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California Supremes issue DVD crack setback

Both Hollywood, EFF claim victory

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In the United Kingdom, cracked DVD players are widely available and openly advertised. In California it has just got harder to post cracks which allow copies of DVDs to be made to be posted the Internet.

The state's Supreme Court ruling [PDF, 244 kb] has ruled that lower courts may block the posting of the cracks.

The case pitted trade secrets (California has adopted the UTSA, or Uniform Trade Secrets Act) against a free speech defense. Hollywood used the UTSA to sue a San Francisco programmer Andrew Bunner for posting code written by Norwegian 'DVD Jon' Johansen, who was acquitted back in January, that cracked the CSS encryption scheme for DVDs. The DeCSS crack has been widely distributed.

While leaving the final decision for a lower court, the Californian Supremes assumed that Hollywood would prevail in having CSS declared as a trade secret. However the Supreme Court agreed with recent decision in upholding computer source code as protected speech.

"Our decision today is quite limited," they conclude. "We merely hold that the preliminary injunction does not violate the free speech clauses of the of the United States and California Constitutions, assuming the trial court properly issued the injunction [against Bunner] under the California's trade secrets law," they said, throwing it back to the Appellate Court.

Being lawyers, both sides hailed it as a victory. An attorney for Hollywood's DVD association the DVD CCA said that "Owners of trade secrets can now protect those trade secrets through injunctive relief, which is clearly now available.''

The EFF's legal director Cindy Cohn said in a statement, "The appeals court can now examine the movie industry's fiction that DeCSS is still a secret and that a publication ban is necessary to keep the information secret. DeCSS is obviously not a trade secret since it's available on thousands of websites, T-shirts, neckties,
and other media worldwide." ®

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