Industry Looks for State High Court Review of DVD Hacker Ruling

SAN FRANCISCO – A trade organization that licenses encryption code to DVD hardware and disc manufacturers asked the state Supreme Court on Friday to review an appellate court decision that ruled the publishing of a hackers code is free speech.

The DVD Copy Control Association wants the state's high court to re-examine the trade secrets case it filed against Andrew Bunner and several other defendants in 1999.

The California Court of Appeals, 6th Appellate District in San Jose ruled earlier this year that Bunner's act of publishing online DVD decryption code known as DeCSS was a protected act by the First Amendment.

But the DVD CCA petitioned the state's high court to review that ruling, arguing the lower court applied First Amendment protections for computer code in a blunderbuss manner, wholly inconsistent with governing authority and the decision of numerous courts.

The trade association told the state Supreme Court that the three-judge panel failed to consider the predominantly functional nature of the DeCSS code, which allows users to circumvent the encryption on DVDs and make unlimited digital copies of the video. It also allows users to view it on computers running the Linux operating system.

In a similar case, the 2nd U.S. Circuit Court of Appeals in New York ruled unanimously Wednesday in favor of Hollywood studios seeking to force Eric Corley to stop publishing links to DeCSS on his Web site.

Because any trade secret can be communicated by expression, the Court of Appeals decision improperly eviscerates the only effective remedy historically available to protect a stolen trade secret, the DVD CCA said in its petition.

The California appellate court panel found that the DeCSS code was pure speech while the 2nd U.S. Circuit Court of Appeals in New York ruled Wednesday that the code contained both speech and non-speech components.

"These realities of what code is and what its normal functions are require a First Amendment analysis that treats code as combining non-speech and speech elements, i.e., functional and expressive elements," the New York appeals court ruling said.

Robin Gross, an attorney representing Bunner from the Electronic Frontier Foundation, says DeCSS is widely available in the public domain and it is unlikely any amount of litigation would put it back in the hacker bottle.

"I think all the lawsuits do is draw attention to the software they're trying to suppress, Gross said. "This is not a secret, and we cannot prevent the world from discussing things that are readily available to everyone."

DeCSS was concocted in 1999 by a Norwegian teen-ager and two other people he met over the Internet. The small program decrypts Content Scramble System, the encryption method used to control access to the underlying video content on DVDs.

The case is DVD Copy Control Association, Inc. v. Andrew Bunner, CV 86804.