In a battle that helped define the debate over intellectual property rights versus "free speech" on the Internet, a California state appeals court has lifted an injunction against the online posting of code that can be used to circumvent DVD piracy protections. Ruling that the publishing of such code represents free speech, the court dealt a severe blow to the movie industry and copyright holders of online materials.
In October 1999, a Norwegian teenager posted on the Internet a program called "DeCSS," which was designed to permit users of Linux operating systems to play DVD (digital versatile disc) movies on their computers. DeCSS immediately became a valuable tool for Internet pirates who illegally copy DVD movies and distribute them online.
Shortly after the DeCSS code was published, a lawsuit was filed in Santa Clara County Superior Court against 70 website operators and 500 unnamed people by the DVD Copy Control Association, a movie industry group that controls the rights to DVD encryption software known as "Content Scramble System" (CSS). It was abundantly clear, according to plaintiffs in the case, that DeCSS was specifically designed to circumvent CSS, and its online distribution violated California laws aimed at protecting trade secrets.
In January 2000, Superior Court Judge William Elfving granted plaintiffs a sweeping injunction forbidding the online posting of the code. According to Judge Elfving, unfettered access to information on the Internet does not give someone a license to steal or publish protected trade secrets.
On November 1, a three-judge panel of the 6th District Court of Appeals in San Jose overruled Elfvings decision, arguing that his order constituted "prior restraint" on free speech. "Although the social values of DeCSS may be questionable, it is nonetheless pure speech," according to the unanimous appeals court decision. "Our respect for the legislature and its enactment of the (trade secret law) cannot displace our duty to safeguard the rights guaranteed by the First Amendment."
Translation: Copyright holders, prepare to kiss your assets goodbye.
The appellate judges seem to think that the posting of circumvention code is the same as publishing other types of controversial speech. Wrong. The difference is that if we were to publish online a paper on why we believe Comcast cable rates are too high for the sea of drivel offered, we would be expressing a protected opinion. But if we were to publish the means to descramble Comcasts pay-per-view and premium programs in retaliation, we would be accomplices to theft.
DeCSS is not speech. Publishing DeCSS is not speech. The tools of crime, hardware or software, are the tools of crime. This program was developed and published for nihilists who want something for nothing. Period. That many of the proponents of such corruption of free speech principles are articulate attorneys and college professors adds to the confusion over, but not to the legitimacy of, their arguments. There are well observed limitations to free speech. As we have stated before, defending foundational boundaries is difficult enough without the added burden of those who argue free speech to get free ride.
The court ruling will almost certainly be appealed. Perhaps common sense and the rule of law will prevail in the higher courts. In a related case, a federal judge in New York last year issued a similar injunction against the posting of DeCSS on the Internet. That court understands that violating valuable trade secrets and copyrights under the guise of free speech rights could hold tremendously dangerous consequences for all artists and authors whose works appear online.
What is ironic is that the California appeals court seeks to protect free speech, and yet its decision, if allowed to stand, might well become the single greatest deterrent to artistic expression on the Internet.
November 7, 2001