[FYI] (Fwd) 'DeCSS' DVD descrambler ruled legal

["Axel H Horns" <horns@ipjur.com>]

See also

http://www.courtinfo.ca.gov/opinions/documents/H021153.PDF  


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

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 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.

"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."

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 is 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. ®






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