enabled DVD input plugin in their next source tarball? That's not at all clear to me...

  • by Syllepsis (196919) on Thursday November 01, 2001 @03:16PM (#2508861) Homepage
    Well, it is certainly a good thing that the Supreme Court holds that a language having a "functional aspect" is still protected speech.

    Now I can rest easy that when good english language processors come about and all human language is source code we will still have a first amendment.

    Besides, it was really taking my little brother a long time to decrypt some of my DVDs with the instructions I told him in English.

    Duhhhh....

  • PDF? (Score:3, Funny)

    by chas7926 (513140) <[gro.lartnecnayr] [ta] [selrahc]> on Thursday November 01, 2001 @03:16PM (#2508865) Homepage
    >>Or you can go straight to the PDF.

    Aren't we supposed to be boycotting Adobe?
  • by chrisd (1457) <chrisd@dibona.com> on Thursday November 01, 2001 @03:16PM (#2508867) Homepage
    From Page 13:

    [C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an espressive means for the exchagne of information and ideas about computer programming, we hold that it it protected by the first amendment. (junger v. Daley (6th Cir. 2000)))

    This is too cool. As another posted said earlier, pinch me. I hope andrew bunner goes after the DVDCCA in an Anti-SLAPP [sirius.com] (abuse of process) lawsuit if he comes out of this unscathed.

    Chris DiBona

    • by Cerilus (191314) on Thursday November 01, 2001 @03:42PM (#2509045)
      From Page 13:

      "The "fair use" exception permits copying and use
      of a copyrighted work "for purposes such as criticism, comment, news reporting,
      teaching . . . , scholarship, or research" under certain circumstances. (17 U.S.C., 107.)
      It "offers a means of balancing the exclusive rights of a copyright holder with the
      public's interest in dissemination of information affecting areas of universal concern,
      such as art, science and industry. Put more graphically, the doctrine distinguishes
      between 'a true scholar and a chiseler who infringes a work for personal profit.' "
      (Wainwright Sec. v. Wall Street Transcript Corp. (1977) 558 F.2d 91, 94.)
      . . . the statutory prohibition on disclosures of trade secrets is of infinite
      duration rather than "for limited Times." While the limited period of copyright protection
      authorized by the United States Constitution ensures that copyrighted material will
      eventually pass into the public domain, thereby serving the public interest by increasing
      its availability to the general public, the UTSA bars disclosure of a trade secret for a
      potentially infinite period of time, thereby ensuring that the trade secret will never be
      disclosed to the general public."

      I would think that you can use this citation to argue that copyrights, while supposed to be limited in scope, are now becoming de facto limitless, and thus are not 'for limited times'.

      • by rfsayre (255559) on Thursday November 01, 2001 @08:23PM (#2510375) Homepage
        I would think that you can use this citation to argue that copyrights, while supposed to be limited in scope, are now becoming de facto limitless, and thus are not 'for limited times'.
        This is a gross misread of that passage, and your omissions cause the distinction between the concepts of "copyright" and "trade secrets" to blur. The court later states
        "Both the First Amendment and the Copyright Act are rooted in the United States Constitution, but the UTSA lacks any constitutional basis."
        keeping in mind that the court has outlined its reasons for designating DeCSS as "pure speech", check this out. it gets better...
        "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 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."
        and finally
        "DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is "more fundamental" than the First Amendment right to freedom of speech or even on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint. Our respect for the Legislature and its enactment of the UTSA cannot displace our duty to safeguard the rights guaranteed by the First Amendment. Accordingly, we are compelled to reverse the preliminary injunction."
        In actuality, the court was very clear on the difference between copyright and trade secrets, especially when it comes to an injunction that suppresses First Amendment rights. Basically, DVDCCA's statutory right to keep trade secrets cannot supercede Bunson's Constitutional right to free speech, at least not before the case has been decided.
    • by gorgon (12965) on Thursday November 01, 2001 @03:54PM (#2509143) Homepage Journal
      Yeah, but even better than the fact that they cite the Junger case is the fact that they seem to agree that code is speech. From page 14:
      That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude the trial court's preliminary injunction barring Bunner from disclosing the DeCSS can fairly be characterized as a prohibition of "pure" speech.
      So this court seems to be affording source code "strong" speech status, so that the expressive parts of code are more inmportant than the functional part. This court seems to be going further in protecting the speech rights of code than in the Junger case. This is great news. The Junger [jya.com] case seemed like a better test case since it involved academics studying encryption, but this Bunner case may end up being more important.
      • Indeed, this case combined with Bernstein [eff.org] is starting to add up to a nice bit of precedent regarding source code's place vis-a-vis our various constitutional protections. Although the decision in Bersnstein wansn't unanimous, it contains some great stuff also. From the majority opinion:
        ...we conclude that encryption software, in its source code form ... must be viewed as expressive for First Amendment purposes, and thus is entitled to the protections of the prior restraint doctrine.
        See also the later section in Bernstein where the opinion speculates as to possible 4th Amendment implications for encryption software in particular as well.

