Press Releases: May 2003
Publication of DVD Decryption Information Is Constitutional
For Immediate Release: Tuesday, May 27, 2003
Electronic Frontier Foundation Media Advisory
San Francisco - The California Supreme Court has scheduled a hearing for May 29, 2003, on a key legal challenge to the publication of information regarding the decryption of DVDs.
In the case, called DVD-CCA v. Bunner, California resident Andrew Bunner was one of thousands of republishers of the DVD-decryption software called DeCSS throughout the U.S. and the world. The court will review an appellate court decision that held that a preliminary lower court order preventing Bunner from disclosing in any language and in any medium the information regarding the decryption of DVDs violated his First Amendment rights.
DVD-CCA, the organization that licenses DVD technology for Hollywood movie studios, originally filed the lawsuit in December 1999 and obtained the preliminary anti-publication order shortly thereafter. DVD-CCA named hundreds of people in the lawsuit, including those who printed DeCSS on T-shirts. DVD-CCA contends that republication of DeCSS improperly disclosed its trade secrets despite the fact that the program was widely available. It is uncommon for trade secret owners to attempt to restrict publication by members of the public with whom they share no contractual relationship or who were not involved in the original discovery and disclosure of the trade secret.
Bunner republished DeCSS on his website after reading about it on Slashdot. He is the only defendant who has appealed the preliminary injunction.
"DeCSS was publicly available throughout the world when Bunner published the DVD-decryption information on his website and when the court issued a preliminary injunction," said EFF Staff Attorney Gwen Hinze. "DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties, and other media worldwide."
"We're confident the Supreme Court will recognize that DVD-CCA v. Bunner is a classic First Amendment case, just as the Court of Appeal did," said David Greene, Executive Director of the First Amendment Project and main author of Bunner's legal briefs. "The trial court failed to apply the commonly-recognized constitutional test for restrictions on the publication of 'confidential' information in DVD-CCA v. Bunner when it issued the preliminary injunction."
Another branch of the case, DVD-CCA v. Pavlovich, ended this spring when DVD-CCA decided not to appeal a California Supreme Court decision that it was improper to force Matthew Pavlovich, another alleged republisher of DeCSS, to come to California to defend the trade secret claim.
In other DeCSS-related litigation, the original publisher of the program, Norwegian teenager Jon Johansen, was acquitted of all criminal charges. The Norwegian government has appealed that decision, and the case is currently scheduled for re-trial in December 2003.
The Supreme Court hearing in DVD-CCA v. Bunner is scheduled for 9:00 am on May 29, 2003, in the courtroom at 350 McAllister Street, Fourth Floor, San Francisco, California.
- DVD-CCA v. Bunner and Pavlovich case archive
- 6th Appellate Court decision overturning Bunner injunction
- Jon Johansen case archive
- EFF Board member and Boalt Hall School of Law Professor Pam Samuelson's new paper on trade secrets and the First Amendment (PDF)
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"Governor Owens, in vetoing the Colorado super-DMCA bill, recognized that these bills are bad for innovation, bad for competition, and bad for consumers," said Fred von Lohmann, senior staff attorney with the nonprofit Electronic Frontier Foundation. "These MPAA-sponsored bills represent the worst kind of special interest legislation, sacrificing the public interest in favor of the self-serving interests of one industry."
Governor Owens today vetoed the Colorado version of the "super-DMCA," a piece of state legislation being pressed by the Motion Picture Association of America (MPAA) in state legislatures around the country. A wide variety of groups, including grassroots activists, civil liberties organizations and electronics manufacturers and retailers have rallied to oppose these measures around the country. For more on the status of these bills around the country, visit EFF's super-DMCA resources page.
The Bush Administration released its long-awaited report to Congress on the "Total Information Awareness" program today. (Now renamed "Terrorism Information Awareness")
"The report is disappointing -- after more than a hundred pages, you don't know anything more about whether TIA will work or whether your civil liberties will be safe against it," said EFF Senior Staff Attorney Lee Tien. "It's also disingenuous for a report about new technologies for monitoring people to keep saying, 'don't worry, we'll follow existing privacy law.' Privacy law is already behind the technology curve, and the Bush Administration fully understands that TIA will only make the problem worse."
Judge Susan Illston of the Northern District of California heard arguments in 321 Studios v. Metro Goldwyn Mayer this morning on whether 321's DVD backup software violates the Digital Millennium Copyright Act.
"Fair use and the DMCA have been on a collision course since 1998," said EFF Staff Attorney Wendy Seltzer. "The judge's ruling in this case will tell whether fair use survives the crash."
The Wall Street Journal reports that all four of the college students recently sued by the RIAA have settled their actions, agreeing to pay between $12,000 and $17,500 each without admitting any wrongdoing. The students allegedly maintained "index servers" that allowed students to search on-campus local area networks (LANs) for music files.
"Does anyone think that suing college students is going to solve the file-sharing dilemma, especially when Windows XP now includes the very same tools that these students are being sued for running?" said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation. "We should be talking about how to get artists compensated, not how to terrorize college students."