De-Content Scrambling System (DeCSS), the code that cracks DVD encryption, was not a trade secret when Andrew Bunner posted the code on his Website, a three-judge panel of California's Sixth State Circuit Court of Appeals ruled March 1, overturning a four-year-old court-ordered ban on such publication.
"We are thrilled that the Appeal Court recognized that the injunction restricting Andrew Bunner's freedom of speech was not justified," Electronic Frontier Foundation staff attorney Gwen Hinze said in a statement after the appellate ruling was handed down. She said the ruling vindicated EFF's position that DeCSS had "been available on thousands of Websites around the world for many years."
The ruling held that the preliminary injunction handed down by the state Supreme Court was unlawful prior restraint on Bunner's free speech rights, and that the DVD Copy Control Association was not likely to prevail on the merits in its accusation that Bunner "misappropriated" DVD technology in publishing the DeCSS code first published by a Norwegian teen.
"The evidence in this case is very sparse with respect to whether the offending program was actually created by improper means," wrote acting Presiding Justice Eugene M. Premo for the panel. "Reverse engineering alone is not improper means...(But) assuming the information was originally acquired by improper means, it does not necessarily follow that once the information became publicly available (emphasis in the original) that everyone else would be liable under the trade secret laws for re-publishing it simply because they knew about its unethical origins."
That didn't mean the appellate court assumed DeCSS's alleged trade secrets became public domain just because it was published online, Premo wrote. "Rather, the evidence demonstrates that in this case, the initial publication was quickly and widely republished to an eager audience so that DeCSS and the trade secrets it contained rapidly became available to anyone interested in obtaining them," and that it couldn't be shown on the evidence just when in the DeCSS distribution timeframe Bunner himself had posted it.
The ruling doesn't mean it's okay to start publishing DeCSS online en masse just yet, the appellate ruling warned. "The ultimate determination of trade secret status and misappropriation," Premo wrote, "would be subject to proof to be presented at trial."
Jon Lech Johansen first published DeCSS in 1999. Known as "DVD Jon," he was acquitted of piracy charges by a Norwegian court in 2003. The acquittal was upheld by Oslo's court of appeals at year's end, holding he didn't use DeCSS to make pirated DVD copies. California's state Supreme Court handed down the original DeCSS publishing ban in 1999, agreeing with an earlier court ruling that DeCSS incorporated trade secrets found in CSS technology and thus should have been protected by law.
"This long-delayed but gratifying victory sends a strong message to those who would try to misuse intellectual property laws and corporate power to stifle free speech on the Internet," Bunner's attorney, Richard Wiebe, said in a statement. "The Court of Appeals correctly recognized the obvious conclusion that information that is in the public domain and that has been republished for years around the world can't be a trade secret."
The DVD CCA had moved to have the California Superior Court dismiss its lawsuit, a move Bunner opposed. The appellate ruling now means the case returns to the superior court in Santa Clara, where Wiebe said Bunner has a pending motion for summary judgment, meaning a judgment without trial predicated on who was likely to prevail based on evidence brought forth in preliminary hearings.
A statement from the DVD CCA following the appellate ruling called the ruling disappointing. The group has not yet determined what, if any, next steps it might take.
