DVD-copying code loses free speech shield (ZDNet) [LWN.net]

ZDNet reports that the California Supreme Court has ruled (in the Bunner DVD case) that the "free speech" defense does not apply. "The ruling did say that software code like DeCSS should be afforded some strong First Amendment protection, even if trade secrets rights trumped free-speech shields in this particular case. However, the court cautioned that its decision was based on a very narrow reading of the earlier decisions, including the assumption that the original trial court had ruled correctly that the release of DeCSS had violated the industry coalition's trade secrets. The court ordered the case to be sent back to the appeals court level, where judges would review the trade secrets issue more closely."

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Trade secret case depends on Norway

Posted Aug 25, 2003 19:36 UTC (Mon) by ncm (subscriber, #165) [Link]

The original decision was based on a biased assumption that the original reverse-engineering and publication were illegal in Norway. At last report the Norwegian court had rejected that assertion. Norwegian law specifically forbids anti-reverse-engineering clauses in contracts. The confused or arm-twisted Norwegian prosecutors said they meant to ask for a re-trial. I haven't seen any news about results of that re-trial, if any.

The "knew or should have known" test should not have been applied to the original trade-secret violation case. It appears that not even Norway's prosecutor "knows", and its court certainly thinks not. How would some kid who's never been there be expected to "know"? The only outcome that would not embarrass California's courts any further would be to decide that there was no remaining trade secret at the time of the original filing.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 25, 2003 20:24 UTC (Mon) by ccchips (guest, #3222) [Link]

Not if you're a pundit looking for bucks, or an editor looking for ad space from the wealthy.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 25, 2003 21:25 UTC (Mon) by piman (subscriber, #8957) [Link]

Really? I'm appalled at the number of people in the free software communty who buy DVDs even though they are encrypted, and don't talk about it at all. Outside the free software community literally no one cares; inside it, very few people care enough to not buy them.

I have to agree with the judge.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 25, 2003 23:10 UTC (Mon) by rfunk (subscriber, #4054) [Link]

Nobody within the community cares *because* we have DeCSS and its
successors.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 25, 2003 23:59 UTC (Mon) by piman (subscriber, #8957) [Link]

Nobody in the "community" cares because they can watch their DVDs.

DeCSS's legality is still in question. If the rulings go against it, are you going to throw out all your DVDs because you can't watch them anymore? If you are, I commend you, but I suspect most people will either continue watching illegally with DeCSS, or buy a hardware DVD player. Neither of those options help free software, nor do they cause debate about whether DVDs should be encrypted or not.

The success of questionably licensed programs like MPlayer is proof that the vast majority of "Linux users" don't care about the legality or freeness of their software, if they can watch their movies.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 26, 2003 3:04 UTC (Tue) by ccchips (guest, #3222) [Link]

Boy, does this remind me of the time I was in NORML.

They had a FULL PAGE AD posted in ALL the major newspapers, in the middle of the 1970's, urging Americans to write their congressmen, senators, governors, and the President to change the laws around marijuana.

I talked to a NORML spokesman something like 2 weeks later, and guess what he said about the response?

"It may be illegal, but it's plentiful, and nobody's bothering us, so why should we let our leaders know we're the ones who are smoking it?"

That was the response to their major ad blitz.

The judge is right, but for the wrong reason. NOTHING will contribute to the national debate about whether DVD's should be encrypted, but rich people like judges and bankers are perfectly happy to have it that way. Otherwise, we's have a public education system in the United States that would be second to none.

Then, the actions of people lie Johansen would spark debates about all sorts of things.

So would the actions of people like Bill Gates, Darl McBride, Harry J. Anslinger, and a whole host of other people who operate under the assumption that rights are for the buying.

DVD-copying code loses free speech shield (ZDNet)

Posted Aug 26, 2003 2:15 UTC (Tue) by neoprene (guest, #8520) [Link]

Encryption is the effort of concealing the true message from plain view.
The Egyptian hieroglyphs were "encrypted" until Champollion deciphered the Rosetta stone. The intent of the Egyptians were not conceal their messages, but the inability or lack of skill to read it made it appear to be "encrypted".
I don't know that anyone can read compiled hex-code and understand it - is this encryption?
Is anythig most people don't understand "encrypted" ?
Is wishful thinking the barrier of protection of "secrets"?

Functional speech? No, political speech!

Posted Aug 26, 2003 19:20 UTC (Tue) by Peter (guest, #1127) [Link]

At first glance I can agree that DeCSS, being a software library few people (percentage-wise) can ever have any hope of understanding, does not seem like the sort of thing to be protected as "free expression".

But that ignores the fact that, because it has been politicised, it has become a symbol. Posting DeCSS on a web site is not done as an expression of mathematical algorithm research; it is usually done explicitly as a political statement. The Copyleft tee shirt I bought with the source listing on it - I didn't buy the shirt so I could look at it, type the code into my computer, and study it.

So, the medium is the message. This isn't primarily "functional" speech here, although of course it is that. It's primarily a political opinion, which I thought was supposed to enjoy the highest level of First Amendment protection.

Does the California Supreme Court really not understand this point? It seems so obvious, to me. But, as Baylink says, so many things are just me.

Is this really so bad?

Posted Aug 26, 2003 21:25 UTC (Tue) by sab39 (guest, #2185) [Link]

Is it just me that thinks this isn't entirely negative?

Consider:

- A legitimate trade secret might be, for example, some knowledge that is only available under NDA. In that case, it's hard to argue that free speech is a legitimate reason to violate the NDA, which is effectively a voluntary waiver of the right to free speech about a particular topic.

- By any reasonable definition (ie, NOT the one that the lower court applied), DeCSS is not a trade secret, and Bunner (and others) "knew or should have known" that it isn't. So the free speech defense doesn't *need* to "trump" the trade secret protection, because DeCSS should never have been eligible for trade secret protection in the first place.

- The court seems to hold that same opinion and has pushed the issue back to the lower court saying "are you *really* sure this should ever have been afforded trade secret protection in the first place?". My guess (although I don't know any details, I'm just going from the LWN writeup) is that the appeal to the Supreme Court was formatted in such a way that it wouldn't have been possible for the court to simply rule that DeCSS did not infringe any trade secrets, because that was outside the scope of the appeal, so they had to send it back to the lower court to determine that.

In other words, is this really as bad as it sounds?