Court rejects ban on DVD descrambling code

In a closely watched case concerning a DVD-cracking tool that has been distributed over the Internet, a California appeals court has reversed a 4-year-old order banning the publication of the computer code that can be used to copy DVDs.

California's Sixth Circuit Court of Appeals reversed a 1999 injunction favouring the DVD Copy Control Association (DVD CCA), which had filed a lawsuit against California resident, Andrew Bunner, accusing him of violating its intellectual property rights by posting De-Content Scrambling System (DeCSS) software on his website.

In a decision issued by a three-judge panel, the court ruled that "the preliminary injunction ... burdens more speech than necessary to protect DVD CCA's property interest and was an unlawful prior restraint upon Bunner's right to free speech."

Last month, the DVD CCA, representing motion picture and consumer electronics companies, had asked the California Superior Court to dismiss its lawsuit, but Bunner opposed such a move. The court denied the motion for dismissal as it felt that the appeal presented "important issues that could arise again and yet evade review", the three-judge panel wrote in its decision.

DeCSS allows users to access movies on DVDs that are protected by the CSS encryption technology. The code was first published by a Norwegian teenager, Jon Lech Johansen, also known as DVD Jon, who was acquitted of all charges in a Norwegian court last year. That ruling was then upheld by the Oslo Court of Appeals in December, which found that Johansen had not used DeCSS to make DVD copies in violation of intellectual property regulations, and that is was not his intention to make illegal DVD copies.

The California Supreme Court had originally granted an injunction against publishing DeCSS based on a decision that the software contains trade secrets found in the CSS technology, and that those secrets should be protected by law.

The Appeals Court, instead, ruled that there was no evidence that CSS was still a trade secret when Bunner posted DeCSS, as it had been available on thousands of websites around the world.

The ruling will not necessarily make it legal in California to post DeCSS online in the future, however. The judges stressed that their ruling was "not a final adjudication on the merits. The ultimate determination of trade secret status and misappropriation would be subject to proof to be presented at trial".

But the ruling is a victory for free speech advocates groups that have been caught up in the aggressive campaign by Hollywood studios to prevent DVD copying with encryption technology. On February 20, a US District Court in San Jose, California, sided with several movie studios when a US federal judge barred 321 Studios from manufacturing, distributing or otherwise trafficking in software that allows users to copy DVDs.

Whereas the injunction ruling in Bunner's case was based on laws protecting trade secrets, the case against 321 Studios focused on efforts to circumvent copy-protection software or programs, which is illegal under that federal law known as the Digital Millennium Copyright Act (DMCA). Lawyers for 321 Studios had argued that the DMCA provisions were unconstitutional and obstructed fair use rights, and that CSS was not a copy protection tool but an access control tool.

In terms of fair use issues that Bunner had raised in his case, the appeals court judges wrote "we do not reach Bunner's argument that the injunction would violate the intellectual property clause of the United States Constitution".

The case against Bunner will now return to the Superior Court for Santa Clara County, California, where he has a pending motion for summary judgment in the Superior Court, according to a statement released by Bunner's lawyer, Richard Wiebe, as well as the Electronic Frontier Foundation, which is serving as co-counsel for Bunner and the First Amendment Project.

A summary judgment is a judgment entered without a full trial, when evidence brought out in pretrial proceedings makes it clear which side should prevail.

Bunner's lawyer said that the ruling on the injunction was a positive development for programmers who use legal methods to learn about proprietary products.

In the case of DeCSS, the method is reverse engineering, whereby someone takes a known product and works backward to determine how it was developed or manufactured.

In their ruling, the judges wrote that "the evidence in this case is very sparse with respect to whether the offending program was actually created by improper means. Reverse engineering alone is not improper means."

The DVD CCA said it was disappointed by the California Court of Appeals ruling and that the group was taking it into consideration, but had yet to decide its "next steps in this case."

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