        For the first time in a couple years I'm experiencing a glimmer of hope that the checks and balances in our system of governance may actually wind up protecting my rights -- as a programmer, computer & software user, and free citizen of the US -- from the despicable encroachment currently being realized at the hand of law enforcement agencies and especially private corporate interests.

        Of course, after Bush v. Gore [cornell.edu], y'all forgive me if my cynicism WRT to the Supreme Court keeps this glimmer of hope faint indeed.

  • ...for your information ma'am, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!

    dude: Walter, this is not a First Amendment issue...

  • Perl Code (Score:3, Funny)

    by -stax (34630) <aclater.cyberspace@org> on Thursday November 01, 2001 @03:20PM (#2508897)
    #!/usr/bin/perl
    # 472-byte qrpff, Keith Winstein and Marc Horowitz
    # MPEG 2 PS VOB file -> descrambled output on stdout.
    # usage: perl -I :::: qrpff
    # where k1..k5 are the title key bytes in least to most-significant order

    s''$/=\2048;while(){G=29;R=142;if((@a=unqT="C*", _) [20]&48){D=89;_=unqb24,qT,@
    b=map{ord qB8,unqb8,qT,_^$a[--D]}@INC;s/...$/1$&/;Q=unqV,qb2 5,_;H=73;O=$b[4]>8^(P=(E=255)&(Q>>12^Q&gt ;>4^Q/8^Q))>8^(E&(F=(S=O>>14&7^O)
    ^S*8^S>=8
    )+=P+(~F&E))for@a[128..$#a]}print+qT,@a}';s/[D-H O- U_]/\$$&/g;s/q/pack+/g;eval

  • They view the UTSA as not being based on Constitutional principles, and therefore not clashing at all with 1st Amendment or the Constitution...

    While the harm to the defendent is minor for not posting DeCSS and the harm to the plaintiff for having DeCSS posted is considerable, the cost of abridging the 1st Amendment rights of Bunner outweight the need of the DVDCCA(?) to keep DeCSS off the net.

    That source code *is* speech, especially between computer programmers and is a language unto them the way Hebrew is or Russian is...

    That if the 1st Amendment cannot be restricted over matters of national security, it can hardly be restricted in a matter of this level...

    That copyright law does have an expiration date for it's protections, but that UTSA *does not*, or that the UTSA does not make allowances for fair use... Man, this is good!
  • by sparks (7204) <<moc.silibateal> <ta> <drofwarca>> on Thursday November 01, 2001 @03:21PM (#2508903) Homepage
    "DVDCCA's statutory right to protect its economically valuable trade secret is not an interest that is "more fundamental" than the First Amendment right to freedom of speech"


    You know, that old constitution thing you have is pretty cool. I wish we had one.

  • Music to my Ears... (Score:3, Interesting)

    by Ivan Raikov (521143) on Thursday November 01, 2001 @03:21PM (#2508908) Homepage
    "...The fact that a medium of expression has a functional capacity should not preclude constitutional protection... [C]omputer source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an expressive means for the exchange of information and ideas of computer programming, we hold that it is protected by the First Amendment..."
    Junger v. Daley (6th Cir. 2000) 209 F. 3d 481, 484-485

  • Boasting (Score:5, Insightful)

    by dachshund (300733) on Thursday November 01, 2001 @03:21PM (#2508909)
    "Plaintiff's case is problematic at this [stage]. Clearly they have no direct evidence at this point that Mr. Jon Johansen did the reverse engineering, and that he did so after clicking on any license agreement." Nevertheless, the court concluded that "the circumstantial evidence, available mostly due to the various defendants' inclination to boast about their disrespect for the law, is quite compelling on botht he issue of Mr. Johansen's improper means and the Defendants' knowledge of impropriety."

