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DeCSS source distribution allowed

By simon farnz in MLP
Fri Nov 02, 2001 at 10:49:28 AM EST
Tags: Freedom (all tags)

A Californian appellate court has ruled that distribution of DeCSS source code is protected under the free speech provisions of US law.

Although this is only a first stage in dealing with the issues raised by the case, it is at least a sign that American judges are taking the time to understand the issues involved.

Basically, the Hon. William J. Elfving has ruled that, in California, computer source code is free speech and therefore protected by the First Amendment. Hopefully other US judges considering DMCA related cases will take this ruling into account.

The EFF's files on the case can be found here


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Good ruling?
o Yes, it resolves some ambiguity in the law 43%
o Yes, the injunction was wrong 56%
o No, the injunction should not have been lifted 0%
o No, and Bunner should have been punished more severely 0%

Votes: 41
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Related Links
o A Californian appellate court has ruled
o DeCSS source code
o First Amendment.
o here
o Also by simon farnz

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DeCSS source distribution allowed | 10 comments (10 topical, editorial, 0 hidden)
Note (4.75 / 12) (#1)
by morven on Fri Nov 02, 2001 at 06:35:04 AM EST

that this ruling does not say that DeCSS distribution is legal - just that prior restraint of someone's right to free speech under the 1st Amendment is not justified in a trade secrets case under California law when the defendant is not under contractual obligation.

In other words, you cannot be prevented from publishing DeCSS until after a final decision in this case -- but you may still be found liable for damages for doing so. You can be punished after the fact, but not prevented from doing so in advance of being found guilty.

not quite.... (4.00 / 1) (#4)
by dmac on Fri Nov 02, 2001 at 02:40:08 PM EST

This ruling says that distribution is legal... it does not say that the uses of the item distributed are.

I.E. this allows you to give the source code to your friend who can print it on a t-shirt, but doesn't necessarily mean you can compile it and use it.

One of my biggest beefs with the RIAA's actions over napster and such is that they are attacking practices/mechanisms/processes/etc. because of the 'commonly percieved use' of something, not because of all of them (i.e. Canada's tax on CD blanks which goes to the recording industry on the premise that most of them will be used for illegal copies, even tho there are thousands of CDs burned every day that have data archives, etc. burned on them.) This is pretty much another example of that.

[ Parent ]

You've missed his point (none / 0) (#5)
by simon farnz on Fri Nov 02, 2001 at 03:55:34 PM EST

He is saying that, as with other forms of protected speech, although the courts cannot ban you from speaking, they can hold you liable for doing so; you are allowed to call a guy in the street a black ****; however, you can be punished for doing so.

Protected speech only means that you cannot be prevented from speaking, not that you cannot be punished for the harm that speech causes.
If guns are outlawed, only outlaws have guns
[ Parent ]

Just wait and see... (3.27 / 11) (#2)
by job on Fri Nov 02, 2001 at 08:03:05 AM EST

Disney seems to have forgot to buy the first amendment. Don't worry, they'll get to it eventually.

Semi-related question (4.00 / 2) (#3)
by ocelotbob on Fri Nov 02, 2001 at 12:13:23 PM EST

Reading through the EFF's excellent archives, I noticed that the DVD-CCA is referred to as a non-profit organization. Correct me if I'm wrong, but aren't: a) non-profits supposed to provide a fairly substantial amount of their accounting records, on demand, for the public to view, and b) If this is the case, has anyone requested those records? I'm sure that those statements would be a fairly interesting read for all parties involved in this case.

Can I be your pet? I promise not to bite (much).

In the short term this is meaningless. (3.50 / 2) (#6)
by aphrael on Fri Nov 02, 2001 at 04:32:41 PM EST

Note that the decision says that the California state law protecting trade secrets is trumped in this case by the first amendment.

Well, that's good. But it doesn't address the federal law, or the federal court injunction prohibiting distribution, issued by a federal court in New York last year. It means that the state of California cannot engage in prior restraint. It does not change the fact that the federal injunction continues to prohibit distribution until a federal court rules on that case.

I thought that the Federal injunction... (4.00 / 1) (#7)
by Hizonner on Fri Nov 02, 2001 at 04:55:03 PM EST

... only applied within whatever district (circuit?) New York is in, and only to persons "acting in concert" with the DeCSS defendants.

Of course, as you say, there's still the issue of the DMCA, as distinct from the injunction. The DMCA applies everywhere in the US (and apparently abroad, too... cf Sklyarov). The DMCA would certainly seem to prohibit distribution of DeCSS, provided that those provisions stand in court. We'll see what happens when the appeals for the New York case play out.

[ Parent ]

This is meaningful (4.00 / 1) (#8)
by Pseudonym on Fri Nov 02, 2001 at 08:38:11 PM EST

California is the preferred jurisdiction of the MPAA. Remember that in the Matthew Pavlovich case, the MPAA managed to successfully argue that no matter where you are or whether you have ever visited California, if you do anything with movies or computers, you're dealing with California and therefore can be tried under California law. They did this to deal with a whole bunch of defendants in one court.

If California turns out not to be a good state to try DeCSS-as-trade-secret cases, this will not be good for them.

sub f{($f)=@_;print"$f(q{$f});";}f(q{sub f{($f)=@_;print"$f(q{$f});";}f});
[ Parent ]
I disagree (none / 0) (#9)
by dmac on Mon Nov 05, 2001 at 10:40:32 AM EST

I don't agree with that... the fact that you can be punished for something is by definition an attempt to stifle the behavior that you are punishing. In your example, calling someone a bad name on the street is not something that can be prevented by law, so we add a punishment after the fact to try to prevent you from doing it in the first place.

A better (and more arguable) example would be if someone distributed something that could be used to cause damages or used illegally (say, brass knuckles). In some places they are illegal to own and some places illegal to distribute, some places they aren't. In either case, the only use for them that I am aware of is destructive, unless you count the 'paperweight' argument that is used to circumvent some of these laws. Now, Joe Distributor sells a pair of brass knuckles to Guido Gang Enforcer, who promptly beats someone within an inch of his life. Either they are illegal to distribute, in which case the distributor may be liable for the actions of the purchasor, or they are legal to distribute, in which case the distributor is NOT liable for the actions of the purchasor.

In the DeCSS situation, the court has said that the distribution of DeCSS Source Code is acceptable and protected by the 1st Amendment, therefore it is legal. Therefore the MPAA or anyone else cannot seek damages from the distributor of the DeCSS Source Code.

Note that nothing prevents them from going after the person who compiles and uses the DeCSS software however, as this person is in violation of the DMCA. (All arguments as to the usefulness of DeCSS aside... :)

Oops... (none / 0) (#10)
by dmac on Mon Nov 05, 2001 at 10:46:23 AM EST

Wrong link....

This should have been posted following simon farnz' response on thread #1

[ Parent ]

DeCSS source distribution allowed | 10 comments (10 topical, 0 editorial, 0 hidden)
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