Who won the latest DeCSS skirmish?

[This article was contributed by Joe 'Zonker' Brockmeier]

The decision handed down by the California Supreme Court on Monday in the DVD Copy Control Association v. Bunner case is being hailed by many as a victory for the entertainment industry. In fact, the ruling is far from a major victory for the DVD Copy Control Association. The California Supreme Court has remanded the case back to the Court of Appeal to "determine whether the evidence in the record supports the factual findings necessary to establish that the preliminary injunction was warranted under California's trade secret law."

For those not familiar with the case, the DVDCCA sued Andrew Bunner for posting the DeCSS code posted by Jon Johansen. Johansen and others reverse-engineered software created by Xing Technology corporation to create the DeCSS package, which can decrypt DVDs for viewing. (Despite the DVDCCA's repeated assertions that DeCSS is used for copying DVDs, the software is not necessary to copy a DVD -- only to view it.) The trial court sided with the DVDCCA and issued a preliminary injunction against Bunner, which was later overturned by the Court of Appeals. Interestingly, Bunner's case is still winding through the American court system while Johansen has already been acquitted in Norway of charges of using DeCSS for illegal purposes.

The California high court's ruling had very little to do with the specifics of the DeCSS code or whether CSS is a legitimate trade secret. The court simply accepted the trial court's findings that CSS is a trade secret, and ruled on the question of whether it is a violation of the First Amendment to issue a preliminary injunction in the interests of protecting a trade secret. The Court of Appeals had ruled that trade secrets were not as important as First Amendment protections and lifted the injunction against Andrew Bunner posting the DeCSS source code. The California Supreme Court, however, disagreed that First Amendment considerations trump the protection of trade secrets:

So, the fight over DeCSS is far from over, which is good news. The bad news is that the California Supreme Court doesn't see any value in the DeCSS code in the continuing debate over the entertainment industry's use of encryption. From page 22 of the decision:

Many in the open source community would disagree that the disclosure of the code "adds nothing to the public debate." Ed Felten writes that access to the code is important factor in the debate over CSS:

Certainly the fact that CSS was so easily defeated is of public interest when debating whether CSS qualifies as a "trade secret" or simply a veiled attempt to rob users of their fair use rights over copyrighted materials they've legally purchased. The code should also be of some interest to those who wish to disprove the DVDCCA's continual claims that DeCSS exists primarily for copying DVDs, rather than watching them.

Whether Bunner is legally permitted to post DeCSS or not, the cat is out of the bag. For all practical purposes, anyone who wants to get access to the DeCSS code is able to do so. However, the case will set precedents that no doubt be revisited as the entertainment industry rolls out new media formats, and new encryption schemes.