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Court overturns DVD code-posting ban

SAN JOSE, California (CNN) -- A state appeals court in California has reversed an injunction prohibiting Internet posting of a program that bypasses encryption of DVDs on the basis that it is prior restraint to speech protection by the First Amendment.

Two years ago -- after learning that the program, or source code, published on the Internet allowed people to bypass the encryption that prevents copying of DVDs -- the DVD Copy Control Association (DVDCCA) sought and got a preliminary injunction against Andrew Bunner and other Web site operators.

A DVD is a thin disk 5 inches in diameter that can store a large amount of digital data, including a full-length motion picture.

DVDCCA is a trade association of movie businesses that controls the rights to the method of encryption, called "content scramble system," or CSS.

In October 1999, a computer program called DeCSS was posted on the Internet, allegedly by Jon Johansen, a 15-year-old resident of Norway.

DeCSS describes a method for playing an encrypted DVD on a player that is not equipped with CSS.

Two months later, DVDCCA sued Bunner and others who allegedly republished or "linked" to DeCSS, alleging that the code "embodies, uses, and/or is a substantial derivation of (DVDCCA's) confidential proprietary information."

The trade group had sought to protect the information by limiting its disclosure to those who signed licensing agreements that prohibited disclosure.

DVDCCA said the information in DeCSS had been "obtained by willfully 'hacking' and/or improperly reverse engineering" CSS software.

Bunner argued that the code represented speech and that granting an injunction would violate his First Amendment rights. He added that there was no evidence he knew or should have known that DeCSS had been created by improper use of any proprietary information.

Bunner said Johansen had reverse-engineered the software to create DeCSS so that CSS-encrypted DVDs could be played on computers that run under Linux, a computer operating system.

In January 2000, the trial court issued the preliminary injunction.

But the California Sixth Appellate District Court ruled Friday that the republication of DeCSS was "pure speech" within the scope of the First Amendment and that the lower court's prohibition of disclosures of DeCSS represented prior restraint.

"Prior restraints on pure speech are highly disfavored and presumptively unconstitutional," the court says in its ruling.

"It is clear that few things, save grave national security concerns, are sufficient to override First Amendment interests."

The trade association's right to protect its trade secret, the ruling goes on to say, "is not an interest that is 'more fundamental' than the First Amendment right to freedom of speech or even on equal footing with national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint."


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