Code Distribution Ruled Free Speech

A California appeals court dealt a major blow to the movie industry’s effort to thwart DVD piracy, ruling that distributing a disc-copying program on the Internet is not illegal.

The three-judge panel found that because computer programs constitute a form of speech, they are protected by the 1st Amendment. The decision strikes down a preliminary injunction issued by a lower court.

“Although the social value of DeCSS may be questionable, it is nonetheless pure speech,” the panel wrote of the disc-copying program.

The DVD Copy Control Assn. Inc., the movie industry group that brought the suit, said it will appeal the decision. The injunction will remain in effect until the case is heard by the California Supreme Court.

“If this decision is upheld, it would be a disaster, not just for DVDs or the film industry but to the entire U.S. technology industry,” said Jeffrey L. Kessler, one of the lawyers representing the association.

Attorneys for both sides stressed that the 6th District appeals court’s decision, handed down Thursday evening, does not legalize pirating DVDs. But it does allow Internet users to distribute the program to others.

“All this says is you can’t stop people from sharing publicly available information,” said David Greene, a member of the legal team that opposed the movie industry’s suit. “The movie industry can still take legal action against people who use DeCSS. They can prosecute those violations under copyright law.”

The decision is a milestone in the murky debate about publishers’ control over digitized books, music and movies.

Although previous court rulings also have held that computer code is a protected form of speech, Thursday’s decision is one of the first that has gone against the movie industry, which in the last three years has won judicial support for its campaign to impose ever-stricter conditions on how consumers use digital material.

The case revolves around the complex system of technological locks built by the movie industry to prevent consumer copying of DVDs.

Studios largely tolerated consumers who copied videotapes because each copy was less perfect than the previous copy and consumers couldn’t mass-produce pirated tapes.

Information on DVDs, however, can be perfectly copied over and over. To prevent copying, the movie industry developed a system called CSS, which encrypted the information on a disc.

At least that was the plan. In 1999, a program called DeCSS, allegedly developed by a Norwegian computer programmer, appeared on the Internet. The program could break the encryption on DVDs.

Many Internet users, including the defendant, Andrew Bunner, found copies of the DeCSS program on the Internet and posted them on their Web sites.

The DVD Copy Control Assn. sued Bunner and dozens of others who had done the same thing.

The association argued that distributing the DeCSS program was illegal under California’s Uniform Trade Secrets Act, claiming that DeCSS was based on the industry’s secret encryption method. The association won a preliminary injunction in January 2000 barring distribution of DeCSS.

Bunner appealed the injunction, claiming that the 1st Amendment protected his right to distribute the software. He did not claim any right to use it to copy DVD movies, which would be a crime.

The appeals court agreed. “The California Legislature is free to enact laws to protect trade secrets, but these provisions must bow to the protections offered by the 1st Amendment,” the court ruled.

Kessler scoffed at the court’s reasoning. “Basically, the court held California’s trade secrets law unconstitutional,” he said.

Opponents of the movie industry’s efforts to restrict the distribution of DeCSS expressed relief about the outcome, though most were aware that the legal battle probably will drag on for years.

David S. Touretzy, principal scientist in the computer science department at Carnegie Mellon University, said the movie industry has tried to make it seem as if digital material is different from everything else, such as a book, a speech or Grandmother’s recipes, which are fully protected by the Constitution.

“If this were not overturned, it would be saying that there are categories of speech that aren’t fully protected,” he said. “This idea that you can distinguish between what’s computer code and what’s not is incomprehensible to a computer scientist. There isn’t any rational way to draw a line.”