(Fwd) Code as free speech

From: Tom _-at-_ Abacurial.com
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Thu, 29 Nov 2001 21:43:14 -0500

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Date sent:      	Thu, 29 Nov 2001 20:10:00 -0600
Subject:        	Code as free speech
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NETWORK WORLD NEWSLETTER: ANN HARRISON 
on PEER-TO-PEER 
11/29/01 - Today's focus: Code as free speech

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Today's focus: Code as free speech

By Ann Harrison  

In a surprising moment of judicial lucidity, a California 
Appeals Court ruled this month that computer code used to 
"descramble" DVDs is a form of speech protected by the First 
Amendment. The decision reversed an earlier trial court's order 
to block the descrambling code, known as DeCSS, from appearing 
on the Web. 

The case sprang from a 1999 lawsuit brought by the DVD Copy 
Control Association (DVDCCA), a movie industry trade group, 
against Andrew Bunner, a Web developer, and numerous other 
unnamed persons for posting and providing links to the DeCSS 
code on the Web. 

According to the DVDCCA , the defendants were using 
"confidential proprietary information" and were therefore 
violating movie companies' trade secrets. Some secret. DeCSS 
was, and is, widely available on Web sites around the world. 
The DVDCCA essentially attempted to criminalize a piece of 
commonly known information that was generated by a teenager, 
who broke a weak scrambling system. The association is also 
attempting to outlaw the process of linking, one of the very 
cornerstones of the Web. 

Initially, judges seemed more than willing to cave into this 
nasty bit of corporate hubris. In January 2000, the trial court 
issued a preliminary injunction against the defendants, barring 
them from posting "or otherwise disclosing or distributing, on 
their Web sites or elsewhere, the DeCSS program ... or any 
other information derived from this proprietary information." 

Naturally, the code began appearing on T-shirts and even in the 
form of a rather long, but nonetheless creative prose poem. 
Many journalists, including me, linked to the code in news 
stories about the ruling. After all, didn't our readers have a 
right to examine the disputed code for themselves?

When the appeals court reversed the initial ruling, it did not 
decide whether or not Bunner disclosed a trade secret. That 
issue will be decided in an upcoming trial. Instead, the court 
said Bunner could only be barred from posting the code if it is 
been proven, in a trial, that he has violated a secret. 

The ruling states: "DVDCCA's statutory right to protect its 
economically valuable trade secret is not an interest that is 
'more fundamental' than the First Amendment right to freedom of 
speech or even on equal footing with the national security 
interests and other vital governmental interests that have 
previously been found insufficient to justify a prior 
restraint." 

Thank goodness someone on the bench is thinking clearly. But 
hold the champagne. 

In August 2000, U.S. District Judge Lewis Kaplan ruled in favor 
of the movie companies in a federal suit over DeCSS. He ruled 
that "computer code is not purely expressive any more than the 
assassination of a political figure is purely a political 
statement." 

Assassination? Hello. This has nothing to do with 
assassination. DeCSS was initially created to allow DVDs to be 
played on Linux machines. The movie industry seeks to not only 
control the content, but the players on which purchased content 
is displayed. 

That case is currently pending appeal. Let's hope that the 
California ruling will help support the idea that code, is 
indeed, a form of speech. 

For more information on the case, go to the Web sites of The 
Electronic Frontier Foundation (http://www.eff.org ) and the 
DVD Copy Control Association (http://www.dvdcca.org ).

_______________________________________________________
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To contact Ann Harrison:

Ann Harrison is a technology reporter in San Francisco. She can 
be reached at mailto:ah@well.com.
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