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‘DeCSS’ DVD descrambler ruled legal

Miracle: Court grasps diff between source and object code

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The Copy Control Association (CCA), which was granted a preliminary injunction against Andrew Bunner and other Webmasters, was handed its head in a California appellate court Thursday.

The trial court had granted the injunction against publishing Jon Johansen's DeCSS DVD descrambler, but Brunner appealed on First Amendment free-speech grounds.

The CCA scoffed at the notion, claiming that the source code has a mere practical function and no expressive content.

The court saw it differently:

"Like the CSS decryption software, DeCSS is a writing composed of computer source code which describes an alternative method of decrypting CSS-encrypted DVDs. Regardless of who authored the program, DeCSS is a written expression of the author's ideas and information about decryption of DVDs without CSS. If the source code were compiled to create object code, we would agree that the resulting composition of zeroes and ones would not convey ideas.

"That the source code is capable of such compilation, however, does not destroy the expressive nature of the source code itself. Thus, we conclude that the trial court's preliminary injunction barring Bunner from disclosing DeCSS can fairly be characterized as a prohibition of pure speech."

And this, the court reminds us, is presumed unconstitutional unless proven otherwise, and of course the CCA offered no such proof:

"Prior restraints on pure speech are highly disfavored and presumptively unconstitutional. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241.) 'In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the [US] Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.'"

The conclusion was self-evident:

"We hold only that a preliminary injunction cannot be used to restrict Bunner from disclosing DeCSS. The order granting a preliminary injunction is reversed." And then, for a final twist of the knife, "Defendant Andrew Bunner shall recover his appellate costs."

Well done. Now break out those old Copyleft t-shirts and celebrate. ®

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