    So essentially, nobody ever boasted that they reverse-engineered the thing, or that they clicked on a license... But simply by saying "CSS sucks" and "the DMCA is a stupid law, I should be allowed to post whatever I want", you can find yourself the defendant in a trial for which the plaintiff has minimal evidence against you?

    Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.

    • Those nasty kids. We didn't have any real evidence against them, but they were so disrespectful.

      MPAA Lawyer: We'd have gotten total control, too, if it wasn't for you meddling kids!

      Rooby-Roo!
  • by Hektor_Troy (262592) on Thursday November 01, 2001 @03:22PM (#2508913)
    "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 of DVDs without CSS. If the source code were "compiled" to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas. (See generally Junger v. Daley, supra, 209 F.3d at pp. 482483.) 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 disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech. "

    Conclusion:

    Code == Free Speech

    Compiled Code != Free Speech

    So what else is new? Other than this fact is now recognized by the court?

    • So what else is new? Other than this fact is now recognized by the court?

      Fact no, opinion yes. Source Code is free speech, and SO IS compiled code. It's just a translation to another language. I can translate english to spanish, is the spanish now not free speech. What if I can read object code. Translating free speech from one format to another DOES NOT negate the fact that it is free speech.
  • by baronben (322394)
    On Page 5 of the Doc. form, slashdot.org gets a callout
    Finally, Bunner submitted his own declaration. He admitted that he had become aware of DeCSS by "reading and participating in discussions held on a news web site entitled 'slashdot.org.' "
    Basicly it's Burnner saying that he had prior knowedlge of DeCSS thanks to us here. So, what is this, the 2en time that /. has been mentioned in court decsions (the first being the scientology thing?). Well, just thought I'd mention it.
  • Will this effect (Score:2, Interesting)

    the result of the judgement of the 2600 case at all?

  • Good to hear.

    Still keeping my mirror up at http://cyberstar.nu/ [cyberstar.nu] just in case though (I even got a mail from the MPAA asking me to remove it ;) ...

    - Cyberstar
  • by Acoustic_Nowhere (521733) on Thursday November 01, 2001 @03:27PM (#2508949)
    "If the source code were "compiled" to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas. (See generally Junger v. Daley, supra, 209 F.3d at pp. 482-483.) 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 disclosing DeCSS can fairly be characterized as a prohibition of "pure" speech."
    • I said it in an earlier post but this is bullshit, there isn't any less idea content in compiled code than source code. If I compile a bit of text describing a landscape into a picture of that landscape, has it lost it's ability to convey ideas. Of course not. This decision is a step in the right direction, but it still has it's flaws.
  • "In our favor" (Score:5, Interesting)

    by BierGuzzl (92635) on Thursday November 01, 2001 @03:28PM (#2508960)
    Oh really, didn't realize slashdot went to court -- oh wait -- they made it into page 4 of the ruling!

    Of interest is the explanation as to why source code is a valid means of communication and should be given first ammendment protection -- it's simply the most efficient means for programmers to communicate ideas about encryption. Even a much simpler concept, say a regular expression would take much longer to say in words than it would take to just write the damn regexp.

    One thing that really annoyed me was DVDCSS's argument that there wasn't any evidence indicating that Bunner would suffer serious consequences if he'd have to stop his disclosure of DeCSS code vs what would happen if it were freely copied everywhere -- irreperable damage to DVDCSS. First, the damage has been done, although I suppose that there cuold be new dvd players coming out with that Xing master key without having paid licensing fees to DVDCSS. Second, and most importantly, being denied the right to free speech is some pretty darn serious stuff to have to live with. You can't put a dollar figure on that, and you shouldn't have to in order to justify the importance of your rights to some corporation.

    I'm glad the judge ruled in "our favor".
  • That's got to be the best bang for the buck that I've ever seen from contributing to an advocacy group.

