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DeCSS temporarily banned from the Net

But 'reverse engineering' angle may keep the jury out for a while

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Santa Clara County Judge William Elfving issued a preliminary injunction Friday barring Web sites from offering a DVD crack called DeCSS. The crack allows users to evade copyright protections on DVDs and save their contents to a hard disk. Last month the court denied the entertainment industry's "very broad request" for a temporary restraining order against sites offering DeCSS. In the revised ruling, Webmasters are enjoined from "posting or otherwise disclosing or distributing, on their Web-sites or elsewhere, the DeCSS program, the master keys or algorithms of the Content Scrambling System (CSS), or any other information derived from this proprietary information." Much to the disappointment of industry front group DVD Copy Control Association (the named plaintiff), the practice of linking to other Web sites where the crack might be found is to be allowed. "Such an order (would be) over-broad and extremely burdensome. A Web-site owner cannot be held responsible for all of the content of the sites to which it provides links," the judge noted. The judge also dismissed any notion that posting DeCSS on line has caused permanent harm to the industry. "The court is not persuaded that trade secret status should be deemed destroyed at this stage merely by the posting of the trade secret to the Internet," he wrote. But Elfving did remain sympathetic to the industry's main charge. "The plaintiff has shown that CSS is a piece of proprietary information which derived its independent economic value from not being generally known to the public," he found. The industry might just want to postpone any triumphal marches or other public displays of joyful victory, however, as Judge Elfving has clearly done his homework. "The evidence is fairly clear that the trade secret was obtained through reverse engineering," he writes. The Uniform Trade Secrets Act protects discovery by reverse engineering, that is, by starting with the known product and working backward to find the method by which it was developed. Therefore, reverse engineering can't be considered improper means unless the engineer in question was subject to the click-license which forces consumers into an agreement not to perform reverse engineering. Thus the industry case is "problematic at this pre-discovery stage," the judge noted. "Clearly they have no direct evidence at this point that [the defendant] did the reverse engineering, and that he did so after clicking on any license agreement." In a related case, New York District Judge Lewis Kaplan on Thursday granted a preliminary injunction against three defendants, Shawn Reimerdes, Eric Corley a.k.a. Emmanuel Goldstein, and Roman Kazan, sued by the Motion Picture Association of America, also for DeCSS distribution via the Internet. The defendants have been ordered to remove the offending software from their Web sites, but Judge Kaplan, like Judge Elfving, was unwilling to prohibit linking to other sites which might offer it for download. ® Plug of the day Drew Cullen writes: Copyleft, the legendary purveyor of geek chic (and maker of The Register's T-shirts), has added a DVD-CCA deCSS shirt to this season's collection. "Express your disapproval of the DVD CCA and support OpenDVD advocacy," Copyleft proclaims. "Just another way to spread the source code on your back. Find out information about it at OpenDVD.org." Four dollars from each T-shirt sale is donated to the EFF fighting fund.

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