DeCSS Injunction Reversed In CA Case 480
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.
text version (Score:4, Informative)
Slashdot got a mention (Score:2, Informative)
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
Re:Hip Hip Horay! (Score:5, Informative)
No, you cannot.
This reversed the preliminary injunction only. That means that DeCSS can be distributed in source code form. If you read the PDF carefully (hint, hint) the appeals court says that, indeed, the trial court might decide to assess financial penalties for the improper disclosure, if any is found to exist. The case is still headed to trial--just without the odious preliminary injunction.
The other posters who pointed out how bad a ruling the PI was are right; it was just a matter of time before someone with judicial authority understood the "if it can be put on a T-shirt, it's speech" argument.
There are still a lot of scary, possible outcomes relating to reverse-engineering, jurisdictions which govern license agreements, and other issues. We're NOT out of the woods on this one yet, folks.
Re:Its just something to get our hopes up (Score:2, Informative)
www.fairtunes.com exists for just this purpose. Go ahead and line up!
Good news, still keeping mirror up just in case (Score:2, Informative)
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
Re:Hip Hip Horay! (Score:2, Informative)
Re:Its just something to get our hopes up (Score:2, Informative)
yes -- sorta (Score:3, Informative)
The order granting a preliminary injunction is reversed. Defendant Andrew Bunner shall recover his appellate costs.
Of course, that only covers his appellate costs, but it's at least something.
Cherry on top (Score:3, Informative)
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.
Re:PDF? (Score:4, Informative)
Only when a Microsoft Word file isn't the only alternative. Besides, there are non-Adobe .pdf tools
here (PDFZone) [pdfzone.com], here (PDFPlanet) [planetpdf.com]
, and here (SourceForge) [sourceforge.net].
Re:Pinch me. (Score:4, Informative)
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.
Yes, *but* (Score:5, Informative)
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:This is the best possible circuit for it... (Score:3, Informative)
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).
Re:Pinch me. (Score:4, Informative)
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:a nice distinction between evils (Score:1, Informative)
Adobe owns the copyright in the data structures, operators, and the written specification for the particular interchange format called the Portable Document Format. These elements may not be copied without Adobe's permission.
...
However, Adobe desires to promote the use of the Portable Document Format for information interchange among diverse products and applications. Accordingly, Adobe gives copyright permission to anyone to:
Prepare files in which the file content conforms to the Portable Document Format.
Write drivers and applications that produce output represented in the Portable Document Format.
Write software that accepts input in the form of the Portable Document Format and displays the results, prints the results, or otherwise interprets a file represented in the Portable Document Format.
Copy Adobe's copyrighted list of operators and data structures, as well as the PDF sample code and PostScript language Function definitions in the written specification, to the extent necessary to use the Portable Document Format for the above purposes.
The only condition on such copyright permission is that anyone who uses the copyrighted list of operators and data structures in this way must include an appropriate copyright notice.
Hmmm..... Sounds kind of familiar. We own the copyright but you may use it. Just comply with our specifications and give us credit for coming up with the format.
Try going to GhostScript.Com [ghostscript.com] to get a Linux compatible PDF reader/writer.
Ahhhh... I yearn for the good old days when being able to use a computer actually meant you had to know something.
PDF converted toHTML/PNG (Score:1, Informative)
This is the document after being processed by pdf2html.
Good ruling: Trade Secret vs Copyright Protection (Score:3, Informative)
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
Re:Implications of the decision (Score:3, Informative)
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.
Re:One possible problem... (Score:3, Informative)
This is a good example of "dicta", meaning a comment on an issue that is not before the court (at least this court didn't think it was before it -- I agree it may have actually been wrong about that).
Of course, it's difficult to understand how DeCSS could disclose any secrets if it's a meaningless string of 1's and 0's with no "conveyed ideas". What does that say about copyrightability of binary software, let alone the DVD movies, which are also 1's and 0's. Of course, DeCSS was created by somebody extracting the ideas from just such a compiled object code, so perhaps if the Court had been briefed on this subject it's dicta would be different.
Kaplan heard extensive expert testimony on that very point. The one thing Kaplan actually did buy off on is that the journey from human thought to speech to source code to object code is a continuum.
DeCSS is not source code, but rather a precompiled Windows executable!
Many people have distributed just the executable, but I'm baffled to hear you suggest that there is no source code. There is, it's in C, it's widely available and it's under the GPL no less.
Many people predicted early on that the C source code would be made legal, while the binary would not be. Of course, DeCSS is completely irrelevenet now. libdvd, drip and their peers are much more robust.
trade secrets? (Score:2, Informative)
If I followed it correctly, they compared trade secret laws to copyright. By fair use, scholarly discussion, criticism, and excerpts are allowed of copyrighted material, which would totally reveal most trade secrets in no time. The only way to keep a trade secret under copyright law would be to KEEP IT SECRET.
They also said the right to a fair trial didn't take precedence over the right to free speech. Wow. That doesn't sound like how I've heard things practiced. Today I heard that many people were being held as material witnesses to the terrorist attack, and had not been allowed to tell anyone they were being held.
Another comparison that occurred to me as I read the ruling was that trade secretes are like selling a car with hood shut, and requiring car buyers to sign an agreement never to open the hood. Car companies could do that. What would be their recourse if someone actually opened the hood?
Re:Some great precedent (maybe v. DCMA and SSSCA) (Score:2, Informative)