    -jcr
  • One for the Good Guys!

    Thanx to all you involved with this directly!

    ttyl
    Farrell
  • by JWhitlock (201845) <John-Whitlock@@@ieee...org> on Thursday November 01, 2001 @03:40PM (#2509033)
    Sixth Circuit (West Coast, + maybe Hawaii) is known as the most liberal of the appeals courts. This means that the ruling is truly the best case for the free speech arguement, but doesn't neccesarily mean that it would survive a Supreme Court review.

    I assume that the ruling, if the Supreme Court doesn't hear it, will stand, but that another circuit court may interpret differently, in which case it will eventually go to the Supreme Court. Looks like it's time to donate to the EFF, so that they will have the funds to argue the case at the next level.

    • The court in this case is a California state court. You are thinking of the Ninth Circuit of the US Court of Appeals, which has handled the 2600 case, IIRC.
      • Close. The Ninth Circuit handled the Napster case. The 2600 case was in New York, and I'm not sure which circuit that is.

        Interestingly, the Ninth also handled the Bernstein crypto case, and ruled that source code is speech. Did the judge cite that ruling -- don't recall from the link.

        Further interesting fact: the judge who ruled in the Bernstein case the code was speech is the same judge who nailed Napster to the wall (Marilyn C. Patel).
  • Cherry on top (Score:3, Informative)

    by imrdkl (302224) on Thursday November 01, 2001 @03:40PM (#2509036) Homepage Journal
    Defendant Andrew Bunner shall recover his appellate costs

    Did anyone ever really doubt the 6th district? I mean, aren't those honors from Berkeley, mostly? Seriously, all this chatter and breathing of sighs of relief is a little embarassing. Expect the best from your justice system. And dont be so surprized when you get it. This is still America.

  • by ivan256 (17499) on Thursday November 01, 2001 @03:43PM (#2509050)
    Does anyone outh there know of any set top DVD players out there that use DeCSS instead of licensing CSS from the DVDCCA? I'm thinking of buying my mother a DVD player for Christmas and I'd perfer not to give the DVDCCA any more money then is nescissary.
  • I got the impression that this was all about the DMCA, yet it seems that they are actually using Trade Secret law to suppress DECSS, not the DMCA...
    • by WillSeattle (239206) on Thursday November 01, 2001 @04:25PM (#2509333) Homepage
      it seems that they are actually using Trade Secret law to suppress DECSS, not the DMCA...

      Not just Trade Secret Law, but California's Trade Secret Law, which is quite different from that of other states.

      I think you're correct that the appeals court did not directly rule on the use of the DCMA to suppress free speech, but they implied that even the DCMA must bow to the constitution, since it is not a constitutional amendment in its own right. Free speech wins against all but other constitutional laws, from what I can gather of the decision.

  • If you don't have a copy of DeCSS yet, go download a copy right now. I've got that program and so much more, link in the my sig.
  • The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs.
    Any lawyers out there? I thought that American courts don't usually award costs. Does this mean that the appellate court was ticked off or is this just normal boiler plate?
  • Is the court filing available in source code form?

    :)

    -Puk
  • Looks like this document is full of quotes for us to enjoy here. But for those of us looking to play DVDs on Linux using DeCSS or the information contain therein, this line was particularly reassuring:

    Although the social value of DeCSS may be questionable, it is nonetheless pure speech

    Cheers,

    Toby Haynes

  • While the expressive nature of source code has just been affirmed by the court I think we should note that the functional nature of compiled source code can still be regulated.

    I'm suspicious of WinXP and other versions for that matter. I'm suspicious that even though the SSSCA seems to have been put to bed for the moment that assaults on our systems are yet to be devised.

    So far the privacy of your own home is almost intact but this will be an ongoing game.

    Encouraged but still paranoid.
  • by jms (11418) on Thursday November 01, 2001 @04:10PM (#2509254)
    Yes, it's a win, but the court made it perfectly clear that it holds no opinion on the REAL stakes in this war.

    The real stakes are the loss of the DVDCCA monopoly over permissable player features.

