Metropolitan News-Enterprise


Thursday, February 21, 2002


Page 3


S.C. to Decide if First Amendment Protects Right to Publish Source Code


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to decide whether the First Amendment protects a person’s right to publish the source code for a computer program that allows a user to defeat the DVD industry’s encryption program.

Five of the court’s seven justices voted to grant review in DVD Copy Association v. Bunner, 93 Cal.App.4th 648. Justice Kathryn M. Werdegar did not join the order and Justice Joyce L. Kennard recused herself.

The Sixth District Court of Appeal, in an opinion by Justice Eugene Premo, ruled last November that a Santa Clara Superior Court judge’s preliminary injunction in favor the industry constituted an invalid prior restraint on speech.

The industry is suing more than 500 defendants for using the Internet to publish the source code for DeCSS.

DeCSS  has been described by the industry as 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 digital versatile (or video) discs, commonly referred to DVDs.

The injunction applies to many of the defendants, although its scope—if it is upheld at all—will depend on the outcome of another case before the high court. 

The court decided in December to review Pavlovich  v. Superior Court, 91 Cal.App.4th 409, which raises the issue of whether the out-of-state defendants in the case can be sued in California. Another Sixth District panel said they could be.

Premo wrote in his Bunner opinion that the DVD Copy Control Association’s  right to protect its trade secrets was trumped by the First Amendment when it came to the question of prior restraint. The industry’s right, he said, was not “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.”

The DVD CCA argues that the panel did not properly apply the First Amendment  “in the trade secret context to mixed conduct and speech in the form of a computer program.” The panel decision, the industry group said in its petition for review, leaves intellectual property owners “no  meaningful remedy to address the misappropriation and dissemination of sensitive technology that is the lifeblood of their business.”

The industry cited a recent decision by the Second U.S. Circuit Court of Appeals in New York upholding an injunction that bars a hacker magazine from posting DeCSS, the supposed brainchild of a Norwegian teenager. The panel also upheld a ruling that the magazine could not link to other Web sites that have DeCSS available for download.


Copyright 2002, Metropolitan News Company