The DVD Copy Control Association Tuesday asked the California Supreme Court to reverse a lower court's decision that blocked the publication of the source code for DeCSS technology, which circumvents digital copy protection systems.
DeCSS is a computer program designed to defeat an encryption-based copy protection system known as the Content Scramble System, or CSS, which is employed to encrypt and protect the copyrighted motion pictures contained on DVDs.
The California Supreme Court will hear oral arguments in this case early this fall, and a decision is expected by early 2003.
Bob Sugarman, one of the attorneys for the DVD CCA in this matter, said a November 2001 ruling in New York supports his client's assertions.
"We are optimistic that the California Supreme Court will reverse the decision ... especially in view of the decision late last year by the 2nd Circuit upholding an even more restrictive injunction against DeCSS under the Digital Millennium Copyright Act," Sugarman said in a written statement.
The 2nd Circuit U.S. Court of Appeals in New York upheld a New York District Court's decision to prohibit hacker magazine 2600 from posting DeCSS. The panel also upheld the ruling that 2600 could not link to other Web sites that have DeCSS available for download.
"The First Amendment was never intended to block courts from preventing the illegal distribution of a program that improperly uses DVD CCA's trade secrets and whose primary purpose is to permit those who use it to violate the copyright laws," he added. "The issues raised by this appeal are extremely important not just for the DVD industry, but for all industries that rely on trade secret laws to protect their businesses."
The brief is the latest legal maneuver in a drama that has played out for months in courtrooms in California and New York.
In January 2000, a Santa Clara County Superior Court judge imposed a preliminary injunction that ordered defendant Andrew Bunner and numerous other defendants to cease Internet publication of the source code for DeCSS.
On Nov. 1, 2000, the 6th Circuit U.S. Court of Appeals reversed the lower court's injunction. The court said the temporary injunction was a violation of Bunner's freedom of speech.
In the decision, the appeals court said the DVD CCA's 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 or other vital governmental interests that have previously been found insufficient to justify a prior restraint."
In addition, the court found that DeCSS is "pure speech" for the purposes of First Amendment protection.
On Nov. 30, 2001, the DVD CCA filed a petition for review with the California Supreme Court. On Feb. 20, the court agreed to hear the organization's arguments.
In the brief, the DVD CCA argued that, "neither DeCSS nor Bunner's posting of it on the Internet is pure speech." Instead, the group said, courts have treated computer code as "nonspeech" or "mixed speech and content."
"Historically, the dissemination of stolen trade secrets has not been protected by the First Amendment," the DVD CCA wrote in its brief. It said the injunction, "was not aimed at restricting speech, but was intended solely to protect against the evisceration of trade secrets that are the motion picture industry's critical means of defense against widespread digital pirating of its valuable copyrighted works."
The DVD CCA asserted the appeals court "fundamentally erred" in its finding that DeCSS was pure speech, and insisted that if the ruling were allowed to stand, "the value of trade secrets in California will be virtually destroyed."
"No stolen trade secret can survive if the courts are powerless to enjoin its widespread disclosure," the brief said.
Newsbytes
March 28, 2002