    The entire DVD industry, through the DVDCCA, have devised a set of mutual licensing handcuffs that they are all to wear -- DVD player manufacturers may not manufacture DVD players with unencrypted digital outputs. They may not manufacture and sell region-free players. This keeps the ability to make fair use of DVDs out of the hands of consumers.

    If the trade secret status of the decryption algorithms is found to be lost, then third parties, not bound by restrictive DVDCCA licenses, may well be free to offer DVD players with such consumer-friendly features as unencrypted digital outputs, no region codes, and the ability to fast-forward over unwanted trailers and FBI "notices", while the entire current DVD player industry will be unable to match those features, due to their contracts with the DVDCCA, without in effect dissolving the entire licensing structure and having to compete in, horrors, an open, unrestricted marketplace.

    Those are the real stakes. They have nothing to do with copyright infringement, and everything to do with what may turn out to be a "suicide pact" amongst all DVD hardware manufacturers.

    The court offers soothing, reassuring words to the DVDCCA and current player manufacturers:

    We express no opinion as to whether permanent injunctive relief may be obtained after a full trial on the complaint, as that issue is not before us.9 We further have no occasion to decide whether damages for Bunner's disclosure would be appropriate in these circumstances. DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech.

    "violates the Act by conduct" presumably means to manufacture an unlicensed player, and that's the real reason that the MPAA/DVDCCA is spending millions of dollars suppressing DeCSS.
  • by WillSeattle (239206) on Thursday November 01, 2001 @04:20PM (#2509310) Homepage
    OK, I've read thru the PDF of the decision.

    IANAL, but it seems to me that it boils down to the appelate court saying (with a lot of other things):

    Source Code is Free Speech. DCMA cannot override the right of free speech, especially if it does not involve the use of slander, libel, or "fighting words".

    Therefore, you cannot have a trade secret law, especially one from a state, override the constitutional right to free speech. Ever.

    This implies that I can thereby describe WINE as free speech, and MSFT can't sue me for trade secrets, since it's an alternate method for responding to inputs and outputs.

    This also implies that DCMA is functionally flawed on a constitutional basis.

    This lastly implies that the only way to overturn this is to have the US Supreme Court or some higher court overturn this decision.

    Good.

    Time to start coding!

    • Not quite.. All this decision is about is the preliminary injunction preventing the guy from posting DeCSS on his site on the grounds that it unlawfully discloses their trade secrets. It makes NO ruling whatsoever regarding any other penalties or damages they can slap on him if he continues to do so. Just because it's a trade secret doesn't mean somebody can't write about it.

      In addition, if he violated the terms of a contract (e.g. "click-wrap" license) by reverse engineering the software to obtain any of this information, Xing could potentially sue him on those grounds, but that would end up testing the validity of those types of licenses, and I don't think they're confident they'd win.

      So basically, this was just the court saying, "You can't forbid him from posting this just because he's discussing a trade secret." He can still bring problems down on himself via other avenues if he decides to continue doing so.
  • M$ move (Score:3, Funny)

    by ocie (6659) on Thursday November 01, 2001 @05:03PM (#2509541) Homepage
    Quick. Someone at RedHat, Mandrake, or some other distribution put out a DVD player package. Make a big stink about "innovation" and "giving the customer what they want" If the govt. tells you to stop, counter with:

    1) "stop what?"

    2) "it is too tightly integrated w/ the OS"

    3) "we need to innovate"

    4) "OK, we'll change the name of the program"
  • by sethamin (533611) on Thursday November 01, 2001 @05:04PM (#2509546)
    I hate to burst everyone's bubble, but this really doesn't get us anything. Sure, the ruling is quite favorable in the precedents it establishes for the main trial. But in this case we're attacking the USTA, which as the verdict noted, has no constitutional backing. The issue in this case is simply whether DeCSS can be "published" on websites where it wasn't obtained by improper means (e.g industrail espionage).

    The real obstacle ahead is the DMCA, which gives legislative weight to EULAs. In this case they weren't challenging the DMCA. The court sidestepped talking about the DMCA issue by claiming that they were not going to rule on whether Jon Johannsen's reverse engineering in Norway was "proper". But that's the real problem here: we are still being denied our "fair use" of software, and it's not even clear whether people in countries with less restrictive laws can exercise those rights for us.

