A court can stop an Internet user or Website from posting the DeCSS code that enables DVD copying, and it doesn't violate free speech to block the posting, the California Supreme Court held August 25.
The ruling overturns a state appeals court decision that blocked a preliminary injunction against Andrew Bunner, who posted DeCSS on his own Website in 1999. And it's a win for the DVD Copy Control Association (DVD CCA), representing Hollywood studios, which has been trying to stop Bunner and others from posting DeCSS on the Web since.
"The preliminary injunction issued by the trial court…burdens no more speech than necessary to serve the significant government interests promoted by California's trade secret law," wrote Justice Janice Rogers Brown for the unanimous Court. "…Because the injunction is content-neutral and was issued because of Bunner's prior unlawful conduct, we conclude it is not a prior restraint and therefore does not violate the First Amendment."
The DVD CCA argued it controls the encryption program that stops unauthorized copying and wanted Bunner stopped under California's Uniform Trade Secrets Act. Bunner was ordered to stop posting DeCSS by a San Jose judge, but the 6th District Court of Appeal overturned that order, saying trade secrets all but take a back seat to the First Amendment.
The high court sent the case back to the 6th District Court of Appeal to determine whether the trial court handed down the preliminary injunction against Bunner properly, ruling that the DVD CCA was likely to prevail on the merits in the final resolution of the case.
In a separate concurring opinion, Justice Carlos R. Moreno nevertheless argued the preliminary injunction amounted to "subject-matter censorship" because it prohibited Bunner "entirely…from publishing a particular type of information related to (DeCSS) – not a content-neutral time, place, and manner regulation."
It wasn't known yet whether Bunner planned to appeal the California Supreme Court ruling to a federal court.
