Hollywood's legal bid to stop San Francisco programmer Andrew Bunner and others from publishing the code that circumvents DVD encryption has been dropped, three years after courts handed down a preliminary injunction against Bunner and the others for disclosing it.
The DVD Copy Control Association, which sued Bunner and other defendants, filed a motion to dismiss which was granted January 21 by the California State Court of Appeals. The court held that it shouldn't review the case on less than a fully developed record – and, that DVD encryption wasn't exactly a trade secret any longer, so arguing Bunner had published a trade secret was now impossible.
"DeCSS has been available on hundreds if not thousands of websites for 4 years now," said Cindy Cohn, legal director for the Electronic Frontier Foundation, which had supported and represented Brunner. "We're pleased that the DVD CCA has finally stopped attempting to deny the obvious: DeCSS is not a secret."
The EFF had argued that DeCSS was publicly available around the world by the time Bunner published the code on his own Website. "DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties, and other media worldwide," said EFF staff attorney Gwen Hinze last year, as the Bunner case was to be heard by the California State Supreme Court.
That court held that lower courts could block the publishing of encryption-cracking codes like DeCSS. At first the court was seen to have believed Hollywood might prevail in having DVD encryption ruled a trade secret, but a subsequent Supreme Court ruling held that computer source code is protected free speech and sent the Bunner case back to the state appeals court.
Earlier this month, Jon Johansen, the Norwegian programmer who created the code that cracked DVD encryption, a code known as DeCSS, was acquitted on retrial – a couple of months after he was said to have cracked the code that encrypts Apple's popular iTunes Music Store.
Hollywood had leaned on the Uniform Trade Secrets Act to sue Bunner for posting Johansen's DeCSS, which Johansen had maintained he did only to be able to play DVDs he had bought legally for his own use on his Linux computer.
