Tuesday, August 26, 2003
SAN FRANCISCO — Courts may block Internet users from posting software code that could be used to illegally copy DVD movies, the California Supreme Court ruled Monday in a decision hailed by Hollywood.
The case had been framed as one that pitted trade secret rights against free speech, but justices did not resolve whether the software code at issue was a trade secret, leaving that question for a lower court.
The court made it clear that the posting of legitimate trade secrets online was not permissible, reversing a lower court that had said disseminating industry secrets was protected free speech.
The case centered on San Francisco computer programmer Andrew Bunner (search), who in 1999 posted the code for a piece of software called DeCSS (search), which allows DVDs to play on non-authorized DVD players, and, according to the movie industry, helped users replicate thousands of copyrighted movies per day.
Bunner did not make an actual decrypting application available for download, but anyone with moderate computer programming skills could easily "compile" the DeCSS code into a working piece of software.
The DVD Copy Control Association (search), an arm of Hollywood studios, said it controls the CSS encryption system, which scrambles data to prevent unauthorized copying of a movie sold in the DVD format. The association sued Bunner and others under California's Uniform Trade Secrets Act (search).
Bunner did not write the encryption-cracking software, but posted it on one of his Web sites, as did hundreds of other individuals. The Norwegian teenager who cracked the code, Jon Johansen, was acquitted in Norway in January of charges he stole trade secrets.
Johansen maintained he had written DeCSS to play DVDs on a computer running the Linux (search) operating system, for which no authorized DVD player existed at the time. Johansen, however, posted the code for both Linux and Windows versions of DeCSS on the Internet.
A San Jose judge ordered Bunner to remove the DeCSS code from his Web sites. But the 6th District Court of Appeal in San Jose, Calif., lifted the injunction, holding that protecting trade secrets was not as important as "the First Amendment right to freedom of speech."
Joined by California's attorney general and companies including Boeing Co., Ford Motor Co. and AOL Time Warner Inc., the DVD association argued that such an interpretation was akin to giving crooks the technology to reproduce protected material such as movies on a large scale.
On Monday, an unanimous Supreme Court agreed.
In reversing the appeals court, Justice Janice Rogers Brown said an order to remove the code "does not violate the free speech clauses of the United States and California constitutions."
The case is not fully resolved, however, because the Supreme Court also ordered the San Jose appeals court to analyze whether the code is still a protected trade secret given its widespread exposure.
An attorney for the DVD association, Robert G. Sugerman, predicted that the court's 7-0 ruling would have wide applications in trade secret law.
"Owners of trade secrets can now protect those trade secrets through injunctive relief, which is clearly now available," Sugerman said.
Bunner, 26, said he has removed any reference to the unscrambling code from the Internet and is fighting the case to stand up for free speech rights. He is one of dozens of people throughout the United States that the association is suing for posting the code.
He said Monday he believed his actions were lawful, and said he put the information on the Web to let others play DVDs on their computers.
"The idea was to get it out there for an open-source DVD player," Bunner said. The growing "open source" movement aims to provide computer users with free, modifiable software.
His attorney, David A. Greene, said the appeals court could still ultimately support Bunner's actions because the code's global dissemination may now prevent it from being recognized as a trade secret.