    It doesn't look good in this area to me. I doubt the DMCA will be overturned since the issue here is not "free spech" vs "trade secrets", but "IP rights" vs "fair use". IP rights are guaranteed in the constitution and its not clear that "fair use" is. The best we can hope for is that some court will rule that the constitution both guarantees those IP rights but also limits those as well (a la "fair use") and thus EULAs can't impose Draconian rules on how to use software.

  • by dbretton (242493) on Thursday November 01, 2001 @05:25PM (#2509660) Homepage
    That was a very interesting read. I do like stories that have a happy ending. :)

    What was most interesting was the distinction made between copyrighted works and trade secrets.
    Since copyrighted works have a "fair use" policy, it is clear why the DVDCCA attacked under the premise of a "Trade secret" violation. However, the strategy backfired. severely:

    My favorite quote (2nd hand source noted) was this:

    "'If a threat to national security was insufficient to warrant a prior restraint in New York Times Co. v. United States, the threat to plaintiff's copyrights and trade secrets is woefully inadequate.' (Religious Technology Center v. Lerma (E.D.Va. 1995) 897 F.Supp. 260, 263.)"

    Ouch, indeed! This may mean the eventual demise of the California Trade Secrets Act, as its scope is to far-reaching.

    What was of interest, however, is that there was no discussion of the DMCA, which may have aided the cause of the DVDCCA. Perhaps the DCDCCA did not want to use that trump card, for fear that their case may rise to a federal court, and bring the DMCA under scrutiny.

    Why is that interesting? The DVDCCA must have felt that their strongest case did not lie in protection under the DMCA
    (chapter 12, section 1201, subsection b), aware of the (obvious) orthogonality of the DMCA vs Frist Amendment, but rather in trying to re-address the issue under the pretenses of a trade secret.

    Oh, BTW, here is that bit from the DMCA to which I referred:

    "ADDITIONAL VIOLATIONS.
    (1) No person shall manufac-ture, import, offer to the public, provide, or otherwise traffic in any
    technology, product, service, device, component, or part thereof,..."


    Of couse, IANAL (but I play one on slashdot!).

    -D
  • by BarefootClown (267581) on Thursday November 01, 2001 @08:54PM (#2510468) Homepage

    Certainly, this is a victory for the open source crowd. The idea that source code is speech is so natural to us as to be common sense. Having that view upheld by the court is indeed a triumph of law.

    However, I'm afraid I have to put a damper on the fun. The court ruled that source code is speech; compiled executables received no such protection. As such, posession of the DeCSS source code is legal, but use or posession of binaries, or even compilation of source (which would produce a binary) is not legal. "You can have it, but you can't use it."

    As a practical matter ( WARNING! I am not a lawyer. This is not legal advice! If you try this don't say I told you it was OK! If ever there was a time for the BLINK tag, it's this disclaimer...), since you can posess the source code, there is nothing to realistically stop you from using the binaries. In theory, when the system works right, you cannot be searched without a warrant, which requires probable cause to obtain. If you give the feds probable cause, you deserve what you get, but if you keep your mouth shut and use the software quitely in your home, nobody should be able to get a warrant, and you should not be subject to prosecution (under the rule of "it's only illegal if you get caught"). This would also rule out binary distribution--draws attention to yourself. ( Another BLINK disclaimer: I am not advocating breaking any law. I am merely offering my uninformed interpretation of the legal system. ) The DMCA has not been overturned here, it has just been found not to apply to source code. And for those who are thinking what I'm thinking, interpreted languages aren't a back door. You may be able to posess the Perl version of DeCSS, which is executed from source (for all practical purposes), but execution would be circumvention, and the DMCA says "no" to that.

    Good points from the case:

    • "The fact that a medium of expression has a functional capacity should not preclude constitutional protection."
    • "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment."

    Bad points:

    • "DVDCCA may, of course, bring an action for damages or even injunctive relief against anyone who violates the Act by conduct rather than speech." [emphasis from the original ruling]
    • "And anyone who infringes a copyright held by DVDCCA or by any DVD content provider may be subject to an action under the Copyright Act."

    Brief summary, in my own words: you can have it, but you can't use it.

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