Court says trade secrets are no free speech

A US court has ruled that it is not a violation of free speech rights to ban the publication of computer code used to copy...

A US court has ruled that it is not a violation of free speech rights to ban the publication of computer code used to copy DVDs.

However, the ruling only applies if the code is a trade secret. The California Supreme Court did not resolve that issue, instead accepting a trial court's earlier finding that the code does contain trade secrets.

The Supreme Court ruling reversed an appeals court ruling which found a ban on publishing the code to be unconstitutional.  [

California's high court is handing the case back to the Court of Appeal for the State of California, ordering the court to investigate whether the code is a trade secret.

The case centres on the publishing on the Web of DeCSS (De-Content Scrambling System) software by California resident Andrew Bunner. The DVD Copy Control Association (DVD CCA), representing motion picture and consumer electronics companies, filed suit against Bunner and other posters of the DeCSS code in December 1999. Bunner is the sole appellant in the case.

DeCSS allows users to access movies on DVDs which are protected by an encryption technology to prevent them from being copied, called the Content Scrambling System (CSS). DeCSS is widely available online.

The code was first published by Jon Johansen, a Norwegian teenager who is awaiting a retrial after being acquitted of all charges earlier this year.

In the California case, the trial court found that DeCSS contains trade secrets found in the CSS technology, and that those secrets should be protected by law, leading to the injunction against publishing DeCSS.

Bunner appealed and the appellate court overturned the decision, ruling that DeCSS was "pure speech" and that the trial court's ruling violated US free speech rights.

yesterday the Supreme Court of California reversed the appeals court's decision, stating that the First Amendment to the US Constitution "does not prohibit courts from incidentally enjoining speech to protect a legitimate property right".

Furthermore, the disclosure of computer code does not contribute to public debate, according to the ruling. "Disclosure of this highly technical information adds nothing to the public debate over the use of encryption software or the DVD industry's efforts to limit unauthorised copying of movies on DVDs."
The high court did not see "how any speech addressing a matter of public concern is inextricably intertwined with and somehow necessitates disclosure of DVD CCA's trade secrets".

San Francisco-based civil liberties group the Electronic Frontier Foundation, which is serving as co-counsel for Bunner, believes the appeals court will find that DeCSS is not a trade secret and that a publication ban is unnecessary.

The DVD CCA issued a statement saying it is "gratified" by the high court's affirmation that trade secrets are protected, and that free speech is "not a shield to allow thieves to distribute stolen intellectual property".

Johansen is accused of illegally obtaining the code by reverse engineering DVD player software.

Joris Evers writes for IDG News Service

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