Understanding the DeCSS as Free Speech ruling

by Rael Dornfest

EFF attorney and P2P and Web Services Conference program committee member, Fred von Lohmann, explains the recent DeCSS-as-free-speech ruling by a California court of appeals. Fred was kind enough to educate me via email and even kinder still in allowing me to republish his note.

Fred wrote:

The motion picture companies filed several independent cases, each based on
a different legal theory, in their efforts to stop people from re-publishing
DeCSS. One of those cases was DVD-CCA v. Bunner, brought in CA state court
and based *solely* on the theory that DeCSS should be banned because it
contains trade secrets (one of the master encryption keys). The trial court
bought this argument, and granted an injunction barring Bunner from
re-publishing DeCSS (he had nothing to do with its initial creation -- he
found it on /.).

A California appeals court yesterday reversed the lower court, saying that
the First Amendment protects Bunner's right to re-publish DeCSS, since it is
truthful expressive content (source code). Trade secrets law cannot be used
to "stop the presses." The motion picture studios did not ask for damages in
this case, so the appeals court had no reason to address the question of
whether Bunner could have been liable for money, rather than an injunction.

Of course, the motion picture studios also have a separate lawsuit in New
York based on the theory that republication of DeCSS violates the DMCA. They
won in the lower court in New York, and we are waiting to hear from the
appeals court there. The decision in Bunner, which was based on the trade
secret theory, has nothing to do with the NY case or the DMCA.

So, you can republish DeCSS without worrying about a "stop the presses"
injunction based on trade secrets law. You still might be sued for damages
(assuming the secret hasn't been lost), or for violating the DMCA.

For more, see:

A California appeals court has surprised many observers by
overturning an earlier order that barred hundreds of people
from publishing the DeCSS code. The court held that posting
the code was protected speech and that the DVD Copy Control
Association's interest in protecting its trade secrets
pending trial does not justify a prior restraint on
publication of DeCSS. Decision at

Coverage at