DeCSS hearing will address free speech

“To post or not to post,” that is the question that the California Supreme Court will be considering as it hears oral arguments Thursday in a case that tests the ability of trade secret protection laws to restrain speech on the Internet.

The case, “DVD-CCA v. Bunner,” stems from a complaint filed in late 1999 by the DVD Copy Control Association (DVD CCA) against numerous named and unnamed defendants that it alleged were publishing code for DVD-decryption software called DeCSS (De-Content Scramble System).

The DeCSS code was a protected trade secret and the individuals, including California resident Andrew Bunner, were charged with violating trade secret laws.

Bunner republished DeCSS on his Web site after reading about it on popular technology Web site Slashdot.com.

Along with other defendants, Bunner was barred by a lower court from publishing the DeCSS code in any form. He appealed the ruling on the grounds that the injunction violated the U.S. Constitution’s First Amendment right to free speech.

On Thursday the court will review an appellate court decision that ruled in Bunner’s favor, finding that the lower court’s injunction was a violation of Bunner’s First Amendment rights, according to a statement issued by the Electronic Frontier Foundation, which has helped represent Bunner in court.

In November, the same court ruled that another defendant in the DVD CCA’s case, Texas resident Matthew Pavlovich, could not be sued in California court.

The DVD CCA had argued that Pavlovich violated California’s law governing trade secrets by posting a copy of the DeCSS software on a Web site that he maintained as a student at Purdue University in Indiana.

The DVD CCA appealed that decision to the U.S. Supreme Court. Justice Sandra Day O’Connor initially issued a stay on the ruling, but ultimately sided with the California court.

Bunner was the only defendant to appeal the injunction on First Amendment grounds and a number of computer industry groups and other free speech advocates have filed “friend of the court” briefs in support of Bunner, including the Institute of Electrical Engineers, the Computer & Communications Industry Association and the American Civil Liberties Union, according to a statement issued by Bunner’s attorney.

At issue is not just the right of free speech, but also the free exchange of information and ideas in the pursuit of scientific knowledge and free competition, according to a statement released by Allonn Levy of the San Jose, California, law firm Hopkins & Carley, which is representing Bunner.

But an attorney representing the DVD CCA rejected those arguments, saying that the court has already ruled that DeCSS code was a protected trade secret and that the issue is whether injunctions in defense of intellectual property protections are violations of the First Amendment.

“This has nothing to do with DVDs or this particular technology or with how technology is distributed. (Bunner’s attorneys) are arguing that you can’t issue injunctions under First Amendment and we think that is contrary to the way laws have been interpreted for the past 200 years,” said Jeffrey Kessler, a partner in the New York office of Weil, Gotshal & Manges.

First Amendment protections are balanced to protect against the theft and distribution of intellectual property, Kessler said.

The DVD CCA is optimistic that the California Supreme Court will rule in its favor, but the organization will appeal to the U.S. Supreme Court should the decision go the other way, Kessler said.